Brett Cattle Company Pty Ltd v Minister for Agriculture

RARES J: 1 Following delivery of my reasons on 2 June 2020 the parties conferred and subject to one difference, agreed on the form of orders necessary to give effect to those reasons: Brett Cattle Company Pty Ltd v Minister for Agriculture [2020] FCA 732. I shall use the same defined expressions in these reasons as in those. 2 The parties differed as to whether the answer to common question 3 should reflect, as the Commonwealth contends, what I wrote in [462] of the reasons, namely "it is likely that, had the Minister made an Exceptions Order, about 88,000 head, or approximately the balance of the unfilled Indonesian quota, would have been exported" or, as Brett Cattle contends the answer should be that "at least an additional 88,000 head, would have been exported". 3 The parties agreed, correctly, that the final orders should contain a notation that I had not determined the issues of, first, the maximum capacity of the Indonesian market for the importation of cattle in 2011 and 2012, secondly, the amount of any Indonesian import quotas or permits in 2011 or 2012 and, thirdly, the availability of shipping to enable cattle to be exported from Australia to Indonesia in 2011 or 2012. 4 As I noted in [462] of my reasons, the methodology and assessment at which I arrived, as reflected in the Commonwealth's proposed wording for the answer to question 3, had not been considered by the parties. That was because I found at [445] that both sides' submissions had proceeded on an erroneous basis as to how to approach the issue of what would have happened had the Minister acted lawfully. The parties have agreed on the notation to be made as part of the final orders rather than take up the opportunity that I afforded them to address the methodology and assessment that I adopted in my reasons. That was for the practical reason that it may be that the total number of head in respect of which group members will claim to have suffered loss will be, or not exceed, about 88,000 head, in which case any more precise examination of the unresolved issues in the agreed notation will not be needed.

Conclusion 5 In those circumstances, I am of opinion that it is appropriate to answer question 3 as Brett Cattle proposed and to leave until later, if, and until, it is necessary, the decision of the unresolved issues in the agreed notation. I will make the orders that the parties drafted with that addition. Of course, the Commonwealth's agreement on the form of those orders was to reflect what I had determined and did not comprise any concession that precluded it seeking to appeal against the determinations that those orders record. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.