ADMINISTRATIVE LAW - Judicial Review - Quarantine - Goods ordered into quarantine - Pigeons - Fear of infection with Newcastle disease - Whether birds infected - Whether there existed evidence of opinion of quarantine officer that the goods were likely to be infected - Whether birds 'infected goods' as defined by s.74A(9) of Quarantine Act - Validity of order to destroy birds - Necessity for belief that goods cannot be effectively treated or disinfected - Validity of Minister's consent. Quarantine Act 1908 ss. 35, 48, 74A Administrative Decisions (Judicial Review) Act 1977 ss. 5, 15, JOHN EDWARD HANSON AND IRIS HANSON V COMMONWEALTH DIRECTOR OF QUARANTINE, CHIEF QUARANTINE OFFICER AND ROY EVERETT G.357 OF 1984 WILCOX J 13 NOVEMBER 1984 SYDNEY IN THE COURT OF AUSTRALIA NEW SOUTH S DISTRICT REGISTRY GENERAL DIVISION No. G.357 of 1964 BETWEEN JOHN EDWARD HANSON First Applicant IRIS HANSON Second Applicant AND: COMMONWEALTH DIRECTOR OF QUARANTINE First Respondent CHIEF QUARANTINE OFFICER Second Respondent ROY EVERETT Third Respondent ORDERS CORAM: WILCOX J DATE: 13 NOVEMBER 1984 PLACE: SYDNEY 1. Application for review granted. 2. Order that each of the following decisions: a) the decision of the third respondent dated 10 October 1984 to order into quarantine 'all birds and associated building and goods on the property of Lot 13, Jensen Road Wyong' ; b) the decision of the second respondent made on 10 October 1984 to order the destruction of the pigeons and poultry on the said property; and c) the seizure order of the third respondent made on 10 October in relation to the pigeons and poultry on the said property; be quashed as from the date of the said decisions. 3. Order that the respondents and each of them refrain from taking any action in relation to the implementation or enforcement of the said decisions or any of them. 4. Order that the respondents pay the costs of the applicants of the Application including the costs of all interlocutory proceedings in relation thereto. 5. Direct that the exhibits be returned at the expiration of twenty-one (21) days unless an appeal is filed in the meantime. IN THE FEDERAL COURT OF AUSTRALIA SOUTH DISTRICT REGISTRY No. G.357 of 1984 DIVISION BETWEEN: JOHN EDWARD HANSON First Applicant IRIS HANSON Second Applicant AND: COMMONWEALTH DIRECTOR OF QUARANTINE First Respondent CHIEF QUARANTINE OFFICER Second Respondent ROY_EVERETT Third Respondent REASONS FOR JUDGEMENT CORAM: WILCOX J DATE: 13 November 1984 PLACE: SYDNEY This case, which comes to the Court pursuant to the Administrative Decisions (Judicial Review) Act 1977, concerns the question whether about 500 pigeons, breeding and racing stock, owned by the applicants and housed at their property at North Wyong are liable, along with sundry poultry, to be destroyed by the respondent quarantine officers pursuant to powers conferred by the Quarantine Act 1908. The evidence has ranged widely, 2. touching on the genealogy and history of the applicants' pigeons, the descriptions under which they have been advertised and sold, the susceptibility of pigeons and poultry to a virus known as _ Newcastle disease, the present state of health of the applicants' stock and the circumstances under which decisions were made by the respondents to "raid" various pigeon breeders around Australia and to proceed to the destruction of the applicants' birds. In all, the evidence does more for the reputation of the birds than for that of some of the principal human protagonists. The evidence shows that Mr Hanson brouacht his troubles upon himself by deceptive descriptions of some of his birds but that both the pigeons and poultry are healthy and that the decision of the quarantine authorities to destroy the flock was unnecessary, irrational and beyond the powers conferred upon them by the Quarantine Act. The first applicant, John Edward Hanson. grew up with pigeons. He is now 39 years old. When he was 9 vears old his father commenced to breed and show pigeons. Since then the family has shown pigeons every year at the Sydney Royal Easter Show and regularly at shows in other capital cities. Mr Hanson senior died in 1978. The first applicant then took over the flock, along with his mother. Iris Hanson the second applicant. In 1979 they commenced to use the name "Blenhaven Stud". They have purchased birds from time to time and retained for breeding 3. purposes some of the birds bred by themselves. The result is a major pigeon stud containing birds which, according to Mr Hanson, now have a value of about $120.000. In about 1976 Mr Hanson attended a series of lectures aviven in Sydney by a veteran pigeon breeder, Mr RA Flemina. In 1976 Me Fleming had published a book called "The Practical Approach to the Study of Eye-Siaqn in Pigeons". The book arqued the siqnificance of eye colour in selecting breeding stock, violet being particularly to be preferred. Mr Hanson and Mr Fleming, who then lived in Melbourne, kept in contact, having pigeon talk telephone conversations from time to time, but they had no commercial dealings until late 1979. In October or November 1979 Mr Fleming agreed to donate a bird to a charity auction to be held at Fairfield. Sydney. He informed Mr Hanson, adding that he proposed to describe the bird as "a Dordin of qreat value" but that this was being done as a qimmick to promote interest in his book. In the event. two birds were donated. A notice was attached to each cage stating that the birds were presented by Mr Fleming, that each was "Pure Dordin" and continuing: " These two birds were bred especially for this sale. They are fullbrothers (nest mates) and are bred from my Dordin Family, which are of the world famous Sproul Dordins of Coventry England. Both birds were selected by me for their eye-sign which. even though quite young, will develop into Dominant Breeding eyes. 4. The parents of these two cocks are also full brother and sister. I deliberately inbred them this way to be sure that they will blend into any other established family or may be used as Foundation Stock. . The grandparents of these birds are (NUGGET) a mealy cock which was purchased by Mr Sproul for 55,000 or §11,000 Aust. Direct from Dordin. The hen to which he was mated was the internationally famous (Miss France). She was also a direct purchase from Dordin and like the cock cost many thousands of dollars." The name "Dordin" was intended to be taken to refer toa strain of pigeons developed by a famous French breeder, Pierre Dordin. In fact, according to Mr Fleming, the pigeons had no connection with M. Dordin. They were Blanden stock, described by Mr Fleming as "an alli Australian bird". Mr Fleming did not mean by this description that the pigeons were Australian natives. Neither of the two Australian native varieties of fancy pigeon is raced. All pigeons raced in Australia are of stock ultimately imported, mostly from Europe. I take Mr Fleming merely to mean that all of the known ancestors of the birds were bred in Australia. The Blanden strain was developed by Mr Vin Blanden, an Australian. Mr Fleming explained in evidence that the Blandens closely resemble current European bloodlines "so much so, that even people with more experience in the sport than myself were easily fooled when presented with these birds and the claim I personally made about them". The birds sold at the auction were specifically chosen because of their similarity in appearance to Dordins. 5. Mr Hanson purchased one of the birds put up at the auction. He paid 8250 knowing, he says, that the bird was not in fact a Dordin. He was anxious to promote interest in his stud by letting it be thought that he had Dordin breeding stock. About six months after the Fairfield auction Mr Hanson acquired another bird from Mr Fleming. After many vears' effort Mr Fleming had produced a female chick with a violet eye. He contacted Mr Hanson and the two men arranged a further "gimmick". In front of newspaper cameras a cheque for $2,000 was handed by Mr Hanson to Mr Fleming as the "price" of the chick "sold" to him. Mr Fleming explained to reporters his theory of eye-sign and illustrated it by reference to the bird. The "qimmick" worked; Mr Hanson obtained publicity for his stud. But, after the reporters left, the cheque was torn up. The bird was taken by Mr Hanson as a gift. In cross-examination counsel for the respondent put to Mr Fleming the unlikelihood that he would qive away, as a three week old chick, the only violet eyed bird he had ever succeeded in producing. He explained: "I was not living in my own home at the time. I was renting breeding boxes from another gentleman and I knew that if I sold the bird to John, or if at least aave the bird to John, I could always have access to youngsters bred from it later". Mr Hanson did breed from the violet eyed chick. He mated it with the Fairfield auction ""Dordin" to produce a number of chicks in late 1980. However, either in 1980 or 1981 the 6. violet eyed hen dropped an egg bag and had to be destroyed. Thereafter Mr Hanson mated the Fairfield auction bird to other hens. At the moment he retains - and houses at Wyong - both the _ auction bird himself and about ten of his progeny. In 1983 Mr Fleming decided to auction off his entire flock. He wished to stimulate interest in the sale so he told Mr Hanson that the Blanden cock which had sired the violet eyed chick would' be in the sale and, if Mr Hanson wished to purchase him, Mr Fleming would take a pre-auction bid of $500 which would be publicised in the sale catalogue. Mr Hanson agreed and, on this occasion, money ($500) actually changed hands. The note on the bird in the auction catalogue did not make any claim that the bird was a Dordin but otherwise was not inhibited by the facts. The note included these statements: "T have refused an offer of $5,000 for him made in 1980 by J. Hanson of the Blenhaven Stud N.S.W. who previously purchased a daughter for the current Australian record-price paid for a pigeon of $2,900. This voungster was onlv three weeks old, when sold and developed into a 'dominant violet'. Today she is proving to be one of the top breeding hens in the stud, especially when crossed with the Blenhaven 'Bionics'." There had never been an offer of $5,000 for the bird. Mr Hanson had not paid $2,000 for the daughter (violet eye). And, by this time, the violet eyed hen had been dead for over two years. Mr Hanson had always described the Fairfield auction cock, the violet eyed hen and all of their progency - including 7 offspring of the Fairfield cock and Bionic hens - in his records as "Dordins". He said that he knew that they were not but that he wished to create in the minds of potential purchasers - to whom he was wont to show the book on request - the "possibility" that thev were Dordins. Later in his evidence he put it higher; he wanted people to think that the birds were qenuine Dordins. In case they had missed the point he spelled it out in invoices which he wrote. For example, an invoice for a pair of chicks bred in 1980 from the Fairfield auction bird and "violet eye" were described as "Genuine Dordins"", with a repetition of the "{nformation" relating to the purchase of ancestors from M Dordin which was contained in the notice on the cage at the auction. Mr Hanson's deceptive conduct did not stop at Dordins. In about 1979 he bought a cock which was an Appleby/Harrison cross, described by Mr Hanson as "a typical local breed". He had lost his ring in a race so he could not be precisely identified. Mr Hanson decided to call hima "Cattryse", a European strain developed by two brothers of that name. He mated him with Bionics, a local strain, and sold the off-spring as Cattryse or Cattryse-Lawry; Mr Lawry being a well known Australian breeder. The effect of using the European names, according to Mr Hanson, was to cause purchasers to be willing to pay more than they otherwise would; although sale prices were not necessarily higher 8. than good local stock sold as such and were well below what genuine imported Dordins or Cattryse would have fetched. But he did agree in his evidence that "it was all just a fraud on the purchasers". His explanation was that everyone else was doing it too. There does appear to be a relaxed attitude. amongst pigeon fanciers, to representation of genealogy. Mr T A Willis, who has had' over 35 years involvement with pigeons and who is a former secretary of the Pigeon Fanciers Protection Union of Australia, was involved in the arrangements for the auction at Fairfield in 1979 at which Mr Fleming's two "Dordins" were sold. He gave evidence that, at the time, he did not believe that the birds were Dordins because he did not believe at that time that there were any genuine Dordins in Australia. However, he did not place much importance on what Mr Fleming chose to call his birds; "anybody can call a bird a Dordin". There 1s no stud book kept in Australia. Whether or not there were any genuine Dordins in Australia in 1979, claims were being made by a number of persons other than Mr Hanson and Mr Fleming, breeders and racers, to possession of Dordins. Both the 1979 autumn and spring editions of "The Australian Racing Pigeon" contain articles about fanciers - one in Victoria and the other in Tasmania - which feature their "Dordins". From that time onwards that magazine has run frequent advertisements, inserted by a variety of breeders, containing 9. references to Dordins. The Blenhaven Stud was a comparitive late-comer to this practice. Mr Hanson changed his regular advertisement in the magazine to include reference to the _ availability of "Genuine Dordins" and "Genuine Cattryse" only for the October-November 1983 issue. He has maintained that - according to him - mendacious advertisement ever since. Since 28 January 1975 there has heen in force a proclamation under the Quarantine Act prohibiting the importation into Australia of "birds (including poultry) unless the Minister or a person authorised by him... has, by instrument in writing, consented to the importation". Between 1949 and 1975 birds could lawfully be imported, without the necessity for ministerial consent, only from New Zealand. It was said in an affidavit by Mr GS Carter, Assistant Director of Animal Quarantine in the New South Wales Department of Agriculture, that there is a practice of Commonwealth-State consultation in relation to an importation requiring consent and that no such consent has ever been granted. It appears that, for this reason, the advertising of "imported" strains attracted the attention of the quarantine authorities. The reasoning was never spelt out for me but apparently the quarantine authorities took the view that all birds sold as "Dordin" or "Cattryse" must themselves have been illegally imported into Australia or must be descendants of birds so imported. The evidence necessary to enable me to reach that conclusion was never provided. There was no evidence to negative the possibility that such birds could 10. have been legally imported into Australia from Europe via New Zealand before 1975; the evidence shows that Dordins and Cattryse were distinct strains, so named, long before 1975. "Dordins" _ were advertised for sale in Squilis International Pigeon Racing Year Book, published in England, in 1958 and "Cattryse" in 1964. The names may not go back much beyond those dates but the evidence does not enable me even to negative the possibility that the strains existed, as such, in 1949 when - so far as is proved - the first import restriction was imposed. There is evidence that M Dordin was racing pigeons in the years immediately after the First World War. This lack of evidence was the result of deliberate decisions made by, or on behalf of, the respondents. During the first day of the hearing, 18 October. I pointed out to counsel that there was no evidence before me as to the date of the development of the Dordin strain or that 1t post dated anv relevant proclamation. On the third day of the hearing, 29 October, counsel for the applicants attempted to remedv the position by tendering an article on M Dordin which had been published in a leading international magazine "Racing Pigeon Pictorial" but, in the face of an objection by counsel for the respondents, I felt bound to reject the material as hearsay. The respondents tendered no evidence to justify the assumption - ie that all "Dordins" and ""Cattryse"" must necessarily be, or be descended from, illegally imported birds - which underlay both their conduct in the matter and their case before me. ll. However, whatever the validity of the assumption, the advertisements caused concern to the quarantine authorities. The reason for their concern, and possibly for the prohibition on the importation into Australia of birds, was the existence in Europe, and in most other countries of the world, of an avian virus disease known as Newcastle disease, the name being taken from the fact of its first discovery, in 1926, in chickens in Newcastle, England. Apart from one outbreak in poultry in Victoria in 1932, which was eradicated by slaughter, the disease, in its pathogenic state, has not been detected in Australia. The disease was declared to be a 'quardntinable disease' for the purposes of the Quarantine Act on 16 September 1977. There exist a number of strains of the disease, not all of which are pathogenic. However, some strains are hiqghly virulent. Dr H A Westbury of the Attwood Institute of Veterinary Research in Victoria, a specialist in the study of viral diseases in birds, described Newcastle disease as "the most feared disease of poultry around the world". The pathogenic strains cause, in pigeons, various degrees of paralysis - neck, wing or leg - somersaulting and circling and, in chickens, a reduction in egg production, diarrhoea, inability to walk, fly, eat or drink, loss of muscular co-ordination and, eventually, death. After an incubation period of about 6 weeks infected birds, whether or not themselves immune, will shed virus in their droppings - and in the case of some strains also by coughing - thus transmitting the virus to other birds in the flock. The speed of transmission within a 12. flock varies from strain to strain ranging, according to Dr Westbury, from seven to ten days, in the case of a strain which transmits quickly, to six or seven weeks, in the case of a strain of slow transmission. The virus will also spread from shed to shed, being easily carried on the shoes and clothing of humans. Some infected birds may not themselves exhibit symptoms, having been previously immunised by the reception into their bodies of a non-pathogenic strain of the virus, but, notwithstanding their own immunity, they will excrete the pathogenic virus for a period of about 28 days, thereby acting as carriers to others. Natural immunity is relatively common in pigeons but rare in chickens. Dr Westbury declined to put a figure on the penetration within a flock of a pathogenic strain because he thought that conditions would be too variable but the proportion of the flock likely to become infected - whether or not exhibiting symptoms - is likely to be hich. Dr GM J Cross, Special Veterinary Officer (Poultry Health) of the New South Wales Department of Agriculture agreed that, if an infected bird were introduced into a cage containing 100 pigeons, all would be likely to be infected, by the end of the incubation period, whether or not showing clinical signs. Concern at the possibility of the introduction of Newcastle disease into Australia, with potentially devastating consequences for the poultry industry, has been increased by recent events in Europe. Dr Cross gave evidence that a new virulent strain of the virus was detected in Egypt in 1981-1982. It rapidly spread to Europe, being apparently carried by pigeons. 