Booth v Bosworth [2001] FCA 1453 (17 October 2001)

Last Updated: 19 October 2001

In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the reasons for judgment delivered today. The summary is intended to assist understanding of the decision of the Court. It is not a complete statement of the conclusions reached by the Court or the reasons for those conclusions. The only authoritative statement of the Court's reasons is that contained in the published reasons for judgment. The published reasons for judgment and this summary will be available on the Internet at www.fedcourt.gov.au.

In this proceeding Dr Booth ("the applicant") applied to the Court for an injunction restraining the respondents from, in effect, killing Spectacled Flying Foxes on or near their lychee orchard at Dallachy Creek, Kennedy in the State of Queensland.

The respondents have a large lychee orchard which is approximately sixty hectares in area. A series of fourteen aerial electric fences erected in a grid pattern ("the Grid") has been constructed within their lychee orchard. Each individual grid line consists of twenty horizontal wires, spaced 25cm apart, strung between poles 4.4m to 9.0m in height with the total length of the electric grids being 6.4km. The admitted purpose for which the Grid is operated is to electrocute flying foxes that approach, fly between or depart from the respondents' lychee orchard.

The respondents' lychee orchard is in close proximity to the Wet Tropics World Heritage Area which is a listed property under the international Convention for the Protection of World Cultural and National Heritage ("the World Heritage Convention"). The Environmental Protection and Biodiversity Conservation Act 1999 (Cth) has been enacted by the Australian Parliament for the purpose, amongst other purposes, of implementing Australia's international obligations under the World Heritage Convention.

In the circumstances of this case, the power of the Court to grant an injunction of the kind sought by the applicant depends on the Court being satisfied, on the balance of probabilities, that the operation of the Grid has, or will have, or is likely to have, a significant impact on the world heritage values of the Wet Tropics World Heritage Area.

The applicant visited the respondents' lychee orchard on four nights during the 2000-2001 lychee season. On each night she counted the number of dead Spectacled Flying Foxes on and under the Grid. The average number counted by her was 377 per night. Evidence was given that, because the lychee season coincides with the peak of the birth and lactation period for Spectacled Flying Foxes, the effect of electrocution would have been greater than indicated by the counts of dead bats because of foetal deaths, abortion or injured females and the death of suckling young.

The respondents, who the Court assumed were in a position to give relevant evidence, did not give evidence with respect to the number, or the species, of the flying foxes killed in their lychee orchard. Indeed, they chose not to give evidence in the proceeding at all. In the circumstances the Court considered it appropriate to draw the inference that the evidence which the respondents could have given would not have been favourable to their case.

Assisted by expert evidence, and taking into account the failure of the respondents to give evidence, the Court concluded that it should be inferred from the applicant's evidence that the counts conducted by her were representative of the number of Spectacled Flying Foxes killed in the lychee orchard on each night during the lychee season. On this basis the Court concluded, on the balance of probabilities, that the number of female Spectacled Flying Foxes killed by the operation of the Grid during the 2000-2001 lychee season fell within the range of 9,900-10,800.

Further, the Court accepted expert evidence that the total Australian population of Spectacled Flying Foxes in early November 2000 did not exceed 100,000. On that basis, the Court, again assisted by expert evidence, concluded that the probable impact of the operation of the Grid, if allowed to continue on an annual basis during future lychee seasons, will be to halve the Australian population of Spectacled Flying Foxes in less than five years. Such an impact would be sufficient to render the species endangered within that time frame.

The Court was satisfied that the Spectacled Flying Fox contributes to the heritage values of the Wet Tropics World Heritage Area in two ways. First, as part of the record of the mixing of the faunas of the Australian and Asian continental plates following their connection. Secondly, as a species which contributes to the character of the Wet Tropics World Heritage Area as "one of the most significant regional ecosystems in the world" and as an important and significant natural habitat for in-situ conservation. In the circumstances, the Court was satisfied that the action of the respondents in operating the Grid is an action that is likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area.

That is, the Court concluded that it had a discretion to grant the injunction sought by the applicant. As the respondents did not give evidence, or otherwise place before the Court material touching on the profitability of the lychee orchard or their respective financial positions, the Court had very limited material before it capable of justifying the exercise of its discretion in favour of not granting the injunction sought. However, the Court accepted that it is probably not economically feasible for the respondents immediately to protect their entire orchard with netting. Evidence which supported the grant of the injunction was evidence of the national and international interest in the protection of the world heritage values of the Wet Tropics World Heritage Area.

The Court concluded that an injunction restraining the operation of the Grid should be made. However, as the action of the respondents in operating the Grid constitutes a contravention of the Act only while there is no approval of the taking of the action by the respondents in operation under the Act, the injunction will be a conditional one. The person authorised by the Act to grant such an approval is the Minister for the Environment.

ENVIRONMENT PROTECTION - application for a prohibitory injunction under Environment Protection and Biodiversity Conservation Act 1999 (Cth) - electric grid erected on respondents' lychee orchard for the purpose of electrocuting flying foxes - respondents' orchard near property included in the World Heritage List - whether the operation of the grid likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area - whether the Spectacled Flying Fox a part of the natural heritage of the Wet Tropics World Heritage Area - whether the loss of a single species could constitute a significant impact on the world heritage values of a World Heritage Area

EVIDENCE - burden of proof and sufficiency of evidence - rule in Jones v Dunkel - significance of a party to the proceeding not giving evidence

WORDS AND PHRASES - "biodiversity" - "significant impact", "world heritage values", "natural heritage", "likely"

Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 3, 12, 13, 171(3), 475, 523

Evidence Act 1995 (Cth) s 140

Convention for the Protection of the World Cultural and National Heritage 1972 Art 2

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, applied

Australian Securities Commission v AS Nominees Ltd [1995] FCA 1663; (1995) 133 ALR 1, referred to

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, considered

Employment Advocate v Williamson [2001] FCA 1164, referred to

Tilmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331, considered

McVeigh v Willarra Pty Ltd [1984] FCA 379; (1984) 6 FCR 587, cited

Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516, cited

Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales [1989] NSWLEC 19; (1989) 67 LGRA 155, cited

Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225, referred to

CAROL JEANETTE BOOTH v ROHAN BRIEN BOSWORTH AND FRANCES BRIEN BOSWORTH

Q 163 of 2000

BRANSON J

SYDNEY (VIA VIDEO LINK) (HEARD IN BRISBANE)

17 OCTOBER 2001

THE COURT ORDERS THAT:

1. The respondents are to file and serve short minutes of order which reflect these reasons for decisions by no later than 24 October 2001.

2. If no agreement has been reached between the parties as to the terms of the short minutes of order filed by the respondents pursuant to par 1 hereof, the applicant is at liberty to file short minutes of order in opposition to those filed by the respondents by no later than 26 October 2001.

3. Each party has liberty on forty-eight hours notice to the opposing party to apply to have the proceeding re-listed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

INTRODUCTION

1 This is an application for a prohibitory injunction under subs 475(2) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the Act") restraining the respondents from, in effect, killing Spectacled Flying Foxes on or near their lychee orchard. The applicant also seeks an additional order under subs 475(3) of the Act compelling the demolition of an electric grid that has been erected on the respondents' lychee orchard.

2 The applicant, a student and research assistant with the Queensland Conservation Council, is an Australian citizen who holds a PhD in biological science and a graduate diploma in journalism. From December 1999 until February 2001 the applicant was employed as the Gulf Regional Policy Officer with the World Wide Fund for Nature Australia. She has also undertaken voluntary work for the North Queensland Conservation Council and the Queensland Conservation Council. She has a particular interest in flying foxes.

3 The respondents are a son and his mother. They operate a lychee fruit and sugar cane farm ("the Farm") at Dallachy Creek, Kennedy in the State of Queensland. Their lychee orchard is approximately sixty hectares in area. An electric grid ("the Grid") of substantial proportions has been constructed on the Farm. The Grid is operated annually by the respondents for the purpose of electrocuting flying foxes that approach, fly between or depart from their lychee trees.

4 Annexed to these reasons for judgment and marked "A" is a reproduction of a portion of a map of the Queensland Wet Tropics Bioregion. The areas shown with diagonal hatching are part of the World Heritage Area. The Farm is situated between the Edmund Kennedy National Park, which is part of the World Heritage Area, and that part of the World Heritage Area (being State Forest) to the immediate west of the Edmund Kennedy National Park. It is immediately west of the most westerly portion of the Edmund Kennedy National Park and slightly closer to the State Forest than to the National Park.

5 For the reasons set out below I have decided that a prohibitory injunction under subs 475(2) of the Act should be granted but that it is not appropriate in the circumstances for an additional order under subs 475(3) of the Act to be made.

STATUTORY AND CONVENTION PROVISIONS

6 The objects of the Act are identified in subs 3(1) of the Act. They include:

"(a) to provide for the protection of the environment, especially those aspects of the environment that are matters of national environmental significance; and

(b) to promote ecologically sustainable development through the conservation and ecologically sustainable use of natural resources; and

(c) to promote the conservation of biodiversity; and

(d) ..."

7 I understand "biodiversity" (see par 3(1)(c) above) to be a contraction of "biological diversity". The Convention on Biological Diversity done at Rio de Janeiro on 5 June 1992, which entered into force generally and for Australia on 29 December 1993, provides by Article 2 that for the purposes of that Convention:

"`Biological diversity' means the variability among living organisms from all sources including inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems."

I accept that this definition reflects the ordinary meaning in Australia and internationally of "biodiversity" in the environmental context. More prosaically, the Macquarie Dictionary defines "biodiversity" as "a diversity of species of plants and animals". This definition is consistent with the definition of "biological diversity" contained in the Convention on Biological Diversity.

8 Section 12 of the Act imposes restrictions on the undertaking of activities which have, will have, or are likely to have, a significant impact on a declared World Heritage property. The section provides:

"(1) A person must not take an action that:

(a) has or will have a significant impact on the world heritage values of a declared World Heritage property; or

(b) is likely to have a significant impact on the world heritage values of a declared World Heritage property.

Civil penalty:

(a) for an individual - 5,000 penalty units;

(b) for a body corporate - 50,000 penalty units.

