Past Court Cases · Nature & the Reef

Booth v Frippery ("Flying-fox case 3")

16 April, 2008

EDO Qld acted for Carol Booth in the first legal action using new third party rights in Queensland’s Nature Conservation Act 1992, achieving dismantlement of electric grids used to illegally kill flying-foxes on a lychee farm.

  • First trial: Booth v Frippery Pty Ltd & Ors [2005] QPEC 095
  • Leave to appeal granted: Booth v Frippery P/L & Ors [2006] QCA 42
  • First appeal: Booth v Frippery Pty Ltd & Ors [2006] QCA 074
  • Second trial: Booth v Frippery Pty Ltd & Ors [2007] QPEC 099
  • Appeal struck out: Frippery Pty Ltd & Ors v Booth (unreported, QCA No. 123/08)
  • Contempt proceedings: Booth v Frippery Pty Ltd & Ors [2008] QPEC 122
  • Federal Court proceedings: Frippery Pty Ltd v Booth [2008] FCA 514

Involving a trial, an appeal, a second trial, an application for appeal, a contempt trial and an attempted suit in the Federal Court against EDO and our client, this case demonstrated that success in court can require considerable persistence. The appeal resulted in legal definition of a key concept in the Act. Dr Booth and a colleague obtained evidence that lychee growers Merv and Pam Thomas of Mutarnee, north of Townsville, were electrocuting black flying-foxes on an electric grid without a permit.

After the Queensland Government failed to prosecute the farmers, Dr Booth sought orders in the Planning and Environment Court to restrain operation of the electric grid system, require that it be dismantled and require that a financial contribution be made to support rehabilitation of flying-foxes.

Although the grower admitted to electrocuting tens of thousands of black flying-foxes over many years without authorisation, Judge Pack dismissed the application. Rejecting the evidence of an expert witness, he found that a recent version of the electric grid was non-lethal. He found that any ‘take’ (kill, harm etc) by the farmers was lawful because their activity was not directed towards the taking (it was incidental to crop protection) and could not reasonably have been avoided.

This decision was appealed in Queensland’s Court of Appeal, with the Environmental Protection Agency accepted as an additional party to the appeal. The appeal issue was whether the operation of the electric grids was “directed towards” crop protection as Judge Pack decided, or “directed towards” taking of wildlife, as barristers for Dr Booth and the Environmental Protection Agency argued.

Judges Williams, Holmes and McMurdo unanimously upheld the appeal and ordered that the case be reheard before a different judge. Costs were awarded to Dr Booth.

In the second trial in 2007, Judge Robin found that the Thomases had illegally killed “thousands” of flying-foxes, and were likely to continue to kill or injure “substantial” numbers, despite their claims that the grids were non-lethal. He ordered that they stop using the grids and dismantle them within two months.

An application by the fruit growers 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 our client launched contempt proceedings against the Thomases because they had not dismantled the grids as ordered by the Court. They were found guilty of contempt and fined $5000.

Also in 2008, Mr and Mrs Thomas applied to the Federal Court to restrain Dr Booth and her EDO Qld solicitors from undertaking litigation against them. They also sought $1 million in damages they alleged they suffered due to the litigation. The EDO solicitors applied to have the proceedings struck-out on the basis that they were frivolous and vexatious and an abuse of process. At the hearing of the strike-out application Mr and Mrs Thomas sought to discontinue the proceedings. Judge Collier allowed the proceedings to be discontinued but awarded costs on an indemnity basis.

For more information see the following education site: http://envlaw.com.au/frippery-case/

Environmental Defenders Office Queensland (EDO Qld) gives a strong legal voice to the environment when needed most.