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Federal Court of Australia

Rural Export & Trading (WA) Pty Ltd v Hahnheuser
Commonwealth of Australia
(2007) 243 ALR 356


Case Details
Printable Version
Summary:   The applicants held sheep in a pen pending live export. The respondent broke into that pen and put pork products in their feed rendering them unfit for export to countries whose markets had religious proscriptions against eating pork products. The court found that the respondent's conduct did not amount to 'hindering' as defined in the Trade Practices Act 1974 (Cth) and that his action was for the dominant purpose of environmental protection, which included protecting sheep from the conditions suffered during the live export trade. The court further found that the applicant's conduct, being that of holding and providing feed, did not involve the movement of goods between Australia and a place outside of Australia. The action against the respondent was dismissed.

Judge Gray ACJ delivered the opinion of the court.


Opinion of the Court:

The nature and history of the proceeding

1 From the outset, this proceeding was described by counsel for the applicants as a "test case". It raises a number of issues of the application of s 45DB of theTrade Practices Act 1974 (Cth) ("the Trade Practices Act") to an incident in which processed pig meat was placed in feed troughs from which sheep intended for live export to the Middle East were intended to feed. There are three principal issues. The first is whether the first applicant, Rural Export & Trading (WA) Pty Ltd ("Rural Export") was hindered or prevented from engaging in its trade or commerce at all. The second is whether the trade or commerce engaged in by Rural Export was trade or commerce "involving the movement of goods between Australia and places outside Australia". The third principal issue is whether s 45DB does not apply to either of the respondents, because the dominant purpose of the first respondent, Ralph Hahnheuser, was substantially related to "environmental protection".

2 When the proceeding first came before me for directions, neither respondent had legal representation. Mr Hahnheuser applied to me for, and I granted him, leave to represent the second respondent, Animal Liberation SA Inc, which is an incorporated association. Subsequently, I suggested to the parties that, because the applicants regard the case as a test case, and because of the nature of the issues it might raise, the Court might be assisted if the respondents were to seek legal representation through the Public Interest Law Clearing House. Such an approach was made, with the result that, for much of the interlocutory stages of the proceeding, the two respondents were represented by different firms of solicitors and different counsel.

3 The interlocutory steps were extensive, involving the filing of four successive amended versions of the statement of claim, several versions of particulars (including particulars of loss and damage) and several notices to admit facts. Shortly before the trial, the applicants and the second respondent submitted orders by consent, the effect of which is that the proceeding is to be dismissed as against the second respondent, with no order as to costs. The trial therefore proceeded on the basis that claims were made only against Mr Hahnheuser.

4 When the trial began, counsel for Mr Hahnheuser advised the Court that their instructions to appear had been withdrawn by Mr Hahnheuser, and sought leave to absent themselves, which I granted. Mr Hahnheuser did not appear at, or play any part in, the trial. His exercise of his right to allow the matter to proceed undefended in this way has the unfortunate result that the Court has not had the benefit of full argument on both sides in relation to the significant issues that present themselves. It has been necessary for me to resolve those issues as best I can, with the assistance of my associate’s researches, which have been extensive. The absence of any participation by Mr Hahnheuser at the trial did have the effect of shortening the trial substantially.

5 Each of the applicants claims relief of a declaratory and injunctive nature, as well as damages, in respect of an alleged contravention by Mr Hahnheuser of s 45DBof the Trade Practices Act.

The legislation

6 Section 45DB of the Trade Practices Act provides as follows:

(1) A person must not, in concert with another person, engage in conduct
for the purpose, and having or likely to have the effect, of preventing
or substantially hindering a third person (who is not an employer of
the first person) from engaging in trade or commerce involving the
movement of goods between Australia and places outside Australia.


(2) A person is taken to engage in conduct for a purpose mentioned in
subsection (1) if the person engages in the conduct for purposes that
include that purpose.


7 Certain of the definitions of terms in s 4(1) of the Trade Practices Act may be relevant. Thus, "trade or commerce" means trade or commerce within Australia or between Australia and places outside Australia. The term "goods" includes, among other things, animals.

8 At the time of the alleged contravention, s 45DD of the Trade Practices Act provided relevantly as follows:

(1) A person does not contravene, and is not involved in a contravention of, subsection...45DB(1) by engaging in conduct if the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of that person or of another person employed by an employer of that person.

(2) If:


(a) an employee, or 2 or more employees who are employed by the same employer, engage in conduct in concert with another person who is, or with other persons each of whom is:
(i) an organisation of employees; or
(ii) an officer of an organisation of employees; and
(b) the conduct is only engaged in by the persons covered by paragraph (a); and
(c) the dominant purpose for which the conduct is engaged in is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the employee, or any of the employees, covered by paragraph (a);
the persons covered by paragraph (a) do not contravene, and are not involved in a contravention of, subsection...45DB(1) by engaging in the conduct.
(3) A person does not contravene, and is not involved in a contravention of, subsection...45DB(1) by engaging in conduct if:

(a) the dominant purpose for which the conduct is engaged in is
substantially related to environmental protection or consumer
protection; and


(b) engaging in the conduct is not industrial action.


(4) In subsection (3), industrial action means:


(a) the performance of work in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work, the result of which is a restriction or limitation on, or a delay in, the performance of the work, where:
(i) the terms and conditions of the work are prescribed, wholly or partly, by an industrial instrument or an order of an industrial body; or
(ii) the work is performed, or the practice is adopted, in connection with an industrial dispute; or
(b) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, in accordance with the terms and conditions prescribed by an industrial instrument or by an order of an industrial body; or
(c) a ban, limitation or restriction on the performance of work, or on acceptance of or offering for work, that is adopted in connection with an industrial dispute; or
(d) a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work.
For this purpose, industrial bodyindustrial dispute and industrial instrument have the meanings given by subsection 298B(1) of the Workplace Relations Act 1996.

(5) For the purposes of subsection (3):


(a) conduct is capable of constituting industrial action even if the conduct relates to part only of the duties that persons are required to perform in the course of their employment; and
(b) a reference to industrial action includes a reference to a course of conduct consisting of a series of industrial actions.
(6) In applying subsection...45DB(1) to a person who is not covered by subsection...(3) in respect of certain conduct, disregard the fact that other persons may be covered by one of those subsections in respect of the same conduct.


(7) In a proceeding under this Act in relation to a contravention of subsection 45DB(1), it is a defence if the defendant proves:

(a) that a notice in respect of the conduct concerned has been duly given to the Commission under subsection 93(1) and the Commission has not given a notice in respect of the conduct under subsection 93(3) or (3A); or
(b) that the dominant purpose for which the defendant engaged in the conduct concerned was to preserve or further a business carried on by him or her.


