Australian Pork Ltd v Director of Animal and Plant Quarantine & Ors

[2005] HCATrans 959

[2005] HCATrans 959

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S505 of 2005

B e t w e e n -

AUSTRALIAN PORK LIMITED

Applicant

and

DIRECTOR OF ANIMAL AND PLANT QUARANTINE

First Respondent

WINDRIDGE FARMS PTY LTD

Second Respondent

FAYMAN INTERNATIONAL PTY LTD

Third Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2005, AT 9.35 AM

Copyright in the High Court of Australia

__________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR M.J. LEEMING, for the applicant.  (instructed by Corrs Chambers Westgarth)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with my learned friend, MR G.R. KENNETT, for the first respondent.  (instructed by Minter Ellison)

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the issues in this application concern the steps to be taken in making decisions under section 70 of the Quarantine Proclamation 1998.  Your Honours will see that as the last page of the legislative materials that my learned friend has provided.  Your Honours, section 70 – I will come to its terms in a moment, if I may – operates in the circumstances contemplated by section 39 of the same instrument that your Honours will see two pages further in from the back of the document.  It says in 39(1), at the bottom of the page:

The importation into Australia of meat or a meat product . . . is prohibited unless a Director of Quarantine has granted a permit to import the meat or meat product into Australia.

Now, in the application of section 70, if I may go back to that, your Honours will see that it provides that a Director of Quarantine must do two things:

(a)      must consider the level of quarantine risk if the permit were granted; and

(b)      must consider whether, if the permit were granted, the imposition of conditions on it would be necessary to limit the level of quarantine risk to one that is acceptably low –

Your Honours, one can see that each of those paragraphs turns on the concept of level of quarantine risk, which is defined by section 5D of the relevant enactment itself, but your Honours will see it extracted on the same page of that document.  As that definition makes clear, a reference to a level of quarantine risk is a reference to two things:

(a)      the probability of:

(i)     a disease or pest being introduced, established or spread in Australia . . . ; and

(ii)     the disease or pest causing harm to human beings, animals, plants, other aspects of the environment, or economic activities; and

(b)      the probable extent of the harm.

Your Honours, those issues are ones on which there was a strong finding based on ultimately not disputed facts in our favour.  May I take your Honours to the primary judge at page 115 of the application book.  I am referring to volume 1.  There are two volumes of it, the second one being rather thinner.  Page 115, paragraph 245, your Honours will see the reference to the relevant disease in pigs having:

had devastating effects on pig herds in many countries.  PMWS currently costs the European Union about 600 million Euros per year.  It is common ground that, so far, Australia is free of the disease.  Yet the undisputed evidence of Professor Morris –

Your Honours, I will not read all this out.  What your Honours see, it goes through a number of stages:

if permits are granted in accordance with the policy embodied in the IRAR (and with full application of the Panel’s recommended conditions), there was a ‘high’ risk – that is, an over 70% chance –

your Honours, I will come to the meaning of the percentiles in the context in just a moment –

that, within five years, PMWS will have spread to the general population of Australian domestic pigs, including medium-large piggeries.  The IRAR itself, looking further ahead, showed a 99% chance at the 50^th percentile (100% at the 95^th percentile) of one or more outbreaks over ten years . . . In other words, under the policy that has now been adopted by the Director, an outbreak of PMWS within ten years is a virtual certainty.  Indeed, according to Table 1, the problem may be more imminent. 

The references to percentiles, your Honours, are references to the degree of probability that the figure given is an accurate figure, an accurate estimation.  So if one is speaking of the 75^th percentile, one is speaking of an estimate with a 75 per cent chance of it being right, or it is thought that is so.

So, your Honours, if I could pause at that point, the position is that there was clear evidence of the risk and clear findings in that regard.  The approach which, we submit, was taken by the delegate who granted the permit presently in question did not involve turning his attention to the issues contemplated by section 70 of the Proclamation and section 5D.

Now, your Honours, the argument that we would seek to advance in that regard is set out in the judgment of the dissenting judge in the Federal Court, that is Justice Branson, commencing at page 194, and it is paragraphs 144 through to 150.  Your Honours, may I just say a couple of things in relation to it, as your Honours pass by those provisions.  Her Honour at paragraph 146 refers to a minute which was provided to the decision‑maker.  Your Honours will see that she adverts to the fact that:

it provided little information upon which the Delegate could have made an assessment of the level of quarantine risk –

Your Honours will see paragraph 147 and the decision referred to at paragraph 149 and, ultimately, the conclusion at paragraph 150.  If I could pause at that point, your Honours, one has a situation where both the dissenting judge in the Full Court and also the primary ‑ ‑ ‑

GLEESON CJ:   Does the delegate give reasons for his decision?

MR JACKSON:   The reasons for the decision, your Honour, appear – I am sorry, the answer is no, beyond saying he agreed with what took place, agreed with what was put to him.

GLEESON CJ:   Well, he had a minute in front of him.

