Jones v State of Queensland [FCA] 2001 756

[2001] FCA 756

FEDERAL COURT OF AUSTRALIA

Jones v State of Queensland [FCA] 2001 756

JOHN DALUNGDALEE JONES AS ELDEST OF THE DALUNGBARA PEOPLE AND REPRESENTATIVE OF THE NGULUNGBARA PEOPLE OF FRASER ISLAND, QUEENSLAND v STATE OF QUEENSLAND
Q 89 OF 2001

DRUMMOND J
15 JUNE 2001
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 89 OF 2001

BETWEEN:	JOHN DALUNGDALEE JONES AS ELDEST OF THE DALUNGBARA PEOPLE AND REPRESENTATIVE OF THE NGULUNGBARA PEOPLE OF FRASER ISLAND, QUEENSLAND APPLICANT
AND:	STATE OF QUEENSLAND RESPONDENT

JUDGE:	DRUMMOND J
DATE OF ORDER:	15 JUNE 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The notice of motion be dismissed.

2.The costs of and incidental to the present application be reserved.

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 89 OF 2001

BETWEEN:	JOHN DALUNGDALEE JONES AS ELDEST OF THE DALUNGBARA PEOPLE AND REPRESENTATIVE OF THE NGULUNGBARA PEOPLE OF FRASER ISLAND, QUEENSLAND APPLICANT
AND:	STATE OF QUEENSLAND RESPONDENT

JUDGE:	DRUMMOND J
DATE:	15 JUNE 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. Mr Jones renews the application for an interlocutory injunction to stop the killing of dingoes on Fraser Island that he and another first brought before the Court on 4 May last.  On that occasion, Dowsett J refused to grant relief.  The position then was that, in the immediate wake of a fatal attack by a dingo on a child on the island, the State Government implemented a culling program designed to destroy dingoes that were identified as habituated to human contact, whether or not they also exhibited signs of aggressiveness towards humans.

2. There has long been in place a procedure on Fraser Island for destroying dingoes that behave aggressively towards humans.  Recently, in a government press release, the State Environment Minister was quoted as saying that the culling of aggressive dingoes has been a standard operational procedure for some years and would continue in conjunction with what he described as the new practice of repelling dingoes adopted after the fatal attack.  So far as this particular longstanding procedure is concerned, Mr Jones himself accepts that it is appropriate, saying:

   “We support the principle that rogue dogs and dingoes should be put down.”

3. No question arises as to the continued application of that particular procedure.

4. The proceedings today, as they were before Dowsett J, are based on the proposition that an injunction is necessary to prevent a threatened breach of s 12 the Environment Protection and Biodiversity Conservation Act 1999 (Cth). In refusing the injunction, Dowsett J observed:

   “I must make it clear that this decision is based upon the Government program as it has been explained to me; that is, that there is no intention of culling more than thirty animals, that instructions have been given to that effect and that the program will finish tomorrow evening.  If circumstances change, then the rationale for this particular decision will no longer exist, and the applicants will be at liberty to seek further relief.”

5. As his Honour has already pointed out, in order to justify the grant of interlocutory relief on this occasion when similar relief has already been refused, it is necessary for Mr Jones to show a change in relevant circumstances.  In no sense are the present proceedings by way of reconsideration of Dowsett J’s decision.

6. The evidence before his Honour on 4 May 2001 was that, as at the afternoon of 4 May, some seventeen dingoes had been killed under the special cull program that I have referred to.  Mr Speirs, the Director, Parks and Wildlife Management, Queensland Parks and Wildlife Service, in evidence before his Honour said this.

   “Q…:  Could you speak further to how this number of up to 30 has been derived and what criteria are intended to be applied in the current program?"

   A…:  Yes.  Your Honour, the situation is that up until the incident, the aggressive behaviour was the critical criterion for destroying dingoes, but with this recent incident, it was recognised that habituated animals that are frequently within camping grounds, town areas and other populated areas posed a previously, I guess, unrecognised risk.  And so what we have done is use the local knowledge of our staff there and in fact brought back a previous senior ranger to supervise the process to identify which animals are the ones which could cause a similar incident as the one which occurred on Monday last.”

7. And a little later in his evidence, he testified to the numbers that had then been killed, to the intention of the State authorities to kill further dingoes in the cull, but to limit the total cull to thirty.  According to Mr Speirs’ sworn evidence before me today, he says that in fact a total of twenty-eight dingoes were destroyed in the cull to which I have been referred, which was completed, he says, as indicated in his evidence to Dowsett J, on the afternoon of 5 May.

8. He says that, apart from this culling program completed on 5 May, the only other dingoes that have been destroyed are three in number which were put down in accordance with the longstanding procedure for dealing with aggressive or dangerous animals, to which I have referred.

9. Mr Jones has put before the Court a body of testimony relied on by him to suggest that a more extensive culling program than that deposed to by Mr Speirs on 4 May, which he now says ended on 5 May, has, in fact, been implemented and continues to be carried into effect.