It is unnecessary to have regard to the detail of any provision of s 93 of the Trade Practices Act for the purposes of this case.

9 Section 45DB of the Trade Practices Act is found in Pt IV. Section 80(1) of the Trade Practices Act provides, so far as is relevant to this case:

where, on the application of the Commission or any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute:


(a) a contravention of any of the following provisions:


(i) a provision of Part IV...


(b) attempting to contravene such a provision;


(c) aiding, abetting, counselling or procuring a person to contravene such
a provision;


(d) inducing, or attempting to induce, whether by threats, promises or
otherwise, a person to contravene such a provision;


(e) being in any way, directly or indirectly, knowingly concerned in, or
party to, the contravention by a person of such a provision; or


(f) conspiring with others to contravene such a provision;


the Court may grant an injunction in such terms as the Court determines to be appropriate.


10 Section 80(4) provides:

The power of the Court to grant an injunction restraining a person from engaging in conduct may be exercised:


(a) whether or not it appears to the Court that the person intends to
engage again, or to continue to engage, in conduct of that kind;


(b) whether or not the person has previously engaged in conduct of that
kind; and


(c) whether or not there is an imminent danger of substantial damage to
any person if the first-mentioned person engages in conduct of that
kind.


11 Section 82(1) of the Trade Practices Act provides, so far as is relevant to this case:

A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV...may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.


12 The definition of "the Court" in s 4(1), and the provisions of s 86(1) of the Trade Practices Act make it clear that this Court has jurisdiction to entertain the proceeding.

13 Finally, it is necessary to take note of s 21(1) of the Federal Court of Australia Act 1976 (Cth):

The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.


The facts

14 Rural Export is a subsidiary company of a corporation known as Livestock Transport and Trading ("LTT"), owned by the Government of Kuwait. In 2003, LTT owned three ships, adapted for the transport of live sheep and used to transport such sheep from Australia to various destinations in the Middle East. One of these vessels was called the MV Al Shuwaikh. Rural Export was not itself an exporter of live sheep. An export licence was required in order to engage in that activity. Rural Export did hold an export licence, but between 31 December 2002 and 13 February 2004, that licence was suspended by direction of a delegate of the Secretary to the Department of Agriculture, Fisheries and Forestry ("the Department"). By its amended statement of claim, Rural Export alleged that it was engaged in trade or commerce "involving the provision of services relating to the carriage of sheep from Australia to places outside Australia." This allegation was particularised by reference to the provision of services in respect of the maintenance and transport of sheep intended for sale overseas, including the purchase of sheep and arranging for their carriage overseas. Some of these particulars were not borne out by the evidence, to which I refer in some detail in [39]-[43].

15 The second applicant, Samex Australian Meat Co Pty Ltd ("Samex") was itself engaged in the export of live sheep. It purchased sheep for export and engaged LTT (and perhaps other shipping providers) to transport the sheep to its chosen destinations in the Middle East, where they were sold.

16 In November 2003, Samex had a consignment of sheep, which it had purchased, which it intended to load onto vessels at the Port of Portland for carriage to destinations in the Middle East. Approximately 72,000 sheep were involved. The process of export was that Samex gave to the Secretary to the Department notice of its intention to export live sheep, pursuant to s 6(1) of the Export Control Act 1982 (Cth) and the relevant regulations (which were not referred to specifically in the proceeding). It then caused the consignment of sheep to be transported to the vicinity of Portland, where they were placed in feedlots. In this case, Samex used two feedlots, one of which was owned and operated by David Peddie. This feedlot was situated at Cape Nelson, beside the road to the lighthouse. The feedlot occupied 250 acres, divided into about 42 paddocks. In each paddock was a long, open PVC trough in which those operating the feedlot placed feed from time to time, and three structures each consisting of a hopper attached to smaller feeding troughs, designed to ensure that feed was available continuously, for those sheep not prepared to eat at the other troughs. There was also a water trough in each paddock.

17 The purpose of placing the sheep in the feedlot was to accustom them to eating feed pellets, rather than hay or grass. It was necessary to keep the sheep in the feedlot for several days. During this time, they were fed a diet consisting partly of hay and partly of pellets of the kind that the sheep would be required to eat while on board the ship. During the sheep’s stay in the feedlot, the amount of hay would be decreased, until the sheep were feeding solely on pellets, thereby becoming accustomed to eating them. When a permit for the export of the sheep was granted, the sheep would be transported to the port, where the ship would be waiting to receive them.

18 The Australian Quarantine Inspection Service ("AQIS") was required to conduct inspections, including an inspection of the ship prior to any loading, and a final inspection of the sheep just before they were loaded. Between these two inspections, an inspection was undertaken by the Australian Maritime Safety Authority ("AMSA"). Subject to achieving the required standards, as judged by these inspections, the sheep could be loaded onto the ship.

19 In the present case, one of the vessels to be used to transport the consignment of sheep was the Al Shuwaikh. It was due to dock at Portland on 20 November 2003. Accordingly, Samex’s consignment of sheep was assembled in the feedlots near Portland a few days before, on 13 or 14 November 2003.

20 On or prior to 18 November 2003, a room was booked at the William Dutton Motel in Portland, in the name of Diana Simpson, for the night of 18 November 2003. On the afternoon of that day, a person giving that name arrived at the motel to take up her booking. The booking was for three people. Subsequently, it was extended to include the night of 19 November for the three people. Subsequently again, the person who gave her name as Diana Simpson booked a third night in the room for herself only. The other two people who came to stay in the room were Mr Hahnheuser and a man named Mark Pearson, who ultimately paid the charges associated with the accommodation in the room, at least for one or two of the nights concerned.

21 Using the bathroom attached to the room at the William Dutton Motel, Mr Hahnheuser and another or others, made preparations for placing ham in the sheep feed in the feedlot. This operation was recorded by video and a copy of the video was tendered in evidence. It shows close-up images of several plastic packets labelled "shredded ham". It then shows Mr Hahnheuser, who is wearing a black tee-shirt endorsed with the words "Ban Live Exports", opening one of the packets of ham and emptying the contents into a plastic bucket. The video then shows Mr Hahnheuser pouring water from a plastic water container into the plastic bucket, and apparently mixing the water and the shredded ham, using a plastic brush of the kind normally used for cleaning toilets. When the contents have been mixed, Mr Hahnheuser is shown pouring the water from the bucket back into the plastic water container and then inserting handfuls of what is apparently shredded ham, taken from the bucket, into the plastic water container. The result apparently is that the plastic water container contains largely water and all or most of the contents of one packet of shredded ham.