(2) Subsection (1) does not apply to an action if:

(a) an approval of the taking of the action by the person is in operation under Part 9 for the purposes of this section; or

(b) Part 4 lets the person take the action without an approval under Part 9 for the purposes of this section; or

(c) there is in force a decision of the Minister under Division 2 of Part 7 that this section is not a controlling provision for the action and, if the decision was made because the Minister believed the action would be taken in a manner specified in the notice of the decision under section 77, the action is taken in that manner; or

(d) the action is an action described in subsection 160(2) (which describes actions whose authorisation is subject to a special environmental assessment process).

(3) A property has world heritage values only if it contains natural heritage or cultural heritage. The world heritage values of the property are the natural heritage and cultural heritage contained in the property.

(4) In this Act:

cultural heritage has the meaning given by the World Heritage Convention.

natural heritage has the meaning given by the World Heritage Convention."

9 Article 2 of the Convention for the Protection of the World Cultural and National Heritage done in Paris on 23 November 1972, which came into force for Australia and generally on 17 December 1975 ("the World Heritage Convention"), provides:

"For the purposes of this Convention, the following shall be considered as `natural heritage':

natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science of conservation;

natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty."

10 Subsection 13(1) of the Act provides that a property included in the World Heritage List is a declared World Heritage property as long as the property is included in the List.

11 Section 475 of the Act relevantly provides:

"(1) If a person has engaged, engages or proposes to engage in conduct consisting of an act or omission that constitutes an offence or other contravention of this Act or the regulations:

(a) the Minister; or

(b) an interested person (other than an unincorporated organisation); or

(c) a person acting on behalf of an unincorporated organisation that is an interested person;

may apply to the Federal Court for an injunction.

(2) If a person has engaged, is engaging or is proposing to engage in conduct constituting an offence or other contravention of this Act or the regulations, the Court may grant an injunction restraining the person from engaging in the conduct.

(3) If the court grants an injunction restraining a person from engaging in conduct and in the Court's opinion it is desirable to do so, the Court may make an order requiring the person to do something (including repair or mitigate damage to the environment).

(4) ...

(5) ...

(6) For the purposes of an application for an injunction relating to conduct or proposed conduct, an individual is an interested person if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory, and:

(a) the individual's interests have been, are or would be affected by the conduct or proposed conduct; or

(b) the individual engaged in a series of activities for protection or conservation of, or research into, the environment at any time in the 2 years immediately before:

(i) the conduct; or

(ii) in the case of proposed conduct - making the application for the injunction.

(7) ..."

12 Section 523 of the Act defines an "action" as follows:

"(1) Subject to this Subdivision, action includes:

(a) a project; and

(b) a development; and

(c) an undertaking; and

(d) an activity or series of activities; and

(e) an alteration of any of the things mentioned in paragraph (a), (b), (c) or (d).

(2) However, a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of this Act is not an action. For this purpose, an enlargement, expansion or intensification of use is not a continuation of a use."

13 Although the Act authorises the making of regulations prescribing the matters to be taken into account in determining whether an impact that an action has, will have or is likely to have is significant, no such regulations have been made.

PLEADINGS

14 The pleadings significantly limited the issues in dispute between the parties.

15 The respondents admit the facts pleaded by the applicant which bring her within the definition of "interested person" contained in subs 475(6) of the Act. It is thus not disputed that the applicant is a person who may apply to this Court for the relief sought in this proceeding.

16 The respondents also admit that they operate a lychee fruit and sugar cane farm at Dallachy Creek, Kennedy in the State of Queensland on which is constructed a series of fourteen aerial electric fences erected in a grid pattern within the lychee orchard. Each individual grid line is admitted to consist of twenty horizontal wires, spaced 25cm apart, strung between poles 4.4m to 9.0m in height, with the total length of the electric grids being 6.4km. The admitted purpose for which the Grid is operated is to electrocute flying foxes that approach, fly between or depart from the respondents' lychee orchard.

17 The applicant's statement of claim refers to the respondents' "action" in causing, procuring or allowing the operation of the Grid. I understand the word "action" to be used in the statement of claim with the meaning provided for by s 523 of the Act (see [12] above). Order 11 rule 9 of the Federal Court Rules allows a point of law to be raised in a pleading. The respondents' amended defence does not traverse this aspect of the statement of claim. Order 11 r 13 of the Federal Court Rules does not expressly deal with a failure to traverse a pleaded point of law. However, it is unnecessary for me to determine whether the respondents are to be taken to have admitted that the operation of the Grid constitutes "an action" within the meaning of s 12 of the Act. The hearing before me proceeded, and in my view properly proceeded, on the basis that the operation of the Grid does constitute "an action" within the meaning of s 12. The hearing was also conducted on the basis that the respondents proposed, subject to any order of the Court, to operate the Grid in future lychee seasons.

18 The respondents further admit that the Wet Tropics World Heritage Area is included in the World Heritage List and remains in the List and that par 10 of the applicant's statement of claim contains a convenient summary of the world heritage values of the Wet Tropics World Heritage Area. Paragraph 10 of the applicant's statement of claim contains the following allegation:

"10. The world heritage values of the Wet Tropics World Heritage Area are summarised as follows:

(a) an outstanding example representing the major stages in the earth's evolutionary history;

(b) an outstanding example representing significant ongoing ecological and biological processes;

(c) an example of superlative natural phenomena; and

(d) containing important and significant habitats for in situ conservation of biological diversity."

19 Factual matters pleaded by the applicant but denied by the respondents include the following:

(a) that the operation of the Grid causes, and unless restrained, will continue to cause injury to, and the death of, a large number of Spectacled Flying Foxes (Pteropus conspicillatus);

(b) that the Spectacled Flying Foxes that are being injured or killed by the actions of the respondents in operating the Grid -

(i) are resident in the Wet Tropics World Heritage Area; and

(ii) contribute to the biodiversity, ecological function and ongoing evolutionary processes of the Wet Tropics World Heritage Area; and

(c) that the injury and death of Spectacled Flying Foxes due to the actions of the respondents has, or will have, or is likely to have a significant impact on the World Heritage values of the Wet Tropics World Heritage Area.

20 The respondents in their amended defence assert that the first respondent holds a permit issued pursuant to s 112 of the Nature Conservation Act 1992 (Qld) to take 500 Spectacled Flying Foxes during the period 24 November 2000 to 23 January 2001 and that the respondents are thereby entitled to utilise the Grid. It was not, however, ultimately contended by the respondents that subs 12(1) of the Act did not apply to their actions in operating the Grid.

FINDINGS

Numbers of Spectacled Flying Foxes Injured and Killed

21 The applicant gave evidence, which I accept, that she is able visually to identify Spectacled Flying Foxes. In this regard, and without intending any disrespect to the applicant, I note the unchallenged evidence of Gregory Charles Richards ("Mr Richards"), fauna consultant, that the Spectacled Flying Fox is a very easy species to identify.

22 The applicant further gave evidence, which I accept, as to observations made by her of dead flying foxes at the Farm. On 22 November 2000 at approximately 4.00pm the applicant went with a companion to the Farm to investigate the killing of flying foxes. She observed fifty-two Spectacled Flying Fox bodies on the wires of one grid with about ten freshly killed flying foxes of the same species on the ground beneath the grid. She observed approximately the same number of dead Spectacled Flying Foxes on and under a second grid. A little later that afternoon she observed that the flying fox bodies had been removed from the wires.

23 The applicant revisited the Farm in the early morning of the next day. On this occasion she counted sixty-one flying fox bodies on one grid with twelve freshly dead bodies on the ground. She observed a similar density of dead flying foxes on the other grids. I understand her evidence to be that the dead flying foxes counted by her on this occasion were also Spectacled Flying Fox bodies. Even if she is not properly to be understood to have said so directly, it is, my view, a fair inference having regard to her earlier experience, that either all or the overwhelming majority of the bodies counted by her were Spectacled Flying Fox bodies.

24 On 29 November 2000 at 3.00am the applicant returned to the Farm with another companion. On this occasion they counted 152 dead flying foxes on or under four grids. I conclude that all or the overwhelming majority of these were Spectacled Flying Foxes.

25 On 3 December 2000 the applicant and her companion entered the Farm at about 9.30pm. At about 1.30am she counted twenty-six dead flying foxes on one grid and twenty-five dead flying foxes on another grid. She calculated that there were a total of eleven grids on the farm. At about 3.00am she counted the dead flying foxes on or under four additional grids. The total number counted by her was 148. Again I conclude that all or the overwhelming majority of these were Spectacled Flying Foxes.

26 The applicant calculated the number of dead flying foxes counted by her per kilometre of grid and extrapolated a theoretical total for the whole lychee orchard. That extrapolation resulted in a total of 1,510 dead flying foxes for the four nights that she counted dead flying foxes on the wires of the Grid. That is, an average of 377 per night.

27 I am satisfied that there is reason to believe that the number of flying fox carcasses counted by the applicant on the nights that she visited the Farm provided a conservative estimate of the number of flying foxes killed by the Grid on these nights. Leonard Martin ("Dr Martin"), a biologist and an honorary research consultant with the Department of Physiology and Pharmacology of the University of Queensland, gave evidence on behalf of the applicant. Dr Martin was the Inaugural President of the Australian Bat Society. Dr Martin's evidence, which I accept, is that the lychee season in Queensland coincides with the peak of the birth and lactation period for Spectacled Flying Foxes, and for this reason the effects of electrocution will be much greater than is evident from counts of dead bats on the Grid because of foetal deaths, abortions or injured females and the death of suckling young.

28 Leaving to one side the conservative nature of the count undertaken by the applicant, the validity of the applicant's extrapolation depends upon an assumption that the number of dead flying foxes per kilometre counted by her on each night was representative of the number of dead foxes per kilometre across the whole lychee orchard. For the extrapolation exercise to be extended for the whole period of the lychee season, her count must be accepted as representative of the number of flying foxes killed each night throughout the season. Further, as the applicant's case concerns a threat to the Spectacled Flying Fox population, it must be assumed that the proportion of the dead flying foxes that were Spectacled Flying Foxes remained constant throughout the season.

