FEDERAL COURT OF AUSTRALIA

Bosworth v Booth [2004] FCA 1623

Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 5(2), 5(4), 5(5), 475

Nature Conservation Act 1992 (Qld), ss 112, 160(5)(e)

The Constitution, s 51(xxxi)

Booth v Bosworth (2001) 114 FCR 39 cited

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 followed

ROHAN BRIEN BOSWORTH v CAROL JEANETTE BOOTH

QUD 218 OF 2004

KIEFEL J

BRISBANE

3 DECEMBER 2004

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs to be taxed on an indemnity basis, including any reserved costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The applicant operates a lychee fruit and sugar cane farm in North Queensland.  On 8 December 2000 the respondent in these proceedings filed an application seeking an injunction under s 475 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) to restrain the applicant and his mother from ‘causing ... the death or injury, whether by electrocution, shooting or otherwise, of flying foxes’ on his farm.The statement of claim alleged that they had constructed and operated electric grids to that end.  It was alleged that his actions would have a significant impact on world heritage values, in contravention of the EPBC Act and were not authorised by the Act or any other law.  The defence claimed that the operation of the electric grid was authorised under s 112 of the Nature Conservation Act 1992 (Qld) (‘Nature Conservation Act’).  This was perhaps meant to be a reference to the Nature Conservation Regulation 1994 (Qld).

2                     The matter was heard by Branson J, who delivered judgment on 17 October 2001 (Booth v Bosworth (2001) 114 FCR 39).  At issue was the contribution of the particular breed of flying foxes to the Wet Tropics World Heritage Area and the actions of the applicant and his mother in particular as to whether they would have a significant impact on the world heritage values of that area.  These questions arise under the EPBC Act. Although the operation of the Queensland legislation was raised, the applicant and his mother did not contend that the EPBC Act had no application to the case.  Her Honour granted an injunction, conditional on the operation of the electric grids not being otherwise authorised by the Minister under the EPBC Act.  No appeal was lodged from that decision.

3                     On 3 November 2004 the applicant filed an application on behalf of his deceased mother seeking orders dissolving the injunction and a declaration that:

            ‘… Section 51 Placitum xxxi Australian Constitution prohibits the Parliament of the Commonwealth from exercising jurisdiction over private land, alienated from the Crown.’

4                     I have ordered that the mother’s name be removed from the proceedings.  There is no evidence that the action is brought by her estate.

5                     The respondent applies to have the proceedings dismissed on the grounds that no reasonable cause of action is disclosed, the proceeding is frivolous and an abuse of process of the Court.  On the hearing of the application the respondent relied principally upon the latter ground.

6                     There is no basis for an order dissolving the injunction.  An affidavit filed in support of the application states that the injunction should be dissolved because the applicant is entitled to a new trial.  This is so, it is said, because the original applicant, who is the respondent in these proceedings, was not cross-examined by counsel at the trial before her Honour. It is not said how this is relevant to the matter sought to be raised in the new trial, namely whether freehold land is excluded from the jurisdiction or power of the Commonwealth in some way. In any event the fact that a right of cross-examination is not exercised provides no basis for a new trial, nor is an application to a single judge of this Court the procedure by which that could be considered.  An appeal would be required, and the time for the bringing of that appeal has long since expired. 

7                     The applicant in submissions at the hearing made a further and different point.  It was that the barrister appearing for the applicant and his mother, who were respondents in the original proceedings, was incompetent because he did not raise the issues concerning the Constitution which are now sought to be raised.  In my view there were good reasons for counsel not raising these matters. As I am about to discuss, they are without merit. 

8                     No basis for a new trial is shown, nor has the process to obtain one been undertaken.  That seems to be the simple answer to the application brought, but I add that the matters sought to be agitated would not be permitted to be raised at this time, and they do not have any prospects of success. 

9                     Plainly any alleged lack of application of the EPBC Act was a matter which could have been raised in the proceedings before her Honour.  In those circumstances, the Courts will not permit a party to bring further proceedings: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 598-602.  Further, the provision of the Constitution relied upon would not seem applicable because there is no acquisition of property by the Commonwealth involved. 

10                  The head of power in relation to world heritage areas is, as the respondent points out, section 51 placitum xxxi.  Sub-sections 5(2) and (4) of the EPBC Act apply the Act to all acts and persons within the Australian jurisdiction, which is defined by sub-section 5(5) to include land in Australia.  There is no exception for any type of land tenure. 

11                  The further reference in the affidavit filed for the applicant discloses another mistaken view.  It states that s 160(5) of the Nature Conservation Act requires that an offence be committed in a specified protected area.  The point was not taken up on the hearing and it may be that it is not relied upon.  In any event it has no application. The section is not in the terms alleged and the statute has no relevance to an injunction under the EPBC Act.

12                  The proceedings ought not to have been brought.  They are doomed to failure.

13                  In relation to the question of costs, I have some concerns that the applicant in this case is not being properly advised.  This is not a matter that I would normally mention, but the submissions made in this matter are of such a nature to raise my concerns as to the advice he is receiving, not only from his legal advisers, but from an unqualified person who appears to be assuming some such role. Much of the argument in the case is difficult to understand. These matters, however, are relevant to the question of whether or not I would order costs against a third party rather than the applicant himself.  There is no material before me to show that he has been entirely misled or that he does not understand the process that is being undertaken on his behalf.

14                  At the first directions hearing the applicant was put on notice, both by the respondent and by the Court, of the difficulties attendant in his case.  He has elected to proceed despite these warnings. I will make an order that the applicant in the proceedings pay the respondent's costs on an indemnity basis, including reserved costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated:              3 December 2004

Counsel for the Applicant:         Mr D Fitzgibbon

Counsel for the Respondent:     Mr C McGrath

Solicitor for the Respondent:     Environmental Defenders Office (Qld) Inc

Date of Hearing:                       3 December 2004

Date of Judgment:                     3 December 2004