Administrative Law - judicial review - orders and directions pursuant to Australian Meat and Live-Stock Corporation Act 1977 - purported rescission of export approval for cargo of live sheep to Saudi Arabia - effect thereof - validity - unreasonableness - irrelevant and relevant considerations - natural justice.

Acts Interpretation Act 1901

Customs Act 1901

Administrative Decisions (Judicial Review) Act 1977

Australian Meat and Live-Stock Corporation Act 1977

Freedom of Information Act 1982

Export Control Act 1982

Mudginberri Station Pty Ltd v Langhorne [1985] FCA 478; (1985) 7 FCR 482

Small v Smith (1884) 10 App Cas 119

Estex Clothing Manufacturers Pty Limited v Ellis and Goldstein Limited (1967) 116 CLR 254

Henty v Bainbridge-Hawker (1963) 36 ALJR 354

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223

Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 63 ALJR 561

Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39

Edelsten v Wilcox (1988) 83 ALR 99

Wouters v Deputy Commissioner of Taxation (N.S.W.) (1988) 84 ALR 577

Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Toy Centre Agencies Pty Ltd v Spencer [1983] FCA 34; (1983) 67 FLR 458

The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Limited [1949] HCA 33; (1949) 78 CLR 389

Norton Smith and Co., Sydney

agents for Messrs Williams and

Hughes, Perth.

Counsel and Solicitors C.A. Sweeney QC and G.A.

Solicitor for the second Australian Government Solicitor

1. Orders that there be set aside the decision of the

first respondent made on or about 17 April 1990, to

rescind its Approval No. AS/13/L81 dated 27 March

1990 and to give approval to the applicant to

export live sheep on the "Fernanda F" Voyage 56 to

a port in a country other than the Kingdom of Saudi

Arabia.

2. Declares that Approval No. AS/13/L81, dated 27

March 1990 and issued by the first respondent to

the applicant, was not rescinded by or pursuant to

the said decision of the first respondent, but

remained in effect despite that decision.

3. Orders that the first respondent pay the applicant's costs,

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

This is an application for judicial review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The first respondent ("the Corporation") is the corporation established by s. 6 of the Australian Meat and Live-Stock Corporation Act 1977 ("the Act"). The proceedings were commenced on 19 April 1990 when an application was made for interlocutory relief. The Court indicated that it was able to offer dates for an early final hearing and the application for interlocutory relief was then not pursued. The matter was heard on a final basis on 24 and 26 April 1990.

2. When the matter came on for final hearing, orders were made by consent for the discontinuance of the proceedings against the second and third respondents. In any event, the second respondent plainly had been improperly joined and also misdescribed in the title given it in the proceedings, "Commonwealth Department of Primary Industries And Energy". A Department of State of the Commonwealth established pursuant to s. 64 of the Constitution does not have a legal personality distinct from that of the Commonwealth itself. Each Department is an "agency" for the purposes of the Freedom of Information Act 1982; see sub-s. 4 (1). But that statute does not impinge upon the present proceedings.

3. The Act establishes an export licensing scheme. The dispute giving rise to the proceedings stems, to put it broadly, from the administration by the Corporation of the authority and powers reposed in it by or pursuant to s. 16H of the Act in the light of difficulties encountered in recent times with the export trade in live sheep to the Kingdom of Saudi Arabia ("Saudi Arabia").

4. In considering the licensing scheme for which the Act provides, one has as a starting point the principle that in the absence of any statutory prohibition, the citizens of this country have a common law right to prepare goods for sale overseas and to export them: Mudginberri Station Pty Ltd v Langhorne [1985] FCA 478; (1985) 7 FCR 482 at 489-491. Section 50 of the Act is a central provision. It creates a number of offences. It is an offence for a person (other than the Corporation) who is not the holder of a meat export licence to export meat from Australia. It is also an offence for the holder of an export licence, without reasonable excuse (proof of which lies upon the licensee) to contravene or fail to comply with the conditions of the licence. Licences are granted by the Corporation and may be either a meat export licence or a live-stock export licence. The term "live-stock" is defined in sub-s. 5 (1) of the Act so as to include sheep and lambs. The term "meat" is defined so as to include the flesh, whether fresh or preserved, of sheep and lambs. Detailed provisions are made in s. 16R and s. 16S for the Corporation to suspend and cancel export licences, subject to review by the Administrative Appeals Tribunal.

5. At all material times, the applicant has held a live-stock export licence, No. L81, granted by the Corporation under s. 16B of the Act. The licence is subject to the condition that the applicant comply with all orders made by the Corporation under s. 16H and such directions issued under that section as are from time to time given to the applicant. This condition is imposed by sub-s. 16H (5). Directions issued by the Corporation may be reviewed by the Administrative Appeals Tribunal: sub-s. 16N (2).

6. In recent years, live sheep exports from Australia to countries of the Middle East have reached about 7,000,000 head per annum. About half of those exports have gone to Saudi Arabia and the value of this particular export trade is in the order of $100m per annum. The overall value of Australia's meat and live-stock trade to the countries of the Middle East is in excess of $250m. per annum.

7. In the past, the market in Saudi Arabia has taken live sheep which have reached the end of their productive life as wool-growing sheep. Sold live, they return a higher price than if disposed of as mutton; there is a preference in Saudi Arabia for meat from sheep slaughtered in that country rather than elsewhere.

8. Sub-section 4 (2) of the Act provides that the Corporation shall perform its functions or exercise its powers "only for the purpose of achieving an object specified in sub-section (1)". The objects of the Act thus assume a particular significance in the present case. They are specified as follows in sub-s. 4 (1):

"The objects of this Act are -

(a) to promote and control, and to

protect and further the interests of

the industry in relation to, the

export of meat and live-stock from

Australia;

(b) to promote and control, and to

protect and further the interests of

the industry in relation to, the sale

and distribution, after export, of

Australian meat and live-stock;

(c) to promote, and to protect and

further the interests of the industry

in relation to, trade and commerce in

meat and live-stock among the States,

between States and Territories and

within the Territories; and

(d) to improve the production of meat and

live-stock, and encourage the

consumption of meat, in the

Territories,

and this Act shall be construed and

administered accordingly."

