Booth v Bosworth

REASONS FOR JUDGMENT 1 This is the hearing of an application by way of interlocutory relief for an interim injunction pursuant to s 475(5) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) seeking to restrain the respondent in the principal proceedings, Rohan Brien Bosworth, from causing, procuring or allowing the death or injury - whether by electrocution, shooting or otherwise - of flying foxes on or about the respondent's property at Lots 107 and 108, Crown Plan CWL652, Parish of Meunga, County of Cardwell in the State of Queensland, pending the Court's determination of the principal application. The principal application is for a prohibitory injunction and an order that Mr Bosworth dismantle the construction and devices on his property which have been used for killing flying foxes by electrocution. 2 I should say at the outset that, for the reasons which I will shortly now state, I decline to make an interim injunction under s 475(5). This is an interlocutory application, so my reasons will be quite short. It has to be understood that this application is not an application for final relief, and the evidence which is before me is both contentious and has not been tested by cross-examination. The fact that the Court has not granted an interim injunction should not be misunderstood as being in any way a rejection of the claims that the applicant makes in the principal proceedings. The object of interlocutory orders is, in a sense, to 'hold the fort' in the best or in the least bad way possible until the trial of the action, when the matter can be fully explored and the evidence tested. 3 What I am really asked to do by the present application for interim relief is to stop the use of electric grids on the lychee farm of Mr Bosworth for, at most, the next 14 days. The lychee harvesting season will conclude, according to Mr Bosworth's affidavit, within the next 12 to 14 days, and the grids will then not be used again until next year's season. The question for determination today is quite a different one from whether the use of the electric grids by Mr Bosworth generally over a season, or perhaps even over a longer period, is action which amounts to a contravention of s 12 of the Act. 4 Section 475 of the Act relevantly provides as follows: "(1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations: (a) the Minister; or (b) an interested person (other than an unincorporated organisation); or (c) a person acting on behalf of an unincorporated organisation that is an interested person; may apply to the Federal Court for an injunction. (2) If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of this Act or the regulations, the Court may grant an injunction restraining the person from engaging in the conduct. … (5) Before deciding an application for an injunction under this section, the Court may grant an interim injunction: (a) restraining a person from engaging in conduct; or (b) requiring a person to do an act. (6) For the purposes of an application for an injunction relating to conduct or proposed conduct, an individual is an interested person if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory, and: (a) the individual's interests have been, are or would be affected by the conduct or proposed conduct; or (b) the individual engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before: (i) the conduct; or (ii) in the case of proposed conduct - making the application for the injunction. …" 5 I am satisfied that the applicant, Dr Carol Jeanette Booth, has standing to bring the principal proceedings and this application for interim injunctive relief. It is apparent from the material that the applicant is concerned about the well-being of the flying fox population in the Wet Tropics World Heritage Area (the Heritage Area), as well as the well-being of the environment in the Heritage Area. It appears, from the evidence before me, that Dr Booth is currently employed as the Gulf Regional Policy Officer for the Worldwide Fund for Nature Australia and, in addition, does voluntary work for the North Queensland Conservation Council and is secretary of the Magnetic Island Nature Care Association. Amongst other activities she has cared for young flying foxes that have been orphaned, with the caring being directed at their return to the wild. I am satisfied that the requirements of s 475(6) of the Act are fulfilled and that the applicant has standing. 6 The flying foxes which are at the centre of this application are Spectacled Flying Foxes - Pteropus Conspicillatus. They are not listed as a threatened species under the Act. The question for determination here emerges from s 12 of the Act, which relevantly provides: "(1) A person must not take an action that: (a) has or will have a significant impact on the world heritage values of a declared World Heritage property; or (b) is likely to have a significant impact on the world heritage values of a declared World Heritage property. Civil penalty: (a) for an individual - 5,000 penalty units; (b) for a body corporate - 50,000 penalty units. (2) Subsection (1) does not apply to an action if: (a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or (b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or (c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or (d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process). (3) A property has world heritage values only if it contains natural heritage or cultural heritage. The world heritage values of the property are the natural heritage and cultural heritage contained in the property. (4) In this Act: cultural heritage has the meaninggiven by the World Heritage Convention. natural heritage has the meaning given by the World Heritage Convention." 