22 Subsequently, during the course of the night of 18-19 November 2003, apparently after midnight, Mr Hahnheuser and others entered one of the paddocks in Mr Peddie’s feedlot, the paddock designated as X4, where Mr Hahnheuser placed some ham and water into two feed troughs. There is a video recording, apparently shot in the feedlot, of this operation. It shows someone pouring the contents of a plastic water container, which appears to be the same one that was filled in the bathroom at the William Dutton Motel, into a feed trough. There are then further close-up shots of the labels of packets of shredded ham, which the person then opens and empties into a feed trough. The same exercise, of emptying part of the contents of the water container is then carried out in relation to the feeding troughs of one of the hopper devices. This is again followed by a close-up shot of the label of a packet of shredded ham, which is then opened and emptied into those feeding troughs. Using his hand, the person then is shown mixing the ham with the pellets in the feeding troughs. The video recording then shows two male figures, both wearing black tee-shirts endorsed with the words "Ban Live Exports", walking away, one carrying the water container. They are apparently followed by the person operating the camera.

23 On 19 November 2003, Mr Hahnheuser made available to various media outlets the video recordings to which I have referred and a document entitled "Press Alert", dated Wednesday, 19 November 2003. The document bore the heading "ANIMAL LIBERATION". Its text was as follows:

Lightening [sic] Direct Action Prevents Loading of

Cruel Live Exports Ship.

Where; Portland, Victoria, Australia

When; Right NOW!!


Video footage of the overnight direct action is

available today, as queues of trucks line up to load

animals.


Animal Liberation says; ‘A secret operation has been completed overnight that will prevent loading of the Live Export barrier, Al Shuwaikh, from scheduled loading of sheep at Portland, this Thursday 20th November at 8am.


‘A carefully planned operation overnight, saw the addition of rendered pig meat extensively spread through the Portland feedlot food and water delivery system

‘The animals (who cannot be harmed by this additive), have ingested significant quantities, which will remain in their system for up to 21 days


The consumption of pig meat by the sheep has rendered them unsuitable for export to Muslim countries. The pig meat added to the food and water will prevent the animals from meeting strict HALAL slaughter requirements in the Middle East.

The Australian Government and Middle East ambassadors will be notified by Animal Liberation immediately, to prevent the treated animals from being loaded tomorrow morning, to avoid inevitable rejection in the middle east.


24 The document bore the names of Ralph Hahnheuser and Mark Pearson, each with what was apparently a mobile telephone number. Mr Hahnheuser was described as "Campaign Manager South Australian Inc."

25 Mr Hahnheuser gave several media interviews, video recordings of which were tendered in evidence. The interviews were identified as having been given in Portland on 19 November 2003. In each of the interviews of which there are videos in evidence, Mr Hahnheuser was wearing a black tee-shirt, endorsed with the words "Ban Live Exports". On occasions, two other persons stood behind Mr Hahnheuser, displaying signs in the shape of animals, one of which read "Ban Live Exports". Mr Hahnheuser explained what it was that "Animal Liberation" had done during the previous night, and why. He referred to a campaign of more than 20 years’ duration to achieve the banning of live exports, and to government recommendations to cancel live exports "on the basis of animal welfare". He referred to "animal protection groups" as being likely to conduct protests of this nature while the government persisted in supporting the export of live animals. He described the export of live animals as "this appalling industry". He referred to the "appalling atrocities" to which animals were subjected during their export as live animals. He referred to "so much additional suffering" and "the additional burden of suffering" on animals the subject of the live export trade, when compared with the way animals were treated if raised and slaughtered in Australia. He described the cramming of animals into relatively small areas on ships, and their being taken through hot and humid areas. He referred to "enormous burdens" on such animals and to death rates 10 or 20 times higher than on farms. He described a previous Senate inquiry as recommending that, "on animal welfare grounds alone", "this cruel industry" should be banned. He described a decision to be made as an ethical one, about "how much suffering can be justified for how much profit". He described the exporters as breaching animal protection legislation in every State in which they operated. At one stage, he said "you cannot hide the level of suffering that is occurring". On several occasions, Mr Hahnheuser used phrases such as "appalling cruelty" to describe the live export trade. At one point, he likened the live export trade to the slave trade and described it as "morally and ethically wrong".

26 On 19 November 2003, Michael John Taylor, Secretary to the Department ("the Secretary") issued an instrument entitled "Direction", addressed to Samex, and claiming to be made under O 10A of the Export Control (Animals) Orders. This direction read:

I, Michael John TaylorSecretary of the Department of Agriculture Fisheries and Forestry, having formed the belief, on the grounds set out below, that one or more of the intended countries of destination for the consignment described in the Schedule will not permit entry of that consignment, hereby direct, pursuant to order 10A of the Export Control (Animals) Orders, that an export permit not be granted for that consignment.


Grounds

1. I have received information that members of the Animal Liberation Movement may have taken action that has resulted in animals included in the consignment having been fed rendered pig meat.

2. If true, this is likely to make the animals unacceptable to people of the Muslim faith.

3. I believe that there is a strong likelihood that, whether or not the information is true, the publicity surrounding the incident means that the intended countries of destination will not permit entry of the consignment.


Schedule

The proposed consignment by Samex Australian Meat Co Pty Ltd of approximately 77,200 sheep on board the MV Al Shuwaik [sic] on or about 20 November 2003 for shipment to Kuwait, Bahrain, Muscat and Jebel Ali.


27 This direction appears to have been given pursuant to the power conferred on the Secretary by O 8, to direct otherwise under O 10 or O 10A, of the ExportControl (Orders) Regulations 1982 (Cth), made pursuant to the Export Control Act 1982 (Cth). Otherwise, O 8 permits an authorised officer to grant an export permit if the circumstances specified in O 8 exist. The direction therefore had the effect of preventing the immediate export of Samex’s consignment of sheep. As a consequence, arrangements were made for the captain of the Al Shuwaikh to allow the ship to drift in Bass Strait, rather than to dock and incur port charges for so long as the ship should be berthed.

28 Negotiations ensued between Samex and the Secretary. On 3 December 2003, in anticipation of the reversal of the Secretary’s direction of 19 November 2003, the Al Shuwaikh docked at Portland. By instrument dated 4 December 2003, the Secretary varied the direction of 19 November "so that an export permit may be granted for all animals in the consignment referred to in the direction other than the 1,800 sheep that were present in the paddock known as Feedlot A." As a result, the necessary inspections by AQIS and AMSA took place and loading commenced. The ship eventually sailed on 7 December 2003. The reference to 1,800 sheep in the paddock known as Feedlot A appears to have been a reference to the sheep in paddock X4. There were in fact 1,694 of those sheep. They were not placed on board the Al Shuwaikh, but were subsequently slaughtered at an abattoir in Warrnambool. The carcasses were then transferred to a boning room in Melbourne, for preparation as boneless mutton. A small amount was sold locally, and the balance was exported in small parcels to various destinations.