9. Section 16H draws a distinction between the making of orders, operating in general terms and directed to the holders of export licences, and the issue of directions to be complied with by a particular holder of an export licence. The provisions of Part XII of the Acts Interpretation Act 1901 ("the Interpretation Act") apply to orders made under s. 16H (but not to directions) as if they were regulations subject to Parliamentary disallowance in the manner provided for in that Part of the Interpretation Act; this is the result of s. 16M of the Act.

"16H. (1) The Corporation -

(a) may make orders, not

inconsistent with this Act or

the regulations, to be

complied with by the holders

of export licences; and

(b) may, by instrument in writing,

issue directions, not

inconsistent with this Act or

the regulations, to be

complied with by the holder of

an export licence.

(2) Without limiting the generality of

sub-section (1), orders made under

this section, and directions issued

under this section, may make

provision with respect to any matter

relating to, or incidental to -

(a) the quality, standard and

grading of meat and live-stock;

(b) the purchase of meat and

live-stock;

(c) the terms and conditions of

the sale of meat and live-stock,

including terms and

conditions relating to price;

(d) the carriage, handling and

storage of meat and live-stock;

(e) the sale and distribution of

meat and live-stock after

export;

(f) the keeping of records; and

(g) the measures to be taken to

ensure compliance with orders

made under this section or

section 16J, 16K or 16L or

directions issued under this

section.

(3) Without limiting the generality of

sub-section (1), orders made under

this section, and directions issued

under this section -

(a) may prohibit (either absolutely

or unless specified conditions

are complied with) the export,

or sale for export, of meat or

live-stock by reference to any

one or more of the following

matters:

(i) quantity;

(ii) quality, standard, grade

or class;

(iii) the countries or places

to which the meat or

live-stock, as the case

may be, is not to be

exported;

(iv) the persons to whom, or

the authorities or

organizations to which,

the meat or live-stock,

as the case may be, is

not to be exported or

sold for export;

(v) any other matter that the

Corporation considers

appropriate; and

(b) may require the holder of an

export licence to do any one

or more of the following:

(i) obtain the prior approval

of the Corporation for

each export, or each

export of a specified

kind, to be made by the

holder of the licence;

(ii) make declarations to the

Corporation, including

declarations with

respect to meat or live-stock

that has or have

been exported, or is

proposed or are proposed

to be exported, from

Australia;

(iii) furnish information,

returns or documents to

the Corporation,

including information,

returns or documents

with respect to sales,

or orders for the

supply, of meat or

live-stock.

(4) Where a direction issued under this

section is inconsistent with an order

made under this section or section

16J, 16K or 16L, the direction shall

prevail and the order shall, to the

extent of inconsistency, be of no

force or effect.

(5) An export licence is subject to the

condition that the holder of the

licence shall comply with -

(a) orders made under this section;

and

(b) such directions issued under

this section (if any) as are

from time to time given to

him."

11. On 22 August 1989, Dr Standen (the Managing Director of the Corporation, who gave evidence) as delegate of the Corporation within the meaning of s. 48 of the Act, made Order No. L7/89 pursuant to s. 16H of the Act. The effect of the order was that holders of live-stock export licences were required not to export or cause to be exported, or sell for export, sheep to Saudi Arabia.

12. The order was made in response to a train of events which had commenced on 24 July 1989 with the rejection by the Saudi Arabian authorities of a shipment of sheep from Australia. The reasons given for this and the five further rejections which followed at the ports of Dammam and Jeddah, were that the sheep were diseased with bluetongue or sheep pox. These are diseases unknown in Australia. It took up to six weeks for the cargoes of sheep to be discharged into ports in other countries of the Middle East. The Corporation received advice that elements within the government in Saudi Arabia favoured restricted importation of live sheep to protect the domestic trade. It also was suggested that younger sheep were sought from Australia, both to improve the quality of the meat and to improve prices obtained for it.

13. In December 1989, officers of the Corporation, including Dr Standen, visited Saudi Arabia. Dr Standen formed the opinion that the government of that country had interpreted the Corporation's order L7/89 and the suspension of trade in live sheep as an attempt to intimidate Saudi Arabia. He concluded that the Saudi Arabian authorities would not enter into discussions to resolve the issues that had arisen with this country whilst the suspension remained in force. After consultation with the Minister for Primary Industries and Energy ("the Minister") and the Chairman of the Australian Livestock Exporters Association ("ALEA"), which represents live-stock exporters, the Corporation decided to lift the suspension and to allow the export trade to resume. But the resumption of trade was to be on a closely monitored basis so as to reduce the exposure to further refusals of entry by the Saudi Arabian authorities.

14. On 21 December 1989, Order No. L8/89 was issued to supplement Order L7/89. In the recitals to Order L8/89, it was stated that in the opinion of the Corporation, it was no longer necessary or desirable absolutely to prohibit the export of live Australian sheep to Saudi Arabia, but that future exports ought to be subject to control "on a shipment by shipment basis until further order". It was also stated that this control was to be effected by the general requirement of written approval prior to the effecting of "any final arrangement" to export or to cause to be exported or sell for export live Australian sheep to Saudi Arabia, together with the giving of a specific direction under s. 16H of the Act to each licensee. These recitals are important to an understanding of the scheme of control of the export trade to Saudi Arabia which the Corporation now established.

15. Paragraph 2 of Order L8/89 was in the following terms:

"2. (1) Order No. L7/89 remains in force

until revoked.

(2) Prior to the exportation of any

livesheep the licensee shall inform

the Corporation in writing of the

name and address of the proposed

consignee (the 'designated consignee')

and the proposed port of discharge

('the designated port of discharge')

and an alternate port of discharge.

(3) In addition to the prohibitions

referred to in Order No. L7/89 a

licensee shall not (whether directly

or indirectly) after export do any of

the following without having first

obtained the written approval of the

Corporation:

(a) sell or cause to be sold for

distribution;

(b) distribute or cause to be

distributed;

(c) otherwise part with control of

any live Australian sheep before

they have been delivered to the

designated consignee at the

designated port of discharge.

(4) A licensee shall comply with all and

any conditions imposed by the

Corporation in relation to any

written approval granted pursuant to

this Order."