7 Section 13 asks "What is a declared World Heritage property?", and provides as follows: "Properties on World Heritage List (1) A property included in the World Heritage List is a declared World Heritage property as long as the property is included in the List. Properties not yet on World Heritage List (2) A property specified in a declaration made under section 14 (with any amendments made under section 15) is a declared World Heritage property for the period for which the declaration is in force." 8 There was a suggestion by Mr Morris, the Queen's Counsel for the respondent, that s 522B had application, that being a transitional provision with the consequence that the Act does not apply to an action that was specifically authorised by a law of a State before the commencement of the Act. He also referred to s 523, and in particular subs 2, which provides inter alia that: "…a lawful continuation of a use of land … that was occurring immediately before the commencement of this Act is not an action" 9 Having regard to the provisions of s 88 of the Nature Conservation Act 1994 (Qld) and s 112(1) of the Nature Conservation Regulation 1994, I am not satisfied that those provisions are of assistance to the respondent on this application. 10 The central question in this application, which is likely also to be the central question in the principal proceedings, is whether the action by Mr Bosworth satisfies the elements of s 12 in that it has, will have, or is likely to have a significant impact on the World Heritage values of the Heritage Area. That is a question in respect of which I will have to turn, in a little detail, to the evidence before me. As I earlier indicated, however, for interlocutory purposes the action really amounts to whether I ought to proscribe the use of the electronic grids until the conclusion of the current season, with inevitable loss to Mr Bosworth which, in the event that he is successful in the trial, will be irretrievable; and whether the risk to the environment is such that, notwithstanding Mr Bosworth's circumstances, the public interest requires that he be enjoined from continuing to use the electronic grids. 11 This case is concerned with the "natural heritage" component of "world heritage values" within the meaning given by the Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention). Article 2 provides: "For the purposes of this Convention, the following shall be considered as 'natural heritage'; natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view; geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty." 12 The World Heritage Area here was inscribed on the World Heritage List in 1998 and remains on that list. The farm operated by Mr Bosworth is located a little north of the town of Kennedy, to the east of State Forest, and to the west of the Edmund Kennedy National Park. It is undoubtedly, I find, a matter of great public interest that the world heritage values of the World Heritage Area, and biodiversity generally in that area, are protected. Mason CJ, in Castlemaine Tooheys v South Australia (1986) 161 CLR 148, in refusing to grant an application for an interlocutory injunction, at 155 said about the balance of convenience test that: "It is a different matter where it is suggested that the proposed restraint on enforcement of the statute would occasion a significant detriment to the public interest by preventing the defendant from enforcing a legislative scheme which is designed to protect the environment from pollution by litter. Then the need to protect the private interests of the plaintiff must be weighed against the public interest in avoiding injury to the environment." 13 In Richardson v Forestry Commissioner (1988) 164 CLR 261, Sir Anthony stated at 275: "Despite statements that the plaintiff must show it is probable that the plaintiff will suffer irreparable injury if no injunction is granted (Clements and Marshall Pty Ltd v Field Peas Marketing Board (Tas) [(1947) 76 CLR 401 at 407]), in a case such as the present it is enough for the plaintiff to show that irreparable injury is a possibility in the sense stated. The object of the Act being to preserve intact that which may be a unique heritage, the possibility of injury is enough to sustain an interlocutory injunction by way of protecting the area in question, thereby preserving the subject-matter of the inquiry pending its completion at least." 14 The respondent conducts a lychee fruit and sugarcane farm on the land earlier set out in these reasons. His farm is approximately 160 hectares in size, upon which approximately 60 hectares is utilised as a lychee orchard. Since 1986 he swears that he has installed and maintained electric fences on the farm, and there now are 14 erected electric fences in a grid pattern, consisting of 20 vertical wires from 4.4 metres to 9 metres in height. The total length of the fences is 6.4 kilometres, and they cost, he says, approximately $98,000 to install. 