Live Cattle Export Ban Unlawful: Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732

Thursday 4 June 2020 @ 11.43 a.m. | Legal Research | Trade & Commerce

In Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732 (2 June 2020), the Federal Court of Australia (“Federal Court”) has ruled that a 2011 live export ban imposed by the then-Gillard Government was unlawful.

With the case having been before the Federal Court for six years, and awaiting judgment for 18 months, Justice Rares ruled that former Agriculture Minister Joe Ludwig (“the Minister”) acted with misfeasance when on 7 June 2001, the Gillard Government signed a six-month suspension of the live cattle trade to Indonesia.


ABC News reports the Gillard government's action came after an ABC Four Corners investigation into Indonesian abattoirs which highlighted inhumane conditions. In response to the outrage in the community, then-Senator Ludwig announced that trade to those abattoirs would stop.

A 300-strong class action, which started in 2014, is seeking $600 million in compensation for lost income as a result of the ban. In his judgment, His Honour found [at para 392] that the Minister had:

“... made no attempt to explore solutions with the Indonesian government and there was no advice from his Department about an exclusive ban on exports to Indonesia”.

The Guardian reveals that in 2014, the NT-based Brett Cattle Co led a class action against the Minister and the Department, claiming it had lost the opportunity to sell about 2,776 head of cattle during the ban, and suffered losses totalling about $2.5m. To date 30 parties have joined the class action and are calling for up to $600m in compensation.

The Decision

Justice Rares found the blanket ban had been “invalid and capricious”.  His Honour said the order Ludwig made on 7 June 2011 was invalid “because it failed to include any exemptions for exporters who had already established a closed loop system”.

His Honour also noted at [para 394]:

“I am comfortably satisfied, based on the whole of the evidence, that 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 … Accordingly, the Minister committed misfeasance in public office when he made the Second Control Order on 7 June 2011.”

According to The Guardian, the Minister had no legal advice that he could lawfully make the order in such form, but had sought legal advice about the government’s potential exposure to compensation claims if he made a temporary ban.

His Honour also commented at [para 393]:

“Yet, with that knowledge the Minister made the Second Control Order shutting his eyes to the risk that it might be invalid and to the damage that it was calculated to cause persons in the position of Brett Cattle …”

Comments on the Judgment

Tracey Hayes, spokeswoman for the class-action (and former Chief Executive of the Northern Territory Cattlemen’s Association), said the ban was “an attack on the industry by our own Commonwealth” and that it had “inflicted a decade of pain” on the lead plaintiffs Emily Brett and her late husband Dougal.

Ms Hayes said to ABC News:

"The truth is, the shutdown was not required. To enact the changes needed in some offshore facilities, it simply was not necessary."

Ms Hayes said farmers' livelihoods would not have been hit had “calmer heads prevailed”, she also pleaded with the Commonwealth not to proceed with an appeal against the decision.

Agriculture Minister David Littleproud said in a statement the Government would “carefully work through the judgement” before commenting on the matter. Agribusiness lawyer Trent Thorne said he would be surprised if the Commonwealth appeals the Federal Court's decision and described the ruling as “extraordinary”:

"To actually get a successful result in the area of misfeasance in public office, is an extraordinarily difficult burden to overcome and a very high hurdle. So in the realm of Australian Case law, it's not breaking new ground, but it's a very rare victory to use this very unique part of the law and have a win. The Commonwealth has got 28 days to lodge an appeal, I would be extremely surprised if they appealed this.”


His Honour said Brett Cattle Company was “entitled to substantial damages” and said the “minister and the Commonwealth must pay its costs of the proceeding”.

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