Direction L1/L81 was issued to the applicant (as holder of live-stock export licence No. L81) on 21 December 1989. The term "designated consignee" was defined therein as meaning the consignee which the licensee had nominated in an application for approval lodged with the Corporation pursuant to the direction, and the term "designated port of discharge" was defined as meaning the port of discharge which the licensee had nominated in the same way. Paragraph 2 of the Direction was in the following terms:

"2. The licensee shall not do any of the

following:

(a) export (whether directly or indirectly)

live Australian sheep to the Kingdom

of Saudi Arabia;

(b) cause to be exported (whether

directly or indirectly) live

Australian sheep to the Kingdom of

Saudi Arabia;

(c) sell for export (whether directly or

indirectly) live Australian sheep for

importation into the Kingdom of Saudi

Arabia;

(d) assist in or in any other way be a

party to or be concerned with the

sale for export (whether directly or

indirectly) of any live Australian

sheep into the Kingdom of Saudi

Arabia;

(e) sell for distribution (whether

directly or indirectly) after export

live Australian sheep for importation

into the Kingdom of Saudi Arabia;

(f) assist in or in any other way be a

party to or be concerned with the

sale or distribution (whether

directly or indirectly) after export

of live Australian sheep for

importation into the Kingdom of Saudi

Arabia;

(g) assist in or in any other way be a

party to or be concerned with the

importation of live Australian sheep

in (sic) the Kingdom of Saudi Arabia;

(h) otherwise part with the control of

any live Australian sheep before they

have been delivered to the designated

consignee at the designated port of

discharge

without first obtaining the prior written

approval of the Corporation."

Paragraph 3 provided that a written application must be made for any approval under the direction, and that it should include full particulars and details of the arrangements proposed by the licensee in relation to any of the matters specified in para. 2, including details as to the name and address of the designated consignee and the designated port of discharge and an alternate port of discharge.

16. The significance of s. 4 of the Act (which specifies the objects for which the Corporation is obliged to exercise its powers) is reflected in the remaining provisions of Direction L1/L81, paras. 4 and 5. These were in the following terms:

"4. In determining whether to grant Approval the

Corporation shall have regard to the

application lodged by the licensee and the

interests of the industry as a whole.

5. In granting any approval the Corporation may

impose such conditions as it considers

necessary or desirable in the interests of

the industry as a whole and the licensee

shall comply with all and any conditions so

imposed."

17. The export trade resumed in a limited fashion, and on or about 2 February 1990, a shipment from an exporter other than the applicant discharged its cargo in Saudi Arabia. By the end of February, two other shipments had landed there. After a meeting with the ALEA on 14 March 1990, the Corporation decided to issue directions to each licensed exporter specifying the quantity of sheep it might export to Saudi Arabia in the three month period ending 30 June 1990. It would remain for each licensee to approach the Corporation for approval for each shipment.

18. Direction L2/L81 was issued by Mr M.A. Hayward as delegate of the Corporation on 23 March 1990. It was expressed as supplementing direction No. L1/L81 and, again, was directed to the applicant. It provided:

"The Licensee shall not export live sheep to

Saudi Arabia during the period 12th April

1990 to 30th June 1990 in a quantity greater

than a total of 136,850 head."

19. On 23 March 1990, direction L2/L81 was sent to the applicant by Mr Beeby, the Divisional Manager, Middle East, Live-Stock and Licensing, of the Corporation. It was accompanied by a circular and a letter. The letter described Direction No. L2/L81 as specifying the applicant's "allocation". The letter said that exporters wishing to export early in April should forward their applications for approval immediately and that it would be helpful if the applicant outlined at its earliest convenience its full export plan, with ships, numbers, destination port, estimated time of departure and load port, "so a loose schedule can be put in place". The accompanying circular set out a number of what it described as "likely conditions" which the Corporation might impose in giving approval.

20. On 27 March 1990, Mr Beeby notified the applicant that the written application made on 26 March 1990 had been successful. The approval was in the following terms:

"Under Order L8/89 and Directions L1/L81 and

L2/L81 of the Australian Meat and Live-Stock

Corporation Act 1977 (as amended) approval

is hereby given (the applicant) ('Fares') to

export livesheep to Saudi Arabia on the

following conditions:-

(1) Vessel

Fernanda F/Voy 56

(2) Quantities

Approximately 90,000 slaughter sheep

comprising:

Approximately 2,000 - 3,000 rams

lambs, up to 6 teeth

87,000 - 88,000 wethers, up to 6

teeth

(3) Receival Depots

Kojonup, Century Park, Rossguye.

(4) Depot Receival Dates

11th-12th April 1990

(5) ETD

Approximately Wednesday 18th April

(6) Loadport

Fremantle

(7) Discharge Port

Dammam

(8) Alternate Port

Fujairah, UAE

(9) Quality Insurance Officers

Mr. John Francis

(10) Other Conditions

Conditions suggested in Circular

CL6/90 of 23rd March 1990 will be in

force, unless directed otherwise, for

the duration of this shipment."

The conditions suggested in the circular included the obligations to carry an Australian Government designated veterinarian aboard the ship at the cost of the exporter, to ensure that the shipment comprised sheep not showing more than 6 teeth, to ensure that the ship carried additional feed (as pellets) and water for seven days' full consumption additional to the nominated voyage requirement, to ensure that the nominated port of discharge in Saudi Arabia was the first port of call after departure from Australia, and to ensure that the ship carried humane slaughter equipment.

21. The port of Dammam is situated on the Gulf, and Fujairah (which is shown as the alternate port in the approval) is in the United Arab Emirates ("the UAE") but on the eastern rather than the western side of the Straits of Hormuz. The sailing time between the two ports is about two days.

22. Between 27 March 1990 and 17 April 1990, the day before the estimated time of departure ("ETD") shown in the approval, certain events transpired, to which I will return. They culminated in a message from Dr Standen to the applicant on 17 April 1990, which has given rise to these proceedings. It was in the following terms:

"The (Corporation), by facsimile

transmission dated 27 March 1990, gave

approval to (the applicant) ('Fares')

(Approval No. AS/13/L81) under Order

L8/89 and Directions L1/L81 and L2/L81 to

export live sheep to the Kingdom of Saudi

Arabia on the Fernanda F/Voyage 56. That

approval is now rescinded.

The Corporation hereby gives its approval

to Fares to export live sheep on the

Fernanda F/Voyage 56 to a port in a

country other than the Kingdom of Saudi

Arabia."

Dr Standen was treated in the present proceedings as the relevant decision maker for the Corporation.