29 The capacity of the applicant to obtain, and to present to the Court, comprehensive evidence concerning the number of Spectacled Flying Foxes killed by the Grid during the 2000-2001 lychee season was limited. As her cross-examination amply demonstrated, she did not have the respondents' permission to be on the Farm and she was not welcome there. The respondents, on the other hand, have admitted that they operate the Farm. The evidence of the applicant indicated that flying fox carcasses were removed from the Grid daily over the period that she visited the farm. It may be assumed that it was the respondents, or one of them, who removed the carcasses or caused them to be removed. It may further be assumed that the respondents had an interest in knowing how effective the Grid was in achieving the purpose for which they operated it (ie in electrocuting flying foxes that approach, fly between or depart from their lychee orchard). In my view, the respondents may be assumed to know, at least roughly, how many Spectacled Flying Foxes were killed on the Farm each night during the 2000-2001 lychee season. However, neither of the respondents gave evidence in this proceeding on this topic or at all. No explanation for their failure to give evidence was proffered to the Court. I conclude that there was no impediment in the way of either of the respondents giving evidence had he or she chosen to do so. It is thus necessary for consideration to be given to the significance, if any, of the failure of the respondents to give evidence so far as the Court's evaluation of the evidence concerning the numbers of Spectacled Flying Foxes killed by the Grid is concerned.

30 As long ago as 1774, the common law recognised that the weight to be attributed to evidence called by a party may depend upon the respective capacities of the parties to provide assistance to the court on the topic in issue. In Blatch v Archer (1774) 1 Coup 64 at 65; [1774] EngR 2; 98 ER 969 at 970 Lord Mansfield said:

"It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."

31 The applicability of this principle to Australian law was recognised in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. In Jones v Dunkel Kitto J at 308 said:

"... any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if [the defendant who was not called] had gone into the witness box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence."

32 In the same case Menzies J at 312 said:

"In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant ... as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from the facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved to the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference."

33 Windeyer J in Jones v Dunkel at 320-321 cited Wigmore on Evidence 3^rd ed (1940) vol 2, s 285, p162 as follows:

"The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the more natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted."

34 What has come to be known as "the rule in Jones v Dunkel" has received careful consideration in a number of Australian authorities (see, for example, Brandi v Mingot (1976) 12 ALR 551 esp at 559 (HC); Payne v Parker [1976] 1 NSWLR 191 (CA); Earle v Castlemaine District Community Hospital [1974] VicRp 86; [1974] VR 722 (FC); O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 (FC)) and has been applied on numerous occasions.

35 The process of reasoning reflected in the rule in Jones v Dunkel applies not only where a witness who a party would be expected to call is not called, but also where a party fails himself or herself to give evidence. Indeed, in such a case it seems that a court will be even more ready to draw reasonable inferences from the evidence which is before it. In Dilosa v Latec Finance Pty Ltd (1966) 84 WN (Pt 1) (NSW) 557 at 582 Street J observed:

"The inference which a court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness. The significance of this inference differs according to the closeness of the relationship of the absent witness with the party against whom the inference is sought to be propounded. Where the absent witness is a party himself then considerable importance may well attach to the inference."

36 The same approach appears to be adopted in England. In British Railways Board v Herrington [1972] UKHL 1; [1972] AC 877 Lord Diplock at 930 said:

"The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold."

37 In Regina v Inland Revenue Commissioners; ex parte T.C. Coombs & Co [1991] 2 AC 283 at 300 Lord Lowry observed:

"In our legal system generally, the silence of one party in face of the other party's evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party's failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party, may be either reduced or nullified."

38 It is necessary to give consideration to whether the Evidence Act 1995 (Cth) ("the Evidence Act") has affected the operation of the rule in Jones v Dunkel. Section 140 of the Evidence Act provides:

"(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged."

39 The Evidence Act does not deal explicitly with the inferences, if any, which may be drawn in a civil proceeding from the failure of a person to give evidence, or to give evidence on a particular topic.

40 The opening words of subs 140(2) indicates clearly, in my view, that s 140 is not intended to interfere with the capacity of a court in a civil proceeding to engage in a process of reasoning such as that authorised by the rule in Jones v Dunkel. It is a process of reasoning long sanctioned by authority, which has been described as a "natural process of reasoning" (Clayton Robard Management Ltd v Siu (1987) 6 ACLC 57 per Kirby P at 64).

41 For the above reason, I agree with the view expressed by Finn J in Australian Securities Commission v AS Nominees Ltd [1995] FCA 1663; (1995) 133 ALR 1 at 12 that the silence of the Evidence Act on the inferences that may be drawn from the failure of a person to give evidence in a civil case does not undermine the legitimacy of the long-standing practice of courts of adopting the process of reasoning illustrated by the passages quoted above from Jones v Dunkel.

42 I conclude that the appropriate approach for me to adopt in this case having regard to the failure of the respondents to give evidence is as follows:

(a) as the burden of proof with respect to each of the facts in issue between the parties lies on the applicant, the applicant must establish evidence of each of the facts in issue notwithstanding that some relevant and important evidence is peculiarly within the knowledge of the respondents;

(b) the failure of the respondents to give evidence does not of itself amount to proof of any fact in issue;

(c) however, provided that there is before the Court evidence tending to establish each of the facts in issue (albeit that it may be "meagre in the extreme" - see Jones v Dunkel per Kitto J at 305), in assessing the probability of the existence of a fact in issue (ie in weighing the evidence on that issue) use may be made of the failure of the respondents to give evidence apparently in their possession relevant to that fact in issue. That is, it is open to the Court to draw the inference that the evidence which the respondents could have given to the Court would not have been favourable to their case and thus more confidently to draw inferences available to be drawn from the evidence that is before the Court.

43 I accept the evidence of the applicant that when she was on the Farm she was able to observe more than half of the total grids and that there were bodies in equivalent density on all of those grids. I do not accept the suggestion, somewhat tentatively put to the applicant in cross-examination, that the sections of the Grid where she conducted her counts were inherently likely to have a heavier body count than the Grid overall. In the circumstances an inference arises, in my view, that her counts were representative of the whole Grid on the occasions that she conducted the counts.

44 Doing the best I can on the evidence available, and taking into account the failure of either of the respondents to give evidence on this topic or at all, I conclude that the average number of Spectacled Flying Foxes killed as a result of the operation of the Grid on the nights when the applicant visited the Farm was approximately 400.

45 The inferences arising from the applicant's evidence that the counts conducted by her were representative of the number of flying foxes killed on each night during the whole lychee season, and were representative also of the proportion of Spectacled Flying Foxes among the dead flying foxes on each night of the season, arise less directly. However Olivia Jane Whybird ("Ms Whybird") gave evidence which tended in a general sense to support these inferences. Ms Whybird is an environmental consultant who was called by the applicant. It was put to her in cross-examination that she is probably the leading expert in Australia on the process of surveying and counting Spectacled Flying Foxes. Subject to her offering the qualification that there was one other person who shared the status, Ms Whybird agreed with this proposition. She went on to give evidence that the applicant's count was likely to be a good indicator of the number of flying foxes killed by the Grid over the 2000-2001 lychee season. A reading of this portion of her cross-examination as a whole indicates that she was being questioned about, and giving her responses in terms of, Spectacled Flying Foxes. Ms Whybird thought it possible that the numbers killed before the applicant's count would have been higher than her count with the numbers after being lower. She did not agree that it was unlikely that this number of Spectacled Flying Foxes could have visited the Farm during the relevant period. I conclude that the applicant's affidavit and oral testimony, supported by the evidence of Ms Whybird, constitutes evidence as to the total number of Spectacled Flying Foxes killed by the Grid during the 2000-2001 lychee season. As the respondents, who may be assumed to know whether the proportion of Spectacled Flying Foxes among the flying foxes killed by the Grid remained constant through the 2000-2001 lychee season, did not give evidence, I more confidently draw the inference that the proportion did remain constant. That is, that either all, or the overwhelming majority of, the flying foxes killed by the Grid were Spectacled Flying Foxes.

46 I do not accept that an extrapolation of the applicant's counts across the entire lychee season would result in a mass of flying fox carcasses sufficiently great to give rise to difficulties of disposal. There would seem to be any number of ways in which the respondents might have progressively disposed of large numbers of fruit bats during the lychee season. If there were in fact any insuperable difficulties in the way of their doing so, I would have expected to hear evidence of them.

47 The parties accepted that the lychee season lasts for six to eight weeks annually. Evidence was given, which I accept, that as a matter of practice an electric grid intended to protect a lychee orchard from flying foxes will be operated for a period of some weeks before the fruit is sufficiently ripe to be picked. In the absence of evidence from the respondents which would allow the actual length of time for which the Grid was operational during the 2000-2001 lychee season to be established, it seems not unreasonable to assume the Grid to have been operational for at least eight weeks during the 2000-2001 lychee season. On this basis a simple extrapolation from 400 deaths per night would lead to a total figure of 22,400 Spectacled Flying Foxes killed.

48 Ms Whybird agreed with the suggestion put to her in cross-examination that an estimate of 28,000 Spectacled Flying Foxes killed by the Grid over the 2000-2001 lychee season would be too high. She was not asked to give an estimate that she thought was reasonable. Again I attach weight to the failure of the respondents who, as is mentioned above, may be assumed to know, at least roughly, the number of Spectacled Flying Foxes killed on the Farm during the 2000-2001 lychee season, to give evidence. Having done so, I nonetheless consider it appropriate in the interests of caution to discount the figure of 22,400 referred to in [47] above by a relatively modest percentage to reflect contingencies which might impact on the validity of the extrapolation which it reflects. I consider a discount of 20% to be appropriate. On this basis, doing the best I can on the evidence before me, I conclude that it is more likely than not that the total number of Spectacled Flying Foxes killed as a result of the operation of the Grid during the 2000-2001 lychee season was of the order of 18,000 animals.

49 Dr Martin gave evidence, which I accept, that because the time when the Grid was operated coincided with the peak of the birth and lactation season for Spectacled Flying Foxes, it is likely that the population entering the respondent's orchard comprised of more than 50% females. He considered it appropriate to assume that between 50% to possibly 70% of the animals killed were female. Again taking what I consider to be a conservative approach, I propose to proceed on the basis that between 55% to 60% of the animals killed were female. That is that the number of female Spectacled Flying Foxes killed by the operation of the Grid during the 2000-2001 lychee season fell within the range of 9,900-10,800.

