Kenneth A Pethers v Minister for Agriculture

Supreme Court of NSW|2010-07-15|Before: Pembroke J

CITATION : Kenneth A Pethers v Minister for Agriculture [2010] NSWSC 805

HEARING DATE(S) : 15 July 2010 JURISDICTION : Equity

CATCHWORDS : PLEADING - summary dismissal - no reasonable cause of action - no recognisable orthodox relief sought - PLEADING - oppressive unintelligible, confused and complex

LEGISLATION CITED : Stock Diseases Act 1923 Stock Diseases Regulation 2009

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Gunns Limited v Marr [2005] VCS 251 CASES CITED : Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135 McGuirk v The University of New South Wales [2009] NSWSC 1424 Shelton v National Roads & Motorists Association Limited [2004] FCA 1393

PARTIES : Kenneth A Pethers Minister for Agriculture

COUNSEL : K A Pether - Litigant in person (Plaintiff) Ms G Mahony - for the Defendant

SOLICITORS : K A Pether - Litigant in person (Plaintiff) NSW Crown Solicitor - for the Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2008/278916 - K A PETHERS v MINISTER FOR AGRICULTURE

1 HIS HONOUR: The plaintiff is a grazier who conducts a grazing business in northern New South Wales. By his amended Statement of Claim filed on 11 June 2010 he seeks the following remedy: PROPOSED REMEDY: I am not indisposed to a reasonable settlement, nor a state contiguity with an identification or tracking operation. However sufficient condition already existed with vendor declarations and the obligatory docketing and notation through sales and registered stock agents. These systems are more accurate in addition to more trustworthy, at hand and detail a descriptive account of age, style and sex of the subjects. Moreover the traditional tailtag, invariably used in sequence (and so numbered), has distinct advantage of indicating vendor and booked in as a superior article (ten weaner steers, two black cows etc) does not inculcate in the minds of handlers, agents, abbittoir workers and the like, a diminution of responsibility, thinking that (even subliminally) a scanner or machine will do that. Only a contemporaneous, passive non invasive scenario of non wireless tailtags. A pathway from breeding onto finishing, then slaughter, without the stress, fresh wound, contusions to head neck and shoulder, agitated handling and passage through the process, will ensure optimal meat quality. Rescue from bankruptcy, and, acceptance of effect that has been an unbearable holocaust for myself and animals. That has been a great personal pain, damage and cost, that must stop, and resolve sought forthwith and duly recorded. 2 It is, I regret to say, transparently obvious from the description of the remedy which the plaintiff seeks that this is not a conventional proceeding based upon an orthodox cause of action seeking orthodox relief.

The Defendants 3 There are three named defendants but in reality there may only be one, namely the Minister for Agriculture. The Minister is the second defendant. He seeks an order, among others, for summary dismissal of the amended Statement of Claim. The first defendant is described as "The Crown" and adds nothing. The third defendant is described as the "Chairman, NSW National Livestock Identification Committee". The third defendant is not identified but the National Livestock Identification Advisory Committee was a non statutory Ministerial Advisory Committee with no legal status. It existed between 2003 and December 2006 and was no more than a group of individuals representing various sectors of the cattle industry and some Government agencies. The committee existed to advise the Minister for Agriculture about various aspects of the implementation of the National Livestock Identification Scheme in New South Wales. The chairman of the committee varied as different persons were appointed to that role by the Minister during the life of the committee.

National Livestock Identification System 4 The National Livestock Identification System was introduced over a period of years. It was the subject of discussion and consultation between the New South Wales Department of Primary Industries and the livestock industry. The system is a permanent whole of life identification system that enables individual animals to be tracked on properties for slaughter. Its introduction represented a policy decision by the New South Wales Government based on the premise that permanent identification in the manner contemplated by the system would be of long term benefit to the livestock industry. The benefits were said to include the improvement of livestock traceability to reduce the impact of livestock diseases and rescue incidents; the making of access to overseas markets more secure; the maintenance of consumer confidence in Australian beef and dairy products; the offering to producers of improved herd management options and better access to current feedback; and providing better proof of ownership to reduce stock theft. 5 The evidence does not reveal how many graziers objected to the introduction of the system or how many shared the views of the plaintiff. The plaintiff's abiding objection, which he made plain to me in submissions, was based on a concern for the welfare of the cattle. As his proposed remedy makes clear, he contends that only a contemporaneous passive non-invasive non-wireless tail tag is appropriate. Prior Strike Out Application 6 These proceedings were commenced as long ago as 2008 and they have now occupied unnecessary court time and resulted in unnecessary expense. On 7 May 2010, Macready AsJ struck out the original Statement of Claim but gave leave to the plaintiff to file an amended Statement of Claim. It is that document which is before me today. Macready AsJ recorded the plaintiff's heartfelt belief concerning the cruelty to animals which he perceived resulted from the introduction of the National Livestock Identification System as well as his contention that there was inadequate consultation with the industry.

