Live Export Shutdown Class Action

(Brett Cattle Company Pty Ltd v Senator the Honourable Joe Ludwig, Former Minister for Agriculture, Forestry and Fisheries and Anor)

The AFFF is funding litigation to compensate those harmed by the shock 2011 shutdown of the live cattle trade.

In June 2011, with the sweep of a pen by then Labor Agriculture former Minister Ludwig and without any consultation or even forewarning to industry, the Government banned the live cattle trade to Indonesia and an entire industry was brought to a standstill.

This devastatingly poor government decision sent shockwaves around the Australian agriculture sector. It shut down businesses overnight. Livestock were left stranded in loading yards while owners scrambled to find food, shelter and somewhere else for them to go. Farming families were left without an income. Supply chain businesses were put to the wall. International trade relationships damaged. Tragically, some families lost loved ones who had themselves lost hope.

The effect of the ban was shattering on many Australian cattle producers and businesses servicing the live export industry. Years later many of these businesses are still recovering.

While both major political parties said it was a poor decision, they did nothing to redress the harm which was caused.

It was left to the sector to pick up the slack, with the backing of the Australian Farmers’ Fighting Fund.

In October 2014, a class action was filed against the Commonwealth Government seeking compensation for the financial losses suffered.

The applicants argued that the ban constituted “misfeasance in public office” because Minister Ludwig made that decision knowing full well that he did not believe it was necessary.

True to form, the government has fought every step of the way.

In July 2017 the Court heard the case in a massive hearing spanning 1 week. This was followed by another another week-long hearing in December 2018.

On 2 July 2020, after more than a full year of deliberations, the Federal Court found that former Minister Luwig had committed ‘misfeasance in public office’ in making the decision to shut down the industry in 2011.

In delivering judgment on the matter, Justice Steven Rares stated that the Brett Cattle Company was entitled to ‘‘substantial damages’ and the Commonwealth must pay court costs.

Justice Rares was critical in his summary of how the approach of the then Minister and his Department was not fully considered by the then Government.

Justice Rares said the Minister was: “recklessly indifferent as to the availability of his power to make the Second Control Order in its absolutely prohibitory terms without providing any power of exception and as to the injury which the order, when effectual, was calculated to produce.”

The result is a monumental win for lead applicants: the Brett Cattle Company of Waterloo, the adjoining parties and the Australian Farmers’ Fighting Fund, the support of which made the case possible.

The amount of compensation and the final number and type of litigants still needs to be negotiated and determined. It is likely that the amount of compensation to be paid will be in the hundreds of millions of dollars.

It is currently unclear whether the Government will seek to launch an appeal over this matter, although there has been some indication that they may, regrettably, seek to do so.