Booth v. Yardley

[2006] QPEC 116

[2006] QPEC 116

THE PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E Application No BD2845 of 2006

CAROL JEANETTE BOOTH	Applicant
and
RICHARD GEORGE YARDLEY	First Respondent

and

ANTJE GESINA YARDLEY                 Second Respondent

BRISBANE

..DATE 03/11/2006

ORDER

HIS HONOUR:  This is an application in pending proceedings

pursuant to section 173E of the Nature Conservation Act 1992.

The orders which I am asked to make today are interim

enforcement orders. 

Pursuant to section 173E the Court may make such an order

pending decision of a proceeding for an enforcement order, if

the Court is satisfied it would be appropriate to make the

order.  However, while the Court may make the order subject to

conditions, it may not require, as a condition of the order,

any undertaking for damages, and none is offered.

The primary proceeding is for an enforcement order.  Such

proceedings are permitted to be brought pursuant to section

173D, which provides that a person may bring a proceeding in

the Court for an order to remedy or restrain the commission of

a nominated offence.

The expression "Court" and the expression "nominated offence"

are defined in section 173A. "Court", for the purposes of

these provisions, means the Planning and Environment Court.

It may be noted that whilst, as the agent for the respondents

pointed out, the Planning and Environment Court is created

pursuant to the Integrated Planning Act, its jurisdiction

pursuant to section 4.1.2 of that Act is the jurisdiction

given to it under any Act.

The making of an enforcement order is subject to section 173A,

which permits a Court to make an enforcement order if it is

satisfied the nominated offence is being, or has been,

committed, or will be committed unless the enforcement order

is made.

In this case it is suggested that the Court will ultimately

have the power to make an enforcement order because it will be

satisfied that a nominated offence, namely an offence pursuant

to section 88 of the Nature Conservation Act, has been

committed in the past and will be committed unless an

enforcement order is made.

Section 88 of the Nature Conservation Act places restrictions

on taking a protected animal.  In particular, in this case it

is contended that an offence has been, and a further offence

will be, committed, in the absence of any restraint, by reason

of the respondents' use of electrical grids to prevent flying

foxes from feeding on the crop of lychees on their farm.

In determining whether it is appropriate to make such an

order, it is relevant to have regard to all relevant matters,

including the extent to which the applicant has shown that

there is a prima facie case in the primary proceeding and the

balance of convenience.

Those concepts have, of course, been discussed on several

occasions in the context of interlocutory injunctions

generally.  In a recent decision of the High Court in

Australian Broadcasting Corporation v. O'Neill (2006) HCA 46,

the Court has again reviewed the principles, particularly in

relation to the dichotomy between the establishment of a prima

facie case and the raising of a serious question to be tried.

An examination of the judgments shows some convergence between

those notions.

In the joint judgment of Gleeson and Creenan JJ, approving

reference was made to the analysis of Gummow and Hayne JJ, who

endorsed the prima facie case formulation from the earlier

decision of the High Court in Beecham Group Ltd v. Bristol

Laboratories Pty Ltd (1968) 118 CLR 618.

They added, however, at paragraph 65 as follows:

"By using the phrase 'prima facie case', their Honours
     did not mean that the plaintiff must show that it is more
     probable than not that at trial the plaintiff will
     succeed; it is sufficient that the plaintiff show a
     sufficient likelihood of success to justify in the
     circumstances the preservation of the status quo pending
     the trial.  That this was the sense in which the Court
     was referring to the notion of a prima facie case is
     apparent from an observation to that effect made by Kitto
     J in the course of argument.  With reference to the first
     inquiry, the Court continued, in a statement of central
     importance for this appeal:

'How strong the probability needs to be depends, no
        doubt, upon the nature of the rights [the
        plaintiff] asserts and the practical consequences
        likely to flow from the order he seeks.'

...

When Beecham and American Cyanamid are read with an

understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force.  There is then no objection to the use of the phrase 'serious question' if it is understood as conveying the notion that the seriousness of the question, like the strength of the

probability referred to in Beecham, depends upon the
   considerations emphasised in Beecham."

It has already been observed that, in order to succeed in the

primary proceeding, the applicants will need to satisfy the

Court that the nominated offence has been committed, or will

be committed unless the enforcement order is made.  Where the

Court is so satisfied, an order may be made of the type in

section 173G. Those orders may direct a party to stop or not

to start an activity, amongst other things.