50 I further conclude that the future operation of the Grid during lychee fruit seasons will, unless restrained, continue to cause the death of comparable numbers of female Spectacled Flying Foxes subject only to this species of flying fox becoming increasingly rare in those areas of Australia from which flying foxes may be attracted to the Farm.

Do the Spectacled Flying Foxes killed by the Grid reside in the Wet Tropics World Heritage Area?

51 Ultimately it did not seem to me that the respondents challenged the applicant's allegation that the Spectacled Flying Foxes killed by the Grid resided in the Wet Tropics World Heritage Area.

52 Mr Richards has been involved in bat research for over three decades. He conducted a specific study on the Spectacled Flying Fox in the Wet Tropics between 1981-1987 while employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO). Mr Richards gave the following affidavit evidence:

"The Spectacled Flying Fox is one of 8 species in the genus Pteropus that inhabit Australia and its Territories. Although it has a distribution that is restricted to northern Queensland, it is found only in the Wet Tropics World Heritage Area (WTWHA) and the rain forested areas of Cape York. It is also found in Papua New Guinea but only from less than 10 localities (Flannery 1995)."

Mr Richards also gave affidavit evidence that the majority of the national population inhabits the Wet Tropics World Heritage Area. The above evidence was not challenged by the respondents.

53 In view of the proximity of large parts of the Wet Tropics World Heritage Area to the Farm, and the distance between the Farm on the one hand and Cape York and Papua New Guinea on the other, I conclude that the Spectacled Flying Foxes killed by the Grid resided in the Wet Tropics World Heritage Area.

Do the Spectacled Flying Foxes contribute to the world heritage values of the Wet Tropics World Heritage Area?

54 It is not disputed that the Wet Tropics World Heritage Area has "world heritage values" within the meaning of s 12 of the Act. Relevantly the world heritage values of the Wet Tropics World Heritage Area are the natural heritage contained within it (subs 12(3) of the Act). The meaning of "natural heritage" in this context is the meaning given by the World Heritage Convention (see [8] and [9] above).

55 Article 8 par 1 of the World Heritage Convention establishes an Intergovermental Committee for the Protection of the Cultural and Natural Heritage of Outstanding Universal Value called "the World Heritage Committee" within the United Nations Educational, Scientific and Cultural Organisation. Article 11 par 5 of the World Heritage Convention requires the World Heritage Committee to define the criteria on the basis of which a property belonging to the cultural or natural heritage may be included on the World Heritage List.

56 The World Heritage Committee has apparently defined such criteria on numerous occasions. A document entitled "Operational Guidelines for the Implementation of the World Heritage Convention" published by the World Heritage Committee as revised in December 1988 contains the definitions of the criteria against which the Nomination Document was assessed. A further revision of the Operational Guidelines for the Implementation of the World Heritage Convention was adopted by the World Heritage Committee in December 1998. This revision of the Guidelines was operational at the time that this proceeding was instituted and at the time of the hearing. Annexed to these reasons for judgment and marked "B" are the criteria for the inclusion of natural properties in the World Heritage List as set out in The Guidelines as revised in December 1988. Annexed to the reasons and marked "C" are the criteria as set out in the Guidelines as revised in December 1998.

57 Article 2 of the World Heritage Convention, which in effect defines the expression "natural heritage" for the purposes of the Convention, is to be interpreted in accordance with the requirements of the Vienna Convention on the Law of Treaties ("the Vienna Convention") (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 per McHugh J at 252). Article 31 of the Vienna Convention provides:

"Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended."

58 In Applicant A McHugh J at 252-256 gave consideration to the correct interpretation of Art 31 of the Vienna Convention. His Honour considered that an ordered but holistic approach was required to the interpretation of the article. His Honour observed that:

"...the mandatory requirement that courts look to the context, object and purpose of treaty provisions as well as the text is consistent with the general principle that international instruments should be interpreted on a more liberal manner than would be adopted if the court was required to construe exclusively domestic legislation."

His Honour further observed that:

"international treaties often fail to exhibit the precision of domestic legislation. This is the sometimes necessary price paid for multinational political comity."

59 Having regard to Art 8 and Art 11 par 5 of the World Heritage Convention and Art 31 par 3(a) and (b) of the Vienna Convention, I consider it appropriate for the World Heritage Committee criteria for the inclusion of natural properties in the World Heritage List to be taken into account in the interpretation of Article 2 of the World Heritage Convention. In this proceeding, in my view, the appropriate criteria are those contained in the guidelines as revised in December 1998. I note that par 10 of the applicant's statement of claim and the respondents' admission that that paragraph contains a convenient summary of the world heritage values of the Wet Tropics World Heritage Area (see [18] above) reveal that the parties have adopted the same view.

60 The document whereby Australia nominated the Wet Tropic Rainforests of North-east Australia for inclusion in the World Heritage List ("The Nomination Document") included a description and inventory of the nominated property. It stated under the subheading "Fauna":

"Although the nominated area represents about 0.1 per cent of the land surface of the continent it has a large and diverse fauna. Within the area occur 30 per cent of the marsupial species, 60 per cent of the bat species, 30 per cent of the frog species, 23 per cent of the reptile species and 62 per cent of the butterfly species of Australia. Eighteen per cent of Australia's bird species occur in these rainforests. There are 54 species of vertebrate animals unique to the nominated area.

The mammal fauna includes 2 monotremes, 37 marsupials, 16 rodents and 34 bats ...".

61 Photographic plates 1 to 47 attached to the Nomination Document illustrate the nominated area and the species found therein. Plate 32 is a photograph of Spectacled Flying Foxes.

62 The Nomination Document states that:

"The nominated area fulfils all four criteria described for inclusion of properties on The World Heritage List as a `natural heritage'."

The four criteria referred to are those set out in The Operational Guidelines for the Implementation of the World Heritage Convention as revised in December 1988 (see annexure "B").

63 With respect to the criterion "outstanding examples representing the major stages of the earth's evolutionary history", the Nomination Document states:

"The nominated area contains a unique record of a mixing of two continental floras and faunas. The mixing occurred following the collision of the Australian and Asian continental plates about 15 million years ago. This collision was a unique event in that it mixed two evolutionary streams (both flora and fauna), of likely common origin, that had been largely separated for at least 80 million years. Whereas other continental collisions that led to a mixing of the biota have occurred, eg., that of North and South America, none of those continents had such a long period of separation prior to collision.

...

Of the Australian mammals, the rodents and bats are considered to have entered since connections with the Asian plate were established. Sixty percent of Australia's bat species are found in the wet tropics."

64 With respect to the criterion "outstanding examples representing significant ongoing geological processes, biological evolution and man's interaction with his natural environment", the Nomination Document noted that:

"The tropical rainforests ... are one of the most significant biomes harbouring the majority of the earth's genetic diversity ...".

The Nomination Document further noted under this criteria that:

"Processes resulting in areas of exceptional species richness or of high endemism are of outstanding scientific interest."

With respect to the criterion "superlative natural phenomena, formations or features", the Nomination Document states:

"The Australian wet tropics regions [sic] is one of the most significant regional ecosystems in the world. Despite its relatively small size, the exceptionally high genetic diversity and endemism makes it a superlative example of tropical rainforest."

With respect to the criterion the most important and significant natural habitats where threatened species of animals or plants of outstanding universal value from the point of view of science and conservation still survive", the Nomination Document states:

"The majority of plants in the rainforests of the nominated area have a restricted distribution either as isolated or disjunct populations. High concentrations of monotypic genera reflecting the refugial nature of the rainforests are found at several locations."

Significantly this final criterion is expressed more expansively in the December 1998 revision of the Operational Guidelines for the Implementation of the World Heritage Convention. It is no longer limited by a reference to "threatened species". In its present form the criterion is that the property -

"contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation."

65 The International Union for Conservation of Nature and Natural Resources ("the IUCN") undertook a technical evaluation of the nomination of the Wet Tropical Rainforests of North-east Australia for inclusion in the World Heritage List. Its report, dated October 1988, advised that the property merited inscription on the World Heritage List on the basis of the criteria "earth's evolutionary history", "on-going biological evolution", "exceptional natural beauty" and "habitat for threatened species".

66 Although the precise purpose for which the Nomination Document and the IUCN technical evaluation were tendered by the applicant was not articulated, the documents were received in evidence without objection as to the hearsay nature of their contents. In the circumstances I do not consider it appropriate to treat the hearsay rule (see s 59 of the Evidence Act) as applying to them. I therefore regard the documents as constituting evidence of the facts asserted in them.

67 I am satisfied that the Spectacled Flying Fox is an example of a species that entered North-east Australia following the connection of the Australian and Asian continental plates. This satisfaction is based on the statement in the Nomination Document that "[o]f the Australian mammals, the rodents and bats are considered to have entered since connections with the Asian plate were established" and on the evidence that the only other country in which the species is found is Papua New Guinea. I am consequently satisfied that the Spectacled Flying Fox contributes to the world heritage values of the Wet Tropics World Heritage Area as part of the record of the mixing of the faunas of the two continental plates.

68 I am further satisfied that the Spectacled Flying Fox contributes to the world heritage values of the Wet Tropics World Heritage Area on the following bases. First, I am satisfied that the Spectacled Flying Fox contributes to the genetic diversity and biological diversity of the Wet Tropics World Heritage Area. For this reason I am satisfied that the species contributes to the character of the Wet Tropics World Heritage Area as a "superlative natural phenomena" by reason of its being "one of the most significant regional ecosystems in the world". Secondly, for the same reason, I am satisfied that the species constitutes part of the biological diversity for which the Wet Tropics World Heritage Area is a most important and significant natural habitat for in-situ conservation.

Is the operation of the Grid an action that has, or will have, or is likely to have, a significant impact on a world heritage value of the Wet Tropics World Heritage Area?