Amended Statement of Claim 7 The amended Statement of Claim pleads a number of particular grounds supporting the relief which the plaintiff seeks. The grounds are a mixture of fact and contention.

Ground (a) 8 The first ground is, in part, that the Minister gave flippant disregard to the process of examining or vetting the proposal for the scheme. The precise terms of the first ground are as follows: I charge that the instituted Soverignty of the Ministers decision making process during this period was heavily influenced by some persistent residue from chemical (now obsolete), and events in UK centreing around FMO (foot & mouth disease). Stigma that exists, unfounded perceptions, peer pressure (in Parliment) advice, ideas, accusations, proposals etc all prominent, but in mind he was vulnerable. A bullish nature, heavily influenced by techno ideas, a scheme or system with the prospect of extracting Federal funding to make us look good regarding disease control was so tempting the process to examine, or vet, was given flippant disregard.

Ground (b) 9 The second ground is, in part, that the scheme was cloaked from the farming community and that farmers who were directly affected had no say and no input. The precise terms of the second ground are as follows: His thoughts and intention concealed to his colleagues and the public in early 2004 the true nature of these amendments. He was privy to the finer detail of the wireless eartag plan. To be 'rolled-out' over a two and more year period, the bussiness plan, staged change, more and more involvement. The very process of gradual introduction, by its very nature indicates an awakening a revealing plan. That plan was not only cloaked from the farming community, those same said farmers, directly effected, had no say, no imput. The implementation in force July 1 st 2005 came after a year of ambivalence, widespread belief that such date were to be deferred for one year, and that exemptions were to apply to bulls and bobby calves. Amidst such uncertainty and allowing such to prevail raises questions of propriety and the due process of such.

Ground (c) 10 The third ground is, in part, that consultation was in everyone's interest and that the failure to offer a vote among graziers was improper. The precise terms of the third ground are as follows: A PREMISE, fundamental to an industry, trade sector or specialist field of endeavour, (livestock production) is that consultation or voting (even 66 or 75% as recognised) on matters of radical change, is in everyones interest. I assert that failing to offer an 'in house' vote is IMPROPER.

Ground (d) 11 The fourth ground is, in part, that the public consultation process needed to be transparent and should have adhered to something called the International Associated Public Participation Guidelines. It is said that for this reason the Minister acted improperly contrary to the document. The precise terms of the fourth ground are as follows: Similarly the public consultation process had a duty to avail to all, to be transparent, and if not anything else adhere to International Ass'oc Public Participation guidelines or spectrum regarding submissions. Closing date (mid March) 2005 was not availed in publications at hand and as many as 95% of stockowners found this out in May and June of that year. This gives lie to the prospect the Minister acted improperly contrary to the doctrine of Ministerial responsibility.

Ground (e) 12 The fifth ground is, in part, that the Minister allowed false or untrue information in the consultation process in relation to the unit cost and operational costs of the wireless ear tag system. The precise terms of the fifth ground are as follows: Public office has a code of conduct, in broard terms similar many in Local Government etc, that code has probity, disclosure, transparency and ethical integrity at its base. The Chairman (referred to 2 nd respondent) did have such responsibility in conferring with others of the Advisory Committee and especially so in his appropriations to the Hon Minister, that being the case such Chairman did allow false, as said, untrue information in relation to the unit cost and operational cost of the wireless eartag system. Knowingly false information that some Chairman, had also responsibility to convey any vested or pecuniary interests of his or his committee's members. This was not done, as direct family relatives had controling interests in the manufacture of these wireless style tags. Potential millions of dollars in production monopoly assigned and approved by the State. My observation is this can be, and seen to be IMPROPER.