Section 173H makes it clear that an order which requires

someone to stop or not start an activity may be exercised whether or not it appears the person intends to engage or continue to engage in the activity.  It seems to me that power is one which refers to the activity the subject of the order in section 173G. The primary conditions to the making of an order under section 173F remain.

In terms of the nominated offence, it is the offence under

section 88, which currently provides, in part, as follows:

"88.  Restrictions on taking protected animal and keeping

or use of unlawfully taken protected animal

(1) This section -

(a) is subject to section 93; and
       (b) does not apply to the taking of protected
           animals in a protected area.

(2) A person must not take a protected animal unless the
     person is an authorised person or the taking is
     authorised under this Act.

...

(3) It is a defence to a charge of taking a protected
     animal in contravention of subsection (1) to prove that -

(a)  the taking happened in the course of a lawful
            activity that was not directed towards the
            taking; and

(b) the taking could not have the been reasonably
            avoided.

..."

Section 93 relates to aborigines and Torres Strait Islanders.

The evidence before me suggests that the respondents are not

aborigines or Torres Strait Islanders exercising their rights,

and nothing to the contrary was contended.

Similarly there is no suggestion that the taking, in this

case, is in a protected area.  The expression "protected area"

is one of defined meaning under the Act.  There is evidence,

sworn on information and belief, that the relevant land is not

within a protected area and indeed that is common ground.  In

fact the agent, who represented the respondents, relied upon

the fact that it is not in a protected area to support one of

the arguments with which I will deal later.

The prohibition in subsection 2 on the taking of the animal is

subject to the qualification that the person is not an

authorised person, or his taking is not authorised under the

Act.  Again it was a matter of common ground between the

parties that the respondents are not authorised people, nor

was their taking authorised under any permit or the like under

the Act.

The material shows that, at earlier points in time, the

respondents did have some limited authority, to take flying

foxes.  The most recent of those authorities was one which was

valid from 27 November 2003 to 4 February 2004, which

permitted the taking of 45 Spectacled flying foxes by means of

shooting only.  The conditions of that permit prohibited the

use of lethal electric grids.  At an earlier time the

respondents had an authority to use the grids to take 100

animals, but the licensing position has obviously changed.

It appears plain therefore, that, on the face of the

legislation, the respondents were required not to take a

protected animal.  The expression "take" is itself defined for

the purposes of the Act in Schedule 10 to mean in relation to

an animal:

"(i) hunt, shoot, wound, kill, skin, poison, net, snare,
     spear, trap, catch, dredge for, bringing ashore or aboard
     a boat, pursue, lure, injure or harm the animal; or

(ii) attempt to do an act mentioned in subparagraph (i)

..."

In this case it is contended that the respondents committed an

offence under section 88(2) and will, unless restrained,

commit a further offence under that section by the use of the

electric grids in a way which would kill, injure or harm

flying foxes which come into contact with them.

A flying fox is a protected animal within the meaning of the

section.  A protected animal is defined by reference to

animals of certain classes as prescribed for the purposes of

the Act.  The relevant regulations make it clear that the

flying fox, as a mammal, falls within a category of protected

animal under the Act at present.  That position applied at all

material times, although the categories have changed over

time.

In support of her case that the electric grids result in the

taking of the flying foxes, the applicant relies upon two

categories of material.  The first is material which

establishes that there are grids erected on the property and

that the grids are of a kind which would cause death or injury

to bats which come into contact with them.  That evidence is

provided, in particular, by a combination of the evidence of

Dr Booth as to the existence of the grids, Mr Joy as to the

nature of those grids and Dr Spencer as to their effects.

In addition to that, the applicant relies upon evidence of

admissions by Mr Yardley.  The material filed on behalf of the

applicant referred to a number of different admissions said to

have been made in the media, however, evidence has only been

called, in this application, to positively establish that Mr

Yardley was the person who made the remarks reported in one of

those instances.  That related to a radio interview which

included the following passages:

"Q3:"So since the State government said you're not allowed to use the electric grids have you actually used them?"