The elements of s 45DB(1)

Engaging in conduct

29 There can be no doubt that Mr Hahnheuser engaged in conduct. In the bathroom of the William Dutton Motel at Portland, he mixed together shredded ham and water and placed them in a plastic container. He took that container, and other packets of shredded ham to Mr Peddie’s feedlot at Cape Nelson. Mr Hahnheuser then proceeded to place shredded ham, and water that had been tainted by being mixed with shredded ham, into places from which it was intended that the sheep in paddock X4 were to feed. He proceeded to mix the shredded ham and the tainted water with the feed pellets in those places. He then publicised what he had done, by sending copies of the video of it to various media outlets, publishing the Press Alert of 19 November 2003 to various media outlets, and making himself available to give, and giving, interviews for broadcast by television news services.

In concert

30 Mr Hahnheuser was the principal actor in the three episodes that made up the conduct. He was the one mixing the ham and water in the bathroom, putting the mixture into the water container, distributing the ham and tainted water in the feedlot and giving the interviews. His name appears on the Press Alert. He did not act alone, however. At least one other person was present in the bathroom at the motel, to operate the video camera. At least two other persons were present with Mr Hahnheuser in the feedlot, one operating the video camera and one shown in the video walking with Mr Hahnheuser, wearing a tee-shirt similar to that worn by Mr Hahnheuser. In some of the television interviews, there are two people shown standing behind Mr Hahnheuser, holding up signs shaped like animals, with slogans written on them. The person whose name was given as Diana Simpson made the booking for the motel room used, and was present at the time. The person whose name was given as Mark Pearson paid for the room. The name Mark Pearson also appears on the Press Alert. In the course of his interviews, Mr Hahnheuser made admissions that there were other persons with him in the feedlot. He described what had happened as an operation that was carefully designed and planned, involving detailed investigations in advance and reconnaissance over a number of days, and as being "highly organised". It is clear that the other persons involved were willing participants; there is nothing to suggest that they were coerced, so as to prevent them from being taken to have acted in concert with Mr Hahnheuser. See Epitoma Pty Ltd v Australasian Meat Industry Employees Union (1984) 3 FCR 55 at 61-63. The activities of Mr Hahnheuser and the other persons with him had the element of contemporaneousness sometimes said to be necessary for a finding of conduct in concert to be made. See Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1985) 9 FCR 425 at 433 per Keely and Pincus JJ.

31 So far as the evidence goes, the acts of the persons accompanying Mr Hahnheuser were not identical to those of Mr Hahnheuser. He appears to have been the one mixing the ham and water, and the one placing the ham and tainted water in places from which the sheep would be expected to feed. Mr Hahnheuser was the one who gave the television interviews. The evidence does not disclose that any of the other persons did any of these things. There may be cases in which different people perform different acts, all directed towards achieving the same end, but the differences are so great as to prevent the conduct of the different persons being described accurately as conduct "in concert". See the discussion in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia (1991) 32 FCR 318 at 328-329 per Gray J. Nevertheless, in the present case, the extent of the collaboration is sufficient to support a finding that Mr Hahnheuser and at least one of the persons with him were engaging in conduct in concert. An integral part of the end that they sought to achieve was that there should be proof of the adulteration of the sheep feed, so that the shipment of the consignment of sheep could not go ahead and there would be media coverage, informing the public of the frustration of the attempt to ship those sheep to the Middle East. Thus, recording the videos was an essential part of the conduct. Mr Hahnheuser was assisted in making his point in some of the interviews by the other person holding signs so that they would be visible to the television camera. The result is that at least one other person was actively assisting Mr Hahnheuser to achieve the end that he sought, and was doing so by practical means calculated to complement the acts of Mr Hahnheuser. This fact justifies the finding that there were two persons acting in concert to perform the conduct complained of, and that one of them was Mr Hahnheuser.

Purpose

32 There is no reason to suppose that the word "purpose" in s 45DB(1) of the Trade Practices Act was intended to have a meaning different from that in which it was used in the (previously enacted) s 45D(1). In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331 at 348-349, Deane J said:

The "purpose" referred to in s. 45D (1) is the operative subjective purpose of those engaging in the relevant conduct in concert...


It suffices, for present purposes, to say that, in my view, the question to be answered in determining whether conduct was engaged in for a "purpose" mentioned in s. 45D (1) of the Act is...to be answered not by reference to whether it was appreciated that the relevant conduct might have the specified effect but by reference to the real reason or reasons for, or the real purpose or purposes of, the conduct and to what was in truth the object in the minds of the relevant persons when they engaged in the conduct in concert.


33 This passage embodies the accepted meaning of the word "purpose" for s 45D(1) and, consequently, for s 45DB(1) of the Trade Practices Act. It is therefore necessary to find the existence of a subjective purpose, on the part of each of the persons acting in concert, to prevent or substantially hinder a third person from engaging in the relevant trade or commerce. As to Mr Hahnheuser, it is relatively easy to ascertain a subjective purpose for his engagement in the conduct. What he said in his interviews makes it abundantly clear that he was trying to stop the sheep in the two feedlots from being loaded aboard the Al Shuwaikh for export to the Middle East.

34 It seems relatively clear from the terms of s 45DB(1) of the Trade Practices Act, as Deane J in Tillmanns thought it seemed clear from the terms of s 45D(1), that the subjective purpose concerned is required to have been held by each of the persons found to be acting in concert before the subsection can be applicable. Apart from the possibility that the name of the operator of the video camera in the motel bathroom or in the feedlot was either Diana Simpson or Mark Pearson, nothing is known about the identity, or even the number, of such person or persons. This makes the determination of a subjective purpose somewhat difficult without resorting to the proposition that, because the combined actions of the persons concerned had the effect of preventing or hindering the transporting to the Middle East as live animals of the particular consignment of sheep, this must have been their purpose. To adopt that reasoning is either to look for an objective purpose, or to do something indistinguishable from looking for an objective purpose.