Ground (f) 13 The sixth ground is, in part, that given difficulties that the plaintiff says occurred in Victoria in relation to the availability of wireless hardware and equipment, as well as the widespread uncertainty that was said to be present in the industry in Victoria, there were reasonable grounds to extend the consultation process beyond that which occurred. The precise terms of the sixth ground are as follows: Given difficulties (in Victoria) in the wireless hardware and equipment available, reference in the literature as to how well, and how long (now almost 40 yrs) the previous tailtag system worked, options available, terms like 'tailtags may become redundant', widespread uncertainty all would be reasonable grounds to extend consultation. Collate this and the industry heavy make-up of the Advisory Committee, (Feedlots, police?, all funded by the State industry groups, [uncertain of NSW Farmers]) meetings crowded with oportunists selling their wares and one could be forgiven in seeing a Minister with a propensity for brashness consenting to a scheme with no reference to independent stockmen, nor even reference to the animals themselves. That is facile, IMPROPER. Ground (g) 14 The seventh ground is, in part, that, among other things, the implementation of the system meant that some of the customs and stockman's traditions that have been in place for centuries were stultified. It was said that that conduct amounted to heresy and discriminatory conduct. The precise terms of the seventh ground are as follows: The precipitate decision to cause these alterations to the Stock Diseases Act becoming law did by virtue place all holdings and livestock in quarantine. Not in theory, not because of disease, not a control zone or buffer zone risk, but in actuality, by implication and inferrence. No beast to seasonal graze, nor graze a road, to agist, control graze for fire or other purpose without tagging and computer recording, flood or famine. That same causation to law, at once also did veto any religious convictions contingent between such men and the spiritual traditions. Viz: ritual worship or day to day ethical treatment as in the Hindu, Hare Krishna through to traditional slaughter methods of Jews and Islamic nations with Halal (Halaka - 'in the proper way'). Some of these customs and stockmanship traditions have been in place for centuries, to stultify the belief of the Plaintiff and many others is heresy and discriminatory. Notwithstanding the above matters (in g) the Minister has shown reckless disregard and omission by asserting his position as overseer (and so responsible) for the OH & S (safety) of all fields, stockyards, loading ramps etc. If indeed these don't constitute a workplace for farmers, I contend farm deaths and accidents don't count. It may well be that the high proportion of men and women who work alone, in remote and less than ideal locations with livestock often into old age can dismiss millenniums of husbandry skills in treating animals with respect, in a non invasive or passive manner … to enter the computer age by startling stock with a tempest of assaults to the head before presenting them for market. This page alludes to a modus operandi by a Minister wanting for a duty of care, due diligence and PROPER process.

Legislative context 15 The legislative context in which the issue arises is as follows, Section 23(1) of the Stock Diseases Act 1923 provides as follows: 23 Regulations

(1) The Governor may make regulations not inconsistent with this Act prescribing all matters which are required or permitted to be prescribed, or which are necessary or convenient to be prescribed, for carrying out or giving effect to this Act; and in particular and without limiting the generality of the foregoing power, the Governor may, by regulation: (c) prescribe and regulate the branding, marking or ear-marking of stock for or in connection with the management or control of disease and make provision for and with respect to schemes of identification of stock (whether on a compulsory or voluntary basis) and the tracing of stock.

16 Paragraph (c) was amended in 1998 by the addition of the words "and make provision for and with respect to schemes of identification of stock (whether on a compulsory or voluntary basis)". It was further amended in 2005 by the addition of the words "and the tracing of stock". 17 The Stock Diseases Regulation 2009 provides for detailed procedures in relation to the approval, use and sale of permanent identifiers; the manner of permanently identifying stock; and the requirement to identify stock. Regulations 18, 19 and 20 provide as follows: 18 Approval, use and sale of permanent identifiers (1) The Director-General may, by order published in the Gazette, approve of the types of identifiers to be permanently attached to identifiable stock for the purposes of this Division (including the specifications in respect of which such identifiers must comply). (2) A person must not use a permanent identifier approved under subclause (1) except in accordance with the Director-General's approval. (3) If a person sells or supplies a permanent identifier approved for cattle under subclause (1), the person must, by the close of business on the next working day after selling or supplying the identifier, provide the authorised administrator with the following information: (a) the relevant identification particular contained on or in the permanent identifier, (b) the date on which the permanent identifier was sold or supplied. Maximum penalty: 100 penalty units. 19 Manner of permanently identifying stock For the purpose of this Division, identifiable stock is identified by attaching to the stock, in the manner approved by the Director-General by order published in the Gazette: (a) a permanent identifier that contains the relevant identification particulars of the stock, or (b) a special identifier (but only in the circumstances referred to in clause 46(3)). 20 Requirement to identify stock The owner of any identifiable stock must ensure that the stock is identified in accordance with clause 19: (a) before the stock leaves any property in New South Wales on which it is kept (whether or not that property is the one on which it was born), or (b) on arrival of the stock in New South Wales, or (c) if directed to do so by an inspector, in such circumstances as the Director-General may specify by order published in the Gazette. Maximum penalty: 100 penalty units.

18 By notice published in the New South Wales Government Gazette on 18 September 2009, the Director-General specified the manner of attachment and use of permanent identifiers for cattle as follows: SCHEDULE 2 Manner of Attachment and Use of Permanent Identifiers for Cattle 1. A permanent identifier approved pursuant to Schedule 1 of this order must be attached and used in the following manner: (a) a breeder device may only be attached to cattle: iv. by securely attaching the permanent identifier to the right (off-side) ear of the stock in accordance with the manufacturer's instructions.

