FEDERAL COURT OF AUSTRALIA

[2001] FCA 1453

Booth v Bosworth & Bosworth

SUMMARY

In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the reasons for judgment delivered today.  The summary is intended to assist understanding of the decision of the Court.  It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions.  The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment.  The published reasons for judgment and this summary will be available on the Internet at www.fedcourt.gov.au.

In this proceeding Dr Booth (“the applicant”) applied to the Court for an injunction restraining the respondents from, in effect, killing Spectacled Flying Foxes on or near their lychee orchard at Dallachy Creek, Kennedy in the State of Queensland.

The respondents have a large lychee orchard which is approximately sixty hectares in area.  A series of fourteen aerial electric fences erected in a grid pattern (“the Grid”) has been constructed within their lychee orchard.  Each individual grid line consists of twenty horizontal wires, spaced 25cm apart, strung between poles 4.4m to 9.0m in height with the total length of the electric grids being 6.4km.  The admitted purpose for which the Grid is operated is to electrocute flying foxes that approach, fly between or depart from the respondents’ lychee orchard.

The respondents’ lychee orchard is in close proximity to the Wet Tropics World Heritage Area which is a listed property under the international Convention for the Protection of World Cultural and National Heritage (“the World Heritage Convention”).  The Environmental Protection and Biodiversity Conservation Act 1999 (Cth) has been enacted by the Australian Parliament for the purpose, amongst other purposes, of implementing Australia’s international obligations under the World Heritage Convention.

In the circumstances of this case, the power of the Court to grant an injunction of the kind sought by the applicant depends on the Court being satisfied, on the balance of probabilities, that the operation of the Grid has, or will have, or is likely to have, a significant impact on the world heritage values of the Wet Tropics World Heritage Area.

The applicant visited the respondents’ lychee orchard on four nights during the 2000-2001 lychee season.  On each night she counted the number of dead Spectacled Flying Foxes on and under the Grid.  The average number counted by her was 377 per night.  Evidence was given that, because the lychee season coincides with the peak of the birth and lactation period for Spectacled Flying Foxes, the effect of electrocution would have been greater than indicated by the counts of dead bats because of foetal deaths, abortion or injured females and the death of suckling young.

The respondents, who the Court assumed were in a position to give relevant evidence, did not give evidence with respect to the number, or the species, of the flying foxes killed in their lychee orchard.  Indeed, they chose not to give evidence in the proceeding at all.  In the circumstances the Court considered it appropriate to draw the inference that the evidence which the respondents could have given would not have been favourable to their case.

Assisted by expert evidence, and taking into account the failure of the respondents to give evidence, the Court concluded that it should be inferred from the applicant’s evidence that the counts conducted by her were representative of the number of Spectacled Flying Foxes killed in the lychee orchard on each night during the lychee season.  On this basis the Court concluded, on the balance of probabilities, that the number of female Spectacled Flying Foxes killed by the operation of the Grid during the 2000-2001 lychee season fell within the range of 9,900-10,800.

Further, the Court accepted expert evidence that the total Australian population of Spectacled Flying Foxes in early November 2000 did not exceed 100,000.  On that basis, the Court, again assisted by expert evidence, concluded that the probable impact of the operation of the Grid, if allowed to continue on an annual basis during future lychee seasons, will be to halve the Australian population of Spectacled Flying Foxes in less than five years.  Such an impact would be sufficient to render the species endangered within that time frame.

The Court was satisfied that the Spectacled Flying Fox contributes to the heritage values of the Wet Tropics World Heritage Area in two ways.  First, as part of the record of the mixing of the faunas of the Australian and Asian continental plates following their connection.  Secondly, as a species which contributes to the character of the Wet Tropics World Heritage Area as “one of the most significant regional ecosystems in the world” and as an important and significant natural habitat for in-situ conservation.  In the circumstances, the Court was satisfied that the action of the respondents in operating the Grid is an action that is likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area.

That is, the Court concluded that it had a discretion to grant the injunction sought by the applicant.  As the respondents did not give evidence, or otherwise place before the Court material touching on the profitability of the lychee orchard or their respective financial positions, the Court had very limited material before it capable of justifying the exercise of its discretion in favour of not granting the injunction sought.  However, the Court accepted that it is probably not economically feasible for the respondents immediately to protect their entire orchard with netting.  Evidence which supported the grant of the injunction was evidence of the national and international interest in the protection of the world heritage values of the Wet Tropics World Heritage Area.

The Court concluded that an injunction restraining the operation of the Grid should be made.  However, as the action of the respondents in operating the Grid constitutes a contravention of the Act only while there is no approval of the taking of the action by the respondents in operation under the Act, the injunction will be a conditional one.  The person authorised by the Act to grant such an approval is the Minister for the Environment.