Brett Cattle Company Pty Ltd v Minister for Agriculture (No 2)

[2020] FCA 916

FEDERAL COURT OF AUSTRALIA

Brett Cattle Company Pty Ltd v Minister for Agriculture (No 2) [2020] FCA 916

File number:	NSD 1102 of 2014
Judge:	RARES J
Date of judgment:	29 June 2020
Date of hearing:	29 June 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	No Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Mr C Withers, with Mr T Boyle
Solicitor for the Applicant:	Minter Ellison
Counsel for the Respondents:	Mr O’Meara SC
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

NSD 1102 of 2014

BETWEEN:

BRETT CATTLE COMPANY PTY LTD

Applicant

AND:

SENATOR THE HONOURABLE JOE LUDWIG IN HIS CAPACITY AS THE FORMER MINISTER FOR AGRICULTURE, FISHERIES AND FORESTRY

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	29 JUNE 2020

THE COURT ORDERS THAT:

Final orders for the hearing of the Lead Applicant

1.There be judgment for the Applicant in the amount of $2,936,629.99, inclusive of interest calculated up to the date of this order.

2.Subject to order 4 below, the First and Second Respondents pay the Applicant's costs of the proceedings as agreed or taxed.

Applicant’s costs

3.On or before 10 August 2020, the parties confer and attempt to reach agreement on the quantum of the Applicant's costs.

4.In the event that agreement is not reached on the question of costs and the Applicant wishes to make an application to the Court for costs to be determined on a lump sum basis, any such application and supporting evidence be filed and served by 7 September 2020.

Security for costs

5.All amounts paid into Court by or on behalf of the Applicant as security for the Respondents' costs of the proceeding (being $1,050,000) pursuant to order 11 made on 17 November 2017, order 1 made on 18 December 2017, and orders 1 and 2 made on 24 May 2018, and any interest accrued on those amounts, be repaid to the solicitors for the Applicant.

Orders for the balance of the group claims

Common questions

6.The following questions are common to the claims of the Applicant and Group Members and are answered as follows:

(1)     Was the Second Control Order valid?

It was invalid for the reasons for judgment at [317]–[363] delivered on 2 June 2020.

(2)Did the Minister commit the tort of misfeasance in public office when he made the Second Control Order?

The Minister did commit the tort because he acted recklessly as to both his power to make the Second Control Order and the fact that persons engaged in the live export trade to Indonesia would suffer harm from it unjustifiably, for the reasons at [364]–[395] of the judgment.

(3)     What would have happened had the Minister acted lawfully?

The Minister would have made a control order that provided exceptions to the general prohibition in the Second Control Order in, or to the effect of, the exceptions clause in cl 5 of the First Control Order for the reasons at [404]–[427] of the judgment, and as a consequence of the reasons at [428]–[462] at least an additional 88,000 head would have been exported in 2011 under an Exceptions Order.

(4)What is a reasonable estimate of the price exporters could have expected to receive (expressed as price per kilogram) for live cattle exported to Indonesia in 2011 if an Exceptions Order had been made on or around 7 June 2011?

$2.15 per kg for steers and $1.95 per kg for heifers.

7.Pursuant to s 33ZB of the Federal Court of Australia Act 1976 (Cth) (Act), the persons affected and bound by order 6 above are the Applicant, the First and Second Respondents and Group Members as defined in the Originating Application dated 27 October 2014 (other than those Group Members who have opted out of the proceeding in accordance with s 33J of the Act).

8.The matter be listed for a case management hearing on 20 August 2020 at 9.30am.

THE COURT NOTES THAT:

9.The issues of the Indonesian market’s maximum capacity for the importation of cattle in 2011 and 2012, the amount of any Indonesian import quotas or permits in 2011 or 2012 and the availability of shipping to enable cattle exports from Australia in 2011 and 2012 have not been determined by the judgment for the purpose of Group Members’ claims.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

1. Following delivery of my reasons on 2 June 2020 the parties conferred and subject to one difference, agreed on the form of orders necessary to give effect to those reasons: Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732. I shall use the same defined expressions in these reasons as in those.

2. The parties differed as to whether the answer to common question 3 should reflect, as the Commonwealth contends, what I wrote in [462] of the reasons, namely “it is likely that, had the Minister made an Exceptions Order, about 88,000 head, or approximately the balance of the unfilled Indonesian quota, would have been exported” or, as Brett Cattle contends the answer should be that “at least an additional 88,000 head, would have been exported”.

3. The parties agreed, correctly, that the final orders should contain a notation that I had not determined the issues of, first, the maximum capacity of the Indonesian market for the importation of cattle in 2011 and 2012, secondly, the amount of any Indonesian import quotas or permits in 2011 or 2012 and, thirdly, the availability of shipping to enable cattle to be exported from Australia to Indonesia in 2011 or 2012.

4. As I noted in [462] of my reasons, the methodology and assessment at which I arrived, as reflected in the Commonwealth’s proposed wording for the answer to question 3, had not been considered by the parties.  That was because I found at [445] that both sides’ submissions had proceeded on an erroneous basis as to how to approach the issue of what would have happened had the Minister acted lawfully.  The parties have agreed on the notation to be made as part of the final orders rather than take up the opportunity that I afforded them to address the methodology and assessment that I adopted in my reasons.  That was for the practical reason that it may be that the total number of head in respect of which group members will claim to have suffered loss will be, or not exceed, about 88,000 head, in which case any more precise examination of the these unresolved issues in the agreed notation will not be needed.

   Conclusion

5. In those circumstances, I am of opinion that it is appropriate to answer question 3 as Brett Cattle proposed and to leave until later, if, and until, it is necessary, the decision of the unresolved issues in the agreed notation.  I will make the orders that the parties drafted with that addition.  Of course, the Commonwealth’s agreement on the form of those orders was to reflect what I had determined and did not comprise any concession that precluded it seeking to appeal against the determinations that those orders record.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:       29 June 2020