69 The issue of whether the operation of the Grid has, or will have, or is likely to have, a significant impact on a world heritage value of the Wet Tropics World Heritage Area requires consideration, amongst other things, of the impact on the total Spectacled Flying Fox population of the numbers of Spectacled Flying Foxes killed, or to be killed or likely to be killed by the operation of the Grid. The respondents submitted that strong evidence would be required to establish that these numbers are high numbers and that their impact is, or is likely to be, significant. The respondents placed reliance on the decision of the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

70 Following the enactment of the Evidence Act it seems to me to be appropriate to consider the significance of Briginshaw v Briginshaw in the context of s 140 of the Evidence Act (see [38] above). In Employment Advocate v Williamson [2001] FCA 1164, a case concerning an alleged contravention of the Workplace Relations Act 1996 (Cth), in a judgment with which in this regard Kenny J agreed, I said at [65]-[67]:

"65. In my view, subs 140(2) of the Evidence Act is intended to reflect the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 449-450 Mason CJ, Brennan, Deane and Gaudron JJ observed:

`The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary `where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..." '

(footnotes and citations omitted)

66. Although it has been said that in a case of this kind a "standard of proof above mere satisfaction on the balance of probabilities is appropriate" (see Hamberger v Construction Forestry Mining & Energy Union [2000] FCA 1924 at [30] and The Employment Advocate v National Union of Workers 2000 FCR 454 at [25]-[29]), the position is, in my view, better reflected by an acknowledgment that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities in a case of this kind might, depending on the nature of the particular fact or facts, be greater than would be required to establish a fact in issue on the balance of probabilities in a proceeding of a different kind.

67. By way of illustration, it is an entirely proper and common thing in the context of the Australian society for a person to join an industrial association. It is not in any way inherently unlikely that a particular individual in Australia will be a member of an industrial association. For this reason, the strength of evidence necessary to establish, in a case of this kind, the truth of an allegation that an individual was, at the relevant time, a member of an industrial association, will not ordinarily exceed to any great degree the strength of evidence required to establish a fact of a similar kind in a proceeding of a less significant nature. The allegation is not a grave one. However, it is not regarded as proper, nor is it common, in Australian society for people to engage in conduct proscribed by an Act of Parliament. An allegation that someone has done so is ordinarily a grave allegation particularly where, if made out, the allegation could lead to the imposition of a significant penalty. For this reason, the strength of the evidence required to establish that an individual had, in his or her capacity as an officer or member of an industrial association, engaged in conduct of the kind proscribed by s 298P(3) of the Act, would be greater than the strength of evidence that would be required, whether in the same or in a different proceeding, to establish that a person had engaged in conduct of a kind that is not legally proscribed and that is engaged in regularly by people of good standing in the community."

71 In this case the applicant alleges, amongst other things, that the respondents have taken an action the effect of which, the action not having been authorised under s 12(2) of the Act, is that the action is proscribed by the Act on pain of the imposition of a penalty. It is of significance, in my view, that the respondents have admitted taking the relevant action (ie the operation of the Grid). What they have placed in issue is the extent of the effect on Spectacled Flying Foxes of their having taken the action. The extent of this effect was, in the circumstances which happened, the result of the interplay of a number of variables beyond the control of the respondents (eg the number of Spectacled Flying Foxes attracted to the Farm on a particular night to feed on lychees and their skill or luck in avoiding the Grid). In these circumstances, there is no occasion, in my view, for weight to be placed on any perception that the conduct that the respondents are alleged to have undertaken is unlikely conduct in the sense discussed by Mason CJ, Brennan, Deane and Gaudron JJ in the Neat Holdings case.

72 Nonetheless, s 140 of the Evidence Act requires that I take into account the nature of the cause of action, the nature of the subject matter of the proceeding, and the gravity of the matters alleged. The applicant's cause of action arises under s 475(1) of the Act. That is, it is a cause of action which seeks injunctive relief. I accept that the injunctive relief, if granted, would be likely to have serious consequences for the respondents. I also take into account that the alleged contravention of the Act upon which the applicant's cause of action is based is a contravention which attracts a significant civil penalty. Further, I take into account that the matters alleged against the respondents (ie that they have taken an action that has, or will have, or is likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area) are serious, and that if the allegations are true they probably also involve the respondents in a contravention of the Nature Conservation Act 1992 (Qld). These factors tend, albeit for the reason identified in [71] above, to a limited degree, to increase the strength of the evidence necessary to prove the case of the applicant on the balance of probabilities. However, I also take into account as tending, again to a limited degree, to counteract the above factors, the objects of the Act (see s 3) and the fact that the existence of the cause of action, and the wide class of persons authorised by s 475(6) to invoke the cause of action, reflect the national and international public interest in the subject matter of the proceeding, namely the protection of alleged world heritage values of a world heritage property. Further, I take into account, in the way outlined above (see partic [42]), the failure of the respondents to give evidence in the proceeding.

73 The Farm is in the southern area of the Spectacled Flying Fox range. Ms Whybird gave evidence that this area had not been well covered by surveys. However, she gave evidence that the number of Spectacled Flying Foxes flying out of camp sites generally now is dramatically less than it was ten years ago.

74 Ms Whybird has been involved in the monitoring of the Spectacled Flying Fox population in the Queensland wet tropics. I understand the "Queensland Wet Tropics" to include both the Wet Tropics World Heritage Area and the rainforested areas of Cape York. In March 1998 a survey of Spectacled Flying Foxes was undertaken when a conservative total of 153,000 was counted. This survey provided the first gross estimate of the Spectacled Flying Fox population in the central part of the wet tropics. On the basis of this estimate, Ms Whybird formed the opinion that the total Australian population of Spectacled Flying Foxes at that time might have exceeded 200,000. Subsequent surveys resulted in the following counts:

Nov 1998: 113,960 (possible error estimated at 14,100)

Nov 1999: 74,400 (possible error estimated at 8,650)

Nov 2000: 79,980 (possible error estimated at 9,045)

The November 2000 count was undertaken on 10, 11 and 12 November 2000. This is, at the beginning of the lychee season and before the applicant undertook the count of flying fox carcasses at the Farm.

75 The respondents challenge the accuracy of the surveys of which Ms Whybird gave evidence. Francis Dominic Fanning ("Mr Fanning") is an environmental consultant called to give evidence by the respondent. Mr Fanning does not profess expertise in respect of flying foxes. However, he does have an interest in the development of methods for environmental survey. Mr Fanning expressed the opinion "on the basis of the information I have seen, that there are no scientifically valid or verifiable estimates of the population size or total abundance of the Spectacled Flying Fox...". The information seen by Mr Fanning I understand to have been the paper by Garnett, Whybird and Spencer (1999) referred to in [88] below and a report on the census of Spectacled Flying Foxes of November 1999 prepared by Stephen Garnett and Ms Whybird. Mr Fanning drew attention to issues of concern with respect to the accuracy of the surveys identified in the papers to which he referred. Mr Fanning further expressed the opinion that:

"Given the lack of scientific rigour in estimating the current total population of Spectacled Flying Foxes, and the lack of any estimate of the `local' population, it is not possible to assert with any certainty that the mortalities of Spectacled Flying Foxes at the lychee farm at Dallachy Creek, Kennedy in Queensland could or would lead to that species becoming endangered. Nor does the current evidence provide the necessary scientifically valid basis for concluding that there has been a dramatic reduction in the population of the Spectacled Flying Fox."

76 Christopher Richard Tidemann (Dr Tidemann") is a Senior Lecturer, School of Resource Management and Environmental Science, Australian National University. He was also called to give evidence by the respondents. Dr Tidemann's only knowledge of the population of Spectacled Flying Foxes came from the report on the census of Spectacled Flying Foxes of November 1999 prepared by Stephen Garnett and Ms Whybird. Dr Tidemann stated that, to the best of his knowledge, there is no accurate information on the status of the Spectacled Flying Fox in the World Heritage Wet Tropics Area in the Cardwell Region or elsewhere, other than that contained in the 1999 report of Stephen Garnett and Ms Whybird. He expressed the opinion that:

"Given the uncertainty of the status of the population of Spectacled Flying Foxes in the WTWHA [Wet Tropics World Heritage Area], it is not possible to say, from a scientific perspective, if there is a real risk of extinction of this species in the near future; instead, the species should be viewed as data deficient or insufficiently known until replicate counts have been made under environmental conditions comparable to those under which the base-line counts were made. This applies particularly to any determination of "list status", at international (eg IUCN), national or State level."

77 The methodology adopted in the surveys with which Ms Whybird was involved was not challenged by the witnesses called by the respondents. Rather they drew attention to the inherent difficulties involved in undertaking such surveys.

78 It appears that neither Mr Fanning nor Dr Tidemann had regard, prior to his giving evidence, to the report prepared by Ms Whybird on the November 2000 survey of Spectacled Flying Foxes. This survey is, in my view, of importance not only because it is the most recent survey but also because it involved a replication of earlier surveys involving as it did the use of the same methods as had been used in the earlier surveys with which Ms Whybird had been involved.

79 I accept, as indeed did Ms Whybird, that inherent difficulties exist in conducting a population survey of flying foxes. However, I was impressed with Ms Whybird's evidence generally. She has a particular expertise with respect to Spectacled Flying Foxes. She has been undertaking research on this species for seven years. Moreover, the evidence before me reveals that she is an acknowledged expert on the topic of the Australian population of Spectacled Flying Foxes. The reports which she has authored or co-authored frankly acknowledge the difficulties in establishing an accurate Spectacled Flying Fox population. However, in her report on the November 2000 Spectacled Flying Fox survey, Ms Whybird stated:

"We are confident that more than 80% of bats were located ...."

80 I am willing to accept that Ms Whybird's confidence in the accuracy of the November 2000 survey is well placed. In my view, for present purposes, Ms Whybird's expertise and relevant experience is adequate to compensate for the theoretical difficulties which stand in the way of complete scientific rigour in estimating the total Australian population of Spectacled Flying Foxes. The Court is not concerned with whether the applicant has established with complete scientific rigour the total Australian population of Spectacled Flying Foxes. The duty of the Court under s 140 of the Evidence Act is to determine whether the case of the applicant has been proved on the balance of probabilities.

81 I conclude that, as at early November 2000, it is more likely than not that the total Australian population of Spectacled Flying Foxes did not exceed 100,000.