23. The applicant is a Western Australian corporation and is a wholly owned subsidiary of Fares Rural Co. Pty Limited ("Fares Rural") which is also incorporated in that State. The application for approval of 26 March 1990 had been made on the letterhead of Fares Rural, under the hand of Mr Lang who is Managing Director of both the applicant and of Fares Rural. Fares Rural purchased from various live-stock suppliers throughout the State of Western Australia about 88,000 live sheep; the contracts of purchase made by Fares Rural were made after approval had been given on 27 March 1990 and were not conditional upon the existence or continuance of any necessary approval by the Corporation for the export of the sheep. Fares Rural sold the sheep in question to the applicant. The applicant in turn had entered into a contract for sale of the sheep to a Lebanese associated company, Multitrade SARL ("Multitrade"). In fact, the contract with Multitrade had been entered into on 23 March 1990, on the footing, which proved correct, that the Corporation would give its approval to the export to Saudi Arabia of the sheep in question. It will be recalled that it was on 23 March 1990 that the applicant had received direction L2/L81 with the accompanying circular and letter from the Corporation. The applicant thus had moved speedily.

24. The terms of the agreement between the applicant and Multitrade provided for the sale by the applicant to Multitrade of the entire consignment of live sheep FOB the vessel "Fernanda F" at Fremantle. The result was that the property in the sheep would pass from the applicant to Multitrade as the sheep went over the ship's side. Multitrade chartered the vessel "Fernanda F" from Oceanic Shipping Enterprises SARL, another foreign associated company of the applicant. Multitrade set about finding a purchaser or purchasers for the sheep in Dammam. Advice was received on 10 April 1990 that the full consignment had been sold to a Mr Sulaiman Ali Al Khalaf for delivery at Dammam, and that a letter of credit for 40,000 head was to be opened on 11 April 1990, with a letter of credit for the remainder of the shipment to be opened on 23 April 1990.

25. The approval by the Corporation had been addressed to the applicant and was "to export livesheep to Saudi Arabia". The approval "to export" carried with it authority to effectuate the purpose of the approval by all steps reasonably incidental to that purpose: Small v Smith (1884) 10 App. Cas. 119 at 129. The contractual arrangements which I have described produced the result that it was not the applicant which would discharge the cargo at a port in Saudi Arabia. Nevertheless, in my view, it would be accurate to say that the applicant was exporting them "to" Saudi Arabia, in the terms of the approval; cf. Estex Clothing Manufacturers Pty Limited v Ellis and Goldstein Limited (1967) 116 CLR 254 at 271-272. I accept the applicant's submission that, within the meaning of the approval and of s. 50 and other relevant provisions of the Act, there will be an export of live-stock from this country by the licensee where, as on the present facts, property passes from the licensee FOB in an Australian port; see Henty v Bainbridge-Hawker (1963) 36 ALJR 354 at 356. I should add that the evidence shows that in a case such as the present, the Australian Quarantine Inspection Service makes its final examination of live sheep cargoes on the wharf side, before the sheep are loaded.

26. On or about 6 April 1990, two shipments of sheep by other Australian exporters to Saudi Arabia were rejected at the port of Jeddah on the Red Sea. The ground for rejection advanced in each case was the alleged presence of scabby mouth disease amongst some of the sheep. The technical rather than the popular description of this disease is contagious pustular exthyma or dermatitis. It is a minor disease endemic to all sheep breeding nations, including Saudi Arabia, and it usually clears up without treatment after a few days. In the past, Australian sheep had not been rejected by Saudi Arabia for this particular disease. When these events occurred, Dr Standen had been travelling with the Chairman of the Corporation in Argentina and Uruguay, assessing the potential of those two countries to supply live sheep to Saudi Arabia as a competitive source to this country. (He returned to Australia on 23 April 1990, but in the interim he was closely involved in developments in Australia.)

27. As at 8 April, three shipments from Australia were on the water. Three further shipments (including that of the applicant) had been approved for departure. In all, some 400,000 head of sheep were involved. On about 12 April, another shipment from Australia was rejected, this time at the port of Aqaba in the Kingdom of Jordan. One of the reasons advanced for the rejection was the presence of scabby mouth. On the other hand, one of three shipments to Saudi Arabia arrived and was accepted on or about 11 April. (After the hearing of these proceedings commenced, another shipment was rejected at Jeddah on 25 April 1990; the vessel, with a cargo of about 68,000 sheep, had left Adelaide on about 7 April.)

28. At about 7.30 a.m. on the morning of 17 April, the "Fernanda F" commenced to load its cargo of sheep at Fremantle. At about 3.30 p.m. on the same day, written notice was received of the revocation by the Corporation of its approval. At that time, about 23,500 sheep had passed on board the "Fernanda F". The estimated time of departure shown in the approval of 27 March 1990 was "Approximately Wednesday 18th April 1990". As I have indicated, the present proceedings commenced on 19 April 1990. After the proceedings in Court on that day, there were discussions between the parties. These led to the giving by the applicant to the Corporation of a written undertaking that the cargo of the ship, "Fernanda F", would only be discharged in Saudi Arabia if:

"(1) The Federal Court of Australia makes the

orders sought by (the applicant) in its

Application to be heard in Sydney starting

on 24th April, 1990, or orders which permit

'Fernanda F' to discharge its cargo of live

sheep in Saudi Arabia according to law; or

alternatively

(2) (The applicant) is unsuccessful in those

proceedings and written approval of the

(Corporation) is nonetheless given to

discharge the vessel's cargo of sheep in

Saudi Arabia."

The loading of the "Fernanda F" was completed and the vessel sailed from Fremantle at 10 a.m. on 21 April 1990. It is due to arrive off Dammam on or about 5 May 1990. Submissions for the Corporation

29. At the hearing, counsel for the Corporation took several points which, if made good, would seriously impair the case for the applicant. I deal first with these points.

30. Counsel for the Corporation pointed to the identity of the applicant as the holder of a live-stock export licence to whom approval had been given on 27 March 1990 to export live sheep to Saudi Arabia. He then fixed upon the contract between the applicant and Multitrade made on 23 March 1990, and the contract for resale made by Multitrade on 10 April 1990. It was submitted that as a result, the approval granted 27 March 1990 was "defective" because, so it was said, by that date (and a fortiori after 10 April) the applicant could not be the exporter of the sheep the subject of the approval. However, as I have indicated, in my view, the effect of the contractual arrangements was that the applicant would export the sheep from Australia to Saudi Arabia and in doing so would not contravene any condition of its live-stock export licence. The applicant was nonetheless an exporter because it acted upon a contract with Multitrade made before the necessary approval to the implementation of that contract.

