You might ask, what is it about bats that they have featured in so many court battles? Environmentalists have brought at least six cases to protect bats. Perhaps lawyers have a secret fondness for them given the bat-like appearance of barristers in flappy black court regalia?
EDO Qld has represented clients in four bat cases, two under federal law and two under state law, involving three hearings for interlocutory injunctions, five trials, four appeals and three contempt trials. As well as protecting bats, the cases have set important legal precedents, including as the first third party cases brought under federal and state conservation laws, and clarified important points of law.
While lawyers working on these cases admit to a fondness for bats, the reasons for the legal stardom of bats are more to do with their fondness for fruit, a primitive farming culture that still exists in some sectors, and an unfortunate cultural antipathy towards bats (until 1994, flying-foxes did not even receive the standard legal protection afforded to native animals in Queensland). All the EDO Qld cases involved flying-foxes being killed to protect fruit crops, three to stop illegal killing by farmers (see here and here and here for case summaries) and one to prevent an environment minister from abrogating responsibility to assess proposed killings (see here).
Here we feature two of these cases, brought under Queensland’s Nature Conservation Act 1992 using new third party rights that EDO Qld had successfully lobbied for. EDO Qld’s client was conservationist Dr Carol Booth, who had also brought the first case under the EPBC Act to stop illegal killings of flying-foxes (see here).
Both cases sought to stop lychee growers illegally operating lethal electric grid systems (like an aerial electric fence), the use of which had been banned by the Queensland Government in 2001 (subsequent to flying-fox case 1). Injunctions were sought only after the Queensland Government failed to prosecute the growers. The cases demonstrated the great value of third party standing in environmental legislation, for otherwise the killings are likely to have continued. In both cases, the farmers were convinced that they did or should have the right to kill animals that ate their crops, and initially disobeyed court orders to dismantle their grids.
In December 2003 Carol Booth found dead black flying-foxes on and beneath an electric grid on a large lychee orchard north of Townsville. These deaths were reported to Queensland’s Environmental Protection Agency, which took no legal action.
When 29 dead flying-foxes were discovered on the same property in December 2004, Carol, represented by EDO Qld and barrister Chris McGrath, sought an injunction against use of the electric grids by farmers Mervyn and Pamela Thomas and their company Frippery Pty Ltd and a court order for grid dismantlent. This was the first case to use new third party rights under Queensland’s Nature Conservation Act. An interim injunction to restrain use of the grid was granted by consent to prevent killings until the main hearing.
The main hearing was held in Townsville over three days before Judge Pack. In addition to the evidence of deaths obtained by Carol and a colleague, an affidavit by grower Merv Thomas confirmed that flying-foxes had been killed on the property. Electric grids had been used by the Thomases since at least 1987 but no permit authorising their use to take flying-foxes had ever been obtained (a permit was required from 1994 onwards after flying-foxes became protected species under the Nature Conservation Act).
Based on the farmer’s own estimates of average numbers of flying-foxes killed, provided in his affidavit and under cross-examination, many thousands of flying-foxes were illegally killed on the grid system (our best estimate was 20-40,000 since 1994).
Mr Thomas contended that he had successfully developed a non-lethal electric grid system that would ensure no fatalities in future. However, expert witness Dr Hugh Spencer provided evidence that the current used in the allegedly non-lethal grid system was likely to be lethal and that flying-foxes were likely to die from injuries if they escaped from the grid.
Judge Pack dismissed Carol’s case and said he believed that the farmer had developed a non-lethal electric grid. He found that any deaths or injuries caused by the farmer were lawful because operation of the electric grid was not ‘directed toward’ taking flying-foxes but towards crop protection and that deaths and injuries could not reasonably have been avoided. (Under the Nature Conservation Act, it is a defence to taking protected wildlife if it was otherwise a lawful activity not directed toward the take of wildlife and that could not have reasonably been avoided. This means that a motorist accidentally colliding with wildlife is safe from prosecution.)
