Booth v Frippery P/L - [2006] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

Booth v Frippery P/L & Ors [2006] QCA 74

PARTIES:

CAROL JEANETTE BOOTH
(applicant/appellant)
JAMES ANTHONY PURTILL
(appellant)
v

FRIPPERY PTY LTD ACN 010 890 007

(first respondent)
MERVYN MEYER THOMAS
(second respondent)
PAMELA ANN THOMAS

(third respondent)

FILE NO/S:

Appeal No 9268 of 2005

P & E Appeal No 4658 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Planning and Environment Appeal

ORIGINATING COURT:

Planning and Environment Court at Townsville

DELIVERED ON:

17 March 2006

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2006

JUDGES:

Williams JA, Holmes and McMurdo JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal allowed
2. The proceeding remitted to the Planning and
     Environment Court for rehearing
3. The respondents are to pay the costs of the
     applicant/appellant (Carol Jeanette Booth) of the
     application for leave to appeal and the appeal
4. The Chief Executive is to pay the costs of the
     respondents incurred in consequence of his
     application and joinder
5. The respondents should be indemnified from the
     Appeal Costs Fund for costs payable to the
     applicant/appellant (Carol Jeanette Booth)

CATCHWORDS:

ANIMALS – VARIOUS STATUTORY PROVISIONS – PROTECTION OF FAUNA AND GAME LAWS – OFFENCES – QUEENSLAND – TAKING OR KEEPING FAUNA – where the respondents sought to keep flying foxes away from their lychee orchard using an electric grid system – where earlier versions of the electric grids had caused the death of flying foxes – where the applicant/appellant argued that the operation of the grids contravened s 88 of the Nature Conservation Act 1992 (Qld) – where the applicant/appellant brought proceedings in the Planning and Environment Court seeking orders to restrain the use of the electric grids – where the lower court dismissed the application – where limited leave to appeal was granted in relation to the proper interpretation of s 88(3) of the Nature Conservation Act 1992 (Qld) – whether the words in s 88(3)(a) “not directed towards the taking” should be interpreted to provide a defence where the taking of a protected animal was unintended or unintentional

APPEAL COSTS FUND – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – WHEN GRANTED – where the appeal involved the interpretation of s 88(3) of the Nature Conservation Act 1992 – where the interpretation of this section has not been the subject of any previous decision of this court – where the interpretation of s 88(3) does not precisely accord with any of the respective arguments – whether it is appropriate that the respondents be indemnified from the Appeal Costs Fund for costs payable to the applicant/appellant

Animal Care and Protection Act 2001 (Qld), s 51
Criminal CodeAct 1899 (Qld), s 23(3)
Integrated Planning Act 1997 (Qld), s 4.1.56
Nature Conservation Act 1992 (Qld), s 4, s 5, s 7, s 73, s 88, s 88(1), s 88(2), s 88(3), s 88(3)(a), s 89, s 89(3), s 162, s 173D, s 173D(4) s 173F, s 173G

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Booth v Frippery P/L

Details

AGLC: Booth v Frippery P/L [2006] QCA 74
Case: [2006] QCA 74
Decision Date: 17 March 2006

CaseChat Overview and Summary

Carol Jeanette Booth brought proceedings against Frippery P/L, contesting the use of electric grids by the respondents to keep flying foxes away from their lychee orchard. The grids had previously caused the death of flying foxes, leading Ms Booth to argue that the operation of the grids contravened section 88 of the Nature Conservation Act 1992 (Qld). This matter was heard in the Queensland Court of Appeal, with the lower court having dismissed Ms Booth's application. The appeal before the Court was limited to the interpretation of section 88(3) of the Act, specifically whether the words “not directed towards the taking” in section 88(3)(a) should be interpreted to provide a defence when the taking of a protected animal was unintended or unintentional.

