LAWYERS acting for cattle producers and industry in the class action claim against the Commonwealth government, over the 2011 live cattle ban to Indonesia, have had a significant win in court today, to potentially uncover critical evidence.
A document discovery application was heard in the Federal Court in Sydney today, by Justice Rares, seeking to reveal high level government communications, including two private email accounts that were used by former Labor Agriculture Minister Joe Ludwig, at the height of the political controversy.
The extended legal action is seeking to claim about $600 million in losses caused by the snap government suspension imposed after the ABC 4Corners broadcast in late May 2011, exposed animal cruelty in Indonesian abattoirs, which ignited an unprecedented public backlash, driven by social media.
The claim is being spearheaded by the Brett Cattle Company of the NT, as industry’s lead litigant, and is backed by fiscal grunt of the Australian Farmers' Fighting Fund.
Industry’s lawyers Minter Ellison have been pushing for a financial settlement against the Commonwealth government - having originally flagged the action about five years ago - but it has been rejected by the Australian Government Solicitor (AGS).
But today’s hearing boosted the industry’s claim, when Justice Rares approved an order to allow an expanded and improved discovery search for potentially critical documents.
It includes those linked to private email accounts used by the former Minister Ludwig - 'email@example.com’ and ‘firstname.lastname@example.org’ - to communicate with ministerial staff and others.
The applicant’s Barrister Stephen Free asked the search include categories of discovery they believed had been previously overlooked, including communications coming from within the Minister’s office.
“The evidence which my learned friends have put on indicates that there is, in fact, a collection of emails that were within the Minister’s office coming from or out of or into the Minister’s office that weren’t searched and that’s because they were on back-up tapes only,” he said.
Mr Free said a search of email accounts with the domain name ‘@maff.gov.au’ “certainly should be part of the order”.
But he said the applicants knew, from already discovered documents, that other email accounts were being used, including by the Minister – ‘email@example.com’ and ‘firstname.lastname@example.org’.
“There has been some correspondence indicating that some further searches were undertaken by Minister Ludwig of those email accounts, but they postdate his verified discovery and it’s not clear from his verification whether he took the same approach to the interpretation of discovery categories that the Department apparently took,” he said.
“We think there should be no doubt about the discovery of relevant documents in that and that he should review those email accounts, as well as the ‘@maff’ ones and give verified discovery of that.
“We don’t know, of course, exactly what’s on the backed up material on the back-up tapes.
“If it includes documents other than things which might be described as emails and those documents are discoverable, then we think there should be no doubt that they should also be discovered.”
The new expanded search will involve re-engaging records from a decommissioned backup email server from the Department of Agriculture, to seek any relevant documents in communications linked to the matter.
The email server was decommissioned as part of an IT upgrade, after the 2013 federal election, and the defence argued it would be a costly exercise to restore any records from the storage tapes.
But the applicants successfully argued the cost was worthwhile to uncover potential evidence linked to the claim and also took steps to find an IT specialist with the expertise able to perform the task.
The respondent’s Barrister Michael O’Meara submitted to the hearing that the order for an expanded search for documents should be limited to the @maff.gov.au accounts.
“The two specified email accounts, the ‘agfishforest.com’ and the ‘email@example.com’ have been the subject of searches already,” he said.
He said there was no reason to expect or to think that a new search of records would produce anything new.
“The upshot is that these MAFF accounts have fallen through previously the net of discovery given,” he said.
“Comprehensive as it was, these fell through the net, and we now accept that we should using the assistance of the external service-provider or perhaps a similar one identified – we should search along the same lines as we’ve done previously in relation to all the other email accounts.
“But in relation to the two identified email accounts that has already been done and in my submission (there’s) no reason given for revisiting it.”
Justice Rares said the legal claim’s central point was proving misfeasance of public office, in the minister’s suspension decision, and a proper search of documents and records would assist the legal process in potentially satisfying that question, either way.
He said the applicants had won an agreed order for proper discovery “But that may or may not produce the smoking gun, or it may produce absolutely nothing - I don’t know”.
Justice Rares told Mr O’Meara, “As it turns out, there are materials…that need to be discovered which you had not looked at and which you hadn’t”
“The critical thing is what in terms of the allegation of proving misfeasance is – you know – a public perception there was a kneejerk reaction to the Four Corners program is – and that would be a misfeasance if it wasn’t done properly,” he said.
“So they say, well, what went on in the Minister’s office is critical to know whether that case can ever be made out or not.”
Mr O’Meara conceded the extended search had the capacity to uncover documents relevant to proving the central legal point.
“But whether that case will be made out at the end of the day is a whole other question,” he said.
Justice Rares said “What I’m saying is these documents plainly go to that case, which lies at the heart of the misfeasance allegation”.
“That it wasn’t done for a purpose of government, it was done for – not done for purpose of the proper use of government power, it was done for an improper purpose,” he said.
“That’s the point about misfeasance.
“These documents on this server or on this backup material were always relevant to be looked at, and they haven’t been, and that has come out in the wash, and they’re important documents – potentially important documents.
“They may or may not produce anything you haven’t already seen.
“I don’t know – nobody knows.”
Justice Rares said, “This enterprise should have been embarked on two years ago, because getting the backup tapes of what happened in the Minister’s office is critical”.
“It’s what was in the Minister’s mind,” he said.
“I mean – they’re trying to prove he and he alone misused his office, not all these other people.
“He could have had all the advice in the world, and he may have done it not for the reasons in the advice but for other reasons, and if he did it for other reasons, he’s not using his office properly.
“What I’m saying to you is looking at what is in his mind at the time at the time he makes the decisions is critical, and you’ve left a whole raft of communications unlooked at - on this backup server that are critical to what’s in the Minister’s mind.
“He might be saying – you know – for all I know, something that Mr Free will pull out of the smoking gun and say ‘Look at this. That shows that he wasn’t using his office properly’.
“Or you may find something to show that he was absolutely using his office properly.
“We can all speculate, but that should have been on the table back…in 2015 when you did discovery.
Northern Territory Cattlemen's Association CEO Tracey Hayes said the court today not only ruled in the applicant’s favour but now gave the industry’s legal team the capacity to follow up on the discovered documents and prove the existence of any missing evidence, in the claim.
“Clearly the government are not playing fair in admitting to not providing critical evidence,” she said.
“If we are going to prove culpability it’s critical and essential the discovery order is adhered to.”
Ms Hayes said a minister using personal emails to communicate with their office on such a critical issue like the live export ban at very best signalled a lack of transparency and an inappropriate processes at the highest level.
She said while 45,000 documents have been produced by the Department in the discovery process, virtually none were produced from the minister’s office.
“We believe the losses to the northern cattle industry will amount to $600 million and we encourage the federal government to step up and back their claim to conduct the case as a model litigant and come to the table and negotiate this case, as a matter of urgency,” she said.
“People impacted by the ban have been through enough and to now discover the commonwealth not playing fair is a kick in the guts – they need to do the right thing, and come to the table and negotiate a settlement.”
Mr Hayes said the NTCA looked forward to the main hearing in July but still expected to sit down and negotiate the matter.
The industry’s class action claim alleges the former minister acted unlawfully in making an order under the Export Control Act 1982 on June 7, 2011 in suspending the export of live-stock to Indonesia for six months.
That move came after he initially signed another order on June 2, 2011 prohibiting the export of live animals to 12 specific locations in Indonesia.
Mr Ludwig has denied the claims made in the class action claim – and the former Prime Minister Tony Abbott promised the Commonwealth would act as a “model litigant” in its defence of the legal action, after it was formally filed in court, in late 2014.