This loss was a great surprise and shock to our team for if the Judge’s decision was correct, it undermined the capacity of the Nature Conservation Act to protect native species in many circumstances when taking served some other purpose. For this reason, the EPA requested permission from the Court to join Carol in appealing Judge Pack’s decision.
Barristers Stephen Keim SC and Chris McGrath were successful in arguing that Judge Pack had misinterpreted the Nature Conservation Act. Judges Williams, Holmes and McMurdo unanimously upheld the appeal and ordered that the case be reheard before a different judge.
In 2007, the case was heard all over again in three days before Judge Robin in Brisbane. Barrister Chris McGrath did a thorough job of cross-examining Mr Thomas, drawing out numerous inconsistencies and admissions. Expert witnesses provided evidence that the claimed non-lethal grids were lethal and harmful, that flying-foxes were likely to die from electric injuries and that nets were an economically viable option for crop protection. Judge Robin was convinced by the evidence and found that the grid system was lethal, that thousands of flying-foxes had been killed without permit and that the farmer could protect his crop with nets. He granted an injunction and ordered that the electric grid system be dismantled in two months.
The growers sought to appeal this decision, but their appeal was struck out when they failed to follow Court directions.
They also attempted to sue our client, EDO Qld and EDO solicitors Jo Bragg and Larissa Waters in the Federal Court for $2 million in damage and restrain further litigation against them. EDO Qld applied to have the proceedings struck-out on the basis that they were frivolous and vexatious and an abuse of process. At the hearing for the strike-out application, Judge Collier of the Federal Court allowed the Thomases to discontinue the proceedings.
However, this was not the end of court proceedings, for the Thomases failed to dismantle their grids many months after they were ordered to do so, necessitating contempt proceedings. Judge Brabazon found them guilty of contempt and fined them $5000. The grids were finally dismantled in early 2009.
As Judge Brabazon in the contempt trial remarked, this was “hopefully the last installment in a long legal struggle”. Involving seven different proceedings over more than four years, it required considerable persistence.
This case was highly unusual, with the evidence of illegal electrocution of flying-foxes coming solely from the farmer himself in interviews with ABC Radio and the Cairns Post. In January 2006 North Queensland lychee grower Richard Yardley said in the ABC interview that he had electrocuted 1100 spectacled flying-foxes (a federally threatened species), without a permit:
“Not this last year but the year before we used our electric grids. We took out 700, we killed 700 bats in the electric grids. Another year before that by the time we got a damage mitigation permit which we now 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.”
Mr Yardley said he had the right to use his grids, despite the EPA no longer issuing permits for electrocution as a method of crop protection:
“There’s no law that says we can’t use electric grids. EPA is only an agency and they have policies that say we can’t do it, but that doesn’t mean it’s law. We can still use our electric grids.”
After the Queensland Government declined to prosecute, our client Carol Booth commenced an action in the Planning and Environment Court – the second case to use third party rights under the Nature Conservation Act – to prevent Mr and Mrs Yardley from operating their grids and to have them dismantled. Judge Rackemann granted an interim injunction until the main hearing in 2007.
In the trial, expert witnesses provided evidence about the impacts of electrocution on flying-foxes, the importance of flying-foxes to the environment, and the potential for netting to be used as a method of crop protection (see affidavits here, here and here). In late 2006, Judge Wilson granted the injunction and ordered that the Yardleys dismantle their electric grids within three months.
The Yardleys disobeyed this order and so in late 2007 our client initiated contempt proceedings against them. Judge Wilson gave the Yardleys the benefit of doubt and assumed they had misunderstood the order, giving them more time to comply with the order. However, the Yardleys continued to disobey the court, necessitating contempt proceedings for a second time. Evidence was presented to the Court that the Yardleys finally dismantled their grids in October 2008, and Judge Wilson fined them $5000 for contempt.