15 The fences are operated during the lychee harvesting season only, and this year Mr Bosworth proposes to operate them from 2 November 2000 until the end of the harvest, which will be shortly prior to Christmas. The fences, he says, are electrified by utilising ordinary electric current from the main power source servicing the farm. They are turned on automatically in the evening and cease operating automatically at daylight. He says that there are 12 to 14 days remaining of the harvesting season, and that this year he expects a harvest of only 70 to 75 tonnes of fruit, compared to an average of above 250 tonnes. He says that his low harvest is attributable to the impact of flying fox raids, and that the loss attributable to those raids this year is in the vicinity of 100 to 120 tonnes. He says, further, that during the harvesting season the farm partnership employs up to 250 persons to assist with the harvest. 16 The evidence from the applicant is that, after a complaint from a member of the public regarding the killing of flying foxes on Mr Bosworth's farm in mid-November, she went to investigate that complaint on the evening of 22 November 2000. On that evening, she and a companion left the farm at about 7.40 pm, having seen about a dozen flying foxes already dead on the electric wires. Later that evening, she says she drove past the property and saw a spotlight beaming on an airborne flying fox and heard a gunshot. The following evening she went to the same grid wires she had previously seen. She counted 61 bodies on row 1 and 12 freshly dead bodies on the ground, and she found also a live juvenile flying fox, which she videotaped and took off the property. She left on that morning at 6.40 am. 17 She then had a conversation with a Jeremy Tager, co-ordinator of the North Queensland Conservation Council, who in turn spoke with an officer of the Queensland Parks and Wildlife Service. It appears that a "Damage Mitigation Permit" to take 500 spectacled flying foxes under the Nature Conservation Regulation 1994 (Qld) was then issued by an officer of the Queensland Parks and Wildlife Service to Mr Bosworth on 28 November. The evidence before me concerning the operation of the damage mitigation permit system is quite sparse, but I note amongst other things that the conditions of that permit require the permittee to inspect the grid on a daily basis, and requires the owner of the property to each morning ensure all flying foxes or birds are removed from the grid. Further, injured or juvenile flying foxes or birds must be transported to the nearest vet or wildlife carer for treatment or care, or the permittee may humanely dispose of the injured animals himself, and, importantly, "Return of Operations" is to be completed and returned to the issuing office within 14 days of 31 March, 30 June, 30 September and 31 December and within 28 days of the expiry. It may be that there is an obligation implicit in those conditions for a record to be kept of the animals taken pursuant to the permit. 18 In any event, Dr Booth and her companion returned to the property again on Tuesday 28 November, Wednesday 29 November and Sunday 3 December. The evidence of the applicant shows that there were extensive deaths of flying foxes as a result of the operation of the electric grids. I think it fair to set out Dr Booth's summary of the flying fox deaths which she counted or estimated by extrapolation from those that were counted:

19 It is apparent from those figures that the deaths of spectacled flying foxes on Mr Bosworth's farm were very extensive, and a matter of natural concern to those concerned with the well-being and welfare of the flying fox population adjacent to the World Heritage Area, and also to the environment as a consequence of the reduction in the population of flying foxes, having regard to their function as an element of that World Heritage Area. 20 It is that aspect of the matter which is highly contentious, and I want to refer only briefly to parts of the evidence from the experts who gave evidence via affidavit for each side. I should say that the expertise and professionalism of the experts on both sides was not challenged, and is very impressive. However, as will be apparent, a lot of the material is directed to the ultimate question to be determined at trial, and is not relevant to what is the appropriate order to make on the application for interim relief. 21 Mr Peter Valentine, Senior Lecturer in the Tropical Environment Studies and Geography at James Cook University, Townsville, deposed that: "Flying foxes …are known to be keystone species for tropical rainforests. Any loss of flying foxes may significantly reduce the successful dispersal and reproduction of plants which are an essential part of the ecological processes identified under criterion (ii) [of the Operational Guidelines for the implementation of the World Heritage Convention]". Further, he said: "Any significant loss of flying foxes within the World Heritage Area (or sufficient adjacent to it so that the population is part of the plant reproductive ecology) gives rise to serious concern for the possible destruction of world heritage attributes which form the outstanding universal value for which the site is listed and