This case illustrates the importance of public (third party) rights to enforce conservation laws where government regulators refuse to act.
The background is explained in an affidavit of Dr Carol Booth, a conservationist who brought the case.
This case was one of three cases taken by Dr Booth to protect flying-foxes from being eletrocuted by fruit farmers. The two other cases are also the subject of separate case studies:
- The Flying Fox Case in the Federal Court of Australia in 2000-2001; and
- The Yardley Case in the Queensland Planning and Environment Court in 2006-2008.
This case involved the operation of an electric grid on a property north of Townsville operated by a company, Frippery Pty Ltd.
A picture of the entrance to the farm and part of the electric grid are shown on the right of this page. The horizonal wires from the pole were electrified to form the electric grid used to electrocute flying-foxes that collided with it at night.
As explained in her affidavit, in 2003 Dr Booth investigated the killing of flying foxes on the farm and complained about this to the government agency responsible for enforcing the Nature Conservation Act 1992 (Qld), under which flying foxes are protected.
When QPWS failed to take action, Dr Booth brought the proceedings in the Queensland Planning and Environment Court under open standing provided in the Nature Conservation Act for proceedings to restrain offences against the Act.
A number of original court documents, such as consent and directions orders, are included in the key documents below to show the mechanics of the application and the appeal.
At the first trial in 2005 in Townsville, Pack DCJ dismissed the application.
This decision was overturned on appeal and the Court of Appeal ordered the case be re-heard by a different judge. The hearing of the re-trial was transferred to Brisbane.
At the second trial in 2007 in Brisbane, Robin QC DCJ granted the application and ordered the grids be dismantled. An application for leave to appeal against this decision was dismissed for failing to comply with the Court of Appeal’s directions on the conduct of the application.
In 2008 contempt proceedings were lodged for an alleged failure to comply with the Court’s order to dismantle the electric grids. The respondents were found guilty of contempt and fined $5000.
- Originating Application (Version 3);
Maps and photographs of farm
- Regional and local area map showing location of farm;
- Satellite image of farm and surrounding area;
- Photographs of farm entrance exhibited to affidavit of Dominque Thiriet.
- Consent order restraining the operation of the grid in 2004;
- Directions order transferring the proceedings to Townsville;
- Affidavit of Dr Carol Booth for first trial;
- Affidavit of Dr Hugh Spencer for first trial;
- Closing submissions at first trial;
- Judgment of Pack DCJ dismissing application: Booth v Frippery Pty Ltd & Ors  QPEC 095;
- Application for leave to appeal;
- Notice of Appeal;
- Summary of facts for appeal;
- Table of flying fox deaths at Edenvale Farm;
- Outline of argument for appeal;
- Judgment of Court of Appeal allowing appeal and remitting proceedings to the Planning and Environment Court for rehearing by a different judge: Booth v Frippery Pty Ltd & Ors  QCA 074;
- Directions order returning proceedings to Brisbane for re-trial;
- Affidavit of Dr Carol Booth for second trial;
- Affidavit of Dr Hugh Spencer for second trial;
- Affidavit of Dr Jon Hanger for second trial;
- Outline of argument and reply for re-trial.
- Judgment of Robin QC DCJ granting application: Booth v Frippery Pty Ltd & Ors  QPEC 099.
- Orders made by Robin QC DCJ on 16 September 2007.
- Order of the Court of Appeal dismissing an Application for Leave to Appeal.
- Application for contempt filed 14 October 2008.
- Outline of argument for contempt.
- Judgement of Brabazon QC DCJ in contempt proceedings: Booth v Frippery Pty Ltd & Ors  QPEC 122.
- Final order for contempt made by Brabazon QC DCJ.
Federal Court proceedings
In response to this litigation the lychee farmers applied to the Federal Court to restrain the applicant in the Queensland courts, Dr Booth, and her solicitors from undertaking the litigation. The lychee farmers also sought $1,000,000 damages against Dr Booth and her solicitors for undertaking the litigation in the Queensland courts.
The solicitors applied to have the proceedings in the Federal Court struck-out on the basis that they are frivolous and vexatious and an abuse of process. At the hearing of the strike-out application the lychee farmers sought to discontinue the proceedings. Collier J allowed the proceedings to be discontinued but awarded costs on an indemnity basis.
Key documents in the Federal Court proceedings are: