The Court found that the Minister's order was invalid because it prohibited all the exports without any provision allowing for the exceptions to allow exporters to carry on the existing lawful business. The Minister committed the tort of misfeasance in public office because he acted recklessly as to both his power to make the Second Control Order and the fact that persons engaged in the live export trade to Indonesia would suffer harm from it unjustifiably, for the reasons at [364]–[395] of the judgment.
Brett was awarded $2,936,629.99, inclusive of interest, with Senator Ludwig and the Commonwealth paying Brett's costs.
Rares J states
This representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) arises from the public outcry following the broadcast by the Australian Broadcasting Corporation (ABC) on 30 May 2011, on its Four Corners program, of graphic video footage of inhumane slaughter of Australian cattle exported to Indonesia. On 7 June 2011 the then Minister for Agriculture, Fisheries and Forestry, Senator the Hon Joe Ludwig, decided to make the Export Control (Export of Live-stock to the Republic of Indonesia) Order 2011 (the Ban Order) that prohibited the export of livestock to Indonesia for 6 months. The Export Control Act 1982 (Cth) gave the Minister extensive powers to prohibit export of livestock absolutely or to particular places or on conditions. In 2010 Australia exported nearly 520,000 head of cattle to Indonesia worth about $400 million, out of a total of about 875,000 head exported worldwide in that year worth about $684 million.
Brett Cattle Company Pty Ltd, the applicant, operated Waterloo Station, a property of nearly 189,500 hectares located about 540 kilometres south-west of Katherine in the Northern Territory. Brett Cattle had about 17,300 head of cattle at the beginning of 2011. It was one of many live cattle exporters and others involved in the live export market to Indonesia market who were affected by the Ban Order. It claimed that it had lost the opportunity to sell about 2,776 head, principally into that market in 2011 because of the impact of the Ban Order and to have suffered losses totalling about $2.5 million.
Brett Cattle alleged that the Minister committed the tort of misfeasance in public office by making the Ban Order recklessly. In essence, Brett Cattle claimed that the Minister had abused, or misused, his power to make the Ban Order. That was because Brett Cattle asserted, first, he did not care whether it would be valid or not and he knew that there was a real risk that it might not be. He had no legal advice that he could make it. Secondly, it asserted that he knew, or did not care, that the order would cause significant economic harm to persons, such as Brett Cattle, involved in exporting live cattle to Indonesia. Thus, to prove this allegation, Brett Cattle had to establish both that the Ban Order was invalid and that if it was, the Minister had acted recklessly in making it. The Commonwealth accepted that it would meet any damages or costs for which the Minister is found liable.
In representative proceedings, the Court can resolve issues of fact and law involving the representative applicant and the respondent(s) that are common to claims that other group members also have against the same respondent(s). Here, members of the group are likely to claim that they have suffered losses as a result of the Ban Order. There were several common issues of fact and law resolved in this proceeding that also appear to be relevant to claims of other group members.
The live animal export trade had a history of instances in which graphic television footage exposed examples of inhumane treatment. One example was on 26 February 2006, when the current affairs program, 60 Minutes, broadcast footage depicting mistreatment of cattle in Egypt. That generated public debate which culminated in one of the Minister’s predecessors using his power under the Export Control Act to prohibit the export of livestock to Egypt. That led to the Australian and Egyptian Governments negotiating a solution that resulted in a new feedlot and abattoir facility being built at an Egyptian port to operate as a closed loop system. Such a system requires each animal to be tagged before export so as to ensure that it can be traced and stays within the system at all times up to its slaughter. The tags are usually machine readable. Their purpose is to guard against “leakage”: that is, the risk of cattle being diverted out of the closed loop system and thus subjected to inhumane treatment. The Egyptian market imported only about 30,000 head and had very few (approved) facilities. It was much smaller compared with the Indonesian market, which had about 80 to 90 feedlots (in which cattle are fattened for about 3 months before being sent for slaughter) and over 350 slaughtering facilities.
Both Australia and Indonesia were members of the World Organisation for Animal Health, known by the acronym OIE. The OIE had developed a code (the OIE Code) that set out guidelines of minimum standards for the humane and appropriate treatment of animals throughout their lives, including during transport, their conditions when in feedlots and up to and including the moment of slaughter.
When Senator Ludwig became the Minister in September 2010, the Minister’s Department briefed him about his new portfolio. One issue that arose early in the Minister’s term of office was about whether the live cattle export industry had taken appropriate steps in Indonesia to ensure the welfare and humane treatment of cattle, especially in the slaughtering process. Many slaughterhouses there were small, unsophisticated facilities that killed about 2 to 5 head per night.
The Australian Government and industry bodies had sponsored the use of restraining boxes in Indonesian abattoirs and slaughterhouses. The boxes were designed to hold an animal immediately before its slaughter in order to decrease its stress and avoid more primitive methods of restraint, such as severing a tendon, gouging an eye or hoisting it aloft. The most commonly used restraining box was known as a “Mark I” box. However, between 2009 and up to early June 2011 there were conflicting views about both the efficacy and the manner of use of Mark I boxes in Indonesia. Animal welfare bodies contended that they did not provide humane means for the slaughter of animals while the live cattle export industry and the Australian Government supported their use by trained workers. The Department and the various parties involved in the debate on the utility of the Mark I boxes communicated their views to the Minister in the period leading up to the Four Corners broadcast.
On 1 December 2010 the ABC broadcast footage on the 7.30 Report that depicted poor handling, transport and slaughtering of sheep in the Middle East. In response, on 17 January 2011, the Minister wrote to the Australian Livestock Exporters’ Council (ALEC) saying that the Government was very concerned about the mistreatment of animals. He invited the industry to provide advice about using closed loop systems for all livestock exports in other markets, similar to that in use in trade to Egypt.
On 30 March 2011, ALEC informed the Department that Animals Australia had footage of animals being slaughtered in 4 Indonesian cities and, although ALEC did not know what the footage depicted, it was “very nervous”. This was the footage that Four Corners came to broadcast two months later.
The Department gave the Minister “talking points” on 31 March 2011 that referred to the unreleased footage. Those
included the statement that “stopping the live trade will not improve animal welfare in any of the countries we currently export to”. On 1 April 2011, the Minister made a speech to the Northern Territory Cattleman’s Conference in which he stressed the Government’s support for the live export trade. He also said that he had asked those in the industry to “review the progress they are making on improving animal handling practices in importing countries as well as other ways to achieve higher standards of animal welfare”. The Minister had a discussion there with Troy Setter who was then Chief Operating Officer of the Australian Agricultural Company (AACo) and previously had been Darwin Manager of North Australian Cattle Co (NACC), a subsidiary of Elders Ltd and one of the world’s largest cattle exporters.
Mr Setter told the Minister that “we’ve heard that animal activists have been taking footage in Indonesia”. The Minister told Mr Setter that the trade was important to Australia and that the industry and Government had to continue to work together. He said that the Government understood the challenges. Mr Setter said that Indonesia was a difficult market because not every supply chain was the same. He told the Minister that large exporters, such as Elders, through NACC, AACo and 2 large Indonesian importers, Santori and TUM had “closed supply chains where they have full control of their cattle”, but that not every other supply chain did. The Minister stated that “we will need to work together; we will stick with you, Troy; we will stick with the industry”.
Mr Setter’s information was partially correct. As at April 2011, Elders (through its subsidiary Elders Indonesia) and Santori could operate closed loop supply chains for cattle that they processed in their own feedlots and abattoirs in Indonesia. As at April 2011, TUM and another Indonesian company known as AGP had closed loop supply chains up to when cattle left their feedlots. However, TUM only began building a large commercial abattoir after the Ban Order, that became operational by late August 2011. AGP supplied to 22 abattoirs that it caused to be upgraded between 7 June 2011 and 31 December 2011. As at April 2011 each of those four closed loop systems had standards at least compliant with the OIE Code, and both TUM’s own and AGP’s various customer abattoirs did so after their construction or upgrade.
On 4 April 2011, Brett Cattle entered into a contract to sell NACC 3,200 head for delivery on about 31 May 2011. In the event, the ship on which those cattle were to be loaded was to be delayed because of the Ban Order and they remained at Waterloo Station. NACC cancelled that contract on 13 July 2011 because it could not obtain an export permit. Brett Cattle claimed damages for the loss of this contract and other sales and its incurring about $1 million extra expenses in having to send its surplus stock to agistment.