which Australia is committed to protect." Later, he said: "It is evident that a loss of significant numbers of flying foxes would give rise to concerns about potential loss of integrity of the Wet Tropics World Heritage Area. Any such loss of integrity would be cause for listing the property as World Heritage in Danger." Mr Valentine concluded: "Based on the affidavit of Mrs Booth, the link between the ecology of flying foxes and the ecological and conservation aspects of the Wet Tropics World Heritage Area, I believe that the situation described by Ms Booth poses a serious threat to the world heritage values of the Wet Tropics World Heritage Area." 22 Dr Leslie Hall, who is a Senior Lecturer at the Department of Veterinary Science, University of Queensland, referred in paragraph 9 of his affidavit to data authored by Messrs Steven Garnett and Oliver Whybird regarding the census of spectacled flying foxes in March and November 1998 and again in March and November 1999. 23 Dr Hall said: "It appears from this data that the Spectacled flying foxes have undergone a serious and recent rapid decline in numbers in an area from Cardwell to Bloomfield. That data presented in Garnett and Whybird's report indicates that the Spectacled flying fox should be immediately listed as a Critically Endangered species." He continued: "The reason or reasons for the dramatic decline in numbers of the Spectacled flying fox have not been precisely identified but several factors appear to be obvious contributors. The use of electric wire grids at orchards" - and I note the plurality of that observation - "with a lethal current for flying foxes is a major reason, as shown in the affidavit of Carol Booth to which I have referred. Shooting at orchards and habitat loss will also contribute to the decline in numbers. However not all possible contributing causes of the dramatic decline in numbers of the Spectacled flying fox are due to human impacts. For instance, Spectacled flying foxes suffer high mortality from tick infestations." And later, he said: "Notwithstanding possible natural contributing factors, it is my opinion that if the numbers of the Spectacled flying foxes being killed by electric grids at orchards continues at the present rate, that the Spectacled flying fox population will be reduced to such low numbers that they could be threatened with extinction." Dr Hall concluded by saying: "I also believe that if the culling of Spectacled flying foxes at orchards continues at the rate shown by Carol Booth in her affidavit, that it will have a serious long term impact on the health of the forests in the Wet Tropics World Heritage Area." 24 The final affidavit filed on behalf of the applicant that I should make reference to is that of Mr Gregory Richards. He has a very impressive curriculum vitae, which reveals a career focus on Australian flying foxes. However, so far as directly relevant to the present problem, it is sufficient to refer to his comments at paragraphs 19 and 20 of his affidavit where he said: "It is my professional opinion that the extent of the reduction in numbers of the Spectacled Flying Fox in the WTWHA and its periphery, as stated in affidavits presented to this Court, is significant enough to have already impacted upon rainforest ecosystem function in the WTWHA, particularly in the implied reduction in effective seed dispersal and the consequent regeneration and survival of tree species that bear light-coloured fruit." Later, in paragraph 20, he said: "It is my professional opinion that if it is proven in this court that any component of the dramatic reduction in the population of the Spectacled Flying Fox is attributable to culling in orchards within the distributional range of the species, then this impact should cease, and non-destructive options should be used instead." 25 For the respondents, equally impressive expert evidence has been presented. Dr Chris Tideman, a Senior Lecturer in Wildlife Conservation and Management at the Australian National University, having referred to the affidavits of Dr Booth, the census report of Garnett and Whybird and the affidavits of Mr Valentine, Dr Hall and Mr Richards, said that his knowledge of the population of spectacled flying foxes in the World Heritage Area was confined to the information contained in the Garnett and Whybird report, and commented in that respect: "The report, as is acknowledged by the authors ("We have little data to support any of these explanations"), is essentially inconclusive until such time as replicate counts have been undertaken under comparable environmental conditions. Counting flying-foxes is a very recent phenomenon in Australia and the detail of such variation and the factors that control it are still very poorly known." Importantly, he later said: "The scientific basis for asserting that culling of flying-foxes by the respondent is likely to result in a serious long term impact on the health of the forests of the WTWHA is very poor." 26 Dr Tideman then presented some factors in support of that conclusion. He urged the conducting of a census by the Garnett and Whybird process, but repeated over time to encompass variability in dispersion patterns. He referred to the possibility of alternative measures of deterring flying foxes from crops, such as drape netting and full-enclosure netting, but indicated that there are real cost penalties involved with them and that there is a doubt as to whether they could be viable. 