Answer: 

"Yes, last - not this last year but the year

before we used our electric grids, we took out - or
     killed 700 bats in the electric grids.  Another year
     before that by the time we got a damaged mitigation
     permit, which now we know we don't have to get, the bats
     had eaten our crop right out because they took too long
     to give us that.  The year before that we took out 400 in
     our electric grids and it's quite humane, it just kills
     them very quickly."

Q4"It's a lot of bats though?"

Answer:

"I know and that's why when we started off - we have a
very small electric grid system for the size farm we have and we are prepared to lose five to 10 per cent to bats and that's all we were losing to start off till the Government made us turn them off and we've become a foodline for the bats now and we need - we have to now build more electric grids to take out or to kill more bats because we've become a foodline, before we weren't."

...

Q6"And that's when you decided to keep using the grids?"

Answer:

"Well, we wrote letters and never got them answered from
     the Minister, Director-General and the Premier and we
     decided that seeing as they don't answer the letters then
     they mustn't have any objection to using the grid, so we
     just turned the grid back on."

...

Q 11 "Are you concerned about the State Government taking you
     to Court?"

Answer: 

"Definitely not."

Q 12 "You believe you'd win a Court case?

Answer:

"Yes..."

The interview was conducted on the 17th of January 2006.

The respondents did not read any affidavit material in this

application which attempted to dispute that they intend to

kill or injure flying foxes by use of the grids.  Before the

proceedings commenced the applicant's solicitor wrote a letter

of demand which did not produce any undertaking not to use the

grids, and indeed, in the course of these proceedings, the

agent for the respondents made it clear that they would not

give any such undertaking.

It seems, at least on the material before me at this stage,

that there is a relatively strong prima facie case that the

applicant will be able to establish, at the final hearing,

that the respondents have committed an offence or will, unless

an enforcement order is made, commit an offence pursuant to

section 88. Certainly, the material in relation to that is

sufficient to conclude, at this point for the purposes of a

consideration of an interim enforcement order, that the

prospects are sufficient to justify the preservation of the

flying foxes pending trial subject, of course, to a

consideration of other relevant factors, including the balance

of convenience.

The agent for the respondents pointed to the defence which is

provided for in subsection 3.  The defence says that it is a

defence "to prove" the matters referred to in (a) and

(b).  It seems to me that implicitly carries with it the

requirement that it is a defence to be established by the

respondents in relation to any contravention.

The respondents, as I have noted, have not placed any material

before the Court to attempt directly to establish that such a

defence exists.  In fact, the only material they relied upon

this morning was material which went to an admissibility

point, upon which I have already ruled.  Leaving that to one

side, however, their prospects of establishing such a defence

appear, at this stage, to be insufficient to change the

conclusion which I have already expressed in relation to the

sufficiency of the prospects in terms of justifying interim

relief of the type which is sought here.

The question of the defence in relation to subsection 3 has

recently been the subject of a decision of the Court of Appeal

in a matter of Booth v. Frippery Pty Ltd & Others [2006] QCA

74.  That case involved the use of grids, some of which were

nonlethal.  Those who used the grids successfully argued at

first instance that the defence was available because the

activity of using the grids was directed towards the

protection of the crop rather than the taking of the protected

animals.

The leading judgment was written by McMurdo J who said as

follows:

"In my view the intended effect of s 88(3), and
     its counterpart in s 89(3), is to provide a defence
     where the taking of a protected animal, or a protected
     plant, was unintended and in the course of the
     defendant's activity, was not reasonably avoidable.  The
     relevant distinction is that employed by the criminal law
     between intent and motive.  If a defendant intended that
     the activity should result in the taking of a protected
     animal, the defence is not available, regardless of
     the motive by which the defendant was induced to form
     that intention.

That is not to accept either of the arguments
     respectively advanced by the appellants.  In this
     provision the notion of probable consequence is not
     employed.  The words 'directed towards the taking'
     require a consideration of the defendant's actual
     thinking and of what was or was not the consequence which
     the defendant meant the activity to have.  So the
     submission for the Chief Executive that the defence is
     not available if the respondents knew that the operation
     of the grids might kill, injure or harm flying foxes
     should not be accepted.  That submission, if accepted,
     could unfairly deny a defence in many cases.  For
     example, a person driving on a country road at night
     might know that his or her car could kill or injure
     wildlife.  As Explanatory Notes made clear, this
     provision was inserted to provide a defence, additional
to those provided under the Criminal Code, for people who
     'may incidentally or unintendedly take wildlife while
     carrying out legitimate activities.'"

