Booth v Bosworth

[2001] FCA 1278

FEDERAL COURT OF AUSTRALIA

Booth v Bosworth & Anor [2001] FCA 1278

CAROL JEANETTE BOOTH v ROHAN BRIEN BOSWORTH & ANOR
Q 163 of 2001

BRANSON J
BRISBANE
20 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	Q 163 of 2001

BETWEEN:	CAROL JEANETTE BOOTH APPLICANT
AND:	ROHAN BRIEN BOSWORTH & ANOR RESPONDENT

JUDGE:	BRANSON J
DATE:	20 JULY 2001
PLACE:	BRISBANE

REASONS FOR DECISION

INTRODUCTION

1. This proceeding has been brought by the applicant under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“the Act”). The applicant seeks, in effect, an injunction restraining the respondents from causing the death of spectacled flying foxes on their property in the county of Cardwell, Queensland. It is an essential element of the applicant’s cause of action that the respondents have engaged, engage, or propose to engage, in conduct that has, or will have, or is likely to have, a significant impact on the world heritage values of a declared World Heritage property (ss 12 and 475 of the Act).

2. At the close of the applicant’s case, the respondents indicated that they wish to submit that they had no case to answer on the basis that the applicant had failed to adduce any evidence that the relevant action of the respondents has, or will have, or is likely to have a significant impact on the World Heritage values of the only relevant World Heritage property, namely the Wet Tropics World Heritage Area.

3. Having regard to the restricted nature of the proposed submission, that is, that it was concerned with one element only of the applicant’s cause of action, and that the submission would not involve the Court in evaluating the evidence called by the applicant, but only in determining whether there was any evidence as to an essential element in the cause of action, I exercise my discretion in favour of entertaining the respondent’s submission.  I did not consider that the fact that the respondents had tendered an exhibit in the course of cross-examination of witnesses called by the applicant, had any relevance to the exercise of my discretion (Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216 (“Rasomen”) at 224 to 225). In view of the nature of the submission proposed to be put on behalf of the respondents I did not consider it either necessary or appropriate to put the respondents to their election not to call evidence should the submission be entertained (Rasomen at 223-225).

4. For the purposes of the present application, the respondents do not, as I understand it, dispute that the spectacled flying fox is part of the biodiversity of the Wet Tropics World Heritage Area.  Nor do I understand the respondents to dispute for the purposes of the present application that the spectacled flying fox is an agent of seed dispersal, and to a lesser extent pollination, in the Wet Tropics World Heritage Area.

5. While s 80 of the Evidence Act 1995 (Cth) now allows an expert to express an opinion about a fact in issue or an ultimate issue, it remains a matter for the determination of the Court whether the evidence establishes, on the balance of probabilities (as to which see s 140 of the Evidence Act) that the action of the respondents of which the applicant complains has, or will have, or is likely to have, a significant impact on the World Heritage values of the Wet Tropics World Heritage Area.

6. As I have already mentioned, on this application I am not called upon to evaluate the evidence that has been called to date. The question for my determination is whether there is any evidence before me capable of supporting the plea that the respondent’s action has, or will have, or is likely to have, the significant impact of which section 12(1) of the Act speaks. I am not satisfied that, if the evidence before me is taken at its highest, in the sense of its most favourable so far as the applicant’s case is concerned, that the Court could not be satisfied that the relevant conduct of the respondents has, or will have, or is likely to have, a significant impact on the World Heritage values of the Wet Tropics World Heritage Area.

7. This is, of course, to say nothing, one way or the other, as to the view that I may take of the effect of the whole of the evidence when I am required to consider and evaluate it after the close of the respondent’s case.  For these reasons, the submission that the respondent has no case to answer is rejected.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:  16 August 2001

Counsel for the Applicant:	Dr T Christie with Mr C McGrath
Counsel for the Respondent:	Mr A Morris QC with Mr N Cochrane
Solicitor for the Applicant:	Environmental Defenders Office
Solicitor for the Respondent:	Barwicks
Date of Hearing:	18, 19, 20 July 2001
Date of Judgment:	20 July 2001