13. The disease appeared in Cornwall in June 1983 and, within six months, was widespread in Great Britain. In February 1984 outbreaks of the disease were experienced in commercial chicken flocks. By July 1984 over 500,000 chickens had been slaughtered in Great Britain, in attempts to control the spread of the disease. The spread of the disease has been ascribed to virus passed by pigeon droppings and dead pigeons contaminating poultry feed. Dr Cross said that the United Kingdom Ministry of Agriculture had encouraged the vaccination of pigeons, leading to a dramatic reduction of clinical cases, but the disease is still present in that country. The same strain has been detected in Pigeons imported into Japan and the United States of America. The local quarantine authorities reacted to these events in Europe by taking notice of the advertisements in Australian publications offering European pigeon strains, including Nordins and Cattryse. In his affidavit Mr Carter described what happened: "I have been involved in the planning of raids upon premises in New South Wales and Victoria in respect of suspected illegal importation of pigeons. This planning followed the collection of a mass of documentary evidence, including open advertising of five "imported" strains by breeders in New South Wales and Victoria. This evidence was not verified until about late September 1964. It required delaying raids until as many locations as possible became known and taking synchronized action against them. It necessitated balancing the risk of providing opportunity for the escape of virus and the risk that 14. importers might release or re-locate birds once they became aware of action being taken against some of them. Initially, the plan was to conduct simultaneous raids on 3 October 1984 but the date had to be deferred to 10 October 1984." Amongst the premises selected for a raid on 10 October were those of the applicants. At 8 am that day Mr Roy Everett, a qualified veterinary surgeon who is a quarantine officer based in Newcastle and the third respondent to this Application, entered the Hanson property in the company of Mr John Hall, another quarantine officer, and Mr D 8S Watson, a Customs officer. Mr Hanson had gone to his work as a printer but the officers spoke to his wife and he returned within the hour. They showed to him his advertisement in "The Australian Pigeon Fancier". He said that everything was "not what it seems". According to Mr Everett, Mr Hanson said that some of his birds were "what we call Dordins and Cattryse". He elaborated on this by telling Mr Everett about the circumstances of the acquisitions from Mr Fleming, claiming that none of the birds were truly Dordins or Cattryse, that these names were a fabrication to help to sell the birds. He produced his records, including the notice affixed to the cage at the Fairfield auction. Mr Everett inspected the birds. He found no sign of disease. At about 12.30 pm he issued a notice putting into quarantine "all birds and associated building and goods on the property of Lot 13, Jensen Road, Wyong". Mr Everett called up two other quarantine officers to guard the premises and went to Wyong Police Station. He telephoned Mr John Keogh, a quarantine officer then at the 15. Customs House in Sydney. The Customs House was being used as "the centre of operations" for the raids. Mr Hanson told Mr Keogh what he had found, including a reference to the cage notice. He informed Mr Keogh that Mr Hanson had said that this was a gimmick, that he was not selling Dordins or Cattrysse, that the advertisements were false and that he had found no evidence of any "imported" bird being brought into the flock since January 1983. Mr Keogh sought instructions from Mr D A Dickinson, the Chief Quarantine Officer (animals) in New South Wales, the second respondent. He returned to the telephone and instructed Mr Everett to go ahead and destroy the birds. Mr Everett demurred. He told Mr Keogh: "There is virtually no evidence there of imported birds. We are only talking about one bird on one piece of paper". Mr Keogh transferred the call to Mr Dickinson. Mr Everett repeated to Mr Dickinson the information he had given to Mr Keogh. He told Mr Dickinson that he could see no sian of ill health in the birds but Mr Dickinson confirmed the order to kill the birds. However, the officers in Wyong were dissatisfied. Mr Watson telephoned his superior in the Customs Department. Mr Everett was put on the line and found he was speaking again to Mr Keogh. Mr Keogh said to him "There is other information. It all fits together. Go ahead". (The nature of this information has not been revealed by the evidence. Mr Keogh did not give evidence.) Mr Everett telephoned Mr Hanson, who had returned to his office, and arranged to meet him at his property. He did so at about 3 pm, when he handed to both of the applicants notices of seizure of all birds (including poultry) on the property. Mr 16. Everett prepared to destroy the birds but at about 4 pm news came that an injunction to restrain the destruction had been granted by a judge of the Supreme Court of New South Wales. That injunction was framed to operate until 11 am on the following morning. At about 10 am the next day, on application by counsel for the applicants, I made ex parte orders, under 3.15 of the Administrative Decisions (Judicial Review) Act, suspending the operation of the decision to destroy the birds and staying action to implement the decision. Those orders were made subject to conditions, including the grant of leave to the respondents to apply for dissolution or variation at any time. That afternoon counsel for the respondent made an application in chambers for a dissolution of the orders. I refused the application, taking the view that the matter should be dealt with in court on the following day. On that day, 12 October, I heard evidence on each side and continued the interim orders until the final hearing of the matter. I directed that the matter proceed to an urgent final hearing and it was in fact heard on 18. 19 and 29 October. Before turning to the legal argument it is appropriate to refer to the decision to destroy the birds. It is said by the respondents - and this is accepted by the applicants - that the actual decision to destroy was made by Mr Dickinson who was, apparently, the senior officer at the Customs House command centre on the day of the raids. Mr Dickinson has aworn an affidavit in which he listed the reasons actuating his decision. They were: "(a) (b) (ec) (d) (e) (f) {g) (h) (4) 17. Newcastle disease is an extremely virulent and deadly disease to which Australian poultry and bird life are particularly susceptible. There have been recent outbreaks of the disease in its more virulent form in Europe, (including Britain), Japan and The United States of America in pigeons and that it has spread from pigeons to poultry in Britain resulting in the slaughter of a half million chickens in an unsuccessful attempt to eradicate the disease. The pigeon strains known as Cattrysse and Dordin have only heen developed in Europe in recent times and Hanson had previously advertised Dordins for sale. I had reached the conclusion that the birds which Hanson had been advertising for sale were Dordins. Mr Hanson must have more than one Dordin in order to sell Dordins and repeated importations would be necessary to maintain the strain otherwise in-breeding would have a deleterious effect on his stock. That from an inspection of the birds it is not possible to say that a bird was not a Dordin. That there was no known effective method of treating Newcastle disease or of testing pigeons to prove them free from infection from Newcastle Disease. That advertisements have appeared in British pigeon fancier publications stating that Dordins and Cattrysse were being sold to Australian breeders and taken to Australia. On the probabilities, Hanson's Dordins would have been infected with Newcastle Disease and other birds in the loft would have been exposed to these infected birds, with a high probability that they also would become infected. 18. (4) Pigeons of overseas origin may be vaccinated against Newcastle Disease with a live vaccine which would protect them against the disease and render them apparently healthy, but, in fact, they could be shedding both the Newcastle Disease Virus and the vaccine virus: the latter in common with the former being not present in Australia. (k) There had been a number of instances of the interception of pigeons and pigeon eggs at points of entry into Australia from overseas." The applicants accept the factual correctness of items (a), (b), (f), (4), and (k) but say that, in themselves, they could furnish no rational basis for the decision to destroy those birds; they are mere background material; there would need to be some reason to believe that these birds are infected with Newcastle disease before tt would be rational to order their destruction. I add a reference to reason (h). I accept that Mr Dickinson had read and heard suggestions that pigeons of various European strains, including Dordin annd Cattrysse, were from time to time illegally imported into Australia. If s0, {it would have been reasonable for him to be concerned at the possibility that Newcastle disease might be introduced into this country by such birds. There is no evidence before me to show that illegal importation has in fact occurred but the mere suggestion, having regard to the catastrophic nature of the disease, provided ample justification for an investigation of those people who claimed to offer for sale birds of the relevant strains. Although I have 19. formed, and am forced to express, views critical of the logic and reasonableness of the decision taken by Mr Dickinson I do not doubt the sincerity of his motivation. The applicants admit that over a period of about twelve months prior to the raid they advertised birds for sale as Dordins, as claimed in item (c), but they say, correctly, that the period during which Cattrysse and Dordin have been known as such extends back much further. It may be that Mr Dickinson - who does not claim to be a pigeon expert - was seriously misinformed about the date of development of these strains. In evidence he said that "what triggered interest in" the Hansons "was the representation in the magazines that birds were being sold as genuine Dordins and genuine Cattrysse" and that "this supports some sort of inference that they must therefore have been imported". He went on to say: "Over the same period of time the importation of these new strains of pigeons was occurring and the disease was spreading through Europe. Q. That is post-1981 at the earliest, is that right? A. Yes." A possible interpretation of this evidence is that, if birds were properly to be described as Dordins or Cattrysse, they must have been imported post 1981, because those strains had only @ 20. been known as such in that period. My view that this was what Mr Dickinson understood to be the position is supported by an answer to a question I asked him at the conclusion of his evidence: "Q. Well we could, at least theoretically, have the situation that birds whose ancestors were brought in quite a number of years ago were being bred, called Dordins, and that there was an interchange between various breeders in Australia and they keep on producing new stock which they continue to call Dordins? A. I believe that to refer to a bird as a Dordin meant that it was of the Dordin strain from overseas and that this strain had appeared, being developed only in recent years, appeared in Australia in that time. That was the basis of the expert evidence that had been given." If that was his belief then his concern that the birds properly so described might be carriers of the new strain of Newcastle disease is understandable although, even then, destruction without prior testing is difficult to justify. But if it was Mr Dickinson's information that Dordins and Cattrysse had been developed only since 1981 then he was sadly misinformed, as a glance at any of the major pigeon magazines published either in this country or in England would have shown. If that belief was entertained, Mr Dickinson might reasonably have questioned it when informed by Mr Everett that Mr Hanson had in his possession a piece of paper, the cage notice, relating to a sale in 1979 of "Pure Dordins" and that his breeding book showed entries for Dordins for the 1980 breeding season and earlier. 21. Alternatively, if the passage in his evidence to which I have referred is not to be taken as indicating a belief by Mr Dickinson that the Dordin and Cattrysse strains were developed _ Post 1981 there was no logical reason for him to infer that, simply because these birds were advertised under those names, they had been illegally imported since 1981. This would represent no more than one possibility, putting the quarantine authorities upon inquiry. If the inquiry, as here, yielded evidence to show that the male ancestor bird had been purchased in 1979, and that all of the existing "Dordin" and "Cattrysse" were recorded as having been bred on the property from progenitors acquired before 1981, the possibility would be rebutted. The investigator would rationally be left with a high degree of confidence that these birds were not post 1981 imports, or the progeny of such imports. Once that position was reached there was no significance in the question whether or not the birds were truly Dordins or Cattrysse. Dr Westbury explained that Newcastle disease could not be communicated through the genes; the virus could be transmitted from parent to chick only by the physical contact of the birds or the penetration by the virus of an egg. A Dordin chick hatched in Australia in an infection free environment is no more susceptible to the disease than any other pigeon. I asked Dr Westbury to compare a chick bred in Australia whose grandparents were imported from England with a chick whose forebears, for 20 generations, had been bred in Australia. He replied that the only difference, in relation to susceptibility, is that the latter bird may be more 22. susceptible than the former; the former may have a degree of inbred resistance to the disease which the latter lacks. Item (d) in Mr Dickinson's reasons, his conclusion that the birds which Mr Hanson had been advertising were in fact Dordins, appears to have been critical to his thinking. But, in fact, the "conclusion" was based entirely upon the advertisements. In cross-examination he agreed that he had been told by Mr Everett about the date of acquisition of the Fairfield auction bird and the violet eyed bird. His evidence went on: "Q. Tell me, did you before issuing the order try to find out from someone who knew more about it than you what sort of life span might have passed on the probabilities in relation to these two birds, their own parents and their grandparents? A. It was not critical to the decision. Q. Was it not? A. They were only examples in my view. Q. Examples of what? A. Of the sort of operation which Mr Hanson could have been involved in. Q. Was there any evidence before you when you made your decision of any other examples? A. The evidence of the advertisement was critical. Q. What was the evidence of the advertisements, the examples of? A. The advertisement said that he had Dordins and Cattryse available for sale, which meant that he must have been 23. breeding them and having birds progeny that he was selling. The evidence that you describe in the form of the advertisements is consistent with many different facts or conclusions? I was concentrating on just one. You did not for example give any weight to the suggestion that that all might be some sort of misrepresentation or concoction that Mr Hanson had perhaps foolishly decided to indulge himself in? I was aware that when these visits were made to people all of whom had advertised, that they may say that the advertisements were wrong. What, had you approached that risk with a general sceptical frame of mind, had you? No. The opportunity was given to all the people to explain about the advertisements and prove that they did not have the Dordins or Cattryse or whatever they were advertising available. Just explain to me, would you, the opportunity that you understand to have been given to Mr Hanson in this case? The opportunity up to the time of Mr Everett's report to me. But you agree, do not you, that if you are not familiar with particulars - the substance of what was being put by Mr Hanson to Mr Everett was the whole thing was a fraud, a gimmick, a con? The sale of that bird was put forward as a promotional gimmick and it was said he did not have, did not really have, the birds for sale but there was nothing to substantiate that. What, did you say to yourself, "I don't believe it"? 