supawent No, AAO. 34 OOR000OESRCCECE! Geneeesecece IN THE FEDERAL, COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G.357 of 1984 , ) GENERAL DIVISION ) BETWEEN : JOHN EDWARD HANSON & ANOR Applicants AND: COMMONWEALTH DIRECTOR OF QUARANTINE & ORS Respondents REASONS FOR JUDGMENT CORAM: WILCOX J DATE: 12 OCTOBER 1984 PLACE: SYDNEY This is the hearing of an interlocutory application. The matter arises under the Administrative Decisions (Judicial Review) Act 1977. Shortly, the history of the matter is that on Wednesday of this week officers of the Department of Quarantine carried out an inspection at a property of the applicants at Wyong in which the applicants kept some 500 pigeons together with other birds. The applicants carry on a business of a pigeon stud and have done so for many years. The inspection of the property was apparently one of several which took place on the same day and which was caused by concern about outbreaks overseas, in recent months, of a disease known as Newcastle disease. The disease apparently gets its name from the fact that it was first detected in Newcastle in England in 1926. Apart from one outbreak in 1932. there has not been any known incidence of the disease in Australia at any time. The quarantine authorities are concerned to avoid contamination of Australian birds, and particularly poultry in relation to which the disease is apparently of particular concern. For that reason the disease has been proclaimed as a quarantinable disease under the Quarantine Act. The inspection of the applicants' property resulted from the fact that in a magazine published in August and known as "Australian Pigeon", which came to the attention of the quarantine authorities in mid September, reference was made to the fact that the applicants' stud had what were described as genuine Dordins and genuine Cattrysse. These are apparently varieties of pigeons which were developed in Europe. The effect of the Quarantine Act, and a proclamation made thereunder, is that no birds may be imported into Australia, except with the consent of the Minister. This has been the position since 1975. Prior to that date, since 1949, importations only from New Zealand had been allowed. The quarantine officers took the view, not unnaturally, that if the applicants were in possession of genuine Dordins and genuine Cattrysse, these being strains developed in recent years, then they must have on hand progeny of birds which had been imported. Apparently, no ministerial consents have been given since the controls were introduced: and it followed, they thought, that birds must have been imported unlawfullv. The effect of the provisions of the Quarantine Act is that birds which have been imported into Australia in contravention of the Act are deemed to be "infected qoods". Birds which are the progeny of unlawfully imported qoods are also deemed to be "infected qoods", as are birds which have been in contact with such qoods - for the reason, I suppose, that where birds have been imported unlawfully it is difficult. if not impossible, to neqative the possibility of infection. A quarantine officer, Mr Rov Everett, went to the premises of the applicants on Wednesdav mornina. He was shown the applicants' records relating to their birds and he found amonast the records a sheet of paper which was produced in 1979 by Mr Fleming of Adelaide, who is apparently a well-known pigeon breeder. In this document, Mr Fleming referred to two cocks, one of whom was purchased by Mr Hanson and is still on the property. The document indicates that the grandparents of these two cocks were bred in Europe. Mr Fleming reported the position to his superiors and in due course he issued a notice under section 35 of the Quarantine Act, ordering into quarantine the whole of the birds. Subsequently, pursuant to instructions he was given, he gave notice of seizure of the goods, and he indicated an intention that the whole of the goods would be destroyed. Section 44 of the Quarantine Act requires the approval of the Minister prior to any destruction of qoods having a value of more than $200. It appears that the subject birds have a value very considerably more than that: indeed it is said by Mr Hanson that their value is about $120,000. The Minister responsible for the Quarantine Act, namely the Minister for Health, had siqned a document on 8 October giving a general approval for the destruction of any pigeons of certain strains, which included Dordins and Cattryses, together with other birds with which they hae been in contact. One of the questions which arises in the matter is whether that approval satisfies the requirements of section 44 of the Act. In the event, on Wednesday afternoon. the destruction of the pigeons was averted by the fact that Mr and Mrs Hanson obtained an interim injunction from a judge of the Supreme Court of New South Wales, operative until the following morning. On the following morning, that is to sav yesterday, an ex parte application was made to me in chambers on behalf of Mr and Mrs Hanson, for orders pursuant to section 15 of the Administrative Decisions (Judicial Review) Act suspending the operation of the decision to destroy and staying action to implement the decision. I made that order subject to certain conditions, one of which was to qrant leave to the respondents, namely the Commonwealth Director of Quarantine, the Chief Quarantine