82 Ms Whybird gave evidence that of the roughly 80,000 Spectacled Flying Foxes counted in November 2000, only 10,410 were counted within fifty kilometres of the Farm. However, she rejected the suggestion that this figure meant that it was impossible that more than 28,000 (ie one possible extrapolation from the applicant's counts) Spectacled Flying Foxes visited the Farm during the 2000-2001 lychee season. She did, however, suggest that the figure of 28,000 was too high. She rejected the suggestion that a figure of about 15,000 was "highly improbable". She referred to the "vacuum effect" of which Mr Richards also gave evidence.

83 In his oral evidence Mr Richards said:

"It is not easy to say whether one grid, or one farm will contribute totally to the extinction of the animal, but there is also the vacuum effect with these sorts of systems and that is my worry. A major impact has a vacuum effect, rather than a randomised effect of, for example, colliding with power lines or motor vehicles."

When asked to explain what he meant by "vacuum effect" Mr Richards said:

"In a lot of animal populations if you are trying to control them - for example, if you poison animals that have established territories, those that have been kept out of the territory by the ones pre-poisoning, there's a balance. But if you take out a group that maintain territorial boundaries, for example, then others break their boundaries and move in. And that's called a vacuum effect.

...

Sorry, your Honour, I was trying to suggest that one grid as it kills animals can keep killing animals. It's not as if there's a discrete number in an area to kill, because these animals are very, very mobile, and this sort of method of orchard control has the potential to just keep killing animals as they discover the orchard and attempt to feed in it, and it just becomes like a vacuum going down the bath plug."

84 To the same effect was the evidence of Dr Martin who in his report stated:

"Flying Foxes like P. conspicillatus routinely forage over 50km per night. If there is a good food source, individuals will increasingly move from distant roost sites to ones closer to that food source. Similarly, if there is a good food source and bats from a local roost are being killed, bats from more distant areas will move into vacancies in that roost. Thus, to the grower killing the animals, there will be a perception of "millions" of animals - a never-ending supply - and a misconception that the animals breed like rats and mice. The ecological technical term for such movement into a cull site is "source-sink dispersal" (Pulliam, 1996); the site of culling is the "sink" into which animals move from surrounding "source" areas. Not only will any orchard culling of a perceived "local" population fail to eradicate attacks upon the orchard, but the slaughter will produce a vacant niche, a pteropucidal black hole which will drag animals into it from far afield. The image of a black hole and its irresistible gravitational force sweeping every-thing [sic] into its maw is, I believe, a not unreasonable metaphor. Not only will this particular orchard culling fail to eradicate attacks upon the orchard, because of replacement of bats, but the slaughter will produce the local vacant niche, which will then become occupied by animals moving into it from further afield, which are then killed, so producing a local vacant niche which then...and so on.

...It seems self-evident that the culling of P.conspicillatus in the Bosworth orchard will affect populations over a broad span of the surrounding Wet Tropics World Heritage Area."

85 I do not understand the respondents to have challenged the notion of the "vacuum effect" or its relevance to the issue of the impact of the Grid on the Spectacled Flying Fox population. In any event, I see no reason to reject the evidence of Mr Richards, Dr Martin and to the extent that Ms Whybird also gave such evidence, Ms Whybird, concerning the vacuum effect and its significance in respect of the operation of the Grid.

86 Another matter of significance so far as the issue of the impact of the Grid on the population of Spectacled Flying Foxes is concerned, is that, as a number of witnesses said, and I accept, the Spectacled Flying Fox is incapable of rapid reproduction. Dr Martin gave evidence that females do not usually complete a pregnancy successfully until they are in their third year and they bear only one young per year. Although Spectacled Flying Foxes have apparently lived for more than twenty years in captivity, I accept the opinion of Dr Martin that the present "natural" longevity in the wild is possibly much less, being approximately ten to fifteen years. Dr Martin stated in his report:

"Such an evolved breeding strategy is successful only if animals are long-lived and suffer low mortality rates. Any imposed mortality has severe effects on population size." (emphasis in original)

87 Dr Martin expressed the unchallenged opinion in his report that "in the face of habitat destruction, natural stochastic events and direct exploitation by humans" baseline mortality rates for flying foxes in the range of 20% - 30% was realistic. He further expressed the unchallenged opinion that fecundity rates as low as 70% - 75% are not unreasonable. Dr Martin went on to express the opinion, which was again unchallenged, that:

"In contrast to deaths imposed by shooting, stochastic disaster, or intentional electrocution, most `natural' deaths are likely to be unperceived. In relation to actual and perceived death-rates any perceived `human-imposed' death-rate would have an additive effect on the unperceived `natural' death-rate. This means that a perceived imposed death-rate of 10% per annum by intentional electrocution, or other form of culling, adding to an unperceived natural death rate of 10% will produce a total death-rate of approximately 20% and, given an adult fecundity of 90%, the population will remain close to stasis. At this fecundity, any imposed death-rate greater than 12% will cause population decline. If adult fecundity is below 90% and unperceived `natural' death-rate is higher than 10%, any imposed-mortality leads to greater and greater population declines. So, with a `natural' death-rate of 20% and adult fecundity of 80%, an imposed mortality of 10% will lead to a halving of the population in less than five years. On the basis of these relationships one can calculate the effects of a known harvesting rate on a population of any given size." (emphasis in original)

I understand Dr Martin in the above passage from his report when referring to "an imposed-mortality of 10%" to mean an imposed mortality of 10% of adult female flying foxes.

88 On the basis of my above finding that the total Australian population of Spectacled Flying Foxes in early November 2000 did not exceed 100,000, I conclude that the total population of adult female Spectacled Flying Foxes was approximately 50,000. In reaching this conclusion I note that Dr Martin in oral evidence was prepared to assume that female flying foxes constituted roughly half the population. When questioned by me as to this assumption, Dr Martin said that at birth there was a balance between male and female flying foxes although "[l]ater on there are questions." Neither Dr Martin's cross-examination nor his re-examination resulted in these questions being identified. I further note that it was put to Ms Whybird in cross-examination that, in effect, females would constitute half the Spectacled Flying Fox population. She did not demur from this proposition and the issue was not explored in her re-examination. There is in evidence an article published in the Australian Zoologist of June 1999 of which the authors were Garnett, Whybird and Spencer. The article contains the assertion that "there is a ratio of at least 2:1 in favour of females in Spectacled Flying Foxes". However, neither Ms Whybird nor any other witness was asked to comment on the accuracy of this assertion. I consider it appropriate in the circumstances to rely on the way in which the proceeding was conducted and on the oral evidence of Dr Martin and, to the limited extent mentioned, Ms Whybird, on the issue of the proportion of the Spectacled Flying Fox population likely to be female.

89 On the basis that the total adult female Spectacled Flying Fox population in early November 2000 was approximately 50,000, on my above findings roughly 20% of that population was killed by the Grid during the 2000-2001 lychee season.

90 It was submitted by the respondents that, in determining whether the operation of the Grid had or will have a "significant" impact on the world heritage values of the Wet Tropics World Heritage Area, it is impossible to look at the impact of the Grid in isolation. They argued that it is necessary to weigh the impact of the Grid as one component only of the overall threat to the Spectacled Flying Fox. The first point to be made in respect of that submission is that the evidence before me as to the impact of other threats to Spectacled Flying Foxes is sparse in the extreme.

91 There is evidence that at the time that the Garnett, Whybird and Spencer paper referred to above was written (ie mid 1998), permits for ten electric grids within the range of the Spectacled Flying Fox had been granted, and that a number of grids was thought to be operating without permits. The paper indicates that the reported number of deaths from the operation of the grids was only 856. Even if it be accepted that the reports were likely to be an underestimate, the impact in late 2000 of the impact on Spectacled Flying Foxes of electric grids for which permits had been granted in 1998 can only be a matter of speculation. Amongst other possible factors, the Act itself, which only came into operation on 16 July 2000, may have had an impact on the number of grids being operated for the purpose of killing flying foxes.

92 Graham David Minifie ("Mr Minifie"), General Manager of a company which provides protective canopy systems for orchards, gave evidence of seeing grids on other properties when he travelled to the Farm in mid-2001. However, the Grid was the largest grid seen by Mr Minifie. Mr Minifie's evidence suggested that there is presently a tendency for grids to be replaced by canopy systems. He said:

"Nearly every lychee property I was quoting on they had previously an electric grid system."

93 Moreover, Mr Minifie described the respondents' lychee orchard as "extremely large". There is no evidence to suggest that any other electric grid approximating the scale of the Grid was operating in November 2000 or has operated at any time thereafter.

94 Similarly, although I accept that Spectacled Flying Foxes are shot by farmers, there is little evidence before me as to the scale of such shooting. The Garnett, Whybird and Spencer paper reported that in 1997 a total of 1,202 flying foxes were shot under permit by twelve farmers. The paper recognised the unreliability of the figure but pointed out that "shooting takes exceptional diligence, accuracy and sleeplessness to be effective." Again there is no evidence before me on which I could conclude that Spectacled Flying Foxes were being shot in numbers which even approach the numbers that were killed by the Grid in the 2000-2001 lychee season.

95 Similarly such evidence as there is as to Spectacled Flying Foxes being killed by power transmission lines, cars and even ticks, suggests that the numbers are not great. Although habitat clearance is, no doubt, an important issue, the listing of the Wet Tropics World Heritage Area on the World Heritage List in 1988 may be assumed to have significantly limited habitat clearance. No evidence was called of any cyclone or other national disasters likely to have impacted on the Spectacled Flying Fox population in late 2000 or early 2001. Further, I accept the logic of Dr Martin's evidence that:

"mortality rates are additive so that if you have a population of flying foxes which has an existing mortality, that animals are dying at such and such a rate per year due to habitat clearance, due to shooting etcetera, due to other electrocutions, you can add on to that mortality the mortality provided by the electrocution in this one orchard. They are additives so they are not really taken in isolation. ...

...if you have a population which is already experiencing a mortality which might be described as natural, you can add on and you can calculate the actual additional size of the population that is put at risk by what is happening in this one orchard."

96 I turn to consider whether the killing of Spectacled Flying Foxes in the numbers identified above, has, or will have, or is likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area within the meaning of s 12 of the Act.

