Booth v Bosworth

[2001] FCA 1453

Booth v Bosworth [2001] FCA 1453
Environment Protection - Evidence
(Includes corrigendum dated 22 November 2001)

FEDERAL COURT OF AUSTRALIA

Booth v Bosworth [2001] FCA 1453

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.

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…