Officer and Mr Everett, to apply for a dissolution or variation of the order at any time. Yesterday afternoon Mr Gibb. on behalf of the respondents, made an application in chambers for a dissolution of that order but I refused that application. taking the view that the matter ought to be dealt with in court this afternoon. This afternoon there has been evidence, on each side. Application is made on behalf of Mr and Mrs Hanson for a continuation of the interim orders until such time as there mav be a final hearing of the proceedings. On behalf of the respondents I am asked to dissolve the interim orders. with the result that the pigeons would be destroved forthwith. It seems to me that it is appropriate, in considering the operation of section 15 of the Administrative Decisions (Judicial Review) Act, to have regard to the principles which have been developed in reqard to interim injunctions in the Equity Court, and firstly to ask whether there is a prima facie case, or a serious question to be tried, to indicate that the action under attack is in breach of relevant legislation, and secondly, to consider the balance of convenience. In relation to the first matter, it is said on behalf of the applicants that the ministerial consent does not apply with the provisions of the Act, that the Act contemplates that the Minister will address his mind to the destruction of particular goods, and that he has not done so in the present case. It seems to me that there is an argument to support that approach, that the reason underlying the requirement for ministerial approval is that the Minister may address himself to the question whether it was a reasonable course to take to destroy particular live animals. The destruction of live animals owned by a citizen may often be a matter of concern to the citizen extending beyond the commercial value of the animals, and one possible reason for the ministerial approval was so that the Minister, a person accountable to Parliament, could consider whether this was a course necessary to be undertaken. The requirement of ministerial approval only applies to goods having a value which exceeds $200. and one other reason might be to see that the revenue is not exposed to claims for compensation in significant amounts otherwise than by a decision to accept that risk made by a person responsible to Parliament. These are possible reasons why the section requires that the course of action be approved by the Minister. I do not think it is proper to express any final conclusion about the validity of the ministerial consent. but I do think that there it is an arguable case that it is invalid, in the sense that it does not comply with the requirements of the section. The other matter relied upon by the applicants is that, so it is said, there is no evidence to justify the making of the decision. I have alreadv indicated that under the deeming provisions of the Quarantine Act, "goods" are infected qoods - I interpolate that, by definition. "goods" includes live animals - if those goods are the progeny of unlawfully. imported goods. In the present case it seems to be the position that in 1979 Mr Flewing claimed to have imported one of the ancestors_of | one of the birds now owned by Mr and Mrs Hanson, and held on the property. However, Mr Hanson has given evidence that he did not believe that the bird was imported and, in effect, that there was some agreement between himself and Mr Fleming to misrepresent the position. He called this a "gimmick"; perhaps other descriptions would be more appropriate. Mr Fleming has stated, according to an affidavit sworn by Mr Herring, the solicitor for the applicants, that in fact the ancestors of the subject bird were not imported, and he has said that this description was given in order to promote a book that he had written at that time. There is also evidence in the form of an affidavit from Mr T A Wills, a man with 35 vears experience in the pigeon industry, that there is a widespread practice in the industry of persons claiming that particular birds or their ancestors have been imported and have particular blood lines when, in fact, those claims are false. It seems that Mr Hanson's own advertising is in accordance with this practice, and I think it is a fair comment that he only has himself to blame that the officers of the - Quarantine Department have singled him out for particular attention. Be that as it may, it is far from clear that the ancestors of any of the birds now held by Mr and Mrs Hanson were imported in contravention of the Act. I think that this issue can only be definitely resolved after there is some direct evidence from Mr Fleming and possibly other people who have knowledae of the history of the relevant bird or birds. If none of the birds are descended from birds unlawfully imported, and if none of them were themselves imported, then there is no basis for regarding them as infected goods. The evidence given by Mr Everett, who is himself a veterinary surgeon, is that there is no overt sian of any infection in any of the birds held by the applicants. It seems to me that there is at least a serious question to be tried as to whether or not any of the birds were liable to destruction under section 44, that is to say, a serious question within the meaning of sectin 5(1)(h), whether there was evidence to justify the making of the decision. In relation to the balance