Booth v Bosworth

[2000] FCA 1878

FEDERAL COURT OF AUSTRALIA

Booth v Bosworth [2000] FCA 1878

ENVIRONMENTAL LAW – where interim injunction sought pursuant to s 475(5) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) to restrain inter alia the electrocution of flying foxes on the respondent’s lychee farm – where respondent’s property adjacent to the Wet Tropics World Heritage Area – whether the respondent’s action has, will have, or is likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area – whether, on the balance of convenience in all the circumstances, an interim injunction should be granted.

Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 12, s 13, s 475(5), s 522B, s 523
Nature Conservation Act 1994 (Qld), s 88
Nature Conservation Regulation 1994, s 112(1)
Convention for the Protection of the World Cultural and Natural Heritage, Article 2

Castlemaine Tooheys v South Australia (1986) 161 CLR 148 - cited
Richardson v Forestry Commissioner (1988) 164 CLR 261 - cited

CAROL JEANETTE BOOTH v ROHAN BRIEN BOSWORTH

Q 163 of 2000

SPENDER J
BRISBANE
13 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND  DISTRICT REGISTRY	Q 163 OF 2000

BETWEEN:	CAROL JEANETTE BOOTH APPLICANT
AND:	ROHAN BRIEN BOSWORTH RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	13 DECEMBER 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application for interim injunction be refused.

2.The respondent’s costs of and incidental to the application be the respondent’s costs in the principal proceedings.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND  DISTRICT REGISTRY	Q 163 OF 2000

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

JUDGE:	SPENDER J
DATE:	13 DECEMBER 2000
PLACE:	BRISBANE

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…