35 There is a small amount of evidence about what others had in mind. Mr Hahnheuser was not the only one wearing the tee-shirt endorsed with the words "Ban Live Exports". One person held up signs, including one bearing these words, during some of the interviews given by Mr Hahnheuser. Mark Pearson appears to have lent his name to the Press Alert. On the basis of these facts, it is "reasonably open to find" that the representations made by Mr Hahnheuser in his media interviews were made by him in furtherance of a common purpose with the persons with whom he acted in concert. As a result, by s 87(1)(c) of the Evidence Act 1995 (Cth), admissions in those representations are admissible in evidence as admissions of the other persons. In those interviews, Mr Hahnheuser expressed himself to be a spokesperson for others, as well as putting his own views. He made it clear that the adulteration of the sheep feed and the subsequent publicising of it were carried out with the purpose of preventing the export of the consignment of sheep. The evidence therefore supports a finding that Mr Hahnheuser’s subjective purpose was also the subjective purpose of the other person or persons with whom Mr Hahnheuser acted in concert.

Effect or likely effect

36 Assuming that at least one person other than Mr Hahnheuser, being a person with whom Mr Hahnheuser acted in concert, shared Mr Hahnheuser’s purpose, the next question is as to the effect or likely effect of the conduct. The applicants’ submissions pointed to the grounds expressed in the Secretary’s direction of 19 November 2003. Certainly, the effect of the conduct concerned was that there was a delay of approximately two weeks in loading the bulk of the consignment of sheep on board the Al Shuwaikh, and 1,694 sheep, which had been kept in paddock X4 of the feedlot were not exported at all. This was the direct result of the Secretary’s direction of 19 November 2003, and the variation to that direction on 4 December 2003. In turn, both of the Secretary’s directions were brought about by the conduct complained of. In no sense could it be said that the Secretary’s actions, first in preventing the grant of an export permit for the whole consignment of sheep, and then in excluding from the lifting of this ban what was thought to be 1,800 sheep, were intervening events in the chain of causation. That chain led directly from the conduct complained of to the delayed, and partially frustrated, export of the consignment of sheep.

Prevent or substantially hinder from engaging in trade or commerce

37 The next question is whether both the purpose and the effect were such as to prevent or substantially hinder the applicants (being the third persons concerned) from engaging in trade or commerce. The applicants simply relied on the proposition that the export of all sheep was substantially hindered and the export of some of them (the 1,694) was prevented. Both of these propositions are true. It was Samex, however, and not Rural Export, that was the exporter of the sheep. It is easy to say that Samex’s trade or commerce was prevented in respect of the 1,694 sheep and substantially hindered in relation to the balance of the sheep. To determine whether Rural Export’s trade or commerce was so prevented or hindered, it is necessary to ascertain the exact nature of the trade or commerce carried on by Rural Export, so far as it is relevant to its claim in this case.

38 In the statement of claim, it is alleged that Rural Export provided services in respect of the maintenance and transport of sheep intended for sale overseas, including the purchase of sheep and arranging for the carriage of them overseas. According to the evidence of Robert Black, the Chair of Samex, it was Samex that purchased the sheep. He said that Samex has a network of about five livestock buyers spread between Albury/Wodonga and Port Pirie. When it seeks a consignment of sheep to load onto a ship, Samex’s practice is to send out a circular to its agents, seeking quotes for various types of sheep. After receiving and summarising the offers of the agents, Samex’s buyers accompany the stock and station agents to the various properties to inspect the sheep and grade them. This practice was followed in relation to the consignment the subject of this case. It therefore appears that Rural Export had no role in the purchase of sheep in the present case. Mr Black described Rural Export as "our customer". When asked in what sense Rural Export was Samex’s customer, Mr Black said that Samex had a contract with LTT, which was renewed every year, and which required Samex to submit a quotation for every vessel that LTT had coming to Australia. He then referred to the fact that Portland is Samex’s preferred port of loading, and that it does the majority of its LTT shipments out of Portland. It appears that Mr Black saw Rural Export as a customer of Samex on the basis that Rural Export is a subsidiary of LTT, and was therefore perceived as part of LTT’s operation, which was shipping the goods overseas. In fact, Rural Export is a separate legal entity from LTT, although owned by LTT. Rural Export acquired no goods or services from Samex, so far as the evidence in this case goes. To the contrary, it was Samex that acquired services, and perhaps goods, from Rural Export. In that sense, Samex was a customer of Rural Export.

39 Evidence on behalf of Rural Export was given by Captain Michael Kiely, who was General Manager of Rural Export at the time of the events the subject of this case. He described his functions and tasks as being to look after LTT’s interests in Australia. Because of his technical background and his experience in the Merchant Marine, he used to look after any repairs in Australia, attend dry dockings overseas and write specifications for repair. Captain Kiely gave very brief evidence that, in accordance with the usual practice, once the Al Shuwaikh was within a few days of the loading port, Rural Export "took over locally to arrange agency stevedoring, stores, spares etc." He was not invited to expand his evidence in relation to these functions. Although Captain Kiely came to Portland from Western Australia after the Secretary’s direction of 19 November 2003 had been made, it was unusual for him to visit Portland even if a ship was there, because Rural Export was "well represented there" in terms of "shipping agents, party rep, quality controllers, plus our known relationship with the suppliers". From his later evidence, it appears that what is transcribed as a reference to "party rep" should have read "third party vet", a person whose presence was presumably necessary in order to carry out the final inspection of the sheep before they could board the vessel.

40 Captain Kiely arrived in Portland on 2 December, in anticipation of the docking of the Al Shuwaikh. At the time, he was concerned that another LTT vessel was on its way to Portland, which might have had to be diverted to Adelaide if the Al Shuwaikh had not loaded in time to empty the feedlots, to allow five days for the next consignment of sheep to adjust to eating pellets. It is not clear from Captain Kiely’s evidence that it was necessary to divert the other vessel to Adelaide. The only other relevant evidence was that, on his way back to Perth, Captain Kiely visited Adelaide to see what security arrangements there were at the feedlots that would be used in the event that the other vessel went there. It certainly was not part of Rural Export’s case that its trade or commerce was prevented or substantially hindered by having to divert the other vessel to Adelaide.

41 According to Captain Kiely’s evidence, when the loading of the Al Shuwaikh did begin on 4 December, it took longer than normal loading. He explained this in the following terms:

I think some of it was because everyday people had been hoping to make a start but we knew when we got the okay we had to make final arrangements for lots of people, we had to get the stevedores with labour, we had to get the third party vet available, the quality controllers were already there, that wasn’t a problem, and then the - and also the feedlot had to get truck drivers...There were not the full number of trucks in operation...we were only loading one ramp because the stevedores didn’t have a full complement there first thing in the morning, and I think that was the main reason it was slow.


42 Consistently with the evidence of Captain Kiely, Mr Peddie gave evidence that he and others who ran the feedlot usually organised the trucks to convey the sheep from the feedlot to the wharf when loading took place. They also inspected the sheep as they left. There is nothing in the evidence to suggest that the usual practice was not followed in relation to the consignment the subject of this case.

43 The only other evidence of activities of Rural Export relevant to this case appears to be that it was responsible for supplying feed, in the form of both hay and pellets, to the feedlot while sheep were there. Rural Export’s principal claim for damages is based on the cost of providing extra feed, because the sheep were in the feedlot for substantially longer than was originally intended. Mr Peddie’s evidence is reasonably clear that the feed was actually administered to the animals, by a combination of being dropped from a moving truck, placed in the feed troughs and placed in the hopper feeders, by Mr Peddie and those employed by him to manage the feedlot. Rural Export’s only role appears to have been the provision of the feed, although even in relation to that, Mr Peddie’s evidence was that the exporter paid for the feed.

44 On this evidence, it is difficult to see that Rural Export was prevented or substantially hindered from carrying on its trade or commerce by reason of the activities of Mr Hahnheuser and those in concert with whom he acted. There is no evidence that Rural Export had any difficulty engaging, or retaining, the services of those whom it was responsible for engaging, whether they be stevedores, a vet, or any suppliers. Captain Kiely’s evidence that the loading was slow because Mr Peddie was unable to find enough available trucks, and the stevedores were only able to supply enough labour to operate one ramp, may relate to the hindering of the trade and commerce of others, perhaps including Samex, but they do not appear to relate to the trade or commerce of Rural Export, the role of which was limited to engaging the stevedores in the first place. As to the provision of extra feed for the sheep during their longer stay in the feedlot, Rural Export was required to carry on its trade and commerce to a greater extent than it would otherwise have done, by ordering the extra feed and ensuring its delivery into the feedlot.

45 What s 45DB(1) of the Trade Practices Act requires is that trade or commerce be prevented or substantially hindered. It appears to be accepted generally that "hindering" in this context must be given a broad meaning, so that it conveys in any way affecting to an appreciable extent the ease of the usual way of performing the activity concerned. The authorities are referred to in Australian Builders’ Labourers’ Federated Union of Workers − Western Australian Branch v J-Corp Pty Limited (1993) 42 FCR 452 at 459-460 per Lockhart and Gummow JJ, especially the passage quoted there from the judgment of Mason CJ in Devenish v Jewel Food Stores Pty Ltd [1991] HCA 7; (1991) 172 CLR 32 at 45-46. There is no suggestion in the present case that the ease with which Rural Export ensured the supply of feed to the feedlot was affected in a negative way to any extent. It simply had to do more of what it would normally have been required to do, during a longer period than it would have been required to do it. It is possible that Rural Export’s capacity to do other things in conducting its trade or commerce might have been affected by the need to spend extra time ordering and directing the delivery of extra feed. There is no evidence to this effect, however. It is said that Rural Export had to spend more money on feed than it otherwise would have in respect of this consignment of sheep. On that basis, it appears to me that the only way in which it could be said that Rural Export’s trade or commerce has been hindered would be if it were to be accepted that being obliged to spend more money and to carry out the actions necessary to order and procure the delivery of further feed, in order for Rural Export to discharge its responsibilities with respect to the particular consignment of sheep, amounts to having its trade or commerce hindered. This may require an expansion of the concept of hindering beyond that with which the authorities seem to deal. As the authorities stand, I am unable to say that the trade or commerce of Rural Export was hindered, whether substantially or otherwise.

Involving the movement of goods between Australia and places outside Australia

46 It is not any trade or commerce that is protected by s 45DB(1) of the Trade Practices Act. The protection is afforded to trade or commerce "involving the movement of goods between Australia and places outside Australia." The term "goods" is defined to include animals. There were therefore goods to be moved between Australia and a place or places outside Australia, being a destination or destinations in the Middle East, in the present case. The real question is whether the trade or commerce of either applicant was trade or commerce "involving" that movement.

47 In this respect, there is some authority, which may shed light on the meaning of s 45DB(1). In F H Transport Pty Ltd v Transport Workers’ Union of Australia(1997) 75 FCR 480, Drummond J considered whether to grant an interlocutory injunction to restrain industrial action interfering with the delivery of goods to, and the collecting of goods from, terminals operated by several transport companies. The interlocutory injunction was sought on a number of grounds, including alleged contravention of s 45DB(1) of the Trade Practices Act. At 490, his Honour suggested, in a single sentence, that the existence of evidence that part of one transport company’s activities involve the movement of containers committed to international trade showed that there was a strong arguable case of infringement of s 45DB.His Honour did not discuss specifically whether the trade or commerce of a transport company, being the carriage of containers by road, was trade or commerce "involving" the movement of goods between Australia and a place outside Australia. He appears to have assumed that this was so. In Farah (Australia) Pty Ltd v National Union of Workers NSW Branch (No 1) (1997) ATPR 41-583, Sackville J rejected a claim for an interlocutory injunction, which was based on s 45D(1)and s 45DB(1) of the Trade Practices Act. In that case, a picket line was preventing the delivery of goods to premises in Sydney, occupied by an importer and wholesale distributor of clothing products, some of which were manufactured in Fiji. At 44,066-44,067, his Honour expressed a tentative view that there was not a serious issue to be tried in relation to s 45DB(1), because there was little or nothing in the evidence suggesting that any of those involved in the picket had in mind the purpose of preventing or substantially hindering the Fijian supplier from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia. His Honour did express the view that the evidentiary position may change on a final hearing. It therefore appears that his Honour took the view that it was at least possible that the Fijian manufacturer and exporter to Australia was engaged in trade or commerce involving the movement of goods from a place outside Australia to Australia.

48 The only other relevant authority appears to be Australian Wool Innovation Ltd v Newkirk (No 2) [2005] FCA 1307. That case involved an attempt to strike out a statement of claim in which reliance was placed on s 45DB(1) of the Trade Practices Act, among other causes of action. Hely J struck out those parts of the statement of claim based on s 45DB. The relevant passages in his Honour’s judgment are found at [56]-[65] and cast light on the question of interpretation that arises in the present case. It is not clear from the reasons for judgment what trade or commerce the applicants in that case carried on. Reference to an earlier judgment in the same proceeding, Australian Wool Innovation Ltd v Newkirk [2005] FCA 290 at [1] and [3], reveals those applicants to have been a corporation claiming to represent some 30,000 Australian woolgrowers, and persons or companies who were Australian woolgrowers represented by that corporation. InAustralian Wool Innovation (No 2) at [57], Hely J pointed out that about 95 per cent of the annual production of Australian wool is exported to places outside Australia. The respondents in that case were alleged to be conducting a campaign against a practice known as mulesing, a practice involving the surgical removal of folds of skin in the breech of a ewe as a measure against flystrike. At [57], his Honour described this as a campaign that could be seen as conduct designed to hinder or prevent the export of Australian wool. His Honour said:

On a broad reading of s 45DB, conduct which prevents an export sale of wool is at least arguably conduct which prevents the putative vendor from engaging in trade or commerce involving the movement of goods between Australia and places outside Australia because, as a result of the frustration of the intended sale, there will be no movement of those goods overseas.