On 29 April 2011, the Department briefed the Minister with a Departmental minute on possible responses to the foreshadowed Four Corners broadcast, particularly if it aired footage of facilities to which the Australian Government had provided funding. The Department made no suggestion about any possible prohibition of trade to Indonesia. The minute noted that “a target of 100% compliance for all shipments with the OIE Code” was “unlikely to be achieved other than through a closed loop system.”
On Monday, 30 May 2011, before the Four Corners broadcast, the Department provided the Minister with an urgent minute containing suggested responses to the program. Those included that he had powers under legislation to make orders, that had the same legal effect as a regulation made under an Act, to specify facilities to which exports could not occur. However, such orders could be disallowed. The minute noted that making an order could raise community expectations that the Government was taking a stronger role in enforcing animal welfare overseas which would be very difficult to enforce. The Department recommended that the Minister continue to work collaboratively with the industry to encourage producers and others, voluntarily to restrict supply of Australian cattle only to abattoirs that had the potential to achieve OIE standards of animal welfare in a reasonable time, and, if that provided insufficient, to revisit the situation then.
The minute also attached “high level”, namely very general, undated legal advice by Blake Dawson and advice dated 25 May 2011 from the Australian Government Solicitor. Blake Dawson advised about four options, discussed earlier on 19 May 2011, none of which involved the use of the Minister’s powers under the Export Control Act or a total prohibition on all exports. The Government Solicitor’s advice dealt with creating offences for Australian companies or individuals in respect of activities overseas that adversely affected Australian Cattle exported there.
The broadcast
At about 8.30pm on 30 May 2011, the ABC broadcast the Four Corners program titled “A Bloody Business”. Kerry O’Brien introduced it, saying with telling accuracy, that it was “a program that will shock you”. The footage in the program depicted appalling cruelty to cattle in a significant number of Indonesian slaughterhouses and several scenes showing uses of the Mark I boxes that subjected animals to very poor treatment. It included interviews with experts, persons concerned with promoting animal welfare and those in the industry, all of whom condemned the practices shown in the footage.
At the end of the program, Mr O’Brien informed viewers, that after viewing some of the broadcast footage in the preceding week, the industry had announced that it had immediately moved to suspend the supply of Australian cattle to three abattoirs. But, he said, as recently as the evening before the broadcast, Australian cattle were still being slaughtered at one of them. At the very end of the program Mr O’Brien told viewers: Although he chose not to be interviewed for the story, the Minister, Joe Ludwig, said in a statement that despite the improvement of animal welfare over the past decade due to industry and Government efforts, he accepts that more work needs to be done.
Something of an understatement.
Later on 30 May 2011, the Minister issued a media release expressing his shock at what he had viewed on the broadcast. He said that he had directed the Department that night to place a moratorium on the installation of new Mark I boxes using Commonwealth funds. He also said that he had asked the Chief Veterinary Officer to coordinate an independent scientific review of the Mark I boxes and had directed his Department to give him a thorough briefing on all available legislative and regulatory responses “including the banning of trade to specific facilities or destinations”.
During the broadcast, Blake Dawson gave updated advice to the Department on the basis that the Minister had become “open to taking more direct action in terms of a prohibition”. Blake Dawson referred to the Minister’s powers under the Export Control Act to make an order prohibiting the export of goods absolutely or to specified places on a condition or both. They said that however, such an order could be disallowed by a resolution of either the House of Representatives or the Senate, but that a resolution for disallowance might not be attractive if the order was clearly based on animal welfare concerns in the importing countries or facilities.
The aftermath
The broadcast caused an immediate public furore and presented the Government (of Prime Minister the Hon Julia Gillard MP) and, particular, the Minister with a major political crisis as to how it should respond to what had been shown on the program. The Minister gave media interviews the next day, promising that the Government “will be responding to the footage in a comprehensive and considered way”. He told the meeting of the Australian Labor Party caucus on 31 May 2011 that a decision to suspend, ban or phase out live animal exports “would have serious consequences”.
On 31 May 2011, Andrew Wilkie MP, an independent member of the House of Representatives, foreshadowed the introduction of a private members Bill to ban live cattle exports. The RSPCA provided the Minister with further video material and its scientific assessment of what all the footage depicted at 12 named Indonesian facilities. Later on 31 May 2011 the Minister announced at a press conference that he had put in place steps to suspend exports to those 12 facilities. He said that “Indonesia has substantially good abattoirs”, but he left “on the table” a total ban of live export there to ensure acceptable animal welfare outcomes.