31. Then it was said for the Corporation that the approval was defective, as also must have been the application, because the approval did not identify a "designated consignee" as specified in sub-para. 2 (2) of Order L8/89 and in Direction L1/L81, both of 21 December 1989. The evidence discloses that the Corporation certainly was apprised of the identity of the consignee in Dammam before the vessel sailed from Fremantle on 21 April 1990.

32. The requirements which were in force forbade the applicant to export live Australian sheep to Saudi Arabia without first obtaining the prior written approval of the Corporation. It may have been open to the Corporation to refuse approval for deficiencies in what it required the applicant to specify in any application. But it did not do so. On the contrary, it gave its approval in writing on 27 March 1990. The existence of that approval lifted pro tanto the prohibition upon export by the applicant of live Australian sheep to Saudi Arabia. There is no force in the submission by which, at this late stage, the Corporation seeks to turn back to attack its own conduct.

33. It also was submitted that, in terms of the approval, the applicant as licensee was bound to see to it that the shipment be taken to the designated discharge port or alternate port, as the Corporation might direct from time to time. The result would be that the Corporation might direct that the cargo be discharged in the first instance at Fujairah in the UAE. That is not what the applicant and the Corporation understood the terms of the approval to mean in their dealings before 17 April 1990; the Corporation was seeking a fresh undertaking from the applicant, which, as I indicate later in these reasons, was not given. Nor is it what the approval provided. It adopted as being in force, "unless directed otherwise", for the duration of the shipment the conditions suggested in the circular of 23 March 1990. Those conditions included an obligation upon the licensee to ensure that the nominated Saudi port of discharge was the first port of call after departing Australia, and to nominate (as was done by the applicant in the present case) an alternate port of discharge.

34. I turn then to the case put for the applicant. The primary submission was that once given, the approval of 27 March 1990 had created rights, or at least conferred an immunity, the withdrawal or termination of which was not contemplated by the Act or the relevant orders and directions in force pursuant to s. 16H of the Act. Hence, it was said, the decision to "rescind" the approval was a nullity, having been made without jurisdiction in the sense of para. 5 (1) (c) of the ADJR Act. The applicant submitted that it is entitled to a declaration to the effect that at the time of the commencement of these proceedings and at the time of the departure of the vessel on 21 April 1990, the applicant remained entitled to export the sheep, the subject of the approval given on 27 March 1990.

35. Then it was submitted that the decision of 17 April 1990 to "rescind" the earlier approval was subject to review pursuant to the ADJR Act because, within the meaning of s. 5 of the ADJR Act, (i) a breach of the rules of natural justice had occurred in connection with the making of the decision, and (ii) the making of the decision was an improper exercise of the power conferred by the instrument or instruments in pursuance of which it was purported to be made. To this latter argument, there were several branches. It was submitted that relevant considerations had not been taken into account, that irrelevant considerations had been taken into account, and that there had been an exercise of a power that was so unreasonable that no reasonable person could have so exercised it. Finally, it was submitted that even if the "rescission" of 17 April 1990 otherwise was effective, it was ineffective as regards the approximately 23,500 sheep already loaded on the vessel in Fremantle before 3.30 p.m. on that day. In the event, it will not be necessary to decide this particular issue.

36. Section 5 of the ADJR Act is concerned with review of "decisions to which (that) Act applies". This term is defined in sub-s. 3 (1) in terms of decisions of an administrative character made or proposed to be made or required to be made "under an enactment". The term "enactment" is defined in the same sub-section relevantly as meaning, not only a statute, such as the Act, but also:

"an instrument (including rules,

regulations or by-laws) made under such

an Act . . ."

37. I turn now to consider these submissions, for the applicant, commencing with those concerning the purported revocation of the approval.

38. The applicant's licence had attached to it, by force of sub-s. 16H (5) of the Act, a condition obliging it to comply with orders made under that section and with such directions under that section as were given to it from time to time. It was pointed out by counsel that rather than rescind the approval already given, the Corporation might have issued on 17 April a fresh direction which prohibited the applicant from exporting sheep to Saudi Arabia; see sub-para. 16H (3) (a) (iii). This was not done. The evidence also indicates that on occasion (and after some resistance by the applicant) the Corporation had made its grant of approval to the export of live sheep by the applicant to Saudi Arabia conditional upon the Corporation remaining at liberty to redirect the vessel from a Saudi port, if in the period after it sailed from Australia other cargoes were rejected in Saudi Arabia. As I have indicated, in the present case no such condition was imposed.

39. The approval given on 27 March 1990 was expressed as given under Order L8/89 and Directions L1/L81 and L2/L81. Direction L2/L81 fixed the applicant's "quota" during the period 12 April - 30 June 1990. Direction L1/L81 forbade the applicant to export live sheep to Saudi Arabia without the applicant first obtaining written approval of the Corporation. This was given on 27 March 1990. The result was that, in terms of the recitals to Order L8/89, written approval had been given to the applicant prior to the applicant effecting final arrangements to export the sheep in question.

40. The applicant remained subject to the conditions imposed by the Corporation in relation to the written approval of 27 March 1990. I have set out these ten paragraphs earlier in these reasons. They did not provide for "rescission" such as that attempted on 17 April. Subject to the qualification arising from the conditions that were imposed, the scheme of control established by the Order and Directions in question had been worked out with the giving of approval, the prohibition on export thereby being lifted. The scheme did not provide for such a rescission of approval after the licensee in question had made its final arrangements on the faith of the operation of the approval in accordance with its terms.

41. The purported rescission of approval on 17 April 1990 went on to state that approval was given to export the shipment to a port in a country other than Saudi Arabia. No such approval had been sought. Nor was it suggested that the Order and Directions with which this case is concerned impose prohibitions upon the export trade to countries other than Saudi Arabia. It may have been open to the Corporation to issue a fresh direction to the applicant, but, as I have said, this is not what the Corporation purported to do on 17 April.

42. In my view the communication of 17 April was ineffective to reimpose upon the applicant a prohibition upon export to Saudi Arabia of the live sheep in question. In my view, as I have indicated, this conclusion follows from the working out of the scheme I have described in relation to the events as they occurred.