10. This submission is based upon the evidence from witnesses, some of whom are entitled to be regarded as reliable observers, of what they have said they have seen, particularly in relation to dingo numbers on the island, in very recent times.  Their evidence does suggest that the dingo population of the island may, and I emphasise the word “may”, be significantly smaller than the evidence before Dowsett J indicated to be the case.

11. But I do not accept that this body of testimony shows, even to the limited level of cogency required for present purposes, that a more extensive cull of dingoes on the island is in progress than that which was described to Dowsett J.

12. I should, however, refer particularly to the evidence from three of the witnesses relied on by Mr Jones, Mr Gala and Mr Little first of all.  They deposed to having found, very recently, two headless dingo carcasses on the island.  Mr Gala says that one of the corpses looked about three weeks old.  He’s speaking about the occasion he went to the island on 6 June 2001.  A second carcass was found a little distance away, also headless, that he says could have been there longer than the first body.  Mr Little gave confirmatory evidence.  He estimated, from the state of the first carcass, that it could probably have been killed about two to three weeks before 6 June and, of the second carcass, he said it had probably been there over the time at the end of last month.

13. Ms Skippington, who is the Regional Service Director, Southern Region, Queensland Parks and Wildlife Service, has this to say about the observations of Mr Gala and Mr Little.

    “I am informed by Bartholomew Klekar [ie, a ranger in charge of the Cooloola National Park, which includes Fraser Island] and believe, that as part of the cull process dingoes were shot and their bodies were moved into the bush so that their skulls could be removed at a later date.  The skulls provide material to assess the status of the dingo, whether pure bred or hybrid, and also the age which provides information on population structure.  Retrieval of the skulls was undertaken on advice of dingo expert Dr. Lauri Corbett. 

    The dingo carcasses were not buried so the flesh of the bodies could rot off and the skulls could be retrieved.  Also, it was believed at the time that the smell of a dingo carcass would deter other dingoes from the area.”

14. Given the difficulty of estimating the date of death of the dogs, I do not consider there is any clear inconsistency between the observations of Mr Gala and Mr Little and the evidence of Ms Skippington.

15. The third of Mr Jones’ witnesses that I would wish particularly to refer to is Mr Cooke, who describes an incident that occurred on the beach on Fraser Island towards the end of May.  He describes how he saw two rangers drive along the beach, then stop.  He heard a gunshot, heard the cry of a dingo and saw a dingo run off from the vicinity of the ranger’s vehicle towards the dunes and the trees beyond, crying several times.  The dingo, he says, ran at full speed up to and over the dunes and into the trees beyond.  He describes a conversation he had with two rangers.  Essentially his evidence is supported or confirmed by what Ms Skippington also says.  She records being informed by Ranger Klekar of the incident witnessed by Mr Cooke.  She says:

    “The incident occurred at Hook Point on Fraser Island where a dingo was shot with ratshot.  Mr Klekar was at the time using a white Landcruiser station wagon …  [But there was a blue utility in the vicinity, as Mr Cooke had said.]  The dingo approached the white vehicle.  Mr Klekar then used a rifle to shoot ratshot at the dingo as a non-lethal aversive treatment for this dingo.  Mr Klekar purposely distanced himself approximately 6 to 8 metres from the dingo when he fired the ratshot into the dingo’s flank.

    Mr Klekar recalls a conversation on the barge to the mainland with a man unknown to him.  The conversation centred around the firing of the ratshot and explaining the aversive treatment that Rangers were using regarding dingo management.”

16. She continues:

    “The firing of ratshot is a non-lethal aversive treatment for dingoes.  The firing of ratshot makes a loud noise and stings the animal causing them to run away and to associate the site with the noise and sting.  This non-lethal aversive treatment is endorsed by the [RSPCA].”

17. She also records what Ranger Klekar said about the dog yelping and running quickly off into the bush.

18. As I have said, while I have no doubt as to the credibility of Mr Jones’ witnesses, such as Mr Cooke, there is no reason to find in their testimony any basis for thinking that a more extensive cull is continuing after 5 May than Mr Speirs said was the position when he gave evidence before Dowsett J.  It follows that there is no basis for granting the applicant the relief he now seeks, he having failed to show a change in relevant circumstances since 4 May 2001.

19. Relevant circumstances, as I have indicated for present purposes, are whether there is a newly emerged sufficient threat of a continued breach of s 12 of a Commonwealth Act to warrant injunctive relief now. I emphasise that that is the limited question before me because Mr Jones has put a body of evidence before the Court, including that from an expert, Dr Dickman, which ranges over a much wider field. But just what might be the best management program for Fraser Island dingoes and whether Mr Jones and those he speaks for should play a part in the development of that program are not matters for determination by me. The motion is therefore dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:  Dated:             19 June 2001

Solicitor for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr D Gore QC
Solicitor for the Respondent:	Crown Law
Date of Hearing:	15 June 2001
Date of Judgment:	15 June 2001