FEDERAL COURT OF AUSTRALIA Australian Pork Limited v Director of Animal & Plant Quarantine [2005] FCA 789 AUSTRALIAN PORK LIMITED AND WINDRIDGE FARMS PTY LIMITED v DIRECTOR OF ANIMAL AND PLANT QUARANTINE AND FAYMAN INTERNATIONAL PTY LIMITED NSD 1078 of 2004 WILCOX J 15 JUNE 2005 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1078 of 2004 BETWEEN: AUSTRALIAN PORK LIMITED FIRST APPLICANT WINDRIDGE FARMS PTY LIMITED SECOND APPLICANT AND: DIRECTOR OF ANIMAL AND PLANT QUARANTINE FIRST RESPONDENT FAYMAN INTERNATIONAL PTY LIMITED SECOND RESPONDENT JUDGE: WILCOX J DATE OF ORDER: 15 JUNE 2005 WHERE MADE: SYDNEY ORDER INTERPRETATION: In this order: (a) 'the IRA Decision', means the decision of the first respondent, made on or about 10 May 2004, that future importation of pig meat into Australia 'will be subject to the Quarantine Act 1908 and the application of measures as specified in the section on Quarantine Requirements in the Import Risk Analysis ('IRA') Report for Pig Meat (February 2004)'; (b) 'the IRAR' means the Import Risk Analysis (IRA Report for Pig Meat) February 2004; and (c) 'the sub-paragraphs' means the third and fourth sub-paragraphs of paragraph 3.2(iii)(j) in that part of the IRAR which is entitled 'Quarantine Requirements for Importation of Pig Meat'. THE COURT DECLARES THAT: 1. Any decision to authorise the importation of pig meat into Australia in reliance upon compliance with the risk management measures specified in either of the sub-paragraphs was, or would be, an improper exercise of the power conferred upon the decision-maker by the Quarantine Act 1908 (Cth) and Quarantine Proclamation 1998 (Cth); 2. The decision to grant to the second respondent a permit (numbered 200413387) to import into Australia from the United States of America uncooked pig meat on the conditions set out in that permit (the "Permit Decision") was an improper exercise of the power conferred upon the decision-maker by the Quarantine Act 1908 (Cth) and Quarantine Proclamation 1998 (Cth) and is invalid. THE COURT ORDERS THAT: 3. That part of the IRA Decision which authorised the issue of permits to import pig meat into Australia in reliance upon compliance with the risk management measures specified in either of the sub-paragraphs be set aside. 4. The first respondent be prohibited, by herself, her officers, delegates or agents from making a decision to grant a new permit for the importation of pig meat into Australia in reliance upon compliance with the risk management measures specified in either of the sub-paragraphs. 5. Permit 200413387 issued to the second respondent, pursuant to the making of the Permit Decision, be set aside. 6. The first respondent pay the costs of the applicants. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1078 of 2004 BETWEEN: AUSTRALIAN PORK LIMITED FIRST APPLICANT WINDRIDGE FARMS PTY LIMITED SECOND APPLICANT AND: DIRECTOR OF ANIMAL AND PLANT QUARANTINE FIRST RESPONDENT FAYMAN INTERNATIONAL PTY LIMITED SECOND RESPONDENT JUDGE: WILCOX J DATE: 15 JUNE 2005 PLACE: SYDNEY SUPPLEMENTARY REASONS FOR JUDGMENT WILCOX J: 1 When I delivered judgment in this matter on 27 May 2005, I refrained from making substantive orders. I invited counsel to submit draft orders. They have done so. Although the second respondent ('Fayman') previously filed a submitting appearance, I have also received and considered a form of draft orders prepared by that respondent's counsel. 2 There was disagreement between counsel in several respects. I have considered all the matters in issue and I propose to make two declarations and four orders. 3 Although it is unusual to do so, I have inserted an interpretation clause. This enables me to avoid repeating three lengthy descriptions. 4 Contrary to the submissions of counsel for the first respondent, I think it is useful to make declarations stating the precise nature of the conclusion I reached. In my opinion, the making of the IRA Decision was 'conduct for the purpose of making a decision to which [the ADJR Act] applies' – that is, a decision to grant a particular importation permit under the Quarantine Act and the Quarantine Proclamation – within the meaning of s 6(1) of the ADJR Act. Paragraph (e) of that subsection ties the review that it authorises to the 'making of the proposed decision' – that is, the decision to grant a particular importation permit. Declaration 1 is intended to make that clear. I have not included a statement of invalidity as this would adversely affect the rights of people who are not parties to the proceeding. 5 Declaration 2 relates only to the Fayman permit. Section 5(1)(e) of the ADJR Act applies to the decision to grant that permit. There is here no problem about including a statement of invalidity. 6 Orders 3 and 4 follow from my reasons for judgment and the first declaration. Those orders do not prevent the Director making a fresh policy decision, even a fresh decision that adopts the same risk management measures as recommended in the IRAR, if, after reconsideration, she considers that to be the proper course. Any such decision would be vulnerable to review under s 6 of the ADJR Act on the application of any competent person. Any review would be concerned with the validity of the fresh decision, not the IRA Decision. 7 There is no dispute about orders 5 and 6. 8 For the reasons argued by counsel for the first respondent, it is not appropriate for me to make orders along the lines of the applicants' proposed orders 5, 6, 8, 9, 10, 11 or 12. This does not mean the applicants are powerless to obtain information about other permits that have been granted by or on behalf of the Director. One possibility would be an application for Preliminary Discovery under Order 15A of the Federal Court Rules. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 15 June 2005 Counsel for the Applicants: Mr J T Gleeson SC and Mr M J Leeming Solicitors for the Applicants: Corrs Chambers Westgarth Counsel for the First Respondent: Mr S J Gageler SC and Mr G R Kennett Solicitors for the First Respondent: Minter Ellison Counsel for the Second Respondent: Mr A Robertson SC Solicitors for the Second Respondent: Kliger Partners Dates of Hearing: Written Submissions Received Date of Judgment: 15 June 2005