TODAY’S Federal Court outcome is “a staggering result” from a legal perspective, says McCullough Robertson Special Counsel Trent Thorne.
Mr Thorne, a well known agribusiness lawyer from Brisbane who was involved in helping to prepare the industry’s case early in the class action process, said the hurdles the plaintiffs had to overcome were extremely high.
The tort of misfeasance which was at the centre of the class action relates to the intentional misuse of public power by a public officer carried out in the purported discharge of their public duty, and which caused loss to the plaintiff.
The Australian Government Solicitor’s own website describes misfeasance as ‘a very peculiar tort’, with elements including:
- the defendant’s exercise of power must have been invalid/unlawful
- the exercise of power must have been accompanied by one or other of the following forms of ‘bad faith’:
- the defendant must have exercised the power knowing that he or she was acting in excess of power AND with the intention to cause harm to the plaintiff (sometimes referred to as targeted malice)
- the defendant must have been recklessly indifferent to whether the act was beyond power AND recklessly indifferent to the likelihood of harm being caused to the plaintiff
- the defendant must have acted with reckless indifference to whether the act was beyond power AND there must have been, objectively, a foreseeable risk of harm to the plaintiff.
“To be successful in this particular niche area with a tort of misfeasance in public office is a very rare bird indeed,” Mr Thorne explained to Beef Central this afternoon.
“In this case the Brett Cattle Company needed to show that the decision of the minister was so egregious that someone in his position with all the information he had to hand would not have come to that decision.
“There are very few cases in the entire body of Australian case law where this sort of ruling has been made, you could count them on less than two hands.
“This is a very rare area of the law, and because there is such a small body of case law in the background, it is hard to succeed, the hurdle is very high.”
No one can ever predict with certainty how a case will play out but when former Agriculture Minister Joe Ludwig failed to appear in his own defence in a case that revolved specifically around a decision he had made, there was a strong sense that the ruling was likely to go in the claimant’s favour.
Mr Thorne said that, reading through today’s ruling, it was abundantly clear there were many warnings given to the Minister about the ramifications a decision like this would bring yet “he barrelled on regardless”.
“With the hurdles (the class action faced), it wouldn’t have got over the line if it was only one or two instances, there were repeated notifications from all and sundry – he had all that information saying warning, warning, do not proceed and he still went ahead with it.”
Mr Thorne said the National Farmers Federation and its Australian Farmers Fighting Fund deserved congratulations for their role in funding this litigation, which he estimated would have amounted to well over $4 million.
“For the NFF to have had the foresight to set up that fund all those years ago to assist farmers, who else would have done this?
“And obviously Tracey Hayes who has shepherded this through, she has basically been the guiding hand and she has done a remarkable job with the NTCA beside her.”