Bob Brown Foundation’s push for Sustainable Timber Tasmania to cover their court costs backfires

The Bob Brown Foundation has backed in a dissenting Supreme Court judge’s comments describing Sustainable Timbers Tasmania’s conduct as “a deception” and “egregious”.

The Bob Brown Foundation has backed in a dissenting Supreme Court judge’s comments describing Sustainable Timbers Tasmania’s conduct as “a deception” and “egregious”.

The conservation charity lost their full court bid on Friday to have fees from a 2021 court case covered by Sustainable Timber Tasmania (STT).

The foundation must now fork out for extra costs amid the unsuccessful appeal.

STT last year refused access to their land for the Bob Brown Foundation’s Tarkine trail run fundraiser, but the non-profit won its battle to hold the marathon in March last year when it was discovered STT had no legal grounds for denying entry to the forestry land.

Acting Justice Brian Martin allowed each party to pay for their own court costs, but the Bob Brown Foundation appealed this decision and argued STT should pay both parties’ fees.

Bob Brown, of the Bob Brown Foundation. Picture: Nikki Davis-Jones.

The Bob Brown Foundation argued in its appeal STT’s “unreasonable” actions landed them in a court case that could have been avoided if the timber company had disclosed sooner that they had no legal authority to deny land entry.

The appeal was dismissed at the Supreme Court of Tasmania on Friday.

Justices Stephen Estcourt and Robert Pearce found the matter should be dismissed, but Justice Gregory Geason said in his judgment he would have upheld the appeal and would order STT to pay the Bob Brown Foundation’s legal fees.

“(STT) knew its stated position on the matter of access to the zone and the need for a permit was wrong; not arguable, but wrong,” Justice Geason said.

“(STT) remained steadfast in its deception on no defensible basis,” he said.

Bob Brown Foundation campaign manager Jenny Weber supported the comments from Justice Geason.

Bob Brown Foundation campaign manager Jenny Weber. Matthew Newton/The Australian

“We felt that it wasn’t fair that a government agency, who should be a public litigant and not drag us through the courts unnecessarily, did that,” she said.

Ms Weber said the foundation may have lost the appeal, but triumphed in the most important battle.

“Our win in the Supreme Court last year still stands,” she said.

“Our takayna trail ultra-marathon went ahead last year despite (STT) being persistent in trying to stymie that takayna trail, and this year we’re looking forward to 140 runners heading back out there into the Tarkine and running in our fabulous annual event.”

STT Conservation and Land Management general manager Suzette Weeding also drew positives from the situation.

“Sustainable Timber Tasmania is pleased with the decision made by the full court today who found in our favour and dismissed the appeal,” she said.

Justice Estcourt said it could not be established that STT made an error that warranted party/party or indemnity costs to be ordered.

Conservationists’ bid to have court costs dropped backfires

A Bob Brown Foundation court appeal arguing Sustainable Timber Tasmania should pay their costs for last year’s trail marathon legal battle has been dismissed.

Now the charity must cough up to cover the costs of their unsuccessful appeal.

The stoush began last year after the Bob Brown Foundation had planned to hold a marathon event in the Tarkine, only to have their entry permit denied by Sustainable Timber Tasmania (STT) who were operating a permanent timber production zone on the land.

The foundation took court action against STT some 12 months ago, claiming the forestry operator took away their right to access public land.

Bob Brown. Picture: Nikki Davis-Jones

STT chose not to give consent for the foundation to enter the land, saying the fundraiser would have raised money for protest activities obstructing forestry works.

In a directions hearing in February last year, the foundation discovered it could still legally hold its event without STT’s consent.

STT’s counsel said they had never indicated they had any legal power to quash the event in the first place, only that they did not give their consent.

STT sought to discontinue court proceedings at a hearing the following month.

The Bob Brown Foundation claimed STT “acted unreasonably and in breach of the guidelines” by forcing them to commence legal proceedings in order to gain land access.

Acting Justice Brian Martin found the case had been “finely balanced” and he made no order for either party’s court costs, leaving both parties to cover their own fees.

The foundation lodged an appeal with the full court, with it’s legal counsel arguing the acting judge should have made an order for indemnity costs.

They claimed STT’s “unreasonable” conduct resulted in the foundation paying unnecessary legal expenses, and argued STT should have made clear before the court action that their lack of consent was not legally enforceable.

But the full court handed down their decision dismissing the appeal on Friday.

Justice Stephen Estcourt then made an order that the Bob Brown Foundation “pay the respondent’s costs of and incidental to the appeal”.

Bob Brown, of the Bob Brown Foundation.

Justice Estcourt and Justice Robert Pearce said in the full court decision published on Friday they would dismiss the appeal, but Justice Gregory Geason would have upheld it and said STT should have covered the foundation’s court costs.

“ (STT) knew its stated position on the matter of access to the zone and the need for a permit was wrong; not arguable, but wrong,” Justice Geason said.

Justice Estcourt, however, said it could not be established that STT made an error warranting indemnity costs be ordered.

“The learned primary judge evaluated the circumstances of the case, and, while noting that there were some aspects of the respondent’s conduct which were ‘open to being viewed with disfavour’, he concluded that overall it did not behave unreasonably.”