New live ex class action claim

06 Nov, 2014 03:00 AM
The lack of effective consultation by the Labor government would be a key legal point

WESTERN Australian National Party MLC Paul Brown is one of 30 participants engaged in a second class action claim over the Indonesian live cattle export ban which is expected to merge with another bigger claim filed in the Federal Court last week.

The agricultural region representative was so incensed by the former Labor government’s snap suspension decision in June 2011 it motivated his entry into State politics.

Mr Brown said he entered the political arena to ensure agriculture’s voice and that of the live export industry were heard effectively in the corridors of power and ensure politicians could never repeat such a decision with detrimental impacts on commercial enterprise.

He’s hoping this class action claim will also achieve a similar result and protect the live export industry, and other industries, from similar government intervention in future.

Mr Brown was also caught up in the centre of the catastrophe when a shipment of 2000 cattle destined for Indonesia was stranded in his Port Hedland feedlot after the second control order was handed down by former Agriculture Minister Joe Ludwig, banning trade for six months.

That second order is now the focus of the class action claim headed by lead litigants, Brett Cattle Company, represented by Minter Ellison lawyers.

Minter Ellison is alleging “misfeasance” of public office by the former minister in claiming that his second control order was “invalid”.

That claim also has the backing of the Australian Farmers Fighting Fund (AFFF) and has been steeled by a high powered legal opinion by former Federal Court of Australia judge and Royal Commissioner Roger Gyles.

A Neutral Evaluation of the claim conducted by Mr Gyles concludes: “I regard the draft statement of claim as disclosing a cause of action which has at least a meaningful prospect of liability being established”.

'Better served' by joining together

Last week, McCullough Robertson Lawyers in Brisbane said its 30 clients are also seeking compensation for a range of financial losses relating to the ban and would be better served by joining the Minter Ellison claim, given it also has the AFFF’s backing.

McCullough Robertson’s Trent Thorne doesn’t expect the case to reach court and believes a potential mediated settlement can be achieved within 12 months, while predicting a total compensation figure north of $1 billion.

"It will be absolutely in the government's interest to try and get this thing sorted out before it goes to a contested hearing," he said.

Speaking to Fairfax Media, Mr Brown ruled out any potential conflict of interest between his involvement in the claim and role as an MLC, given he’s been a party to the class action run by Mr Thorne prior to entering State parliament, after the WA election in March 2013.

“This action was initiated well and truly before I was elected to State parliament and it’s an action against the federal government,” he said.

“It was started against the previous Labor government when Joe Ludwig was the Agriculture Minister.

“It’s unfortunate the claim wasn’t able to be resolved during Labor’s time in government and now the Liberal-National government in federal parliament has been left to defend the action, on their behalf.”

Mr Brown said he couldn’t see any reason why the two class actions can’t be joined together.

“Our lawyer is advising that would possibly be the best outcome for everyone in the industry,” he said.

“I also welcome comments from the Honourable Roger Gyles that this legal action has promise and we look forward to a positive outcome.”

Political storm

Mr Brown said his Port Hedland feedlot company was “well and truly adversely affected” by the sudden trade suspension to Indonesia.

An official phone call from Canberra on June 6 blocked the 2000-head consignment destined for the Indonesian market, as news broke of the impending and controversial ban during the height of an unprecedented political storm.

“We were moments away from giving the trucks the green light to go down to the Port Hedland port,” he said.

“But we were given no notification, other than a couple of minutes prior to the leave for loading being removed, that anything like this was going to happen.

“We’d seen the response to the Four Corners program and knew there was the possibility of some reaction, but we were caught completely unaware by the high level (of government) where the suspension decision was made.”

Mr Brown said prior to the ban, his feedlot operated on a solid business model, with increasing cattle exports out of Port Hedland year on year.

But the suspension meant the 2000-head consignment was caught in the feedlot causing other shipments, booked for longer periods of agistment, including a 5000-head shipment destined for Israel, to find another home.

“Since that time it has been very hard and if we could regain the type of business we had prior to the suspension, I think we would be talking in the millions of dollars,” he said.

Mr Brown said he wasn’t a lawyer but believed the lack of effective consultation by the Labor government would be a key legal point underpinning the legal claim.

“The ban was put in place without any consultation with our industry, the industry in Indonesia, without speaking to the various State governments in Australia and the Indonesian government about the possibilities, obligations and ramifications this may have,” he said.

But he said in about six weeks, the trade was restarted without any appreciable gains in animal welfare.

“That would lead me to believe it was a very dubious decision to suspend trade in the first place,” he said.

“It was a very knee-jerk reaction by a Labor government which had very little experience in agriculture.

