Booth v Frippery P/L

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.