49 Nevertheless, his Honour struck out the relevant paragraphs of the statement of claim in that case, on the basis that s 45DB "is directed at the act of movement of the goods, and not at acts anterior to the act of movement." See [58] and [64]. This conclusion was the result of his Honour’s examination of the history of the passage of s 45DB through Parliament.

50 As his Honour pointed out at [59], the original form in which s 45DB(1) passed through the House of Representatives contained a prohibition on persons, acting in concert, from engaging in conduct where the purpose and effect or likely effect of the conduct was to prevent or substantially hinder a third person from engaging in trade or commerce between Australia and other countries, among the States and Territories or within a Territory. The final form of the provision resulted from an amendment sponsored jointly by the Government and the Australian Democrats, and moved in the Senate. The form of the amendment appears to have provoked some controversy, because a document recording arguments of the Government in favour of the amendment was incorporated into the parliamentary record (Australia, Senate, Debates, (1996) Vol S180, p 5606). That document contained the following passage, which Hely J quoted in Australian Wool Innovation (No 2)at [60]:

Some concern has been expressed that the provision, as amended, still imposes a very broad prohibition on conduct that constitutes a primary or second boycott. The concern appears to be based on a view that the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" covers a very broad range of activities, because a great many manufacturing and distribution operations have some connection with the export of goods.


The concern is ill-founded. The intention of this amendment is that the prohibition in section 45DB will not apply in respect of the production and distribution of goods within Australia.


The boycott conduct that the section is designed to prohibit is conduct that has been undertaken for a particular purpose and which has, or is likely to have, a particular effect. The purpose and effect of the conduct must be to prevent or substantially hinder a third person from engaging in a particular type of trade or commerce. That is, trade or commerce involving the movement of goods between Australia and places outside Australia. In this context, the use of the expression "trade or commerce involving the movement of goods between Australia and places outside Australia" does not mean merely that the trade or commerce affected includes the movement of goods into or out of Australia, or that the movement of goods into or out of Australia forms some part of, or is related to, the trade and commerce. Rather, it means that the trade or commerce that is affected must entail, or be rolled up with, the movement of goods between Australia and places outside Australia.


51 In addition, at [61], Hely J quoted from the speech of Senator Murray, a joint mover of the amendment motion, in the following terms:

These amendments represent a signification modification of the original bill ... Instead of a general prohibition on primary boycotts affecting trade and commerce, the prohibition will extend only to trade and commerce involving the movement of goods between Australia and places outside it. This provision will pick up only the act of movement; it will not pick up any other aspect of trade and commerce.


Some commentators have suggested that it will pick up any aspect of trade and commerce if some aspect of that trade and commerce were to involve the movement of goods. I wish to state categorically, as a joint mover of the motion, that this is clearly not the intention of that provision. This provision is targeted purely and solely at movement, at shipping, for example. The reason for that is that primary boycotts on the wharves affect many other people. The effect is not limited to the immediate parties involved. If the waterside workers refuse to load perishable goods, the supplying factory might be forced to suspend operations and stand down workers, resulting in innocent employers and employees being hurt.


52 At [62], Hely J expressed the view that it was clear that s 45DB(1) as enacted was intended to have a much narrower field of operation than the form originally proposed. At [63]-[64], his Honour rejected an argument that the provision was ambiguous and might, on one view, be broad enough to encompass the claim made. His Honour decided to resolve the question of construction then and there, rather than to leave it to the trial. He expressed the view that the words "involving the movement of goods" are "obviously words of limitation intended to narrow what would otherwise have been the scope of the s 45DB prohibition." It is noteworthy that his Honour appears to have regarded the issue as so clear as to warrant the striking out of the claim.

53 In the present case, counsel for the applicants objected to reliance being placed on the parliamentary materials on which Hely J relied. The objection was obviously untenable. Section 15AB of the Acts Interpretation Act 1901 (Cth) permits the use of material not forming part of an Act if that material is capable of assisting in the ascertainment of the meaning of a provision. Among the material specified in s 15AB(2) as materials that may be considered are:

(e) any explanatory memorandum relating to the Bill containing the
provision, or any other relevant document, that was laid before, or
furnished to the members of, either House of the Parliament by a
Minister before the time when the provision was enacted;


...


(h) any relevant material in the Journals of the Senate, in the Votes and
Proceedings of the House of Representatives or in any official record
of debates in the Parliament or either House of the Parliament.


54 In a case such as the present, the history of a provision can be of great importance in construing its meaning. It is possible to see, as Hely J did, that the operation of the provision has been narrowed substantially when compared with the form in which it was first passed by the House of Representatives and transmitted to the Senate. It is significant that the amendment proposed was supported by the Government. The document incorporated into Hansard, on which Hely J relied, falls squarely within s 15AB(2)(e) and the remarks of Senator Murray, a joint mover of the amendment, fall within s 15AB(2)(h).

55 I respectfully adopt Hely J’s reasoning in relation to s 45DB(1). His Honour’s judgment was a considered one. To the extent to which Hely J’s view is inconsistent with the views of Drummond J in F H Transport and Sackville J in Farah, Hely J’s view is to be preferred. There is nothing in the reasons of Drummond J and Sackville J in those two cases to show that their Honours even considered the possibility that the words "involving the movement of goods" should be regarded as narrowing the operation of s 45DB(1), or that either of them considered the parliamentary materials.

