Hanson v Commonwealth Director of Quarantine

4.40

JLJDGMENT No. ........ ........ ..

I ........ ....

IN !ME FEDERAL COURT.	OF AUSTRALIA	)
)

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G.357 of	1984
)

DIVISION

GENERAL

)

BETWEEN:

JOHN E D W D HANSON & ANOR

Applicants

AND

COMMONWEALTH DIRECTOR OF

QUARANTINE & ORS

Respondents

REASONS FOR JUDGMENT

M:	WILCOX J
D=:	12 OCTOBER 1984

PLACE

: SYDNEY

This is the hearinq of

an interlocutory application.

The matter arises under the Administrative Decisions (Judicial

Review) Act 1977.

Shortly, the history

of the matter is that

Wednesday of this week officers of the Department of Quarantine

carried out an inspection at

a property of the applicants

Wvong in which the applicants kept some

500 pigeons together with

other birds. The applicants carry on

a business of a pigeon stud

and have done

so for many years.

The inspection

of the property

was apparently one

several which took place on the same day and which was caused by

concern about outbreaks overseas, in recent months, of

a disease

known as Newcastle disease. The disease apparently gets its name

from the fact that it was first detected in Newcastle in England

in 1926.

Apart from one outbreak in

1932. there has not been any

known incidence of the disease in Australia at any time. The

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quarantine authorities are concerned to avoid contamination of

Australian birds.' and particularly poultry in relation to

which

the disease is apparently of particular concern.

For that reason

the disease

has been proclaimed

as a quarantinable disease under

the Quarantine Act.

The inspection of the applicants' property resulted from

the fact that in

a magazine published in August and known

"Australian Pigeon", which came to the attention of the

quarantine authorities in mid September, reference was made to

the fact that the applicants' stud had what were described as

genuine Dordins and qenuine Cattrysse. These are apparently

varieties of pigeons which were developed in Europe. The effect

of the Quarantine Act, and a proclamation made thereunder, is

that no birds may be imported into Australia, except with the

consent of the Minister. This has been the position since

1975.

Prior to that

date, since 1949, importations only from New

Zealand had been allowed.

The quarantine officers took the view, not unnaturally,

that if the applicants were in possession of uenuine Dordins and

uenuine Cattrysse. these beina strains developed in recent

years,

then they must have

on hand proaeny of birds which had been

imported. Apparently, no ministerial consents have been

given since the controls were introduced: and it followed. they

thouuht, that birds must have been imported unlawfully.

The

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effect of the provisions of the Quarantine Act is that birds

which have been imported into Australia in contravention

of the

Act are deemed to be "infected goods". Birds which are the proueny of unlawfully imported qoods are also deemed to be

"infected uoods",

as are birds which have been in contact with

such aoods - for the reason,

I suppose, that

where birds have

been imported unlawfullv it

is difficult, if not impossible, to

neuative the possibility

of infection.

A quarantine officer,

Mr Roy Everett, went to the

premises of the applicants on Wednesday mornina. He was shown

the applicants' records relating to their birds and

he found

amongst the records a sheet of paper which was produced in

19'79

by Mr Flemina of Adelaide. who is apparently

a well-known piueon

breeder. In this document, Mr Fleming referred to two cocks, one

of whom was purchased

by Mr Hanson and is still on the property.

The document indicates that he urandparents of these two cocks were bred in Europe.

Mr Fleminq reported the position to his superiors and in

due course he issued

a notice under section

35 of the harantine

A A . ordering into quarantine the whole of the birds.

Subsequently, pursuant to instructions he was given. he gave

notice of seizure of the uoods. and

he indicated an intention

that the whole

of the qoods would be destroyed.

Section 44 of the puarantine Act requires

the approval

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of the Minister prior to any destruction of uoods havinu

a alue

of more than $200.

It appears that the subject birds have

value very considerably more than that: indeed it is said bv

Hanson that their value

is about $120,000. The Minister.

responsible for the Ouarantine Act. namely the Minister for

Health. had signed

a document on

8 October aivinq a aeneral

approval for the destruction of any pigeons

of certain strains,

which included Dordins and Cattrpses, toqether with other birds

with which they hae been in contact.

One of the questions which arises in the matter

whether that approval satisfies the requirements of section	44 of	-
the Act.

In the event, on Wednesday afternoon,

the destruction of

the piaeons was averted

bv the fact that Mr and

Mrs Hanson

obtained an interim injunction from

a iudue of the Supreme Court

of New South Wales. operative until the following mornina. On

the followina morninu, that is to sap yesterday, an ex parte

5. ~.

application was made to

me in chambers on behalf of

Mr and Mrs

Hanson, for orders pursuant to section 15 of the Administrative

Decisions (Judicial Review) Act suspending the operation

of the

decision to destroy and stayina action to implement the decision.

