28 October 2014
Colin Bettles
The Land
A MASSIVE class action claim of compensation for Labor’s live export suspension has been welcomed by the National Farmers’ Federation (NFF) and the Northern Territory Cattlemen’s Association (NTCA).
NT-based Brett Cattle Company and other industry members have launched legal proceedings over the impacts of the then federal government’s month-long ban on live exports to Indonesia in June 2011.
Dougal and Emily Brett – members of the NTCA – were devastated by the ban, NTCA president David Warriner said.
Industry confidence eroded
“The human and financial toll of the live export ban has been significant on the Brett family, many other NTCA members and the greater cattle industry of Australia,” Mr Warriner said.
“Property values crashed post-ban, placing great financial pressure on producers, their businesses and their families, as well as secondary and tertiary businesses and communities. The NTCA … hopes that a resolution of this claim will assist the industry and greater community in moving forward.”
NFF president Brent Finlay said the class action – backed by a former Federal Court Judge – was about restoring trust as well as compensation.
“More than anything else, Australian agriculture needs certainty so that we can invest in our businesses and our futures,” he said.
“The ban in 2011 left Australia’s domestic reputation in tatters, not to mention the massive financial losses for individual cattle producers, many of whom either left the industry altogether or are still trying to repair the damage done.
“Paddocks across northern Australia were overstocked. Cattle had to be trucked thousands of kilometres between properties, put on agistment or sold below cost to make ends meet.”
Class action supported by judge
Independent advice from former Federal Court Judge and Royal Commissioner Roger Gyles has given weight to legal action lodged by Law firm Minter Ellison on behalf of the live export industry against the Commonwealth.
Mr Gyles was optimistic about the prospect of a successful claim, saying the action “has at least a meaningful prospect of liability being established”.
Labor’s trade suspension cut off cattle supply to the critical northern export market during the industry’s peak trading and stock movement time frame.
The case is also being backed by the Australian Farmers Fighting Fund (AFFF) which takes on legal cases of specific interest to the farming sector.
AFFF has contributed about $750,000 to support the claim to date and its executive met last week, agreeing to provide further financial backing to help progress the case to court, if necessary.
Claim rejected in 2013
The claim was rejected by the Australian Government Solicitor (AGS) in May 2012 as Minter Ellison pushed for an out-of-court settlement with the Gillard government.
The lawyers then provided the draft statement of claim to the AGS in a push to claim damages for “malfeasance (misfeasance) in public office”.
The statement alleges the second Export Control Order made by then Agriculture Minister Joe Ludwig on June 7, 2011 – restricting exports to Indonesia for six months – was “invalid”.
Andrew Gill, partner of Minter Ellison’s Canberra office who is running the matter, has stated the group has tried to engage the federal government in alternative dispute resolution of the claims but to no avail, hence filing court proceedings this week.
A scathing assessment
The report’s findings issue a scathing assessment of the government’s actions after the suspension stopped trade to a number of Indonesian abattoir facilities identified in the ABC Four Corners program “A Bloody Business”, which triggered a wave of controversy over animal welfare in Australia’s live export markets.
“There is a substantial chance that the decision to make the Order of June 7 would be held to be so irrational as to be both unreasonable and out of proportion to the subject in the sense outlined in the authorities and so invalid,” Mr Gyles’ report said.
“The early repeal of the Order without any decisive animal welfare solutions in the meantime underlines the problem.
“If the situation was adequately dealt with by the Orders of July 7, it is difficult to understand why trade needed to be completely suspended in the meantime, bearing in mind the long history of the matter.”
The NTCA said the snap ban did not advance animal welfare objectives at the time.
“These proceedings are not about objecting to a government taking action against animal cruelty, it is about ensuring future government’s decision-making processes are appropriate,” Mr Warriner said.
Industry hit hard
Emily Brett, proprietor of Brett Cattle Company, said it was a huge relief that Minter Ellison had finally initiated legal proceedings in the Federal Court after the Commonwealth avoided a potential out-of-court settlement.
“I’m just glad we’ve finally got some action on this case because it’s been a long time coming,” she said.
“It’s disappointing the government hasn’t acted on this matter so far and we’ve got to the stage where we have to take them to court over it.”
Senator Ludwig told Fairfax Agricultural Media he couldn’t reveal full details of the departmental advice he received over the suspension decision due to legal professional privilege and Cabinet confidentiality.
But he has stressed he did not act against departmental advice in suspending the live animal export trade.
The case is expected to take several years.
The Commonwealth has been preparing for the likelihood of action being filed in court, with the last three federal budget papers referring to a potential compensation payout.
This year’s budget listed the claim under “significant but remote contingencies” for agriculture.
Courtesy of The Land