Brett Cattle Company Pty Ltd v Minister for Agriculture

Background 6 The definition of "group member" in this proceeding applies to persons or entities who: (1) on or around 7 June 2011, derived financial benefit from: (a) producing cattle in Australia which were sold for live export to the Republic of Indonesia ("Producers"); (b) exporting cattle from Australia to the Republic of Indonesia ("Exporters"); or (c) providing transport services, mustering services, feed, agistment and/or other incidental services to Producers and/or Exporters; (2) suffered loss and or financial harm or damage as a result of the Export Control (Export of Live-stock to the Republic of Indonesia) Order 2011 (Cth); and (3) did not opt out of the proceedings. 7 The independent chairman and trustee of AFFF, Hugh Nivison, said in his affidavit of 28 September 2020 that AFFF had been formed on 16 July 1986 to promote the interests of the Australian agricultural sector, encourage collective action and cooperation across the sector, provide governments with opportunities to confer with the sector, and distribute information about the sector. AFFF is a charity registered with the Australian Charities and Not-for-profit Commission. The National Farmers Federation, the peak industry body for Australian agriculture, provides the secretariat for AFFF. 8 Mr Nivison explained that the trustees consider numerous criteria before deciding whether to provide financial assistance for litigation and legal matters that affect the interests of the entire sector, including in rural and regional Australia. He said that, since its inception, AFFF had given financial backing to over 100 court cases that related to issues about decisions of governments, industrial disputes, animal activism, mining rights, and farm finance and debt issues. 9 Mr Nivison said that the present proceeding was the first class-action that AFFF had supported and that it had decided to do so in October 2014 when it entered into a funding agreement with Brett Cattle. He explained that by 2 June 2020 AFFF had entered into funding agreements with 51 group members. He said that, since I delivered my reasons on 2 June 2020, a further 71 group members had contacted it or MinterEllison, the solicitors acting for Brett Cattle, expressing an interest or enquiring about entering into a funding agreement for their individual claims for damages. Mr Nivison said that from his discussions with some of the members of the class, he believed that there might be in the order of about 300 more group members located across Australia. He said that AFFF wished to be able to fund the individual claims of group members who are presently unfunded and seek to have their claims determined as part of this proceeding. 10 He referred to the current funding agreement pursuant to which funded group members take advice from and instruct MinterEllison to act on their claims. He said that AFFF retained the primary liability for any legal costs incurred. He said that group members had the final decision on the day-to-day management, including settlement, of their individual claims for loss as part of the proceeding. The funding agreement provides that AFFF has the right to be informed of key decisions and can terminate ongoing funding in specific circumstances. The terms of the funding agreement require that the group member pay 10% as a commission out of any compensation that the member receives. Mr Nivison said that the purpose of the commission was to compensate AFFF for its efforts, agreement to incur liabilities in pursuing the class-action, the particular group member's claims and to generate a return for AFFF that it would be able to deploy for its charitable purposes of supporting Australian farmers in the future. 11 AFFF is concerned about whether entry into a new litigation funding agreement with any group members on or after 22 August 2020 might fall outside the exemption in reg 10.38.01(1) if that were found to be entry into a new litigation funding scheme. Mr Nivison said that AFFF did not currently have an Australian financial services licence and did not intend to apply for one. 12 Mr Nivison said that he understood and believed that group members were interspersed throughout regional Australia and that many of them would need litigation funding from AFFF in order to be able to prosecute their individual claims for damages in this group proceeding. Mr Nivison said that he understood and believed that, were AFFF unable to enter into funding agreements with the balance of group members who had not done so prior to 22 August 2020, many of those persons would not be in a position to have their claims determined unless they could organise another form of funding in which it was possible that they might have to pay much higher commission than the 10% that AFFF required or they may not be able to organise any funding at all.