43. Counsel for the Corporation referred to sub-s. 33 (3) of the Interpretation Act. This relevantly provides that the power conferred upon the Corporation by s. 16H of the Act for it to make orders and to issue directions by instruments in writing, carries with it the power, unless the contrary intention appears, to repeal, rescind, revoke, amend or vary those orders and directions. Further, sub-ss. 16H (4) and (5) of the Act contemplate that there may be in existence a plurality of directions given from time to time and that there may be inconsistency between them. The derivation and operation of sub-s. 33 (3) of the Interpretation Act is discussed in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167. As I have indicated, the purported revocation involved in this case was not expressed to be and was not either in form or substance the repeal, rescission, revocation, amendment or variation of Order L8/89 or Directions L1/L81 and L2/L81, made or given under s. 16H of the Act. Further, the scheme established by that Order and those Directions operated in the present case in such a way that the approval, once given, was not subject to any condition subsequent whereby it might be "rescinded" in the way attempted on 17 April 1990.

44. The conclusion I have reached is sufficient to dispose of the proceedings in favour of the applicant, and there should be relief in appropriate terms. I should, however, go on to express my views upon the other issues arising under s. 5 of the ADJR Act which were the subject of submissions. I begin with the Wednesbury argument.

45. The reference in para. 5 (1) (e) of the ADJR Act to an improper exercise of a power is to be construed as including a reference of an exercise of a power "that is so unreasonable that no reasonable person could have so exercised the power": para. 5 (2) (g). This provision is drawn from the ground of review at general law propounded by Lord Greene M.R. in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223 at 230, 233-234; see Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41. It is fair to say that in recent times, in this country there has been a greater willingness to grant review of administrative decisions on this ground. The trend is exemplified by Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 63 ALJR 561 and Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 47-51. However, as has been pointed out, the result in the High Court decision might have been reached by a more direct route, namely that there had been an error of law in construing the term "refugee": see (1990) 64 ALJ 95. In any event, there is force in the criticism by Dr Allars that both Lord Greene's formulation of unreasonableness and subsequent attempts to explain or amplify it have been "bedevilled by circularity and vagueness" (Allars, "Introduction to Australian Administrative Law", 1990, para. 5.52).

46. In the present case, the applicant seeks review of the decision to "rescind" the approval by submitting (i) the Corporation must have known when approval was given on 27 March 1990 that there was a risk of rejection by the Saudi authorities on spurious grounds of shipments of Australian live sheep and (ii) even if it be accepted that the situation deteriorated on or about 6 April with the rejection of two shipments at the port of Jeddah, some ten or so days elapsed before the approval was "rescinded". The applicant then referred to the commercial detriment that would flow to the applicant from the withdrawal of its approval. In that regard, evidence was given of substantial losses that would accrue to Multitrade (and therefore it was said to the corporate group as a whole) if the cargo of the "Fernanda F" had to be discharged in Fujairah rather than in Dammam. The uncontradicted evidence of Mr Lang was that the value of the cargo if unloaded at Dammam would be US$3.369m., whereas if unloaded at Fujairah the value would be US$1.794m.

47. Dr Standen did not have such specific information before him. But he took into account the possibility that there would be contractual commitments to deliver the shipment to Saudi Arabia and that there would be adverse commercial consequences for the applicant if the approval were withdrawn. Nevertheless, he came to the view that the long term interests of the industry as a whole in the continuation of the export trade to Saudi Arabia necessarily outweighed the commercial interests of the applicant in this particular shipment. Dr Standen agreed in his evidence that at the time of granting the approval, the Corporation had taken a calculated risk in the interests of getting the trade back to "a more normal situation", but said that the rejections by the Saudi Arabian authorities on or about 6 April 1990 amounted to "a significant shift in degree". He had formed the view that it would be irresponsible for the Corporation to allow additional shipments to proceed at a time when the recent rejections had received considerable publicity, both in Australia and in the Gulf.

48. In the days leading up to 17 April 1990, there were various conversations between officers of the Corporation and of the applicant concerning the current situation. On 9 April 1990, Mr Beeby recommended to Mr Lang that the applicant stop buying sheep and receiving them into feed lots for shipment until such time as the situation was clear. Mr Lang said that unless instructed to the contrary by the Corporation, under its powers, the applicant would proceed with the shipment. He stressed the commercial pressures upon the applicant to continue and not to delay the shipment. The Corporation later proposed that it agree to departure of the "Fernanda F" for Saudi Arabia, but only on terms that the applicant give an undertaking to abide by any direction that the Corporation might give during the voyage of that vessel. As I mentioned earlier in these reasons, that undertaking was not given. Dr Standen decided by 16 April that if (as proved to be the case) the applicant would not give the undertaking, the approval should be withdrawn irrespective of the progress that had been made in loading the cargo in Fremantle.

49. In her recent work, to which I have referred, Dr Allars seeks to instil a measure of order into the authorities dealing with the Wednesbury test by identifying three paradigm cases of unreasonableness. All of them are consistent with a view of Lord Greene's "doctrine" as rooted in the law as to misuse of fiduciary powers; see Grubb, "Powers, Trusts And Classes of Objects", (1982) 46 Conv. 432 at 438. The three "paradigms" are outlined in paras. 5.54-5.57 of Dr Allars' work. The first involves the capricious selection of one of a number of powers open to an administrator in a given situation to achieve a desired objective, the choice being capricious or inappropriate in that the exercise of the power chosen involves an invasion of the common law rights of the citizen, whereas the other powers would not. The second "paradigm" involves discrimination without justification, a benefit or detriment being distributed unequally amongst the class of persons who are the objects of the power. It is the third "paradigm" which the applicant would seek to attract to the facts of the present case. In effect, the submission is that on the facts as I have detailed them, the exercise of power by withdrawing the applicant's approval was out of proportion in relation to the scope of the power. A decision which provides an example of such disproportion is the decision of Burchett J. in Edelsten v Wilcox (1988) 83 ALR 99 at 114. An example of a case which fell on the other side of the line is the decision of the Full Court in Wouters v Deputy Commissioner of Taxation (N.S.W.) (1988) 84 ALR 577 at 584-585.

50. In the circumstances of the present case, the Corporation was bound by s. 4 of the Act to exercise its powers only for the purposes of promoting, controlling, protecting and furthering the interests of the Australian live-stock industry in relation to the export of live-stock from Australia. How it discharged that task in a given situation was very much a matter for judgment under all of the circumstances. If it had been necessary to decide the issue, in the circumstances of this case, as I have outlined them, I would not have characterized Dr Standen's decision as one in which he acted in such a disproportionately arbitrary manner as to attract review on Wednesbury grounds.