24. A. Yes, I had no basis to believe it... . Q. Did you have any basis to believe that he did have Dordins and Cattryse for sale? A. He advertised that he had then. Q. That was the whole basis, was it? A. Yes, and those other matters that we have been canvassing about the sale rather added to that. It certainly did not detract from it. Q. You referred to the importance of the . advertisements. A. Yes." In fairness to Mr Dickinson it should be said that his suspicions were justifiably aroused by the advertisements of the applicants that they had Dordins and Cattrysse for sale. The applicants have only themselves to blame for being included on the list of suspects. However, as Mr Dickinson himself conceded, the advertisements were not necessarily conclusive, an explanation might be offered. In the case of the applicants it was offered. Mr Hanson immediately told Mr Everett that the advertisements were false and told him about the "gimmick" involving Mr Fleming. Mr Everett reported this to Mr Dickinson. Mr Dickinson knew that, on that same day, Mr Fleming had been visited by quarantine officers in Adelaide, where he now lives, but he made no effort to check Mr Hanson's story about the "qimmick" with Mr Fleming. He merely reported the story to Canberra, along with the information that he had ordered the destruction of the birds. Nothing would have been lost by taking a few hours to check the position. The making of a decision to 25. destroy before checking the story given by Mr Hanson, and supported by documents inspected by Mr Everett, which if true would negative the proposition that the birds were recent imports _ or the descendants of recent imports, was an unreasonable action explicable only on the basis of a pre-conceived view that the fact of the advertisements necessarily required destruction of the flock. On many occasions during the course of his evidence Mr Dickinson referred to the critical nature, in his thinking, of the advertisments. For example: "Q. In that report I do not understand the relevance of a bird which was in Australia, according to the documentation you had, in 1979. Whatever the concern might be about chicks and eggs that may have been imported in recent times from England, if there was one bird that you could be fairly comfortable about it would be a bird that you knew had been around in Australia since 1979, would it not? A. Yes, but my concern was about subsequent importations. Q. That is what I do not understand, why a critical factor in the decision making was the fact that Mr Hanson had a document which showed a bird in 1979 purchased under the title of a Dordin? A. That was not such a critical factor in my mind as the advertisement and I was looking for reasons why the evidence of the advertisement should be set aside. Q. . . . What material over and above the claim in advertisements of Dordins and Cattryse for sale did your officers obtain on the inspection which you regarded as material in deciding to give the instructions to destroy? 26. A. Rather the negative material that the evidence of the advertisements could not be explained away satisfactorily. .. Q. If you had not been given any information about the Fleming pedigree, do you believe that your decision would have been the same as the fact was, namely, to destroy the birds? A. Well, your Honour, it was a profound decision, the decisions during that morning and it is difficult for me to say. But I believe that in the absence of any information or any convincing evidence, that those advertisements were incorrect, that I would have given the order." The best evidence to negative the correctness of the advertisements would be that which Mr Everett obtained, a denial of their accuracy combined with an explanation and a reference to a person who could corroborate that explanation. Counsel for the respondents submitted that I should regard Messrs Hanson and Fleming as being persons of no credit and that I should reject the evidence which they each gave regarding the "gimmicks". One difficulty about the complete discarding of what they say, from the respondents' point of view, is that the whole case for the respondents assumes the truth of Mr Hanson's advertisements. However, more importantly, and perhaps surprisingly in view of their record, I am satisifed that both Mr Hanson and Mr Fleming told the true story in the witness box. My view depends partly upon demeanour, especially under rigorous cross-examination. It depends more upon a consideration of the probabilities. Each man had a substantial 27. motive to engage in the "gimmicks"; each might rationalise his behaviour with the thought that others were behaving in the same manner. Mr Hanson's records, which he had no opportunity to - manufacture after notice of the raid, corroborate his flexibility in matters of nomenclature. The relationship between the two men does not appear to be so close as to cause Mr Fleming, for no advantage to himself, to come from Adelaide and commit deliberate, detailed perjury. Reason (e) adds nothing to the decision to destroy; as Mr Dickinson agreed in his evidence the new breeding stock might have been obtained from "Dordin" stock already being offered as such by other breeders in Australia. Counsel for the applicants challenges the last portion of reason (g), that is that there is no known effective method to prove pigeons to be free from infection from Newcastle disease. The situation is complex but, as I will explain later, ina stable flock clinical signs of the existence of a pathogenic strain of the virus will appear within a maximum of 16 weeks of the introduction into the flock of the virus unless there is within that flock a non-pathogenic strain of the disease conferring immunity upon the birds. There are various tests available, some involving the taking of blood samples without damage to the birds and others involving the killing of a sample of the birds and the taking of tissue, to establish the existence or otherwise within a flock of a strain of Newcastle disease. 28. The blood tests are not specific as to strain; they do not even distinguish between pathogenic and non-pathogenic strains. However, if, in a stable flock, there are no clinical signs, test _ results excluding the existence of any strain of the virus will have the effect of excluding the only hypothesis, natural immunity, consistent with the existence of infection in an apparently healthy bird. If tests reveal the existence of a strain of the disease, tissue tests may be used to identify it. In this sense, but limited to a stable flock situation, there are known effective methods to prove pigeons to be free from infection from Newcastle disease. Reason (i) is a conclusion that, on the probabilities, the applicants' Dordins would have been infected with Newcastle disease, with a high probability that other birds in the loft would also become infected. No justification for this conclusion - except the mistaken belief that all "Dordins" must have been imported from Europe since 1981 - has been advanced either in evidence or by submission. Not only is there no evidence that the applicants' pigeons are infected; for reasons I shail explain, the only available inference is that they are not infected. That inference rests upon the information obtained by Mr Everett, and reported to Mr Dickinson, before he made his decision to order the slaughter of the flock. 29. Counsel for the applicants argues that the actions of the respondents on 10 October involved three separate administrative actions: a decision by Mr Everett at about 12.30 - pm to order into quarantine the birds and the associated building and goods on the applicants' property; the decision by Mr Dickinson, taken shortly afterwards, and following the telephone conversation between Mr Everett and Mr Keogh, that the birds should be destroyed; and the issue of seizure orders in respect of the birds by Mr Everett to each of the applicants at about 3 pm. This analysis is not disputed and is, I think, correct. The second and third matters may be considered together but it is desirable to separately consider the first question: the validity of the quarantine order. In respect of that order counsel for the respondents rely in the alternative on each of two separate provisions in the Act: ss. 35 and 74A. Part IV of the Quarantine Act relates to the quarantine of vessels, persons and goods; the word 'goods' including animals (s.16A), and so birds: see Mattinson v Multiple Incubators Pty Limited £19771 1 NSWLR 368. Division I of that Part (ss.16A-34), headed "Liability to Quarantine" deals with vessels, installations attached to the Australian seabed and their passengers. It has no relevance to persons or goods unconnected with a vessel or installation. However, Division 2 (ss.35-49), which is headed "Performance of Quarantine", although primarily @ 30. designed to specify powers, procedures and offences in relation to persons falling within Division 1, may be wider. Section 35(1) provides: "35.(1) A quarantine officer may, by order in writing, order into quarantine any vessel, Australian installation, installation that is in Australian waters for the purpose of becoming attached to the Australian seabed, person, or goods (whether subject to quarantine or not), being or likely to be, in his opinion, infected with a quarantinable disease or a source of infection with a quarantineable disease." Counsel for the respondents submit that s.35 is not limited to goods which have been imported into Australia upon a vessel, or goods found upon an installation, to which Division 1 applies. They emphasise the words in parenthesis "whether subject to quarantine or not". I accept this submission. It seems to me the section is applicable to any goods - however long they may have been in Australia - which answer any one of the descriptions of (a) being infected with a quarantinable disease; (b) likely to be, in the opinion of the quarantine officer who issues the order, infected with a quarantinable disease; (c) being a source of infection with a quarantinable disease; or (d) likely to be, in the opinion of the quarantine officer who issues the order, a source of infection with a quarantinable disease. 