MR JACKSON:   He had a minute in front of him.  He asked a question about it and then he accepted the recommendation and made the decision in question.  Your Honours, could I refer to what we have said in this regard in our written submissions at page 212 and, in particular, paragraphs 28 and 29 in relation to the decision of the majority in the Full Court.

GLEESON CJ:   What was the point of departure between the majority and the minority in the Full Court?

MR JACKSON:   The point of departure essentially, your Honour, appears to have been that the dissenting judge took the view that on the evidence it simply did not appear that the decision-maker had directed attention to the statutory criteria.  So far as the majority was concerned, the view adopted appears to have been that he did take it into account.  Your Honour, I am putting that in a very ‑ ‑ ‑

GLEESON CJ:   What is the special leave issue involved in a disagreement between judges as to whether or not the delegate is shown by the evidence to have taken or not to have taken something into account?

MR JACKSON:   Your Honour, that is the point I was about to come to, if I may.  What I was about to say was this.  This is an important case, in our submission, for a number of reasons.  The first is that it is likely to determine the approach to be taken to the importation of this and other items, and it departs in the approach from the requirement of the relevant provisions that there be consideration given to the particular aspects referred to in them.

GLEESON CJ:   It only departs from that approach if the inference of fact drawn by the majority is wrong and the inference of fact drawn by the dissenting judge is right.

MR JACKSON:   Your Honour, that is true of course, but may I say this about it.  Our learned friends’ submissions, and the question your Honour has just put to me, focus in a sense on the fact that the case on one view involves no more than a review of the decision on particular facts.  It does of course concern the application of legislative provisions to particular circumstances – most cases do.  But this goes beyond that, in our submission, and it does so in at least two respects.  The first is that it indicates not just a decision which may be arguably wrong but, in our submission, also the statutory task and the steps involved in the statutory task have not been properly appreciated. 

The second feature, your Honours, is this, that even if one looks simply at the facts initially, the findings of the primary judge to the effect that an outbreak of the disease is virtually certain within 10 years, if not earlier, is such that the Court should take the view that the interests of justice merit consideration of the matter by the Court, and the comparison between the decision so far as the facts are concerned – I am speaking of the factual decision about the outbreak of the disease – is such that it does support the view that the obligations of section 5D and of section 70 have been misconstrued and that that misconstruction underlies the decision and

it is not just a case where one is saying it is a matter on which there are differing views.

GLEESON CJ:   Where do we find the key error in the reasoning of the majority in your submission?

MR JACKSON:   If one goes to the reasoning of the majority, your Honours will see at paragraph 89, for example, at page 178 is a discussion of the approach.  They say, in the last three lines:

But on the point at issue it has to be stressed that the statutory criterion was not whether the risk was low but whether it was acceptably low.

There is some discussion then about the facts.  Then your Honours will see paragraph 94, page 179, and the following few paragraphs after that, deal with the approach taken by the majority.  Your Honours, those are the submissions we wish to make.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases.  Your Honours, dealing first with my friend’s prejudice point, because that is really all it is, about the percentages, there are problems about those percentages.  They are taken from a submission made to the panel by the applicants.  They involve putting together numbers of different types in a way which would take me some time to explain.  Worst of all, they are figures over a period much longer than the period involving the permit.

Now, as a matter of mathematics, your Honours would know, no doubt, that if there is a 10 per cent chance of an event occurring in any given year, the chance of that event occurring at least once in 10 years, on my calculation is 65.2 per cent.  If there is a 50 per cent chance of an event occurring in any given year, the chance of it occurring at least once in 10 years is 99.221256.

Now, I give those examples just to show that it is a fairly irrelevant consideration.  This is not the consequence of the particular importation.  It assumes that importations continue over 10 years; it assumes that there is no improvement in the methods of dealing with this particular disease, no scientific change; it assumes that there is no change in any facts which would cause the decision-maker to exercise the power he has to revoke the permit as to the future.  It just makes a series of assumptions which cannot be made and you could do it with anything that has a low percentage chance and take 10 years, or some long period, and get a totally distorted figure and it is meaningless in the context where it can be changed by the decision‑maker if the facts change at any time during that 10 years.

Your Honours, in relation to the suggestion that the relevant considerations were not taken into account, the complaint seems to be that the decision-maker had regard to what is described as a generic report.  Most of the evidence concerned this report, which consisted of almost 1,000 pages, which contained a very detailed statistical analysis of the various ways pig meat could come to Australia, the various ways it might be infected with PMWS, as well as some other diseases, and the percentages and the chances and the risks and the degree of harm of various scenarios.

Now, clearly, a decision-maker asked to approve a particular permit for importation by a particular person, or company, over a particular period is going to say, “Well, here is the generic position.  Now let me reason down and see what factors affect this particular importation”.  That is exactly what was done here.  The decision-maker had before him – and we have demonstrated this in our submissions – a range of material in addition to the bulky IRA report about the United States, about what precautions should be taken in the United States in relation to PMWS, what standards we had in the United States inspectors representing us in that country and so on.  That was all before the decision‑maker and the decision‑maker knew what the period for the permit was.  So one asks rhetorically, what is it said the decision‑maker did not have? 