97 It was contended by the respondents that "likely" in the context of par 12(1)(b) of the Act means probable in the sense of more likely than not. I have not found it necessary to reach a concluded view on the accuracy of this contention. However, I incline to the view that a lower standard is intended to be set by par 12(1)(b). As Bowen CJ pointed out in Tilmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 at 339:

"The word `likely' is one which has various shades of meaning. It may mean `probable' in the sense of `more probable than not' - `more than a fifty per cent chance'. It may mean `material risk' as seen by a reasonable man `such as might happen'. It may mean `some possibility' - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified."

In the same case at 346 Deane J observed:

"The word `likely' can, in some contexts, mean `probably' in the sense in which that word is commonly used by lawyers and laymen, that is to say, more likely than not or more than a fifty per cent chance (`an odds-on-chance', per Lord Hodson in Koufos v C. Czarnikow Ltd [1969] 1 AC 350 at 410) .... It can also, in an appropriate context, refer to a real or not remote chance or possibility regardless of whether it is less or more than fifty per cent. When used with the latter meaning in a phrase which is descriptive of conduct, the word is equivalent to `prone', `with a propensity' or `liable'."

98 It might well be thought that it would be consistent with the objects of the Act, as identified in s 3 of the Act, for the expression "likely" in par 12(1)(b) to be understood in the sense of "prone", "with a propensity" or "liable". Such an approach would be consistent with the "precautionary principle" which informs much environmental protection and conservation work (see the discussion of Sackville J of the "precautionary principle" in Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 142 ALR 632 at 677-679). It would consequently tend to avoid the risk to biological diversity and the environment generally which would flow from the need for scientific certainty or confidence about the potential impacts of actions concerning which there has been limited scientific study. However, as already mentioned, it is unnecessary in this proceeding for me to give this issue further consideration. Further, it is undesirable that I do so as no party addressed submissions to the Court in support of such an approach.

99 The parties were in broad agreement that in the context of s 12 of the Act a "significant impact" is, as expressed in the applicant's written submissions, an "impact that is important, notable or of consequence having regard to its context or intensity." Reliance was placed on a number of Australian authorities including Oshlack v Richmond River Shire Council and Iron Gates Developments Pty Ltd (1993) 82 LGERA 222 per Stein J at 233; Concord, North Sydney, Woollahra and Manly Councils v Optus Networks Pty Ltd (1996) 90 LGERA 232 per Dunford J at 264: McVeigh v Willarra Pty Ltd [1984] FCA 379; (1984) 6 FCR 587 per Toohey, Wilcox and Spender JJ at 596; Tasmanian Conservation Trust Inc v Minister for Resources [1995] FCA 1035; (1995) 55 FCR 516 per Sackville J at 541; Drummoyne Municipal Council v Roads and Traffic Authority of New South Wales [1989] NSWLEC 19; (1989) 67 LGRA 155 per Stein J at 163.

100 It is not clear that the factor of "intensity" has, as such, been identified in the Australian authorities. However, I note that the United States' National Environmental Policy Act, 42 USCS §4321 et seq requires that the issue of whether there may be a significant effect on the environment requires consideration of two broad factors: "context and intensity" (see 40 CFR §1508.27; see also Sierra Club v United States Forest Serv, [1988] USCA9 651; 843 F.2d 1190, 1193 (9^th Cir. 1988); National Parks and Conservation Association v Babbitt [2001] USCA9 115; 241 F.3d 722, 2001 US App. Lexis 2648).

101 Although, as is indicated above ([67]-[68]), I accept that the Spectacled Flying Fox contributes to the world heritage values of the Wet Tropics World Heritage Area, the evidence is, in my view, insufficient to allow me to be satisfied that even a serious reduction in the numbers of Spectacled Flying Foxes (as opposed to flying foxes generally, or seed dispersal and pollination agents generally) would of itself have, or be likely to have, a significant impact on those aspects of the world heritage values of the Wet Tropics World Heritage Area which relate to the flora of the area.

102 However, as is indicated above ([67]-[68]), I accept that the Spectacled Flying Fox is part of the record of the mixing of the faunas of the Australian and Asian continental plates and that the species constitutes part of the biological diversity for which the Wet Tropics World Heritage Area is a most important and significant natural habitat for in-situ conservation.

103 I am satisfied that the disappearance of the Spectacled Flying Fox from the Wet Tropics World Heritage Area, or an appreciable reduction in the numbers of Spectacled Flying Foxes within the Wet Tropics World Heritage Area, would impact on the world heritage values of the area. Either such event would tend to detract from the biological diversity of the area and from the importance and significance of the habitats contained within it for in situ conservation of biological diversity. Further, I am satisfied that the disappearance of the Spectacled Flying Fox from the Wet Tropics World Heritage Area, or a dramatic reduction in its numbers in the area, would detract from the record contained in that area of the mixing of the faunas of the Australian and Asian continental plates.

104 In my view the finding that the operation of the Grid during the 2000-2001 lychee season had the consequence that approximately 20% of the population of adult female Spectacled Flying Foxes were killed leads inevitably to the conclusion that the operation of the Grid had a significant impact on the population of Spectacled Flying Foxes. Further I find, on the balance of probabilities, that the probable impact of the operation of the Grid, if allowed to continue on an annual basis during future lychee seasons, will be an ongoing dramatic decline in the Spectacled Flying Fox population leading to a halving of the population of Spectacled Flying Foxes in less than five years. The paper by Garnett, Whybird and Spencer indicates that under IUCN criteria a species may be listed as endangered if it has "undergone an observed, estimated, inferred or suspected decline of at least 50%... over the last 10 years or 3 generations whichever is longer". A "generation" for the IUCN criteria is relevantly four years. I therefore conclude on the balance of probabilities that the probable impact of the operation of the Grid, if allowed to continue in the manner mentioned, will be to render the Spectacled Flying Fox an endangered species in the Wet Tropics World Heritage Area and in Australia in less than five years.

105 Is this impact on the population of Spectacled Flying Foxes to be equated in the context of the Act with a significant impact on the world heritage values of the Wet Tropics World Heritage Area? This is an issue on which virtually no authoritative guidance appears to be available. Having regard to the objects of the Act, which include the conservation of biodiversity, and the terms of the World Heritage Convention, which include a recital which emphasises the international recognition of the significance of the "deterioration" of natural heritage (see [113] below), I have concluded that in the circumstances of the present case it is. In this context, in my view, a dramatic decline in the population of a species, so as to render the species endangered, where that species forms a part (other than an inconsequential part) of the record of the Earth's evolutionary history or of the biological diversity of a most important and significant habitat for in-situ conservation of biological diversity is to be understood as having an impact that is important, notable or of consequence. I reject the submission of the respondents that before this conclusion can properly be reached it would have to be established that the Spectacled Flying Fox is itself, when compared with other species, a species of outstanding universal value. In any event, I note that outside of Australia the Spectacled Flying Fox is found only in Papua New Guinea and there only from less than ten locations (see [52´] above). In this context, the loss of the Spectacled Flying Fox from the Wet Tropics World Heritage Area and from Australia would, in my view, be a matter of considerable consequence.

106 I find that the continued operation of the Grid is likely to have a significant impact on the world heritage values of the Wet Tropics World Heritage Area.

CONCLUSION

107 I therefore conclude that the respondents propose to engage in conduct consisting of an act that constitutes a contravention of subs 12(1) of the Act. In this circumstance subs 475(2) of the Act gives the Court a discretionary power to grant an injunction restraining the respondents from engaging in that conduct.

DISCRETIONARY MATTERS

108 Only two factors were relied upon by the respondents as factors which would support the Court exercising its discretion in favour of not granting the injunction sought. The first was evidence of an assertion contained in an application made by the respondents under the Nature Conservation Act 1992 (Qld) in November 2000 that they were suffering more than $200,000 monetary loss from crop damage inflicted by Rainbow Lorikeets and Spectacled Flying Foxes. The second was the failure of the applicant to establish the existence of a viable alternative to the operation of the Grid.

109 The respondents placed no evidence before the Court as to their respective or joint financial positions. Nor did they place before the Court any financial records relating to the operation of the Farm or their lychee orchard. In this circumstance the Court has a limited ability to access the significance to them, or to the profitability of their farm or their lychee orchard, of an annual monetary loss of more than $200,000.

110 I accept, having regard to the evidence of Mr Minifie, that the respondents' lychee orchard could be protected from birds and flying foxes by the installation of netting. However, Mr Minifie accepted that the likely cost of the installation of netting over the respondents' lychee orchard would be in the order of $1,000,000 and that the annual insurance costs in respect of the netting would be approximately $20,000. He also accepted that there would be other costs associated with installation of netting over the respondents' lychee orchard. Having regard to this evidence, and the evidence of Mr Minifie that the respondents had asked him to prepare a quotation for netting part only of their lychee orchard, I am satisfied that it is more likely than not that it would not be economically feasible for the respondents to proceed immediately to protect the whole of their lychee orchard with netting.

111 The respondents placed no evidence before the Court which would assist the Court in evaluating any community interest in the ongoing operation of the Grid. Although I consider it likely that the operation of the Farm and its lychee orchard results in benefits flowing to the Kennedy community, I have not been assisted with evidence as to the nature or extent of those benefits, or as to the extent to which they are dependent on the continuing operation of the Grid.

112 However, even if the Court had received evidence of the kind referred to above, and had also received evidence which demonstrated that the respondents would be likely to suffer severe financial harm if the Grid could not be operated, the impact of the evidence on the exercise of the Court's discretion would, in my view, be limited.

113 The World Heritage Convention commences with the following recitals:

"The General Conference of the United Nations Educational, Scientific and Cultural Organisation meeting in Paris from 17 October to 21 November 1972, at its seventeenth session,

NOTING that the cultural heritage and the natural heritage are increasingly threatened with destruction not only by the traditional causes of decay, but also by changing social and economic conditions which aggravate the situation with even more formidable phenomena of damage or destruction,

CONSIDERING that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world, ...."

114 As is mentioned above, the World Heritage Convention entered into force for Australia and generally on 17 December 1975. The Act reflects, amongst other things, recognition by the Australian Parliament of Australia's international obligations under the World Heritage Convention.