31. In the present circumstances situations (a) and (c) can be considered together. The evidence clearly demonstrates that . the quarantinable disease known as Newcastle disease is highly infectious; if any of the items the subject of the order were infected with the disease they were also a source of infection, and vice versa. Similarly (b) and (d) can be considered together. Neither of the words "infected" or "infection" are defined in the Quarantine Act. The Shorter Oxford English Dictionary defines the verb 'infect' to include the following meanings: "2. To spoil or corrupt by noxious influence, admixture or alloy; to adulterate. 3. To fill (the air, etc) with noxious corruption or the germs of disease. 4. To affect with disease; to act upon by infection or contagion. . . 9. To affect or influence with some quality or by introducing something extraneous". The noun "infection" is said to bear the following, inter alia, meanings: "2. Contamination of air or water etc. 3. The agency, substance, germ or principle by which an infectious disease is communicated or transmitted. 4. The communication of disease especially by the agency of the atmosphere or water; the action 32. or process of being infected; the fact of being infected. 5. Disease caused by infection..." These definitions make clear that, in their ordinary English meanings, both words involve some actual adverse physical effect, either upon a body susceptible to infection or by contamination of the media - air, water etc - by which the deleterious influence - bacteria, virus etc - may be carried to such a body. cf Wong Hoy Woon v Duncan (1894) 3 BCR 318 at p 322 wherein Crease J spoke of 'infected or exposed to infection' as covering situations where persons "have been brought into actual contact with or within the baleful influence of an infectious or contagious disease" as by travelling in the same boat as an infected person. There is no evidence to show that, in these senses, the birds housed at the Hanson property - whether pigeons or poultry - or any of the buildings or associated goods was "infected" with, or "a source of infection" of, Newcastie disease. Indeed, the evidence points overwhelmingly to the opposite conclusion. Mr Hanson gave evidence that "all of the birds in my collection are in perfect health". He claims to be fastidious to prevent any form of ill health in any of the birds and to keep records of any occasions of i111 health. His qualifications to give this evidence were questioned but I took the view that his 30 years experience in breeding, raising and caring for pigeons equipped him to depose as to the state of health of his birds. His opinion was not challenged in cross-examination. Moreover, 33. significantly, Mr Everett found no sign of disease when he inspected the applicants' property. I think that this is significant because of the evidence given by Dr Westbury and Dr Cross as to the high transmissibility of pathogenic strains of Newcastle disease. Both experts accepted that, if Newcastle disease was introduced into a flock of pigeons or chickens, it would rapidly infect a large proportion of the flock. The speed of transmission would depend upon the length of uncompleted incubation time in the host bird and the particular strain involved but, taking outside possibilities, infection would be widespread after about 16 weeks. It would be possible for infected pigeons, having been made immune by a non-pathogenic strain of the virus, to be asymptomatic but this is apparently rare in chickens. That is important in the present case. The applicants keep chickens which range freely during the day. Some of the photographs tendered in evidence show them in the immediate vicinity of the pigeon cages. The pigeons are let out of their cages for training and exercise, in the racing season - April to October - twice a day for a period ranging from about 20 minutes to an hour and a half. It is inevitable that, under those conditions, any suppressed infection suffered by the pigeons would rapidly transmit to the chickens. The fact that Mr Everett found no sign of disease in the chickens is a clear pointer to an absence of infection in the pigeons. This is not the case of a newly assembled flock; indeed it is not suggested that there have been any accessions to the flock during recent months. I find that, adopting the ordinary English meanings of 34. the words "infected" and "infection", none of the birds - whether pigeons or poultry-, the buildings or associated goods were at the time of the making of the order either infected with, or a source of infection of, Newcastle disease. However, counsel for the respondents submit that the words are not confined to their ordinary meanings. They pointed to other provisions of the Act where the word 'infect' was used in a context indicating an intention to include a situation where something has been in contact with a disease; they asserted, without being able to point to any example, that it was aiso used to refer to something suspected of being in contact with a disease. I accept the submission that the word may include actual contact with a disease. There is in the present case no evidence of actual contact. I reject the view that suspicion of contact amounts to 'infection' but, in any event, there is no evidence that any person formed a suspicion that any of the birds or the buildings or associated goods at the Hanson property had been in contact with Newcastle disease. The evidence clearly indicates that the Hanson property was singled out, and the various orders given, simply because the applicants had advertised the availability for sale of Dordins and Cattrysse. At the highest, there was no more than a theoretical possibility of contact with Newcastle disease. 35. The situations (b) and (d) referred to above may be shortly discussed. Each of them requires the formation by the quarantine officer who gives the order in writing of a particular opinion; either that the goods are likely to be infected with a quarantinable disease or that they are likely to be a source of infection of such a disease. There is no evidence in this case of the formation of either of those opinions. The relevant officer, Mr Everett, swore two affidavits and gave oral evidence. Nothing was said either to express or to imply that he had formed either of those opinions. Significantly, he was not asked about the matter by his own counsel. Indeed, the inference is compelling that Mr Everett had precisely the opposite opinion. He contested the instruction given to him by Mr Keogh to slaughter the birds, firstly with Mr Keogh and then with Mr Dickinson. The instruction being confirmed, he discussed the matter with his colleagues and remained with them while Mr Watson contacted his superior in the Customs Department to question the order. The order being again confirmed he gave to Mr Hanson sufficient notice to allow him to obtain a judicial order to restrain the destruction. It is clear that Mr Everett saw as unreasonable and unnecessary the slaughter of the birds. This is quite inconsistent with the formation of any opinion by him that they or their cages or associated goods were likely to be infected by, or a source of infection of, a scourge as devastating as Newcastle disease. In expressing this view I have not overlooked that Mr Everett did in fact issue an order under s.35. Under some circumstances an inference as to his opinion 36. might arise from that fact. However, the course he took - to investigate, to impose a quarantine order as a holding measure and to telephone the Customs House for further directions - appears to have been in accordance with prior instructions. Counsel for the applicants submits that the form of the order issued by Mr Everett was defective, as an order under s.35(1), and that the making of the order was contrary to the rules of natural justice. I need not deal with those matters. The goods the subject of the order do not fall within any of the four descriptions referred to in the subsection. The order may not be supported by reference to s.35(1). Section 74A is contained in Part VII of the Act, headed "Miscellaneous". It is a self contained provision relating to "infected goods" - as specially defined for the purposes of the section by subs (9) - found within premises. Relevantly it provides: "774A. (1) A quarantine officer may, with the consent of the occupier of any premises, enter the premises and exercise the functions of a quarantine officer under this section in relation to those premises. (2) Where a quarantine officer has reason to believe that premises contain infected goods, the quarantine officer may make an application to a Justice of the Peace for a warrant (to be known as "Quarantine Warrant") authorizing the quarantine officer to enter the premises and to exercise the functions of a quarantine officer under this section in relation to those premises. 