My friend has to draw the inference that the decision‑maker just looked at the IRA report, paid no regard at all to the other material before him and, as we have demonstrated, and we have given your Honours the references in our submissions, the document on which the decision‑maker acted said you have to take into account the particular matters and made it clear that that had to be done.  But, of course, as a matter of reasoning, one starts with the general report which drew conclusions about what the risks were of PMWS entering Australia if pig meat was imported and, most importantly, dealt with the question of what precautions should be taken.  The precautions that were recommended involved removing the head, the major lymph nodes, which were ‑ ‑ ‑

GLEESON CJ:   Yes, we know.

MR BENNETT:   Well, I will not take your Honours through all that.  Well, my friend has not dealt with the argument about Wednesbury unreasonableness which that would be an answer to, so I will not deal with it either.  But the short point is made very clear in the majority judgment which is that the relevant factors were taken into account and one can explain what the trial judge thought was a gap in the reasoning, and we

were able to point to material which neatly fills that gap, largely revolving around the reduction of waste if one was importing cooked pork which had been de‑boned and had most of the offal removed as opposed to importing the whole of the animal. 

The point is of course it is a double effect.  First of all, the evidence is that most viruses are in the parts that are removed by our requirements.  The second thing is that those are the parts people tend not to eat anyway, so they are likely to find their way into the waste cycle.  So you have the two things reducing the risks of infection:  (a) that the parts most likely to be infected are not imported at all; and (b) that the volume of waste is greatly reduced and has excluded from it the very parts which would be likely to cause the risks.  That was the part which his Honour omitted to refer to in the major reason for the decision of the majority in relation to that aspect of the case.

Your Honours, it is a case on the facts.  It is a case about analysis of statistics and, in relation to the particular dispute we are having today, whether the decision-maker took into account the material that was before him in a case where there are no reasons.  In our respectful submission, there is simply no reason to assume that the decision-maker did not take that into account.  He knew it was from the United States, he had a wealth of material about what was being done in the United States and he knew the period that was being applied for.  He then was able to superimpose on those facts the generic analysis in the very lengthy report. 

In my respectful submission, an appeal would have little or not prospect of success and, in any event, there is just no special leave point involved in this case.  If the Court pleases.

GLEESON CJ:   Thank you.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I say two things.  The first concerns our learned friends’ reliance on or attempting to explain away the statistics on the information that one sees at page 115, paragraph 245.  May I take your Honours to the third line of that paragraph where the judge referred to “the undisputed evidence of Professor Morris”.  That is the first thing about that paragraph.  The second thing is that you will see if you read the paragraph that it is not just referring to what might take place in a period of 10 years where, as it were, anything can happen, but what is being spoken of is, if one sees the last three lines, there is a “38% chance . . . of an outbreak as early as the first year”.  There is a reference at about line 29 to the undisputed evidence:

that, within five years, PMWS will have spread to the general population of Australian domestic pigs –

and then after that there is a reference to 10 years.  So it is not really just something that may never happen.  That was the evidence that there was.

The second thing is that if one looks at the approach and what was done by the decision-maker, the material before the decision-maker does appear in the supplementary application book.  Your Honours, I will not go through it in detail, but may I just indicate where it is to be found.  First of all, at page 149 you will see the memorandum which recommends to the decision‑maker that he exercise the delegation to grant import permits.  Now, that sets out some background to it, but essentially what one sees, apart from the matters that might appear in the text of pages 149, 150 and 153 is that you will see, going on then to various extracts, various materials, the materials do not essentially go beyond the earlier report. 

One comes then to page 245, and the decision-maker’s first observation is found there.  You will see in the penultimate paragraph that in consequence of some observations being made by counsel briefed for the other side in relation to a challenge we then made he said wanted some confirmation.  That confirmation appears at pages 247 and 248.  The actual decision is page 246 and you will see that it takes the form of a memorandum to the decision-maker and his note at the bottom of the page “Agreed” in handwriting.

GLEESON CJ:   Is it fair to say that the point of departure between the majority and the minority can be found explained by your question 1(a) on page 206 and your paragraph 20 on page 210?

MR JACKSON:   Well, your Honour, it is in dealing with that that the majority’s error can be found, yes.

GLEESON CJ:   We will adjourn for a short time to consider the course that we will take in this matter.

AT 9.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.00 AM:

GLEESON CJ:   The issue which the applicant seeks to agitate if special leave to appeal were granted is whether the majority of the Full Court of the Federal Court was correct to find that the matters required by the Quarantine Act 1908 and the Quarantine Proclamation 1998 to be considered by the Director’s delegate when determining to issue an import permit were in fact considered or whether, on the other hand, the dissenting judge in the Full Court of the Federal Court was correct to conclude that the delegate did not assess the level of quarantine risk if the individual permit was granted.

We are of the view that this does not raise an issue suitable to a grant of special leave to appeal to this Court and the application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 10.01 AM THE MATTER WAS CONCLUDED