Booth v Frippery Pty Ltd

[2007] QPEC 99

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Booth v Frippery Pty Ltd & Ors [2007] QPEC 99

PARTIES:

CAROL JEANETTE BOOTH

Applicant

v

FRIPPERY PTY LTD
(ACN 010 890 007)

First Respondent

and

MERVYN MEYER THOMAS

Second Respondent

and

PAMELA ANN THOMAS

Third Respondent

FILE NO/S:

BD 4658 of 2004

DIVISION:

Original jurisdiction

PROCEEDING:

Application for enforcement orders under Nature Conservation Act 1992

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

14 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

12, 13, 14 September 2007, written submissions received 12 October 2007 (Respondents), 19 October 2007 (Applicant’s reply)

JUDGE:

Robin QC DCJ

ORDER:

Orders as per paragraphs 1 and 2 of application (amended)

CATCHWORDS:

 Nature Conservation Act 1992 s 88, s 162, s 173D, s 173F – application by private citizen for enforcement orders based on alleged offence(s) of taking a protected animal – taking includes “kill, injure or harm” – respondent company operated electrified grids developed by its director (second respondent) to protect its lychee crops from black flying foxes – original grids intended to be lethal, current versions contended to be non-lethal – finding that “taking” nevertheless occurs – whether defence that taking happened in the course of a lawful activity “not directed towards the taking” was made out – whether certain evidence was unlawfully obtained – if so, whether it should be excluded.

COUNSEL:

C McGrath for Applicant
D Fitzgibbon for Respondents

SOLICITORS:

Environmental Defender’s Office (Qld) Inc for Applicant
Waters Timms for Respondents

1. Dr Booth applied to the court on 20 December 2004 for the following orders:

“1.That the First Respondent, Second Respondent and Third Respondent be restrained from the commission of offences against sections 88 and 162 of the Nature Conservation Act 1992 by electrocuting and/or shooting Black Flying Foxes (Pteropus alecto) at 376 Volk Road, Mutarnee, being land described as Lot 85 on CWL 1576, County of Cardwell, Parish of Waterview, in the State of Queensland, unless authorised in accordance with section 88 of the Nature Conservation Act 1992.

2.That within 3 months of the date of this order, the First Respondent, Second Respondent and Third Respondent, and/or their employees or agents dismantle any electric grid system constructed for the purpose of electrocuting Black Flying Foxes (Pteropus alecto) at 376 Volk Road, Mutarnee, being land described as Lot 85 on CWL 1576, County of Cardwell, Parish of Waterview, in the State of Queensland unless the taking of Black Flying Foxes by electrocution using such an electric grid is specifically authorised under section 88 of the Nature Conservation Act 1992.

3.That the First Respondent, Second Respondent and Third Respondent remedy, as close as practicable, the commission of offences against sections 88 and 162 of the Nature Conservation Act 1992 by electrocuting and/or shooting Black Flying Foxes (Pteropus alecto) on or about November and December 2004 at 376 Volk Road, Mutarnee, being land described as Lot 85 on CWL 1576, County of Cardwell, Parish of Waterview, in the State of Queensland,…