37. (3) If, on an application under sub-section (2), the Justice of the Peace its satisfied, by information on oath or affirmation, that there is reasonable ground for believing that the premises to which the application relates are premises on which there are infected goods, the Justice of the Peace shall grant a Quarantine Warrant authorizing the quarantine officer, with such assistance as the quarantine officer thinks necessary, to enter the premises, during such hours of the day or night as the warrant specifies, or, if the warrant so specifies, at any time, if necessary by force, and to exercise the functions of a quarantine afficer under this section in relation to those premises. (4) The functions of a quarantine officer under this section in relation to premises are - (a) to search the premises for infected goods and, for that purpose. to break open and search any cupboard, drawer, chest, trunk, box, package or other receptable, whether a fixture or not, on the premises; (b) to order into quarantine any infected goods found on the premises; (ce) .. - (d) ... (e) (ff). (g) to exercise any other powers that the quarantine officer has under this Act in respect of the premises or infected goods found on the premises, .. (5)... (6)... (7)... whe 38. (8) This section does not limit the powers of a quarantine officer or other person under any other provision of this Act. (9) In this section - "infected goods" means - (a) (b) (c) (d) (e) goods infected with a quarantinable disease; goods that a quarantine officer suspects, on reasonable grounds, are likely to be infected with a quarantinable disease; goods that have been exposed to infection with a quarantinable disease; goods that have been - (1) imported into Australia or the Cocos Islands; (ii) brought into any port or Place in Australia or the Cocos Islands; (iii) removed from a part of Australia to another part of Australia; or (iv) removed from a part of the Cocos Islands to another part of the Cocos Islands, in contravention of this Act or any proclamation under this Act; or subject to sub-section (10), goods that have been in contact with, or that a quarantine officer suspects, on reasonable grounds, have been in contact with, goods referred to in paragraph (a), (b), (c) or (da); 'premises' includes... (10) For the purposes of this section - 39. (a) goods shail be deemed to have been in contact with each other if they have been in close proximity to each other; (b) an animal shall be deemed to have been in contact with any animal of which it is the progeny; (c) 2... (d) goods that have been in contact with other goods shall be deemed to have been in contact with any goods with which those other goods have been in contact (including any goods with which those other goods are deemed to have been in contact by virtue of this sub-section). Counsel for the applicants denies that the functions exercised by Mr Everett were 'with the consent of the occupier' and contends that the alternative basis for action - a search warrant - is inapplicable because the warrant relied upon had issued in favour of Mr David de Souja, the first respondent, counsel contending that the powers under the warrant were non-delegable. However, it is not necessary to consider those submissions because the applicants are entitled to succeed on a more fundamental aspect of 3.74A - there were no 'infected goods', even within the extended meaning accorded to that term by subs (9), on the premises. The respondents argue, and I agree, that 3.74A is designed to include cases where it is not yet possible to demonstrate actual infection; it thus allows the quarantine officer to order into quarantine goods found by him upon premises 40. he has entered which he "suspects, on reasonable grounds, are likely to be infected with a quarantinable disease" (para (b)) or which "have been exposed to infection with a quarantinable disease" (para (c) ) or which have been illegaliy imported into Australia (para (d) ) or which have been in contact - as that term is defined in subs (10) - with any of the above (para (e) ). None of those situations is here established. There is no evidence that Mr Everett suspected that the subject birds were likely to be infected with a quarantinable disease: (para (b) ). Counsel for the respondents argue that the applicants are obliged to show that he did not have such a suspicion. For reasons which I will indicate, I do not agree. The subject goods are only caught by this paragraph in the definition, and therefore the section, if the suspicion is proved. But in any event, Mr Everett's disagreement with the decision of Mr Dickinson is inconsistent with the existence in his mind of a suspicion that the birds were likely to be infected. I add that, in any case, there would have been no reasonable grounds for any such suspicion. There is no evidence that the birds, or any of then, have ever been exposed to infection with Newcastle disease: para (c). It is clear that, as the pigeons are not of a native Australian variety, they or their ancestors must have been imported into Australia at some time. There is nothing to suggest that the importation was recent or in breach of the Quarantine Act or of any proclamation thereunder: para (d). 41. There is no evidence of contact with, or of a suspicion of contact with, any goods covered by paragraphs (a), (b), (c), or (d): para (e). Section 74A has no application to the facts of this case. It provides no foundation for the quarantine order made by Mr Everett. The consequence of my view that the order is justified by neither of s3.35 of 74A is that the applicants are entitled to review of the order on at least one of the grounds provided by s.5(1) of the Administrative Decisions (Judicial Review) Act: there was no evidence to justify the making of the order (para (h) ). It is arguable that the decision to make the order is also caught by paras (c), (d), (e) and (f) but I need not consider those additional heads of review. The second and third decisions under challenge - the decision by Mr Dickinson that the birds should be slaughtered and the formal seizure orders handed to each of the applicants by Mr Everett in furtherance of that decision - may be considered together. The respondents concede that their only power to destroy the birds is that contained in s.48 of the Quarantine Act, upon which they rely. Section 48 relevantly provides: "48.(1) All goods ordered into quarantine under this Act may be treated and disinfected as prescribed, and when so treated and disinfected may be released from quarantine. (2) 2... 42. (3) Subject to sub-section (4), if a Chief Quarantine Officer or a person authorized by a Chief Quarantine Officer to perform duties under this sub-section believes on reasonable grounds that any live animals ordered into quarantine under this Act cannot be effectively treated or disinfected, and ought not to be released from quarantine, he may cause the animals to be destroyed. (4) Where the value of any goods to which sub-section (2) or (3) applies exceeds $200, the goods shall not be destroyed without the written approval of the Minister. (5) ... (6) 2. .. The applicants contend that the power to order destruction conferred upon the Chief Quarantine Officer is inapplicable to the facts of this case, for any of three separate reasons. First, it is said, the subsection only applies to "live animals ordered into quarantine under this Act", that is live animals made subject to a valid quarantine order issued under 8.35 or s.74A of the Act. I think that this is patently correct, and indeed the contrary submission has not been put. The decisions based upon s.48 must fall with the quarantine order. The applicants' second point, in relation to s.48, fastens upon the words "cannot be effectively treated or disinfected". These words are said to be apt only for an actual infection. If, therefore and contrary to the facts of this case, animals are "infected goods" within the meaning of s.74A(9), because and only because, for example, they were illegally 43. imported or the progeny of infected animals they could not be lawfully destroyed under s.48(3). Unless the animals were infected in fact, as distinct from being deemed by operation of _ law to be infected, it would not be open to the Chief Quarantine Officer to form the view that the animals could not be effectively treated or disinfected. One cannot treat or disinfect an uninfected animal. I think that this submission is sound. - The purpose of s.74A is to enable a quarantine officer to take control - possibly by conveying them to a quarantine station (s.56) - of goods which are in fact infected or in respect of which there is reason for concern about the possibility of infection. The quarantine order will give to the authorities the opportunity to obtain further information and to form a judgement on the question whether the goods are infected in fact and, if so, whether the infection may effectively be met by treatment or disinfection. Only if the Chief Quarantine Officer - not the quarantine officer who inspected the premises and issued the quarantine order - forms the opinion that it is impossible effectively to treat or disinfect may he cause the animals to be destroyed. In the present case the birds are not infected in fact so it is not possible for the Chief Quarantine Officer to form the opinion that they cannot be effectively treated or disinfected. Nor, it should be noted, has he purported to do so. That officer, Mr Dickinson, formed no view on treatment or disinfection; he ordered destruction merely because he was not satisfied that particular descriptions of the birds were false. 