Compromise by Minister 19 I have already mentioned that these proceedings have been on foot since 2008. It was explained to me that there have been substantial negotiations between the plaintiff and representatives of the New South Wales Government. The Minister, through his officers, has been prepared to grant an exemption to the plaintiff from the need to apply ear tags to his stock in accordance with the regulation subject to certain conditions. Those conditions were explained in the letter dated 25 November 2009 to solicitors who then appeared for the plaintiff as follows: In discussions with senior officers of the Department, it is agreed that, based on the psychiatrist's report dated 10 September 2009, Mr Pethers should be granted a conditional exemption from the need to apply ear tags to h is stock in order for him to gain an income from them. However, the exemption needs to ensure that there is no disease control danger posed by his stock to the cattle population of the State or the human population. Traceability of the stock is paramount. To that end, the exemption will be subject to conditions that are consistent with the following principles: 1. Mr Pethers will notify the Department or the Livestock Health and Pest Authority of his intention to sell a consignment of cattle prior to each occasion that a sale is to be arranged, and 2. Mr Pethers will use his stock and station agent to broker a property to property sale, whereby the animals do not enter a public saleyard. Mr Pethers will agree not to be notified of the name of the purchaser or the destination of the cattle or 3. Mr Pethers will sell direct to slaughter, if the abattoir agrees to receive the animals untagged. 4. The cattle will be accompanied by an equal number of NLIS breeder devices appropriate for their property of origin or Special identifiers and 5. The cattle will be accompanied by a fully completed and signed National Vendor Declaration. No Reasonable Cause of Action 20 Against that background, there are two grounds upon which I have concluded that the amended Statement of Claim should be dismissed and this litigation brought to finality. The first is that it discloses no reasonable cause of action and seeks no recognisable legal remedy. The plaintiff's complaint is about the political process. No recognisable jurisprudential ground for impugning any decision of the Minister is revealed. In any event, no particular decision by the Minister during the political process is identified. The fact is that the New South Wales Parliament adopted a policy and enacted legislation pursuant to that policy in relation to a system for the identification of stock. It did so after consulting with the industry. It is not surprising that there may be members of the grazing industry who do not agree with the policy adopted by the New South Wales Government. Nor is it surprising that there may be members of the industry who claim that there was insufficient consultation with them. It is a common by-product of the democratic process that not everyone is satisfied with the final outcome. The evidence does not suggest that any other person feels as strongly as the plaintiff, although I do not discount the possibility that others may take the same view. The plaintiff's remedy is a political matter which he should take up with his local member and with his industry representatives. But nothing about the facts before me indicates any ground of legal invalidity in the process. 21 In particular, I see no basis for the contention that there was inadequate consultation. But even if the level of consultation were not sufficiently widespread, I do not see why it matters. The New South Wales Parliament passed the relevant legislation and the regulations were validly introduced pursuant to the legislation. Consultation is not necessary to pass a valid law or introduce a valid regulation. Although consultation may frequently occur, it is not a matter on which the validity of the legislation, the regulations or the scheme are contingent. No reasonable cause of action is disclosed. The proceedings are manifestly groundless: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 137-8; Form of Pleading Embarrassing 22 The second ground on which the amended Statement of Claim should be dismissed is that its language, syntax, complexity and confusion of concepts and ideas, do not reasonably permit any intelligent and meaningful response. It is a gallimaufry - difficult to understand and impossible to disentangle. It is legally "embarrassing" in the sense that it is unintelligible, ambiguous, vague or too general. It would be oppressive and unfair to require the Minister to respond to it: Kirby v Sanderson Motors Pty Limited (2001) 54 NSWLR 135, Hodgson JA (Mason P and Handley JA agreeing) at 142-3; McGuirk v The University of New South Wales [2009] NSWSC 1424 per Johnson J at [21] - [35]; Gunns Limited v Marr [2005] VSC 251, Bongiorno J at [57]; Shelton v National Roads & Motorists Association Limited [2004] FCA 1393 per Tamberlin J at [18]. 23 There is no doubt about the plaintiff's sincerity or the strength of his conviction. But that is not enough to justify him bringing this action. It would, I regret to say, be a waste of the plaintiff's time to allow these proceedings to continue. They will achieve nothing for him and they will result in unnecessary costs being incurred by the Minister.

24 I will therefore make an order that the amended Statement of Claim be struck out and that the proceedings be dismissed. I do not propose to make a costs order. oOo

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