The Court found that the interpretation of section 88(3) had not been the subject of any previous decision in this Court and did not precisely accord with any of the arguments presented. The Court held that the interpretation of this section was a matter of considerable importance and uncertainty, and thus, the appeal was allowed. The proceeding was remitted to the Planning and Environment Court for rehearing. Additionally, the Court considered the general principles concerning the grant or refusal of appeal costs and determined that it was appropriate for the respondents to be indemnified from the Appeal Costs Fund for costs payable to Ms Booth. The Chief Executive was also to pay the costs of the respondents incurred in consequence of his application and joinder.

Orders

Orders of the court

1. Appeal allowed

2. The proceeding remitted to the Planning and

Environment Court for rehearing

3. The respondents are to pay the costs of the

applicant/appellant (Carol Jeanette Booth) of the

application for leave to appeal and the appeal

4. The Chief Executive is to pay the costs of the

respondents incurred in consequence of his

application and joinder

5. The respondents should be indemnified from the

Appeal Costs Fund for costs payable to the

applicant/appellant (Carol Jeanette Booth)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Booth v Frippery P/L & Ors [2006] QCA 74
PARTIES:	CAROL JEANETTE BOOTH (applicant/appellant) JAMES ANTHONY PURTILL (appellant) v FRIPPERY PTY LTD ACN 010 890 007 (first respondent) MERVYN MEYER THOMAS (second respondent) PAMELA ANN THOMAS (third respondent)
FILE NO/S:	Appeal No 9268 of 2005 P & E Appeal No 4658 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Planning and Environment Appeal
ORIGINATING COURT:	Planning and Environment Court at Townsville
DELIVERED ON:	17 March 2006
DELIVERED AT:	Brisbane
HEARING DATE:	27 February 2006
JUDGES:	Williams JA, Holmes and McMurdo JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal allowed 2. The proceeding remitted to the Planning and Environment Court for rehearing 3. The respondents are to pay the costs of the applicant/appellant (Carol Jeanette Booth) of the application for leave to appeal and the appeal 4. The Chief Executive is to pay the costs of the respondents incurred in consequence of his application and joinder 5. The respondents should be indemnified from the Appeal Costs Fund for costs payable to the applicant/appellant (Carol Jeanette Booth)
CATCHWORDS:	ANIMALS – VARIOUS STATUTORY PROVISIONS – PROTECTION OF FAUNA AND GAME LAWS – OFFENCES – QUEENSLAND – TAKING OR KEEPING FAUNA – where the respondents sought to keep flying foxes away from their lychee orchard using an electric grid system – where earlier versions of the electric grids had caused the death of flying foxes – where the applicant/appellant argued that the operation of the grids contravened s 88 of the Nature Conservation Act 1992 (Qld) – where the applicant/appellant brought proceedings in the Planning and Environment Court seeking orders to restrain the use of the electric grids – where the lower court dismissed the application – where limited leave to appeal was granted in relation to the proper interpretation of s 88(3) of the Nature Conservation Act 1992 (Qld) – whether the words in s 88(3)(a) “not directed towards the taking” should be interpreted to provide a defence where the taking of a protected animal was unintended or unintentional APPEAL COSTS FUND – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – WHEN GRANTED – where the appeal involved the interpretation of s 88(3) of the Nature Conservation Act 1992 – where the interpretation of this section has not been the subject of any previous decision of this court – where the interpretation of s 88(3) does not precisely accord with any of the respective arguments – whether it is appropriate that the respondents be indemnified from the Appeal Costs Fund for costs payable to the applicant/appellant Animal Care and Protection Act 2001 (Qld), s 51 Criminal CodeAct 1899 (Qld), s 23(3) Integrated Planning Act 1997 (Qld), s 4.1.56 Nature Conservation Act 1992 (Qld), s 4, s 5, s 7, s 73, s 88, s 88(1), s 88(2), s 88(3), s 88(3)(a), s 89, s 89(3), s 162, s 173D, s 173D(4) s 173F, s 173G