27 Also presented for the respondent was evidence by Mr Francis Fanning, who is a biologist with an extensive curriculum vitae. The crux of his opinion was expressed in paragraph 8 of his affidavit: "It is my opinion, on the basis of the information I have seen, that there are no scientifically valid or verifiable estimates of the population size or total abundance of the Spectacled Flying Fox Pteropus Conspicillatus. Both the paper by Garnett, Whybird and Spencer (1999) and a report attached to the Affidavit of Leslie Hall (prepared by Garnett and Whybird) contain, and indeed acknowledge, substantial and significant constraints in the population estimates presented." He continued: Nor does the current evidence provide the necessary scientifically valid basis for concluding that there has been a dramatic reduction in the population of the Spectacled Flying Fox. In the absence of clear evidence for a dramatic or significant reduction in the population of the Spectacled Flying Fox, it cannot validly be asserted that the conduct of activities at the lychee orchard at Kennedy 'has, will have or is likely to have a significant impact' on the Wet Tropics World Heritage Area." He then specified what he says would be what is required to determine whether there is a connection between the activities in the orchard and any relevant reduction in the flying fox population: s "the capture and radio-tracking of Spectacled Flying Foxes from the orchard back to their camps; s identification of the home range of Flying Foxes visiting the orchard; s indication of the total number of Flying Foxes within the foraging range of the species from the orchard; and s a properly devised and implemented population study of the Spectacled Flying Fox throughout its range to determine the proportion of the population relevant to the subject orchard." 28 Dr Tideman's opinion continued: "Because of the lack of scientifically valid studies and data regarding the population size (either local or total) of the Spectacled Flying Fox, it is not possible to make verifiable statements regarding: s The size or significance of any real or alleged decline in the population of the Spectacled Flying Fox; s The contribution of mortalities on the subject orchard at Kennedy to any such population decline (if such decline is occurring or has occurred); or s The relevance of any such decline in population of the Spectacled Flying Fox (if such decline is occurring) to the viability of the Wet Tropics World Heritage Area or to its World Heritage values. As a consequence, it cannot be asserted that the mortality of Spectacled Flying Foxes on the subject orchard 'has, will have or is likely to have a significant impact' upon that World Heritage Area. Indeed, it is extremely unlikely that the activities on the subject orchard would impose 'a significant impact' on the Wet Tropics World Heritage Area." He concluded by saying, however, that: "Notwithstanding the above considerations regarding the relevance of mortalities on the subject orchard at Kennedy to the population size or population viability of the Spectacled Flying Fox, it is my professional opinion as a biologist that alternative and non-lethal means of preventing or limiting the impacts of Spectacled Flying Foxes on orchards should be pursued and implemented." 29 There is, of course, evidence on which one could cavil with Dr Tideman's conclusion that it cannot be asserted that the mortality of spectacled flying foxes on the subject orchard has, will have or is likely to have a significant impact upon the World Heritage Area, having regard to the extent of flying fox deaths identified in Dr Booth's affidavit as having occurred as a result of the operation of the electric grids. Sufficient appears from my reference to the scientific evidence to indicate that there is a great deal of contention as to the contribution, if any, that the killing of flying foxes on Mr Bosworth's farm has had to a decline in the numbers of spectacled flying foxes in and adjacent to the World Heritage Area, if there is such a decline, and as to whether there has been any significant impact on the world heritage values of the World Heritage Area as a consequence. 30 Those matters are obviously of great importance, but are more properly to be answered at the trial. On the question of an interim injunction, having regard to the lack of commonality as to the factual position, to the number of evenings likely to be left in the harvesting season on the respondent's farm, and also to the fact that if an injunction were to be granted the respondent would suffer loss which he would be unable to recover should he succeed at the final trial, it seems to me that, on a consideration of how best to balance the competing interests, I should decline to make an interim injunction. I order that the respondent's costs in relation to the application be the respondent's costs in the principal proceedings. 31 As I said at the outset, however, my conclusion here does not in any way prejudge what may be shown to be the position at the trial. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

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