....

"To return then to the facts of this case, the defence
     would be available only if the respondents had firstly
     proved that the operation of the grids was not intended
     to result in the taking, i.e. the killing, injuring or
     harming of a flying fox..."

In this case the evidence that the respondents have installed

and maintained, on their property, an electric grid system of

a kind designed to be fatal to flying foxes and the evidence

of the admissions made in the course of the interview, suggest

that the activity of protecting their crop by the use of

electric grids was directed towards the taking of the flying

foxes. 

The applicant made it clear that there are other aspects of

the defence which she would be contending were also not made out, in particular whether the use of a grid system could, in

any event, be characterised as a "lawful activity" and whether

subsection b was satisfied, in the sense that the taking, that

is the injuring, harming or killing, could have been

reasonably avoided by the use of some other means of crop

protection.  It is unnecessary for me to go into the details

of those.  It is sufficient for me to record the view that I

have already stated, that a sufficient prima facie case has

been demonstrated on the material to warrant the making of an

order, subject to other relevant considerations, particularly

the balance of convenience.

Before I pass to the balance of convenience, however, I should

record that the agent for the respondents contended that

section 88 was simply inapplicable to the respondents. That

argument seemed to be put forward on at least two bases.  The

first was the contention that the Nature Conservation Act,

insofar as it affected people with freehold property, was

beyond the jurisdictional competence of the Queensland

Parliament.  I have already dealt with that submission in the

context of my ruling on the admissibility of evidence earlier

in the day.

For the reasons which I gave I do not consider that argument

to be sustainable.

It was also contended that section 88 is only directed towards

people with land within a protected area.  It was pointed out

in this respect that the regulations place restrictions on

granting permits, and in doing so make a reference to the term

"land holder" which is defined, in the schedule to the Nature

Conservation Act, by reference to reserved land under the land

Act, leased land under the Land Act, or in some circumstances

land under the Aboriginal Land Act. What the point misses,

however, is that the definition in the schedule is an

inclusive definition, not an exclusive one.

Section 88 is found in part 5 of the Act dealing with wildlife

and habitat conservation, not in part 4 of the Act which deals

with protected areas.

There is nothing on the face of section 88 which, to my mind,

limits its operation to protected areas, indeed quite to the

contrary.  Subsection 1(b) states that the section does not

apply to the taking of protected animals in a protected area.

Allied to these submissions was a submission to the effect

that such a provision could not operate in respect of animals

which had passed into the ownership of the respondents.

In this respect I note that section 83 provides that all

protected animals are the property of the State, subject to

the exceptions that are referred to in the statute.  I see no

proper basis for reading section 83 down so that it refers

only to animals in protected areas.

In any event, I see no reason why the State could not, as it

has purported to do in section 88, prohibit persons from

taking protected animals subject to the statutory provisos set

out in that section.

Turning to the balance of convenience, this, of course, is not

a case where one is balancing the inconvenience to one party

against inconvenience to another party.  Inconvenience to the

respondents is, of course, a relevant consideration, but what

that is to be balanced with, in this case, is the effect on

wildlife, in particular the flying foxes which, without the

benefit of an interim enforcement order, may be taken in the

period between now and when the matter is determined.

That balancing exercise will, of course, not always be one

which is particularly straightforward.  In this case it is

true that the species, with which we are concerned, currently

only enjoy the status "of least concern" in accordance with

the regulations, that the area of the electric gridding is

relatively small compared to that involved in other cases, and

that it is difficult to know, in advance, how many bats might

be affected if an order is not made or what the particular

impact upon their community might be.

It must be recognised, however, that the conservation status

of a specie, as being of least concern, does not mean either

that it is not protected or that it is not important.  The

affidavit material, particularly that of Dr Booth, and also

that of Dr Spencer, attest to the important function which

flying foxes play in the environment.

What is evident too is that the period of the year within

which we have entered upon, is a period when the flying foxes

become subject to contact with the grids, because it coincides

with the period when the crops are most attractive to them.

Further the flying foxes are in the period of their

cycle where they are giving birth or have given birth and the

young are still dependent on their mothers.