On 2 June 2011 the Minister made a control order prohibiting the export of live animals to the 12 facilities. But he included an important exceptions power in that order. That power allowed the Minister to grant approval for export to any of the 12 facilities subject to, first, his being satisfied that slaughter and related operations were being, or would be within a reasonable time, conducted in accordance with relevant provisions of the OIE Code and, secondly, any other conditions he imposed. The exceptions power also allowed the Minister to revoke an approval if there was non-compliance. In other words, the exceptions power in the First Control Order gave the Minister flexibility to allow exports in the future to any of the 12 facilities if he were satisfied that it had taken appropriate measures to ensure the animals would be treated humanely and at least in accordance with the requirements of the OIE Code.
Also on 2 June 2011, the Department provided the Minister with a minute about his future regulatory options together with a draft letter to the Prime Minister. The minute contained recommendations to Cabinet including that, first, there be a compliance regime for live cattle exports for slaughter that allowed an export permit to be granted only if the exporter could verify that there was full control of the welfare of the animals at least consistent with the OIE code up to and including the point of slaughter and, secondly, until that compliance regime was implemented, there be a total ban of all live cattle exports for slaughter to any country except one in which there was a closed loop system in place that met that standard of animal welfare (being effectively, only Egypt). The minute advised that a broad prohibition of trade could be enforced relatively easily whereas a targeted prohibition was more difficult to enforce because of ongoing monitoring requirements and the need for full support of foreign governments.
The draft letter to the Prime Minister noted that the live animal trade was worth about $1 billion annually and supported 10,000 jobs, mostly in Northern Australia. It gave the detailed information about the size and value of the live cattle trade that I set out earlier. The draft letter stated that Indonesia and other nations were unlikely fully to support the Minister’s proposal and that, in Indonesia’s case, it may also cause friction.
The Minister had a two hour long meeting on 2 June 2011 with Don Heatley, the chairman of MLA and Jock Lawrie, the president of the National Farmers Federation. During that meeting Mr Heatley told the Minister that there already were some supply chains in Indonesia better than others, such as Elders, which had a world class abattoir there. He said that there were about 5 abattoirs that could achieve OIE standards very quickly (including Elders, if it did not already do so) and a total of about 25 facilities that could do so in about 2 weeks. He told the Minister that there could not be “a complete fix overnight” and that, based on his experience, there were sovereignty issues in Indonesia related to Australia seeking to impose its will on the Indonesian Government or industry. Mr Heatley said that he did not believe that Indonesia would accept a cessation of trade very well. The Minister said to him “your social licence is lost”.
On 3 June 2011, the public debate continued and a range of interested parties made yet more representations to the Minister. The Australian Greens announced that they would seek to introduce Bills in each House of the Parliament to ban live exports. Get Up commenced a public campaign in association with the RSPCA and Animals Australia to promote such a ban. The Australian Meat Industry Council, which represented the interests of producers who slaughtered animals in Australia and exported chilled or frozen meat, joined in support of a ban. The live export industry proposed a new plan that, however, did not provide an immediate solution. One major exporter, Wellard Rural Exports Pty Ltd, wrote to the Minister with its own plan. This required the exporter, importer and abattoir to contract to ensure every animal would be fully traceable and that the abattoir would comply with the OIE Code.
The Minister’s staff obtained information that about 25,000 head were already in transit to Indonesia and that 3 export permits for another 12,500 head had been granted, including one for 1,900 head at Port Hedland to load on Falconia which was expected to sail on 5 or 6 June 2011.
Over the weekend of 4 and 5 June 2011, officials and Ministerial staff worked on what the Minister could consider. Late on the Saturday evening, the Department sought urgent legal advice from the Government Solicitor about a possible temporary ban on the trade with Indonesia, the Minister’s powers and the most effective way to do so.
On Sunday 5 June 2011 an officer of the Department of Prime Minister and Cabinet wrote to a Deputy Secretary of the Department expressing concern about the Minister bringing the matter to Cabinet without papers or consultation including as to the likely impact on relations with Indonesia. He emphasised the need for legal advice on the Commonwealth’s potential exposure to claims for compensation from industry players affected by a ban on trade.