I made that order subject to certain conditions. one of

which was to arant leave to the respondents, namely the

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Commonwealth Director of Quarantine. the Chief Quarantine Officer

and Mr Everett, to apply for

a dissolution

or variation of the

order at any time.

Yesterday afternoon Mr Gibb. on behalf of the

respondents. made an application in chambers for

a dissolution of

that order but

I refused that application. takinu the view that

the matter ouqht to be dealt

wi h in court this afternoon.

This afternoon there has been

vidence.on each side.

Application is made on behalf of Mr and Mrs Hanson for

continuation of the interim orders until such time as

there may

be a final hearinu

of the proceedings. On behalf of the

respondents I am asked to dissolve the interim orders. with the

result that the piueons would be destroyed forthwith.

It seems to me that it is appropriate, in considering

the operation of section

15 of the Administrative Decisions

(Judicial Review)

Act, to have reqard to the principles which

have been developed in reuard

to interim injunctions in the

Equity Court, and firstly to ask whether there is

a prima facie

case, or a serious question to be tried, to indicate that the

action under attack is in breach

of relevant legislation, and

secondly, to consider the balance of convenience.

In relation to the first matter. it is said on behalf

the applicants that the ministerial consent does not apply

with

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the provisions of the

Act, that the Act contemplates that the

Minister will address his mind to the destruction of particular

goods, and that he has not done

so in the present case.

It seems to me that there is

an argument to support that

approach, that the reason underlying the requirement for

ministerial approval is that the Minister may address himself

the question whether it was a reasonable course to take to

destroy particular live animals.

The destruction

of live animals owned by

a citizen may

often be a matter of concern to the citizen extending beyond the commercial value of the animals, and one possible reason for the

ministerial approval was

so that the Minister. a person

accountable to Parliament, could consider whether this was a

course necessary to be undertaken.

The requirement of ministerial approval only applies to

goods having

a value which exceeds

$ 2 0 0 , and one other reason

might be to see that the revenue is not exposed to claims

f o r

. . , . . . . . . . . , . . .

, . .

7 .

compensation in significant amounts otherwise than

by a decision

to accept that risk made by a person responsible to Parliament. course of action be approved by the Minister.

I do not think it is proper to express any final

conclusion about the validity

of the ministerial consent, but

do think that there it is an arguable case that it is invalid, in

c	the sense that it does not comply with the requirements of the section.

The other matter relied upon by the applicants

is that,

so it is said, there is no evidence to justify

he making of the

decision.

I have already indicated that under the deeming

provisions of the puarantine Act,

"uoods" are

infected uoods - I

interpolate that, by definition, "qoods" includes live animals

if those uoods

are the proueny of unlawfull..imported uoods.

In the present case

it seems to be

the position that in

1979 Mr Fleminu claimed to have imported one

of the ancestors-of

one of the birds	now owned bp Mr and Mrs Hanson, and held on the
property.

However, Mr Hanson has given evidence that he did not

believe that the bird was imported

and, in effect. that there was

some agreement

between

himself an

d Mr Fleming to misrepresent the

position. He called this a “gimmick“;	perhaps other descriptions
would be more appropriate.

Mr Fleming has stated, according to an affidavit sworn

by Mr Herring. the solicitor for the applicants, that in fact the

ancestors ,of the subject bird were not imported. and

he has said

(	that this descr-iption was aiven in order to promote	a b ok that
he had written at that time.

There is

also evidence in the form of an affidavit

from

Mr T A Wills. a man with

35 years experience in the pigeon

industry, that there is

a widespread practice in the industry of

persons claiming that particular birds

or their ancestors have

been imported and have particular blood lines when, in fact.

those claims are false.

It seems that Mr

Hanson’s own advertisinu is in

accordance with this practice, and

I think it is

a fair comment

that he only has himself to blame that the officers

of the

Quarantine Department

have sinqled him out for particular

attention. Be that as it may, it is far from clear that the

ancestors of any of the birds

now held by Mr and Mrs Hanson were

imported in contravention of the

Act.

I think that this issue can only be definitely resolved

after there is some direct evidence from Mr Fleming and possibly

. .

other people who have knowledge of the historv of the relevant

bird or birds. If none of the birds

are descended from birds

unlawfully imported. and if none

of them were themselves

imported, then there is no basis for regarding them as infected

goods. "he evidence given by

Mr Everett, who

is himself a

veterinary surgeon, is that there is no overt siun of any

infection in any

of the birds held by the applicants.