It might be observed also that, if one is to take any

indication from the admissions made by the male respondent in

the radio interview, the grids on the subject site have the

capacity to impact on a not insignificant number of bats, and

indeed many more than he has ever been licensed to take either

by way of the grids or by way of shooting.

It seems to me that there is much to be said for the

proposition that the bats should be preserved from death or

injury until such time as the primary proceedings can be

determined.  I note the overall object of the Nature

Conservation Act, which is the conservation of nature. 

That is not to say, however, that in every case the balance of

convenience would necessarily fall on the side of the

preservation of wildlife.  One must, of course, have regard to

the matters of inconvenience which are competing.  It must be

remembered that the final proceedings are not being determined

today and there is at least the possibility that any detriment

to be suffered by the respondents, by reason of the order,

will be found to be detriment to which they should not have

been put, if they are vindicated in the ultimate hearing of

the matter.

However, it is difficult to put much weight on that factor in

this case when the respondents chose not to rely, for the

hearing of this application, on any material which went to the

details of the extent of damage which could be expected or

the financial consequences thereof.

It seems to also be a case where, if an order is made then

it ought not be in place for a lengthy period of time,

since this seems to be a matter which could be got to trial

relatively quickly from this point.  However, I have also

borne in mind that we are in the middle of a period in which

the fruit is subject to attack from the bats and even a short

period of time may have adverse consequences for the

respondents and, of course, any loss they suffer will not

be remedied, in the absence of the undertaking as to damages.

Having regard to all of the factors including the extent to

which a prima facie case has been established and the strength

of that, the likely harm to the bats which, in this case,

would be a matter of, it would seem, death rather than simply

some lower degree of harm, the absence of any detailed

information to verify the extent of potential inconvenience

and loss to the respondents, it seems to me that this is an

appropriate case for the making of an order.

Before making an order, however, I should traverse a number of

other matters which were referred to in the argument.

One concerned the identity of the applicant.  The Act has open

standing provisions, which permit a person to bring these

proceedings.  As the Court of Appeal pointed out in NRMCA v.

Andrew, that does not mean that the identity of the applicant

and whether they have a legitimate interest will be

irrelevant, in all circumstances, to the exercise of

discretion as to whether or not to grant a remedy.  However,

the material amply satisfies me that Dr Booth has a proper

interest in the matter, not in a personal financial sense, but

in her concern for the matters of conservation in relation

to the bats, which is consistent with the purpose of the Act

and I see no basis to refuse to grant relief as a matter of

discretion, based on any perceived lack of interest or lack of

proper interest on her behalf.

It was submitted by the agent for the respondents that a

constitutional issue arose and, in particular, an issue

of the kind discussed in Kable v. the Director of Public

Prosecutions for the State of New South Wales (1996) 189 CLR

51.  The contention appears to be that, investing this Court

with the jurisdiction which I am asked to exercise today, has

the effect of compromising the institutional integrity of this

Court.  Kable's case has, of course, been subject to further

analysis including in Farndon v. Attorney-General for the

State of Queensland [2004] HCA 46.

When the matter was raised notice was given to the various

Attorneys-General pursuant to section 78B of the Judiciary

Act.  Of course, notice does not necessarily have to be given

whenever anybody asserts that there is a constitutional point,

no matter how unarguable it might be.  Nevertheless, despite

submissions at the time that there was demonstrably nothing in

the point, I decided to take the cautious approach of ensuring

that the Attorneys-General had reasonable notice of the

matter.  So the original hearing date was adjourned.  Notice

has been given. Responses have been received from all bar one

Attorney-General.  The Act does not require that the Court

awaits receipt of all responses.  The requirement is for a

reasonable time to elapse.  In my view a reasonable time has

elapsed.  In any event, I note that pursuant to section 78B

the Court is not prevented from proceeding in any event in relation to: "the grant of urgent relief of an interlocutory nature where the court thinks it is necessary in the interest of justice to do so."

The question of an interim enforcement order, in this case,

being by way of interlocutory relief, has a degree of urgency

given the time of year and the prospect of imminent taking of

bats if the grid is used at this time of year.