“They capitulated when the initial decision to suspend the trade was made and did so again six weeks later when re-opening the trade, without any significant improvements being made to animal welfare.”

Mr Brown said the industry stakeholders in both class actions had so far negotiated in good faith with the government but they’d refused any type of settlement.

“We understand the Honourable Roger Gyles has assessed the potential for a positive outcome, so we would be looking for a good outcome,” he said.

“And it’s about time – it has been three and a half years.

“The Commonwealth government has continually stalled this claim and refused any out-of-court settlement and now the industry is looking very positively at having its day in court and I welcome that opportunity.

“The industry and all stakeholders who’ve been adversely affected by the suspension are looking at this class action claim positively.”

Colin Bettles

Colin Bettles

is the national political writer for Fairfax Agricultural Media
Date: Newest first | Oldest first


6/11/2014 7:38:26 AM

The export of live animals overseas has been shown time and time again to be cruel. The Live Export Industry and Farmers involved in this trade have known this for years. The class action is nothing but a strategy to silence the public and Government against taking future action to end this abhorrent trade. Not one word about the cruelty involved to the animals by those taking the class action. As a tax payer I do not want to pay for this class action, it is not the Coalition Government who will be paying it is the tax payers - many of whom want this trade to stop.
6/11/2014 8:44:18 AM

Ray, what about the many of whom want it to continue. There are several polls showing majority support for Live Ex. If the buyers don't get the animals from Australia they will get them elsewhere. Australia is one of the only countries that have education programs going on in the destination countries to improve animal welfare there. By shutting it down you are condemning other animals to an unknown fate. Seems you only care about Australian animal welfare and not animal welfare in general
6/11/2014 8:57:53 AM

Ray - have you ever see a cow other than at a show - if not then you have no knowledge of the industry or credibility - I as a taxpayer do not pay taxes to organisations like Animals Australia & RSPCA who knowingly break the law
6/11/2014 10:09:04 AM

Cam, missing the point. Its the animals who suffer..or is that a lost concept for you? As for you genazzano, have you proof of your accusations of these two organisations or are you simply shooting your mouth off. It is irrelevant is one has seen a cow, the FACT is live export is cruel and totally unnecessary.
6/11/2014 10:50:13 AM

Cam, the education program is not working given the continued abuse of animals. Now the little protection animals have may be stripped by Joyce Barnaby if he gives Saudi Arabia exemption from Australia's system of monitoring the welfare of animals from shipping out to slaughter. That happens and every other country will want exemption. Chilled meat has a much greater market, expand this market and end the live export trade. genazzano, if it were not for Animals Australia & the RSPCA I would never have known of the cruelty to animals - the dirty secret the Live Export Industry hid for years.
jen from the bush
6/11/2014 12:04:25 PM

Shame you anti LE people wouldn't actually do some investigation of your own. You might find out some facts like 1-cattle ind needs LE to keep abattoirs a bit honest. They make $5-800/hd profit. Farmers make a loss for last 10yrs 2. cant get kill space anyway 3. Nth Au cattle light and not suitable for Au market. Suitable for LE 4.transport $260 to abbitoirs, $50 to LE 5.Plenty of cruelty in Au - how dare you point fingers at some other country. Just look at no. cats,dogs and unborn babies killed every year. Paid for by taxpayers. Long live LE - we need it
6/11/2014 12:12:58 PM

Insider, no I think you are missing the point, yes it is animals that are getting hurt. But regardless of what Ray says, education is making a difference. Australia has people on the ground in these places. If we pull out there is no oversight at the other end.
6/11/2014 12:41:40 PM

Used to be a show on television chock a block full of animal "cruelty" cases perpetuated by Australian people in Australia... Was never an outcry banning the keeping of pets by society even though "cruelty" was perpetuated by a minority of people.. Hypocrites the lot of you..
Paul Cox
6/11/2014 1:26:40 PM

Ray & others who suggest replacing live export with the chilled trade are clearly ignorant of the facts of the trade. They are differing markets. Removing Australian live export from the equation does nothing positive for animal welfare and indeed harms it. Clearly he has not been to many if any of the destination markets. Their ignorance of the realities of the economic, cultural and infrastructure reasoning underpinning live export both there and here in Australia is gobsmackingly naive. I suggest they educate themselves before pontificating on issues they know little if anything of.
Paul Cox
6/11/2014 1:52:15 PM

Recently revealed statistics show that more Australians die each year in Thailand than any other foreign nation. Any humane and caring person must support my call for an immediate end to to this callous trade. You know it makes sense! Well as much sense as an end to the live export trade does.
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