THE waiting game now begins for a ruling in the the landmark class action claim against the Commonwealth Government over the infamous 2011 Indonesian live cattle export ban.
The Northern Territory’s Brett Cattle Company are lead litigants in the legal action that is seeking to prove misfeasance in former Labor Agriculture Minister Joe Ludwig’s decision to suspend the live cattle trade to Indonesia for up to six months in mid-2011.
The minister’s decision came in response to unprecedented public backlash ignited by dramatic television footage of animal cruelty filmed by animal activists in Indonesia abattoirs.
The Federal Court has this month heard evidence of detriment in the second phase of the case, following the liability hearing in June.
The applicant’s case centred around losses borne by Brett Cattle Company.
In order to prove loss and damage, the legal team for the applicants contested there were two counter scenarios that existed.
The first was a control order where the flow of cattle was banned to the 12 abattoirs involved in the television footage.
The second was trade continuing but being restricted to supply chains that had proper slaughter practices, the ability to trace back animals and were compliant with OIE (World Organisation for Animal Health) standards.
Facilitator of the class action, former Northern Territory Cattlemen’s Association boss Tracey Hayes said the applicants contested there were at least four supply chains operating in that manner, between them there was a large capacity for trade and the Bretts fell into those chains.
The core of the applicants’ argument is that the government did not need to ban the trade and therefor that decision was in fact illegal.
If successful, this will be the first time a case of misfeasance has been proven against an Australian Government minister.
Ms Hayes said the applicants’ argument was the government at the time failed to take its own advice, the advice of industry and to understand the importance of the trade.
“Another failure really apparent was the lack of understanding of long term and critical relationships developed with Indonesia,” she said.
The respondent’s closing submission took those counter scenario arguments to task, arguing the losses suffered by Brett Cattle Company would have occurred anyway.
The respondents also argued there wasn’t sufficient capacity under the second hypothetical scenario for Brett Cattle Company to export their cattle.
There was agreement the losses were close to $3m for the Brett Cattle Company, Ms Hayes said.
“That means if the judgement is in our favour, the principles that determined that figure will apply to the wider class,” she explained.
The applicants are seeking $600m in compensation, which Ms Hayes said was the estimate of the losses incurred by the 300 entities involved.
It is anticipated a decision from Justice Steven Rares will be given in the first quarter of 2019.
“We’ve been able to argue the case in its fullest form on the behalf of NT and that has happened because of the support of the Australian Farmers Fighting Fund,” Ms Hayes said.
The fund was set up more than 35 years ago in the aftermath of the Mudginberri abattoir dispute, where unions picketed a processing facility in the NT forcing it to shut down, leaving workers without jobs and producers reliant on the abattoir without a market. The abattoir was successful in the legal battle for compensation.
“If nothing else, this live export class action has sent a signal to governments that this is no way to conduct their business,” Ms Hayes said.
“Entire industries are becoming increasingly nervous about the reactions of governments to clicks of a mouse.”