FRUSTRATION with the delay in compensation to cattle businesses ripped apart by the unlawful 2011 live export ban to Indonesia has boiled over.
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Beef industry leaders say the 'fiddling' on behalf of the Federal Government is deliberate and stems from its disagreement with the Federal Court's ruling in 2020 that the ban was invalid and capricious.
The court also found then Agriculture Minister Joe Ludwig committed misfeasance in public office.
Northern Territory Cattlemen's Association president David Connolly accused the Federal Government of 'trying to undo that which was laid down by courts and continually asking us to prove that which they already know to be true.'
Andrew Gill, partner with law firm MinterEllison which is representing pastoralists and other cattle businesses in the class action, said the case was now at the point of negotiating a global sum of compensation based on losses incurred.
The sticking point is the Commonwealth is taking the position there was only a six-week impact of the ban on the Indonesian market - the length it ran for - but the class action argues the losses go well beyond that time frame.
"We have now been told by the Commonwealth's solicitor this case is now being instructed out of cabinet," he revealed during a presentation at the NTCA conference in Darwin on Friday.
"Why? This case has been won. We have won a liability and we are just finishing the compensation negotiations," he said.
"It is now just a finance matter - a question for the Commonwealth's insurance company.
"It should have nothing to do with the cabinet. Is it a case or a campaign?"
Mr Connolly said there were those within the government who did not want to see compensation paid.
"In their minds, this is the case that should not have been lost," he said.
A statement from the Attorney General said the Commonwealth had engaged in a good faith attempt to settle the claims made by the class by offering to pay as much money as it thinks it can properly offer, on the information that has been provided by the class to date.
Mr Connolly said Friday marked the 1017th day following the verdict, with the class action members yet to receive court-ordered compensation.
Two scenarios
Mr Gill explained there were now two pathways to conclusion.
"The first is reaching agreement on a global sum; which immediately stops the interest burden on the Commonwealth which reportedly is around a million dollars a week," he said.
"Then it's just a matter of distributing that among the class action members and compensation could be paid within two to three years."
The second scenario is no agreement on a global sum being reached which would mean each sub-group in the class action - for example producers, exporters, service providers - would have their claims made separately.
That could take up to five years to complete.
Mr Gill suggested a quick resolution on this could be a catalyst for progressing the Australian Indonesian Agriculture Trade Partnership.
How it unfolded
He said the history of the case shone a light on where it was now.
"Speaking from a legal perspective, the ban ought not ever have been made, there was simply no foundation to make the decision," he said.
"The claim of misfeasance is almost a mythical cause of action which is impossible to prove because it is not about what the minister (Joe Ludwig) did but what was in his mind that has to be proved.
"To do that is as ridiculous as it sounds. We had to prove what documents were touched by the minister, considered by him.
"We had to prove he knew the ban would cause damage.
"It was a tough ask."
It was the first time a minister has been found guilty of misfeasance anywhere in the Commonwealth.
"Litigating against the Commonwealth is difficult," Mr Gill said.
"They have serious resources, they don't like handing over information and have all kinds of conventions around that.
"In a complex piece of litigation there are usually three or four goes at discovery. We had 22 attempts.
"So there is a reason why those involved are not happy today.
"This was not just a little mistake. Other prime ministers have described it as the worst decision an Australian Government has ever made."