It seems to me that there is

at least a serious question

to be tried

as to whether or not any of the birds were liable to

destruction under section

44. that is to

say, a serious question

within the meaninu of sectin 5(l)(h), whether there was evidence

to justify the making of the decision.

In relation to the balance of convenience, difficulties

arise.

So far as the applicant is concerned, of course, if the

iniunction is not continued then the birds will be destroyed. It

is said on behalf of the respondent that if the birds have been

unlawfully destroyed then they would have available

an action for

damages. That may be so and, no doubt, if there is an action for

damages some evidence could be uiven as to the value of the

birds.

I suspect that the quantification of damaae would not be

easv, and

I also think that it is relevant that the applicants

have built up this flock of piueons by careful breedinu over a period of 30 years. It seems to me likely that they would not

regard even full compensation in a monetary sense as beinq

adequate replacement of the flock of piueons which

were

10.

. . .

destroyed. However, if there was any reason for me to feel that

there was a danger to other birds. whether owned by other persons

or wildlife, I would have no hesitation in taking the view that

the balance of convenience favoured the refusal of

a continuation

of the interim order and

a destruction of the pigeons.

The evidence is that Newcastle disease is a particularly virulent disease, and it appears that if it was allowed to break out in Australia that consequences would be extremely serious.

However, there is no evidence to indicate that any of these birds

are infected. The only expert witness, in the sense

of a person

who has particularly studied Newcastle disease, who gave- evidence

today, Dr G M Cross, a quarantine officer, said that in the case

of a virulent infection of a flock of birds by Newcastle disease

he would expect that 90 per cent would die within seven to ten

days. Apparently a period of incubation of about six weeks has

until recently been regarded as the maximum.figure. although he

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said there was now some recent evidence to suggest that it

miuht

be somewhat longer. However, the period of incubation is to be

numbered in weeks rather then months or years.

The evidence is that the applicants' flock is a stable

flock in the sense that it has been bred for many years with very

little accession of new birds, and there

is no evidence of any

infection. It seems to me quite clear that there is no reason to

believe that there

is any virulent infection amongst the flock.

Dr Cross also said that in the case

of a mild infection, which

would, not necessarily produce symptoms, it would

be reasonable to

expect that sero conversion would have taken place in up to about

70 per cent of the individuals. It is apparently possible to

detect whether sero conversion has taken place by

a blood test,

althouuh Dr Cross thouuht that one would have to test

a very hiuh

proportion of the subject flock in order to obtain

statistically satisfactory result. It is not clear to me why one

would have to have tests of such

a larqe proportion as that

indicated by

Dr Cross, but I do

not think that this is

a matter

of major concern. It may well be that if there is any question

about the matter, some blood tests will have to be undertaken.

This may be	a less expensive option than the destruction.of the
flock.

I think it is sufficient for me to say that

I see no

reason to contemplate

that durinu the period of

a relatively

short adjournment until

the final hearinq there will be any risk

to the health

of other bird life by the continued existence of

these birds.

I do not say it critically, but the fact is

that it

is now four weeks since officers of the Ouarantine Department,

became aware of the advertisements

of the applicants. and it was

only two days ago that any action was taken in relation to the

destruction of the birds. I appreciate that a number of steps

had to be

undertaken, and that

is why I do not make any

criticism, but I think that this does indicate that even amonust

those officers

a view might reasonably be taken that

a delay of

an extra week or two, there being

no evidence of any infection

amongst this flock, is not likely to be

of critical importance.

The course

I propose to take is to continue the existing

orders until

a final hearing or until further order

of the Court.

I will urant leave to the respondents to move on

24 hours notice

if they are so'advised and. in particular, that would be

appropriate if new evidence comes to light to indicate that the

preliminary views which

I have expressed

as to the health of this

flock are not well founded.

I think it is desirable that the final hearing proceed

as quickly as

possible, and

I understand that the parties are

likely to be

in a position to at least commence a final hearing

next Thursday

, 18 October.

1 propose to adjourn the matter until

that date

for

the commencement

of the fina1,hearinq

and hopefully

to finish it on that

d y, but if a genuine problem arises on

either side about the availability

of a witness, then

I would be

prepared to contemplate some further adjournment to accommodate that witness. I do desire that on each side there be the best possible evidence that can be obtained within that relatively short span of time.

13.

The orders that I make, therefore, are: I continue the

orders made by me yesterday in chambers.

I adjourn the matter

until 10.15 am on Thursday	18 October.	I reserve the costs of
today.
I certify that this and

preceding pages are

a true copy of the

Reasons for Judgement herein of

his

Honour Mr JustlTe Wilcox.	<	I
Date

[1984] FCA 490

12 Oct 1984