Brett Cattle Company Pty Ltd v Minister for Agriculture

• Jurisdiction: Australia Federal only
• Judge: RARES J
• Judgment Date: 02 June 2020
• Neutral Citation: [2020] FCA 732
• Court: Federal Court
• Date: 02 June 2020

FEDERAL COURT OF AUSTRALIA

Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732

File number:	NSD 1102 of 2014
Judge:	RARES J
Date of judgment:	2 June 2020
Catchwords:	ADMINISTRATIVE LAW — validity of delegated legislation — test for validity — representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) — livestock export industry — where public affairs broadcast revealed inhumane treatment of Australian cattle exported to Indonesian abattoirs — where broadcast resulted in public outcry and political pressure on Government — where the Minister made two control orders under s 7 of the Export Control Act 1982 (Cth) in short succession — where second control order prohibited the export of all livestock from Australia to the Republic of Indonesia for a period of 6 months — where first control order did, but second control order did not, provide power to grant exceptions — where purpose of second control order was to enable Australian Government to develop a regulatory and compliance regime to address concerns regarding slaughter of livestock in Indonesian abattoirs — where various exporters were already capable of ensuring livestock exported to the Republic of Indonesia would remain within a closed loop system and not be subject to inhumane conditions up to the time of slaughter — whether second control order was valid exercise of Minister’s power under s 7 of the Export Control Act — whether second control order invalid on basis of unreasonableness — application of proportionality tool of analysis to evaluate validity of delegated legislation — whether second control order was suitable, necessary and appropriate and adapted to achieve a legitimate end within power conferred on Minister by s 7 of the Export Control Act — second control order was unreasonable, capricious, unnecessary and inadequate in its balance — second control order invalid ; TORTS — misfeasance in public office — whether Minister committed tort of misfeasance in public office by making second control order — elements of tort — untargeted malice — where Minister did not receive or seek advice as to legality of second control order — where Minister received Departmental and general legal advice regarding worldwide ban on livestock exports but imposed ban only on exports to Republic of Indonesia — where Minister sought legal advice as to liability for compensation if he made an order — whether Minister reckless as to his power to make second control order under the Export Control Act when he took risk as to its validity without obtaining legal advice as to form of order he made ; TORTS — misfeasance in public office — whether Minister committed tort of misfeasance in public office by making second control order — elements of tort — untargeted malice — whether necessary that tortfeasor recklessly indifferent to, or knew of, harm that would result from action or whether sufficient that harm to persons affected reasonably foreseeable — where Minister timed second control order to prevent particular shipment of cattle leaving Australia — where Minister knew, or was reckless as to whether, making second control order would result in harm to industry participants –– Minister committed the tort of misfeasance in public office by making second control order ; DAMAGES — compensatory damages — where second control order caused significant distortion in livestock export market — where two alternative hypothetical scenarios pleaded — whether Minister would have made different control order, if exercising power validly —where Minister did not give evidence and his actions in making second control order made quantification of damages difficult — where alternative control order would have provided power to grant exceptions to a general prohibition on livestock exports to Indonesia — where applicant suffered loss of a commercial opportunity — quantification of damages ; EVIDENCE — where Minister did not give evidence — no direct evidence of Minister’s state of mind or of what he would have done had he exercised his power validly — where impugned decision made after Cabinet meeting — where Minister put no documents before Cabinet — whether inference open that any evidence the Minister would have given would not have assisted the respondents
Legislation:	Australian Meat and Live-Stock Industry Act 1997 (Cth), ss 3, 4, 10, 17 Evidence Act 1995 (Cth), s 140 Export Control Act 1982 (Cth), ss 3, 7, 25 Federal Court of Australia Act 1976 (Cth), Part IVA Judiciary Act 1903 (Cth), s 39B Legislative Instruments Act 2003 (Cth), ss 4, 17, 26, 38, 42 Australian Meat and Live-stock Industry (Export of Live-stock to the Republic of Indonesia) Order 2011 Australian Meat and Live-stock Industry (Export of Live-stock to the Republic of Indonesia) Order 2011 (No2) Export Control (Export of Live-stock to the Republic of Indonesia) Order 2011 Export Control (Orders) Regulations 1982, r 3 Export Control (Protection of Animal Welfare) Order 2011 Export Control Repeal Order 2011
Cases cited:	Attorney-General (SA) v Adelaide Corporation (2013) 249 CLR 1 Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Australian Securities and Investment Commission v Hellicar (2012) 247 CLR 345 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Banco de Portugal v Waterloo & Sons Ltd [1932] AC 452 Banditt v The Queen (2005) 224 CLR 262 Betfair Pty Ltd v Western Australia (2008) 234 CLR 418 Brunswick Corporation v Stewart (1941) 65 CLR 88 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Commissioner of Metropolitan Police v Caldwell [1982] AC 341 Commonwealth v Fernando (2012) 200 FCR 1 Communications, Electrical, Electronic, Information, Postal Plumbing and Allied Services Union v Australian Competition and Consumer Commission (2007) 162 FCR 466 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Cornwall v Rowan (2004) 90 SASR 269 Coulter v The Queen (1988) 164 CLR 350 Dunlop v Woollahra Municipal Council [1982] AC 158 Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309 English and Scottish Mercantile Investment Co Ltd v Brunton [1892] 2 QB 700 Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 Ferrier v Wilson (1906) 4 CLR 785 Garrett v Attorney-General [1997] 2 NZLR 332 Graham v Minister for Immigration (2017) 263 CLR 1 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 Jones v Dunkel (1959) 101 CLR 298 Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 511 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Lamason v Australian Fisheries Management Authority [2009] FCA 245 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1990) 24 NSWLR 499 McCloy v New...