Ultimately I do not consider that the argument based upon

Kable's case is sustainable.  As the High Court made clear in

Farndon's case, Kable was quite an exceptional set of

circumstances in which the Supreme Court of New South Wales

was purportedly invested with a power to imprison a particular

person, without trial or conviction, upon forming the view

that the person was more likely than not to commit a "serious

act of violence."

As McHugh J pointed out in Farndon's case, it was the terms,

background and parliamentary history of the legislation

which gave rise to the perception that the Supreme Court of

that State might be acting in conjunction with the New South

Wales parliament and the executive government, to keep Mr

Kable imprisoned.  The facts of this case are, of course, very

different.

We are not dealing with provisions which lead to

imprisonment.  They are not specific to a particular person.  

There is nothing about the terms, background or parliamentary

history to the Nature Conservation Act which could give rise

to the perception of which McHugh J spoke.

There is nothing about the Act which, in my view, would

compromise the integrity of the Court.  The process which is

followed in considering such applications is an ordinary

judicial process and, indeed, it is somewhat akin to an

injunctive remedy which is, of course, a familiar remedy for

courts to be concerned with.

I had earlier dealt with the contentions, by the agent for the

respondents, in relation to the validity of the Nature

Conservation Act.  There were a number of other contentions

contained in his outlines of argument.  I do not consider that

any of them are sustainable.  I should mention some.

It was contended that the Nature Conservation Act does not

bind the respondents because they are not the subject of any

voluntary conservation agreement under the Act.  That is,

however, irrelevant to section 88.

Some issue was sought to be taken, in the submissions, about

whether the Environmental Defender's Organisation is properly

using funds to support this type of litigation, but the

funding of that office is not a matter which goes to the

standing of the applicant in these proceedings, or is relevant

to whether relief should be granted or not.

Reference was made to treaties, particularly the

intergovernmental agreement on the environment, however, I

fail to see how a consideration of those documents affects the

conclusions I have come to in respect to section 88 of the

Nature Conservation Act.

Some point seemed to be made, in the submissions, about the

fact that section 88 is a section which creates an offence,

whereas this proceeding is a civil matter of an enforcement

order. The fact that section 88 is a section which creates an

offence does not mean that it is necessary for there to be a

conviction under that section before proceedings for an

enforcement order or an interim enforcement order can be

brought, nor is it an abuse of the processes of the Court to

bring such proceedings in the absence of a prosecution.  Even

if criminal proceedings were on foot and unresolved it would

still not necessarily be improper to have parallel proceedings

for enforcement orders or interim enforcement orders (see

Environmental Protection Agency v. Hudson Timber Products Ltd

& Ors [2005] QPEC 69).

There are other matters contained in the written outlines,

which are somewhat diffuse at times.  There is nothing in

anything which the agent for the respondents raised which

dissuades me from the view that it is both legally competent

for me to make an interim enforcement order and it is

appropriate in the circumstances to do so.

...

HIS HONOUR:  I order that, pending a decision of the

proceedings for an enforcement order, or other earlier order

varying or discharging this order, and unless and until the

respondents have obtained an authority under the Nature

Conservation Act to take flying foxes by the use of the

electric grid on their property at Hosking Road, Mirriwinni,

being land described as Lot 1 RP712412 County of Nares, Parish

of Bellenden Ker, the respondents stop and/or not start

electrocuting flying foxes by the use of the grid system on

that property and forthwith disconnect the electricity supply

from the grid system and not reconnect it during the currency

of this order.

I give the parties liberty to apply if there is a difficulty

with respect to the order.

...

HIS HONOUR:  I will direct:

(1) inspection be completed by Wednesday, the 8th of
     November.  Inspection may be completed by the parties
     faxing copies of documents to each other;

(2) that, on or before Friday, the 10th of November the
     applicant deliver her points of contention together with
     copies of any further reports of experts proposed to be
     called at trial; copies of statements of any lay

witnesses other than those appearing by subpoena and a list of the names of all witnesses proposed to be called,

including those to be subpoenaed;

(3) that by the 17th of November the respondents deliver
     their response to the points of contention to the
     applicant together with copies of reports of any experts
     proposed to be called at trial, copies of statements of
     any lay witnesses, other than those proposed to be
     subpoenaed, and a list of the names of all witnesses
     proposed to be called, including those to be subpoenaed.

I set the matter down for hearing in Brisbane for three days

commencing the 21st of November 2006.

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