51. Then it was submitted for the applicant that there had been an improper exercise of power by the decision maker by reason of a failure to take relevant considerations into account; ADJR Act, para. 5 (2) (b). It also was submitted that there had been an improper exercise of power by reason of the taking into account in the exercise of the power of irrelevant considerations: ADJR Act, para. 5 (2) (a).

52. In reaching his decision, Dr Standen had regard to the possibility of getting cargoes rejected at ports in Saudi Arabia into other Arab ports on the Gulf. This involved an appreciation by him of the position taken by the member States of the Gulf Co-operation Council ("the GCC"). The members of this body include, in addition to Saudi Arabia, Kuwait, Oman, Bahrain and the UAE. The GCC does not include the Yemen States, Egypt, Iraq, Iran or Jordan. Dr Standen had in mind that the alternative port in the UAE which had been designated in the approval to the applicant might prove an uncertain destination; there had been speculation that as a result of an agreement amongst the members of the GCC, a rejection of animals by one State on grounds of disease would be binding upon all member States.

53. The evidence suggests that there has been such an understanding or agreement amongst the members of the GCC, at least since August 1989. The position in the UAE is set out in a memorandum from the Ministry of Agriculture and Fisheries of the UAE dated 30 August 1989. A translation of the memorandum was tendered. There was some debate as to the interpretation of the translation. Paragraph 1 states:

"No shipments of livestock or animal

related products will be accepted (if)

any of these shipments has been

previously rejected by any of the member

states of the GCC."

Paragraph 3 states that live animals will be kept in quarantine for a period of 15 days; para. 4 provides that if within that quarantine period the existence of any contagious disease is disclosed, there will be a requirement to return the total shipment to the country of origin.

54. For myself, I, like Dr Standen, would read para. 1 as an absolute prohibition, and paras. 3 and 4 as dealing with a situation in regard to shipments to the UAE which have not previously been rejected by any of the member States of the GCC. It follows that I do not accept the submission for the applicant that Dr Standen erred in his understanding of the situation between the members of the GCC. It also was submitted by the applicant that in having regard to what he understood to be the arrangements between the members of the GCC, Dr Standen had had regard to an irrelevant consideration. In my view, the arrangement between the members of the GCC, including the UAE, where the alternative port of discharge was situated, plainly was a matter to which Dr Standen could properly have had regard.

55. I turn then to consider the allegations concerning relevant considerations. The ground of failure to take into account a relevant consideration can only be made out if the decision maker fails to take into account a consideration which he is bound to take into account in making the decision in question, and the factors the decision maker is bound to consider are determined by the construction of the law conferring the power in question: Minister for Aboriginal Affairs v Peko-Wallsend Limited, supra at 39. I already have referred to the terms of s. 4 of the Act which oblige the Corporation to exercise its powers only for the purpose of achieving an object specified in that section. What secondary considerations are to be taken into account, in a given case, in giving effect to the primary consideration of the effective husbanding of the Australian live-stock industry in relation to export markets, must be very much a matter for the decision maker; see Minister for Immigration and Ethnic Affairs v Maitan (1988) 78 ALR 419 at 428.

56. The applicant complains that Dr Standen had an insufficient appreciation of the facilities which the applicant believed were available to members of its group of companies in the port of Fujairah. However, Dr Standen was heavily influenced by his understanding of the arrangements between the member States of the GCC, to which I have referred. Dr Standen conceded in cross-examination that in the period between 6 and 17 April 1990, the Corporation made no inquiry of the applicant as to the availability to it of ports in countries outside the GCC in the event of rejection of the shipment both in Saudi Arabia and the UAE. There had been some discussion between Mr Lang and Dr Standen in January 1990 as to the availability of a port of disembarkation in Turkey. Dr Standen did not share the confidence of the applicant as to the availability of this facility. His attitude was influenced by informal advice he had received from officers of the Australian Quarantine Inspection Service that it was unlikely that the sheep would be accepted at a Turkish port if they had been rejected in a GCC State on the grounds of disease.

57. If it were necessary to decide the point, my view would be that, although the result was not what the applicant would have wished, the decision maker did have regard, as a relevant consideration, to the question of the availability of alternative ports of discharge, both at Fujairah and outside the GCC States. However, the complaints the applicant had against the decision maker on the grounds of his allegedly having had regard to irrelevant considerations, and not having had regard to relevant considerations, to some extent overlapped with the submissions concerning denial of natural justice. To this ground of review I now turn.

58. In response to the submissions for the applicant, counsel for the Corporation submitted that the decision to rescind or withdraw the approval, assuming it to have been within its power, was not one which attracted any obligation of procedural fairness to the applicant. That submission was made against the clear trend of modern Australian authority, particularly since the coming into force of the ADJR Act; see, in particular, Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584, 609, 632. Counsel for the Corporation referred to what was said in Toy Centre Agencies Pty Ltd v Spencer [1983] FCA 34; (1983) 67 FLR 458 at 464. That was a case concerned with the power of seizure conferred by s. 203 of the Customs Act 1901. Given the special character of the power of seizure under customs law, it is not surprising that Lockhart J. held that there was no requirement to afford procedural fairness before the exercise of that power.

59. The applicant complained in particular that the decision to withdraw the approval had been made in circumstances where the decision maker had an inadequate understanding both of the adverse commercial consequences for the applicant of such a decision, and of the existence of alternative port facilities for the shipment if there was a rejection at Dammam.

60. What is required by the principles of natural justice in a particular case depends upon the circumstances known to the decision maker at the time of the exercise of the power or the further circumstances which, if the decision maker had acted reasonably and fairly, he would then have known; there may be a need to bring to the attention of a person affected by the decision a critical issue or factor upon which the decision is likely to turn, so that there may be an opportunity of dealing with it: Kioa v West, supra at 587, 627. It is upon those propositions that the applicant founds its argument on this branch of the case.