In the afternoon on 5 June 2011 the Minister, his staff and officers of the Department met. The Minister sought more information about, first, the estimated cost of claims for compensation for detriment caused by defective administration if there were a temporary ban, secondly, animal welfare and, thirdly, economic impacts. Thus, the Minister was conscious of the potential that any control order imposing a ban could be invalid and create possible claims for compensation.
Later in the evening on 5 June 2011, the Government Solicitor wrote back to the Department saying that they were “flying somewhat blind” in providing the advice just sought because they had no familiarity with the contracts, live export industry or possible claimants. A Deputy Secretary responded saying that the main focus was to get a legal opinion on the Government’s exposure to claims for compensation if there were a temporary or permanent ban on live cattle exports for slaughter. The Minister’s office also asked the Department for a high level minute for the Cabinet meeting the next evening that, among other matters covered, a possible suspension of live cattle only to Indonesia.
On 6 June 2011 the Department provided several minutes to the Minister. Relevantly, one minute included two versions of a draft letter to the Prime Minister, recommendations for a worldwide ban for Cabinet’s consideration that were substantially the same as the recommendations of 2 June 2011 and draft “talking points” for the Minister to use. The talking points included a statement that a ban on live cattle exports would have “dramatic” effects on the industry and communities that depended on it, as well as adverse effects on Australia’s trading partners. They anticipated that it would take 6 months to develop a compliance regime.
Another minute informed the Minister that Australia supplied 100% of Indonesia’s live export needs. It said that there had been previous suspensions of live animal trade but the only one challenged in litigation had settled at a mediation, without the minute revealing the basis of the claim or settlement. Importantly, the minute also said that Indonesia’s Ambassador and its Perth Consul-General had apologised for the mistreatment of animals shown on Four Corners. It advised the Minister that the diplomats and the Indonesian Department of Agriculture had said that those slaughtering methods were not halal and that they were “keen to work with Australia to resolve the issue”. It warned that a ban on exports in the lead up to the forthcoming Ramadan period “could trigger retaliatory actions”. Despite this, there was no evidence that, before making the Ban Order, the Minister made any contact with his Indonesian counterpart or otherwise attempted to “work with” that nation on a resolution.
Also on 6 June 2011, the Department sent the Minister a minute with draft advices from Blake Dawson and the Government Solicitor. Each draft advice was in general terms and did not refer to a possible control order prohibiting trade only to Indonesia or to the terms of any such order, let alone give any draft advice about it. The Government Solicitor’s draft advice stated that it assumed that the Minister would make a control order “in accordance with the legislative requirements”. Neither advice discussed what the Minister needed to consider in framing a control order in accordance with those legislative requirements. No legal advice discussed whether a control order should have a similar exceptions power as the First Control Order contained and if not, why.
The Secretary of the Department, Dr Conall O’Connell, gave evidence that in the afternoon of 6 June 2011, before Cabinet met, he gave oral advice to the Minister consistent with the written advice that he had given “as the Department”. He told the Minister that in order to meet the Government’s objective that all Australian animals going through foreign supply chains be treated in accordance with proper animal welfare standards, an interim suspension of trade would be necessary while the Department put in place a regulatory framework. Dr O’Connell said that this work could take six months.
The Minister gave no evidence at the hearing. There were very few documents in evidence that one can say that he must have seen. He put no written submission or other document before Cabinet at its meeting on 6 June 2011. After Cabinet met, the Minister decided to make the Ban Order to impose a complete suspension of livestock exports for slaughter to Indonesia for a maximum period of 6 months. The Minister caused the Prime Minister’s chief of staff to be informed that night that he believed he had a duty to stop all further shipments. The next ship was due to sail on Wednesday 8 June 2011. The Minister also conveyed his concern that he may have had some unspecified exposure if he did not act immediately. On 6 and 7 June 2011, Elders made enquiries of the Department, including through its chief executive, Malcolm Jackman, speaking directly to the Secretary about why Falconia was not being allowed to load its cargo of 1,900 head. The official’s response to Elders’ queries was that the Department could not comment about when, or if, permission to load would be given.
At some time on 7 June 2011, the Minister signed the Ban Order. It was registered at 9.30pm that night to come into force on 8 June 2011.