115 In weighing the factors which support an exercise of the Court's discretion in favour of the grant of an injunction under subs 475(2) of the Act against those factors which tell against the grant of such an injunction, it seems to me that it would be a rare case in which a Court could be satisfied that the financial interests of private individuals, or even the interests of a local community, should prevail over interests recognised by the international community and the Parliament of Australia as being of international importance.

116 In this case, however, the failure of the respondents to give evidence has resulted in there being very little which the Court can weigh in the balance against the international and national interest in the protection of the world heritage values of the Wet Tropics World Heritage Area.

117 The discretion of the Court will be exercised in favour of the grant of an injunction under subs 475(2) of the Act.

RELIEF

118 The applicant has by her application claimed the following relief:

"1. A prohibitory injunction restraining the Respondent from causing, procuring or allowing the death or injury, whether by electrocution, shooting or otherwise, of flying foxes on or about the Respondent's property at Lots 107 and 108, Crown Plan CWL652, Parish of Meunga, County of Cardwell, in the State of Queensland.

2. An order that the Respondent and/or his agents dismantle any construction or device on the Respondent's property at Lots 107 and 108, Crown Plan CWL652, Parish of Meunga, County of Cardwell, in the State of Queensland used for killing flying foxes by electrocution."

119 No evidence was placed before the Court which would justify the making of an injunction to restrain the respondents from causing, procuring or allowing the death or injury of any species other than Spectacled Flying Foxes. Nor is there evidence before the Court capable of supporting the grant of an injunction restraining any action of the respondents other than the operation of the Grid.

120 Moreover, I take the view that the injunction to be granted should be a conditional one. The action of the respondents in operating the Grid in a manner which leads to the death of large numbers of Spectacled Flying Foxes constitutes a contravention of the Act only while there is no approval of the taking of the action by the respondents in operation under Part 9 of the Act (par 12(2)(a) of the Act). The respondents are presumably free to seek such an approval at any time. For this reason I also consider it inappropriate on the evidence before the Court to make an order requiring the respondents to dismantle the Grid.

121 I propose to give the respondents the opportunity of proposing minutes of order which reflect these reasons for decision. They should seek to reach agreement with the applicant as to the terms of the order which they propose. I will also hear counsel on the question of costs.

Associate:

Dated: 17 October 2001

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D. Criteria for the inclusion of natural properties in the World Heritage List

35. In accordance with Article 2 of the Convention, the following is considered as "natural heritage":

"natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;

natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty."

36. A natural heritage property - as defined above - which is submitted for inclusion in the World Heritage List will be considered to be of outstanding universal value for the purposes of the Convention when the Committee finds that it meets one or more of the following criteria and fulfils the conditions of integrity set out below. Sites nominated should therefore:

(a) (i) be outstanding examples representing the major stages of the earth's evolutionary history; or

(ii) be outstanding examples representing significant ongoing geological processes, biological evolution and man's interaction with his natural environment as distinct from the periods of the earth's development, this focuses upon ongoing processes in the development of communities of plants and animals, landforms and marine areas and fresh water bodies; or

(iii) contain superlative natural phenomena, formations or features, for instance, outstanding examples of the most important ecosystems, areas of exceptional beauty or exceptional combinations of natural and cultural elements; or

(iv) contain the most important and significant natural habitats where threatened species of animals or plants of outstanding universal value from the point of view of science or conservation still survive;

and

(b) also fulfil the following conditions of integrity:

(i) the sites described in 36(a)(i) should contain all or most of the key interrelated and interdependent elements in their natural relationships; for example, an "ice age" area would be expected to include the snow field, the glacier itself and samples of cutting patterns, deposition and colonization (striations, moraines, pioneer stages of plant succession, etc.).

(ii) The sites described in 36(a)(ii) should have sufficient size and contain the necessary elements to demonstrate the key aspects of the process and to be self-perpetuating. For example, an area of tropical rain forest may be expected to include some variation in elevation above sea level, changes in topography and soil types, river banks or oxbow lakes, to demonstrate the diversity and complexity of the system.

(iii) The sites described in 36(a)(iii) should contain those ecosystems components required for the continuity of the species or of the other natural elements or processes to be conserved. This will vary according to individual cases; for example, the protected area of a waterfall would include all, or as much as possible, of the supporting catchment area; or a coral reef area would include the zone necessary to control siltation or pollution through the stream flow or ocean currents which provide its nutrients.

(iv) The area containing threatened species as described in 36(a)(iv) should be of sufficient size and contain necessary habitat requirements for the survival of the species.

(v) In the case of migratory species, seasonable sites necessary for their survival, wherever they are located, should be adequately protected. Agreements made in this connection, either through adherence to international conventions or in the form of other multilateral or bilateral arrangements would provide this assurance.

(vi) The sites described in paragraph 36(a) should have adequate long-term legislative, regulatory or institutional protection. They may coincide with or constitute part of existing or proposed protected areas such as national parks. If not already available, a management plan should be prepared and implemented to ensure the integrity of the natural values of the site in accordance with the Convention.

D. Criteria for the inclusion of natural properties in the World Heritage List

43. In accordance with Article 2 of the Convention, the following is considered as `natural heritage':

`natural features consisting of physical and biological formations or groups of such formations, which are of outstanding universal value from the aesthetic or scientific point of view;

geological and physiographical formations and precisely delineated areas which constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation;

natural sites or precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty.'

44. A natural heritage property - as defined above - which is submitted for inclusion in the World Heritage List will be considered to be of outstanding universal value for the purposes of the Convention when the Committee finds that it meets one or more of the following criteria and fulfils the conditions of integrity set out below. Sites nominated should therefore:

(a) (i) be outstanding examples representing major stages of earth's history, including the record of life, significant on-going geological processes in the development of land forms, or significant geomorphic or physiographic features; or

(ii) be outstanding examples representing significant on-going ecological and biological processes in the evolution and development of terrestrial, fresh water, coastal and marine ecosystems and communities of plants and animals; or

(iii) contain superlative natural phenomena or areas of exceptional natural beauty and aesthetic importance; or

(iv) contain the most important and significant natural habitats for in-situ conservation of biological diversity, including those containing threatened species of outstanding universal value from the point of view of science or conservation;

and

(b) also fulfil the following conditions of integrity:

(i) The sites described in 44(a)(i) should contain all or most of the key interrelated and interdependent elements in their natural relationships; for example, an `ice age' area should include the snow field, the glacier itself and samples of cutting patterns, deposition and colonization (eg striations, moraines, pioneer stages of plant succession, etc); in the case of volcanoes, the magmatic series should be complete and all of most of the varieties of effusive rocks and types of eruptions be represented.

(ii) The sites described in 44(a)(ii) should have sufficient size and contain the necessary elements to demonstrate the key aspects of processes that are essential for the long-term conservation of the ecosystems and the biological diversity they contain; for example, an area of tropical rain forest should include a certain amount of variation in elevation above sea-level, changes in topography and soil types, patch systems and naturally regenerating patches; similarly a coral reef should include, for example, seagrass, mangrove or other adjacent ecosystems that regulate nutrient and sediment inputs into the reef.

(iii) The sites described in 44(a)(iii) should be of outstanding aesthetic value and include areas that are essential for maintaining the beauty of the site; for example, a site whose scenic values depend on a waterfall, should include adjacent catchment and downstream areas that are integrally linked to the maintenance of the aesthetic qualities of the site.

(iv) The sites described in paragraph 44(a)(iv) should contain habitats for maintaining the most diverse fauna and flora characteristic of the biographic province and ecosystems under consideration; for example, a tropical savannah should include a complete assemblage of co-evolved herbivores and plants; an island ecosystem should include habitats for maintaining endemic biota; a site containing wide-ranging species should be large enough to include the most critical habitats essential to ensure the survival of viable populations of those species; for an area containing migratory species, seasonal breeding and nesting sites, and migratory routes, wherever they are located, should be adequately protected; international conventions, e.g. the Convention of Wetlands of International Importance Especially as Waterfowl Habitat (Ramsar Convention), for ensuring the protection of habitats of migratory species of waterfowl, and other multi- and bilateral agreements could provide this assurance.

(v) The sites described in paragraph 44(a) should have a management plan. When a site does not have a management plan at the time when it is nominated for the consideration of the World Heritage Committee, the State Party concerned should indicate when such a plan will become available and how it proposes to mobilize the resources required for the preparation and implementation of the plan. The State Party should also provide other document(s) (e.g. operational plans) which will guide the management of the site until such time when a management plan is finalized.

(vi) A site described in paragraph 44(a) should have adequate long-term legislative, regulatory, institutional or traditional protection. The boundaries of that site should reflect the spatial requirements of habitats, species, processes or phenomena that provide the basis for its nomination for inscription on the World Heritage List. The boundaries should include sufficient areas immediately adjacent to the area of outstanding universal value in order to protect the site's heritage values from direct effects of human encroachment and impacts of resource use outside of the nominated area. The boundaries of the nominated site may coincide with one or more existing or proposed protected areas, such as national parks or biosphere reserves. While an existing or proposed protected area may contain several management zones, only some of those zones may satisfy criteria described in paragraph 44(a); other zones, although they may not meet the criteria set out in paragraph 44(a), may be essential for the management to ensure the integrity of the nominated site; for example, in the case of a biosphere reserve, only the core zone may meet the criteria and the conditions of integrity, although other zones, i.e. buffer and transitional zones, would be important for the conservation of the biosphere reserve in its totality.

(vii) Sites described in paragraph 44(a) should be the most important sites for the conservation of biological diversity. Biological diversity, according to the new global Convention on Biological Diversity, means the variability among living organisms in terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part and includes diversity within species, between species and of ecosystems. Only those sites which are the most biologically diverse are likely to meet criterion (iv) of paragraph 44(a).

45. In principle, a site could be inscribed on the World Heritage List as long as it satisfies one of the four criteria and the relevant conditions of integrity. However, most inscribed sites have met two or more criteria. Nomination dossiers, IUCN evaluations and the final recommendations of the Committee on each inscribed site are available for consultation by States Parties which may wish to use such information as guides for identifying and elaborating nomination of sites within their own territories.