61. On the other hand, counsel for the Corporation submitted that if the further inquiries in question had been made of the applicant and there had been a response by the applicant, nevertheless, on the evidence, this would have made no difference to the decision. What is the position if there has been a denial of procedural fairness but this appears to have made no difference to the result? The law appears still to be uncertain, some decisions appearing to proceed on the footing that in such a case there is no ground for relief, and other decisions proceeding on the footing that there is jurisdiction to grant relief, but that in its discretion the Court may refuse relief as not being of sufficient utility; see de Smith's "Judicial Review of Administrative Action", 4th Ed., 1980, pp 243-245, Allars, "Introduction to Australian Administrative Law", 1990, paras. 6.93-6.96. However, when considering this question as it arises in proceedings under the ADJR Act, it should be borne in mind that the remedial powers of the Court under s. 16 of the ADJR Act are all couched in the terms of discretion. This may be contrasted to the position at general law, where some administrative law remedies, particularly mandamus, have on occasion been treated as attended by a fairly narrow discretion; see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Limited [1949] HCA 33; (1949) 78 CLR 389 at 398-399, de Smith, supra, at pp 557-558.

62. In the course of his re-examination, Dr Standen expressed in the following terms his expectation as at 17 April 1990 of the commercial consequences of withdrawing the approval:

"That the shipper (would) be obliged to

put the sheep into an alternative port

probably Fujairah but I could not be

certain of that, that was the nominated

alternative port, that there would

probably be some drop in value of these

sheep in these other markets compared

with Saudi Arabia but . . . it would

depend . . . on the circumstances at the

time and the number of ships arriving at

the relative markets. I know that the

company had been a very astute trader

over the years and that they would

certainly endeavour to minimise that

loss."

In making the decision in question, Dr Standen came strongly to hold the view that considerations relevant to the export trade as a whole necessarily outweighed the commercial interests of the applicant in the particular shipment in question. The full revelation of the extent of those commercial interests and the likely prejudice involved would not, I conclude, have shaken Dr Standen in that view. Even if there were a denial of natural justice in this particular aspect of the matter, I would not, as a matter of discretion, have granted relief in respect of it.

63. One factor which was an important, though not a dominating, influence in Dr Standen's decision making process was what he described as "the animal welfare concern". It will be recalled that the conditions suggested in the circular CL6/90, which were included as condition 10 to the approval given the applicant on 27 March 1990, included the obligation to carry on board an Australian government designated veterinarian, together with seven days' additional feed and water and humane slaughter equipment. After the events of 6 April 1990, Dr Standen was concerned that any failure to deal satisfactorily with the consequences of the rejections which had occurred would create such an outcry from the general public in Australia, particularly from what he described as the "animal welfare lobby", that the Australian government might be likely to re-introduce an absolute prohibition on the export trade in live sheep to Saudi Arabia. His paramount concern was to regulate the export trade in such a way as to preserve it in both the long and short term. The Minister is entrusted with wide powers under the Export Control Act 1982 and Dr Standen was concerned that the Minister might invoke those powers to prohibit the trade in live sheep. He said in his evidence:

"I have no doubt that if a load of sheep

has to be slaughtered at sea or die at

sea then the Government will be moved to

ban the trade entirely, perhaps not just

to Saudi Arabia but to the Middle East

. . . (The) view has been put to me by

the Minister and officials on a number of

occasions that the publicity arising, the

public outcry (over) such an event, would

be totally damaging."

64. The applicant submitted that in the circumstances as they existed between 6 and 17 April 1990, there was a need for the Corporation to bring this concern clearly to the attention of the applicant so that it might have an opportunity of dealing with it. The applicant then submitted that it could have allayed Dr Standen's apprehensions on the animal welfare issue because it would have been able to demonstrate to him arrangements which would deal satisfactorily with any threat to the well-being of the cargo.

65. In particular, the evidence indicates that Holdinvest International SARL, a Lebanese company and another associated company of the applicant, holds from the Fujairah Port Authority a ten year lease of land in a free zone area of Fujairah on which feed lots for sheep have been constructed; the feed lots are large enough to take in excess of 100,000 sheep. A copy of the lease was in evidence. It is dated 15 April 1982. No other Australian exporter of live sheep has access to such a facility in any State of the GCC. However, there is, of course, an uncertainty in the state of the evidence as to the impact of the agreement which I have mentioned between the member States of the GCC upon the availability to the applicant's group of the facility at Fujairah to receive sheep rejected on grounds of disease at another port in one of the GCC States.

66. Further, the evidence indicates that in addition to the facility at Fujairah, by reason of an agreement made 11 December 1984 between the Services and Development Fund of the Suez Governorate and the International Establishment of Food Security (another member of the applicant's group of companies), members of the group have available to them at Suez land for use as a feed lot, apparently without restriction. No such facility is available at Suez to any Australian competitor of the applicant. A copy of this agreement was also in evidence. Finally, I have already referred to the existence of a facility in Turkey.

67. As I have indicated, Dr Standen had known at least of the Turkish facility since January 1990 but he tended to discount the feasibility of its utility where a shipment had been rejected elsewhere on the grounds of disease. In forming that view, he relied upon informal advice from officers of the Australian Quarantine Inspection Service. Nevertheless, if the issue of animal welfare had been raised with the applicant in the critical period after 6 April 1990, something, in my view, required for procedural fairness, the applicant would have been in a position to provide information (including documentation) which could have led to further inquiries by the Corporation. The result may have been to diminish the anxiety felt by Dr Standen on the animal welfare issue. That, as he said, was an important factor in his decision making process. On this particular branch of the case, any discretion against granting review for want of procedural fairness should not be exercised against the applicant on any ground of futility.

68. Accordingly, had I not held in favour of the applicant on the primary ground argued by it, I would have granted review for denial of natural justice in this respect. In reaching that conclusion, it should be made clear that the Court casts no aspersion upon the personal conduct of any officer of the Corporation in their handling of this matter. The issues that were involved were both complex and delicate and requiring urgent attention; no doubt the matters were made more difficult by the circumstance that when matters took a critical turn with the rejections on 6 April 1990, both Dr Standen and the Chairman of the Corporation were on the Corporation's business in South America.

69. There should be an order setting aside the decision of the first respondent made on or about 17 April 1990, to rescind Approval No. AS/13/L81 dated 27 March 1990 and to give approval to the applicant to export live sheep on the Fernanda F/Voyage 56 to a port in a country other than the Kingdom of Saudi Arabia. There should also be a declaration that Approval No. AS/13/L81, dated 27 March 1990 and issued by the first respondent to the applicant, was not rescinded by or pursuant to the said decision of the first respondent, but remained in effect despite that decision. The first respondent should pay the costs of the applicant.