LEGAL arguments will be tested this week when the class action claim against the commonwealth government over the 2011 snap suspension of live cattle exports to Indonesia goes to trial in Sydney.
Lead litigants the Brett Cattle company of Waterloo Station in the NT will spearhead the claim against the federal government in an effort to try and reclaim about $600 million in losses, with former Labor Agriculture Minister Joe Ludwig likely to face cross-examination if he’s hauled into court as a critical witness.
The Australian Farmers Fighting Fund (AFFF) is backing the legal fight by cattle producers and industry that was initially filed in the Federal Court in October 2014.
Ongoing efforts by Minter Ellison lawyers to try and settle the claim with the government, without the case going to trial, have proven futile.
Former Prime Minister Tony Abbott initially promised the Coalition government would act like a model litigant in assessing and responding to the plaintiff’s claim.
But frustrations have emerged about ongoing delays and stalling tactics by the defence, ahead of the first stage of formal proceedings commencing.
In late March, the plaintiff’s had a significant win in court, to potentially uncover critical evidence, when Justice Rares approved an application that involved re-commissioning an email server at the Department of Agriculture, that was taken out of action after the 2013 federal election, to reveal high level government communications, including two private email accounts used by Mr Ludwig, at the height of the political controversy.
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”.
The case is seeking to establish the reasoning behind the then Minister’s second control order of June 7, 2011, that suspended trade for up to six months.
In a statement today, the Northern Territory Cattlemen’s Association (NTCA) said in a landmark case, the court would consider evidence gathered from over 100,000 items, including detail from emails, telephone conversations and memos from within government and Minister’s office.
“The government has conceded that loss has been suffered and the court will consider the evidence of detriment from key industry sources including lead applicant, the Brett Cattle Company, in order to establish a case of misfeasance on the part of federal Minister Ludwig,” the NTCA said.
“The industry will argue that in enacting the second export control order, closing the live export trade, federal Minister Ludwig misused or abused his power as Minister for Agriculture.
“The Minister must give evidence to explain the decision that has caused so much damage to the North.
“If successful, this will be the first time a case of misfeasance has been proven against an Australian government Minister.”
NTCA CEO Tracey Hayes said the importance of the class action case “cannot be understated and the message it sends to government is powerful”.
“What happened in 2011 cannot be allowed to happen again,” she said.
“Governments need to know that knee jerk reactions like that in 2011 have no place in good government, our agricultural export industries and the lives and businesses of the northern cattle industry.
“The whole justification for the live export ban of 2011 was supposedly about animal welfare, although their own documents now prove they knew that was not the case.”
Ms Hayes said what was likely to be heard before the court was “how the decision was about the political survival for a minority government”.
“Unfortunately, while this occurred under a Labor government in 2011, the current government have not been the model litigants as promised by former Prime Minister Tony Abbot, making us fight for every shred of information,” she said.
“As the Australian Government Solicitor has not met the model litigant guidelines-vital discovery materials remain outstanding, including materials from the Minister himself.
“The claimants have been prejudiced by the delay in discovery, but wish to continue to have the matter heard on the current timetable.”
Ms Hayes said the case would not have been possible without the AFFF’s support.
She said the case would be heard in two parts, starting with liability from July 19 to 28 this year and then the calculation of loss, from December 11 to 15.
Justice Rares has indicated that the matter should be heard and determined as soon as possible so that any compensation is awarded and distributed to those effected, she said.
Mr Abbott has described Labor’s decision to suspend the live cattle trade as perhaps the worst ever decision any Australian government has ever made and a “shemozzle”.
In 2014 when the claim was first submitted to court, Emily Brett said on May 31, 2011 – the night the ABC Four Corners program “A Bloody Business” was aired - her family’s business had 2200 head of cattle in their yards ready to be exported to Indonesia.
That shipment was initially postponed to June 12 but that consignment never happened, given the trade suspension came into play on June 7.
“We lost the sale which was worth $1.4 million,” she said.
“When the ban was lifted a month later, we weren’t able to sell those cattle and had to wait until September.”
Ms Brett said the business also faced outgoing costs that couldn’t be serviced due to the unexpected loss of income.
She said in early May 2011, they took delivery of fuel supplies worth $110,000, vital for running a large northern cattle station, on the understanding income was due from cattle sales in June.
“But after the ban we couldn’t sell the cattle so we had no money and then incurred overdue interest on the fuel bill,” she said.
“The costs just kept adding up.”
The office of Attorney General George Brandis has been contacted for comment, referring the inquiry to Agriculture and Water Resources Minister Barnaby Joyce.
The 2011 suspension of the Indonesian trade – then valued at about $320m – came after unprecedented backlash on social media, that hit federal MPs and Senators with demands to shut the entire live trad, in response to the ABC broadcast that highlighted shocking treatment of cattle, exported from Australia.
Unions were also involved in the campaign, joining with animal rights activists, which boosted the subsequent political campaign that accompanied the ABC broadcast.