Also on 7 June 2011, after he made the decision, the Minister spoke to the Indonesian Minister for Agriculture to inform him of it. Minister Suswono subsequently expressed his displeasure publicly and delayed the announcement, due on 1 July 2011, of Indonesia’s import quotas until 6 July 2011, when he contacted the Australian Ambassador in Jakarta to say that Indonesia was ready to support the issue of import permits. He invited Australia to lift the temporary suspension of trade which, he said, Indonesia would find acceptable.
Conclusions
I have found that the Minister saw and read the various Departmental minutes. In addition, he had also received, from Mr Setter and Mr Heatley, the information about the situation in Indonesia relating to actual and potential closed loop supply chains that had, or readily could have, animal welfare standards at least consistent with the OIE Code that I have described earlier. And, he received advice from Dr O’Connell, on 6 June 2011 that was consistent with the Departments’ written advices.
A regulatory measure, such as the Ban Order, must be a proportionate response to meet the situation that it is intended to address. The law requires a decision-maker, when using a wide power, like the Minister’s powers under the Export Control Act, not to make unnecessary limitations on the common law right of persons to carry on their lawful business. One test to ascertain if a provision is unnecessary, is to consider if there is an obvious and compelling alternative.
Here, the Minister had included an exceptions power in the First Control Order that banned trade to the 12 named abattoirs. Yet, 5 days later, in the Ban Order, he imposed an absolute prohibition on all livestock export to Indonesia for slaughter without ever considering including the same or a similar exceptions power in it. He gave no reasons for omitting an exceptions power. He had no advice at all about doing so from the Department or lawyers. And, he knew that the omission would have a significant economic impact on persons who could comply, immediately or relatively quickly, with what his intended regulatory and compliance regime would require, namely a closed loop supply chain with animal welfare standards at least consistent with the OIE Code.
I have found that the Ban Order was invalid. That was because it prohibited all exports without any provision allowing him to make exceptions so as to allow exporters to carry on their lawful business where they already did, or readily could, have a closed loop supply chain in Indonesia with animal welfare standards at least equivalent to those in the OIE Code. Such a total prohibition was capricious and unreasonable and made the Ban Order invalid.
When he made the Ban Order, the Minister knew that:
- it would prohibit any exports to Indonesia without any exception in an industry that in 2010 had exported over 500,000 live cattle worth about $400 million;
- the industry representatives had told him that there were supply chains in Indonesia that had, or readily could be, adjusted to have a closed loop system with animal welfare standards that were at least compliant with the OIE Code;
- he had made no attempt to explore agreeing an appropriate solution with the Indonesian Government and that an order prohibiting all exports there would cause that Government concern;
- he had no Departmental advice to make an order in a form that affected only exports to Indonesia;
- he had no legal advice that he could make lawfully the, or any, order in such a form; and there was a real risk that, if he made the order in the form he adopted, it might be invalid.
Yet, with that knowledge the Minister plunged ahead regardless. He made the Ban Order shutting his eyes to the risk that it might be invalid and to the damage that it was calculated to cause persons in the position of Brett Cattle. I am comfortably satisfied, based on the whole of the evidence, that the Minister was recklessly indifferent as to first, the availability of his power to make the Ban Order in its absolutely prohibitory terms without providing any power of exception and, secondly, as to the injury which the order, when effectual, was calculated to produce. Accordingly, the Minister committed misfeasance in public office when he made the Ban Order on 7 June 2011.
I have found that, had the Minister acted lawfully, he would have made a control order on about 9 or 10 June 2011 that contained an exceptions power and that Elders and Santori would have been able to obtain approvals to export to Indonesia under it without delay. I also found that AGP could have satisfied the Minister that he should grant an export permit allowing exports destined for one of its customer abattoirs within about 2 weeks and export permits in respect of 2 other abattoirs very soon after, as in fact occurred once the Minister had implemented, on 27 June 2011 a new Export Supply Chain Assurance System. That system allowed trade to resume after he repealed the Ban Order on 7 July 2011.
I concluded that it is likely that significantly more than the total of about 412,000 head exported in 2011 would have been exported to Indonesia had the Minister made, instead of the Ban Order, an order with an exceptions power. However, the parties will need to consider the calculation of the scale of the increase in exports in light of my findings.
Accordingly, Brett Cattle is entitled to substantial damages and that the Minister and the Commonwealth must pay its costs of the proceeding. The parties will need to return to Court to assist in the finalisation of orders to give effect to my reasons and to deal with what needs to be done to enable group members to be compensated.