44. The remaining point relates to the requirement in s.48(4) for the written approval of the Minister prior to the destruction of goods worth more than $200. On 8 October 1984, two days before the raids, the relevant Minister signed an approval in the following form: "I, Neal Blewett, Minister for Health, being advised that the following strains of pigeon were developed outside Australia and were introduced into Australia in contravention of the Quarantine Act 1908 and are thereby infected goods, hereby approve the destruction in accordance with Section 48 of the Quarantine Act of any pigeons of the following strains and other birds with which they have been in contact, where such birds have been ordered in quarantine pursuant to Section 35 of the said Act. Busschaerts Tarnier Dordins Stickling Van Hee Stickelbaut Janssen Bricious Cattrysse Heitzman Sion Huskyen Van Riel" Passing over the correctness of the advice recited in the document two comments may be made about the form of this authority. The first is that it approves the destruction only of pigeons of the nominated strains and other birds with which they have been in contact. It does not, therefore, extend to pigeons erroneously believed to be of a nominated strain or birds with which they have been in contact. Once it appears that birds advertised as "Dordin" are of some other strain, not listed in the notice, the authority becomes inapplicable. 4s. The second comment is that s.48(4) requires ministerial approval for the destruction of "the goods", that is the goods referred to, inter alia, in subs (3) in relation to which the Chief Quarantine Officer has formed a particular belief. Asa matter of construction, the approval must be related to specific goods. That interpretation is supported by consideration of the apparent purpose of the requirement, that is to ensure review by the responsible Minister of the judgement of the Chief Quarantine Officer that particular goods or animals ought to be destroyed. The reference to $200 suggests that Parliament was concerned to ensure that a decision to destroy, which might give rise toa claim for compensation (s.69A) or for damages, would only be implemented with the approval of the Minister responsible to it, or his delegate (s.10). It may also have had in mind that destruction against his will of a person's property is a serious step only to be taken after anxious consideration and that, except in the case of property of trivial worth, it is desirable to have an independent review of that decision. Those legislative purposes would not be met by a blanket approval for destruction given in advance of any quarantine order by a Minister having no knowledge of individual circumstances. Considerations, therefore, of both terminology and policy suggest that the form of the approval of 8 October was defective. 46. On 16 October, after the matter of the Minister's authority was raised at the interlocutory hearing, the Minister executed a fresh authority, reading as follows: "I, Neal Blewett, Minister for Health, being advised that the Dordin and Cattrysse strains of pigeon were developed outside Australia and were introduced into Australia in contravention of the Quarantine Act 1908 and are thereby infected goods, hereby approve the destruction in accordance with Section 48 of the Quarantine Act of Dordin and Cattrysse strains of pigeon and other birds with which they have been in contact on the premises of John Hanson, Blenhaven Stud, Lot 13, Jensen Road, North Wyong, New South Wales 2259, where such birds have been ordered in quarantine pursuant to Section 35 of the said Act." This authority is specific to the applicants' goods. [If the applicants had had in their possession "Dordin and Cattrysse strains of pigeon" it would have been an approval effective then to allow the implementation of the decision to destroy. As they do not, the new authority takes the matter no further. I am of the opinion that each of the three contentions of the applicants in relation to s.48 is valid. Any one of them is enough to yield a finding that the second and third decisions - the decision to destroy and the orders for seizure - are invalid, being decisions not authorised by the Quarantine Act: Administrative Decisions (Judicial Review) Act s.5(1)(d); and in respect of which there is no evidence or other material to justify the making of the decisions; s.5(1)(h). Once again I need not consider whether the decisions are vitiated by paras 47. (c), (e) or (f). The applicants are entitled to orders under that Act quashing all three decisions and directing the respondents to refrain from enforcing quarantine over, or destroying, any of their property. There are two other matters to which I should refer. The first matter is that counsel for the respondents argue, in relation to each of ss.35, 74A and 48, that the powers conferred by the section were available to the respondents unless the applicants - the onus heing upon them - prove that the conditions of the application of the relevant section did not in fact exist. That approach would have draconic consequences. Unless the applicants could show that no one of the ancestors of any one of their pigeons had ever been in contact with an illegally imported bird, or animal, the whole of the flock would be liable to be dealt with as 'infected goods'. On this basis few, if any, exotic or domesticated birds or animals in Australia would be safe. Fortunately for common sense, the argument is misconceived. It is true, as the respondents emphasise, that the Court is engaged in judicial review; it is not enough - as it is for example in the Administrative Appeals Tribunal - that the court may regard the decision under challenge as being not the most appropriate administrative response to the facts. But that only means that the applicants must show legal invalidity. The relevant criteria of legal invalidity are set out in s.5(1) of the Administrative Decisions (Judicial Review) Act. If an applicant can make out any of the grounds specified in that 468. sub-section, he is entitled to relief. In a case where the condition of the application of a particular provision is the formation of an opinion, or the exercise of a discretion, and that opinion has been formed or discretion exercised in a manner unfavourable to the interests of the applicant, the applicant may be unable to succeed unless he shows that the opinion or the discretion is vitiated in law, for example because affected by an extraneous circumstance or improper purpose, because it leaves out of account a relevant matter or because it is unreasonable in the sense explained by Latham CJ in R_v Connell; ex parte The Hetton Bellbird Coliteries Ltd (1944) 69 CLR 407 at pp 430-432 and applied by the High Court in Parramatta City Council v Pestell (1972) 128 CLR 305. But that is not this case. The conditions which bring into operation each of the three sections are partly objective and partly subjective. As to the objective conditions; there is no evidence of the existence of the relevant facts. As to the subjective conditions; there is no evidence of the formation in fact of the relevant opinions - whether or not they could have survived legal challenge. It follows that the appellants have shown that there is no evidence or other material to justify the making of the relevant decisions. Proof of absence of evidence of a fact is, of course, very different from disproof of the existence of that fact. 49. The second matter is the haste with which it was sought to implement the decision to destroy the subject birds. The evidence of Mr Carter indicates that the raids which took place - on 10 October had been planned for some weeks. Under those circumstances, for the quarantine authorities to take the course of organizing raids with the intention of proceeding to destruction even of flocks exhibiting no sign of disease upon the game day was totally unreasonable. That course afforded to the owners little chance to consider the factual position and to obtain advice and, if necessary, to approach a court for interim relief. A quarantine order could have been made, enabling supervision of any movement of birds, with the execution of a destruction order being suspended for a couple of days to give the owners an opportunity of examining the position. Such a course would not only minimise the danger of unnecessarily inflicting loss and distress on people but also might prove cheaper than meeting claims for unauthorized destruction. I understand that several other flocks were destroyed on 10 October. It appears that the only reason why the Blenhaven flock avoided that fate was that Mr Everett tempered his instructions with humanity and unofficially allowed Mr Hanson some opportunity to act. But the reasonable exercise of great powers - granted for easily justifiable reasons - to enter premises and to destroy private property thereon should not need to depend upon the personal sense of fairness of the officer involved. 50. "0, it is excellent to have a giant's strength; But it is tyrannous To use it like a giant." I certify that this and the for wine ( +9) preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox. Associate NAL Dp Date (2 [' (|e