of convenience, difficulties arise. So far as the applicant is concerned, of course, if the injunction is not continued then the birds will be destroyed. It is said on behalf of the respondent that if the birds have been unlawfully destroyed then they would have available an action for damages. That may be so and, no doubt. if there is an action: for damages some evidence could be agiven as to the value of the ° birds. I suspect that the quantification of damage would not be easy, and I also think that it is relevant that the applicants have built up this flock of pigeons by careful breeding over a period of 30 vears. It seems to me likely that they would not regard even full compensation in a monetary sense as being an adequate replacement of the flock of pigeons which were 10. destroyed. However, if there was any reason for me to feel that there was a danger to other birds, whether owned by other persons or wildlife, I would have no hesitation in taking the view that the balance of convenience favoured the refusal of a continuation of the interim order and a destruction of the pigeons. The evidence is that Newcastle disease is a particularly virulent disease, and it appears that if it was allowed to break out in Australia that consequences would be extremely serious. However, there is no evidence to indicate that any of these birds are infected. The only expert witness, in the sense of a person who has particularly studied Newcastle disease, who gave evidence today, Dr G M Cross, a quarantine officer, said that in the case of a virulent infection of a flock of birds by Newcastle disease he would expect that 90 per cent would die within seven to ten days. Apparently a period of incubation of about six weeks has until recently been regarded as the maximum figure, although he said there was now some recent evidence to suggest that it miqht be somewhat longer. However, the period of incubation is to be numbered in weeks rather then months or years. The evidence is that the applicants' flock is a stable flock in the sense that it has been bred for many years with very little accession of new birds, and there is no evidence of any infection. It seems to me quite clear that there is no reason to believe that there is any virulent infection amongst the flock. Dr Cross also said that in the case of a mild infection, which ll. would not necessarily produce symptoms, it would be reasonable to expect that sero conversion would have taken place in up to about 70 per cent of the individuals. It is apparently possible to detect whether sero conversion has taken place by a blood test, although Dr Cross thought that one would have to test a verv high proportion of the subject flock in order to obtain a statistically satisfactory result. It is not clear to me why one would have to have tests of such a large proportion as that indicated by Dr Cross, but I do not think that this is a matter of major concern. It may well be that if there is any question about the matter, some blood tests will have to be undertaken. This may be a less expensive option than the destruction. of the flock. I think it is sufficient for me to say that I see no reason to contemplate that during the period of a relatively short adjournment until the final hearing there will be any risk to the health of other bird life by the continued existence of these birds. I do not say it critically, but the fact is that it is now four weeks since officers of the Quarantine Department. became aware of the advertisements of the applicants, and it was only two days ago that any action was taken in relation to the destruction of the birds. I appreciate that a number of steps had to be undertaken, and that is why I do not make any criticism. but I think that this does indicate that even amongst 12. those officers a view might reasonably be taken that a delay of an extra week or two, there being no evidence of any infection amongst this flock, is not likely to be of critical importance. The course I propose to take is to continue the existing orders until a final hearing or until further order of the Court. I will grant leave to the respondents to move on 24 hours notice if they are so advised and, in particular, that would be appropriate if new evidence comes to light to indicate that the preliminary views which I have expressed as to the health of this flock are not well founded. I think it is desirable that the final hearing proceed as quickly as possible, and I understand that the parties are likely to be in a position to at least commence a final hearing next Thursday, 18 October. I propose to adjourn the matter until that date for the commencement of the final hearing and hopefully to finish it on that day, but if a genuine problem arises on either side about the availability of a witness, then I would be prepared to contemplate some further adjournment to accommodate that witness. I do desire that on each side there be the best possible evidence that can be obtained within that relatively short span of time. 13. The orders that I make, therefore, are: I continue the orders made by me yesterday in chambers. I adjourn the matter until 10.15 am on Thursday 18 October. I reserve the costs of today. I certify that this and the t.rci ee Cia) preceding pages are a true copy of the Reasons for Judgement herein of his Honour Mr Justice Wilcox. Associate (OAL AAD Weller. Date (7 [0 [eq |