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[2011] FCA 610
appellant. Summary judgment granted for the applicant; respondent restrained from mustering or interfering with cattle on Elsey Station until 30 September 2011; applicant's costs awarded; $7,500 paid into...
The Federal Court granted summary judgment to a pastoral company that operated Elsey Station in the Northern Territory, restraining a cattle company from interfering with a muster of cattle on the station. The cattle company had been ordered in earlier proceedings not to enter the station, but the pastoral company wanted final orders so it could conduct a muster and fairly separate its own cattle from those belonging to the cattle company. Because the cattle company did not appear at the hearing, and there was no evidence disputing the pastoral company's right to conduct the muster, the Court made orders allowing the muster to proceed until 30 September 2011. The Court also ordered that the bank holding a mortgage over the cattle company's herd be notified of the orders, and allowed the bank to come back to Court if any dispute arose about which cattle belonged to which party.
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REASONS FOR JUDGMENT 1 The applicant commenced these proceedings on 29 October 2010, seeking injunctive relief to restrain the respondent from mustering cattle owned by the respondent and further cattle presently in the care and control of the applicant at Elsey Station in the Northern Territory. 2 Certain interlocutory orders were made to which it is not necessary now to refer. The applicant has applied by motion of 18 May 2011 for summary judgment. It wishes the proceedings to be brought to an end so that it may proceed to muster and account for the cattle which are on Elsey Station. It wishes to fairly attribute the mustered cattle to those which it has an entitlement to itself, and those to which the respondent is entitled (the Banibi herd). It is desirable to make final orders which will ensure the prompt resolution of the ongoing issues, provided the evidence supports a summary judgment. 3 The respondent has not appeared at the hearing today. I am satisfied that it has been duly served with the motion of 18 May 2011, and has chosen not to appear. 4 On the material before me, it is plain that there is a significant herd or herds of cattle on Elsey Station, that the applicant has the occupation of Elsey Station, and that the applicant manages those herds under a grazing licence from the Mangarrayi Aboriginal Land Trust, the owner of Elsey Station. It has been determined in separate proceedings that the respondent has no lawful basis to enter onto Elsey Station and take possession of its cattle. The effect of these orders will enable the applicant, in an uncontentious environment, to muster the herd or herds and resolve the ownership of the cattle on Elsey Station. 5 The affidavit of John O'Brien sworn on 18 May 2011, and in particular the document which is annexure JOB1 to that affidavit, sets out a proposed procedure to identify the Banibi herd on Elsey Station. It seems to me to propose a fair and reasonable procedure in taking account of the interests of the applicant, the respondent and of the stock mortgagee of the Banibi herd. It involves the engagement of an independent person for that purpose. 6 In my view, given the history of this matter as disclosed in the affidavits, and given the present circumstances, it is desirable that the entitlement of the applicant to enter onto or to remain on Elsey Station be unimpeded by the respondent so that it may proceed in the manner which it intends. This is an entirely appropriate course to take. There is no foundation for thinking that there is any dispute about the applicant's entitlements. There is no foundation for doubting the applicant's good faith in proposing to proceed in the manner in which it wishes to proceed. I cannot see any reason why the injunctive orders sought should not be made, together with supporting orders. 7 I propose to grant summary judgment in the terms of the injunction sought in the initial application. That will restrain the respondent from mustering or otherwise interfering with cattle on Elsey Station. It is appropriate that an injunction should be for a limited time. On the evidence that the proposed muster is to take place within the next few months, I propose to grant the injunction sought to 30 September 2011. I am satisfied on the evidence that the muster proposed will have taken place by that time. 8 I will also order that the applicant be repaid the sum of $7,500 earlier paid into Court, together with any accumulated interest, in accordance with an earlier undertaking to support an interlocutory injunctive order. In addition, the applicant should recover its costs of the proceedings. 9 There are also two issues that need to be separately addressed and reflected in the orders. 10 First, senior counsel for the applicant accepts that, in the circumstances, it is not inappropriate to ensure that notification of these orders is made to Permanent Custodians Limited as Trustee under the Master Trust Deed establishing the RURAL Program and also to Australia and New Zealand Banking Group Limited (ANZ). That is because, on the material to which my attention has been drawn, including an exchange of correspondence between solicitors for the applicant and solicitors for those entities, as well as on other material, it appears that there is a stock mortgage granted over the Banibi herd to ANZ or the two entities together. It also appears that the respondent has accepted that the stock mortgage has been activated so that, in practical terms, the Banibi herd, when it is mustered, will be available to ANZ or to those two entities under the stock mortgage. It is desirable that they formally be notified of these orders so that those entities have no misunderstanding about the terms of the orders affecting the respondent. 11 Second, apparently there remains a potential for some disagreement between those entities on behalf of the respondent under the stock mortgage and the applicant as to the extent to which certain cattle may or not be part of the Banibi herd as distinct from the herd of the applicant. It seems to me that it would be appropriate to allow liberty to apply to ANZ in its own name or alternatively, as entitled under the stock mortgage, in the name of the respondent, to apply to the Court for directions in the event that such a dispute arises and cannot be resolved. I have no reason to think that that will occur, but it is appropriate to keep these proceedings alive for a period of time to enable any such dispute to be brought before the Court, as a convenient means of resolving it without undue cost. 12 I will make orders accordingly. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Northern Pastoral Development Company
Banibi Pty Ltd
Summary judgment granted for the applicant; respondent restrained from mustering or interfering with cattle on Elsey Station until 30 September 2011; applicant's costs awarded; $7,500 paid into Court with accrued interest to be repaid to applicant; liberty to ANZ or Permanent Custodians Limited to apply on notice by 23 September 2011; orders to be served on specified third parties