56 The view expressed by Hely J, that s 45DB(1) does not apply to acts anterior to the movement of goods from Australia to a place outside Australia, is consistent with dictionary definitions of the word "involving" and authorities dealing with the use of that word in other statutory contexts. The Macquarie Dictionary (revised edition) defines "involve" relevantly as follows: "to include as a necessary circumstance, condition, or consequence; imply; entail" and "to include, contain or comprehend within itself or its scope." The Oxford English Dictionary (2nd edition) defines "involve" relevantly as: "to enfold, envelop, entangle, include"; "to include; to contain, imply"; and "to contain implicitly; to include as a necessary (and therefore unexpressed) feature, circumstance, antecedent condition, or consequence; to imply, entail." In Rimanic v Business Licensing Authority [2001] VSC 400, Habersberger J had to consider whether a conviction for making a threat to kill was a conviction "of an offence involving violence", disqualifying a person from obtaining a licence as a motor car trader. At [19], his Honour referred to dictionary definitions. At [45]-[46], his Honour referred to Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659, in which the question was whether certain statutory offences were offences "involving fraud or dishonesty". In Pollard, the argument that such an offence was limited to an offence "of" fraud or dishonesty was rejected, on the basis that the substitution of the word "of" for the word "involving" would fail to give the relevant provision its ordinary meaning. At [48], Habersberger J expressed the view that an offence involving violence is something less than an offence of violence, relying on Pollard. Relying on R v McCrossen [1991] Tas R 1, his Honour also expressed the view that an offence involving violence is also something less than an offence one of the essential ingredients of which is violence. As one of the relevant meanings of the word "involving" was "implying", and a threat to kill implied violence, a threat to kill was an offence involving violence.

57 The result of this examination of the authorities seems to me to be the conclusion that "trade or commerce involving the movement of goods between Australia and places outside Australia" in s 45DB(1) of the Trade Practices Act is not limited to trade or commerce being the movement of goods. That is to say, it is not limited to trade or commerce carried on by the actual shipper of the goods. In my view, it extends to include the trade or commerce of the person who engages the shipper to carry the goods. In this case, that person is the exporter, Samex. The trade or commerce of Samex is trade or commerce "involving" that movement of goods, because the movement is enfolded, enveloped, entangled, included or contained as a necessary element or circumstance of the trade or commerce. Thus, the use of the word "involving" gives rise to a broader meaning than simply trade or commerce being the movement of goods. On the other hand, trade or commerce involving acts anterior to the movement of goods is excluded. Again, this is the effect of the use of the word "involving". Such trade or commerce might be connected with the movement of goods to a place outside Australia, but that movement of goods is not contained within the trade or commerce. As a consequence, the trade or commerce of Rural Export, particularly that of supplying the feed while the sheep were in the feedlot, which ceased at the time when the sheep were loaded onto trucks for carriage to the wharf, was not protected by s 45DB(1).

Dominant purpose - environmental protection

58 In his amended defence, Mr Hahnheuser pleaded that the dominant purpose of the conduct alleged against him was substantially related to environmental protection, that the conduct was not industrial action, and that he had not contravened s 45DB(1) of the Trade Practices Act because of the operation of s 45DD(3).In particulars, the dominant purpose of Mr Hahnheuser was described as "to protect sheep from cruelty and suffering as a result of live transport by ship to, and arrival in, the Middle East and also to increase public awareness and education of the suffering and cruelty suffered by sheep during live transport by ship." This aspect of the pleadings raises the question whether the prevention of cruelty to, and the suffering of, animals forms part of "environmental protection" in s 45DD(3).That expression is undefined in the Trade Practices Act.

59 In Queensland v Murphy [1990] HCA 42; (1990) 95 ALR 493 at 498, the High Court commented on the ordinary meaning of the term "environment" as follows:

In its ordinary meaning "environment" signifies that which surrounds and has long been understood to include "the conditions under which any person or thing lives": Oxford English Dictionary, 2nd ed (1989). The latter usage dates from 1827 when Thomas Carlyle used the word to mean "the aggregate of external circumstances, conditions, and things that affect the existence and development of an individual, organism, or group". See Hendrickson, The Encyclopedia of Word and Phrase Origins, (1987).


60 There can be little doubt that "environmental protection" means the protection of the environment. There is nothing in s 45DD(3) of the Trade Practices Act to indicate that the word "environmental" is used in a more narrow sense than its ordinary meaning. Indeed, the legislative history of the Act by which s 45DD was inserted into the Trade Practices Act (the same Act as that which inserted s 45DB) suggests to the contrary. Like s 45DB(1) in its present form, s 45DD(3) was the subject of an amendment moved in the Senate jointly by the Government and the Australian Democrats. One of the joint movers, Senator Murray, told the Senate:

In drafting exclusions, the Democrats have opted not to define what is meant by environmental protection or consumer protection. It is our clear intention in moving these amendments that the clauses be interpreted broadly. (Australia, Senate, Debates, (1996) Vol S180, p 5608).


61 Senator Murray then referred to the High Court’s application of the natural and ordinary meaning of "environment" in Murphy, and went on to state that "environmental protection" in the proposed legislation would:

extend to environmental issues affecting indigenous people, such as the protection of sacred sites. It would extend to urban environment issues and pollution issues. It would extend to environment issues such as preservation of historic buildings. It should and will be interpreted very broadly. It would include boycotts in relation to nuclear issues and the impact they could have on the environment. It would extend to the protection of living things in other countries, such as South-East Asian rainforests. (Australia, Senate, Debates, (1996) Vol S180, p 5608-5609).


62 In the course of debate on the proposed amendment, a comment was made that some of the proposed provisions were "blunt instruments". Senator Campbell, representing the Government, responded that:

this chamber should be informed that these so-called ‘blunt instruments’ are available only in respect to illegitimate, industrial action; that is action unrelated to workers’ pay and conditions of employment and which wreaks damage on innocent third and fourth parties. (Australia, Senate, Debates, (1996) Vol S180, p 5607).


63 For reasons similar to those I have given in [53]-[54], these contributions to the debate in the Senate can be relied upon to confirm the use of the phrase "environmental protection" in s 45DD(3) in its ordinary meaning. Counsel for the applicants referred to statutory definitions of the word "environment" in other legislation, in an attempt to suggest that the phrase "environmental protection" should be construed to mean something less than it does in its ordinary meaning. He referred to s 4 of the Environment Protection Act 1970 (Vic) and to s 15 of the Natural Heritage Trust of Australia Act 1997 (Cth). It is unnecessary to refer to those definitions in detail. Both demonstrate a legislative intention to make the provisions of their respective Acts applicable to a narrower concept of the environment than is involved in its ordinary meaning. The absence from the Trade Practices Act of a definition of "environmental protection" is both deliberate (as revealed by the statement of Senator Murray, to which I have referred in [60]) and significant in demonstrating an intention that the phrase should be used in its ordinary sense.

64 Once this is accepted, it is clear that the environment for the purposes of the phrase "environmental protection" in s 45DD(3) of the Trade Practices Act includes sheep generally. It is clear that the environment comprehends living things, including animals, and the conditions under which they live. No reason appears for drawing any distinction between animals that are bred to be farming stock, to be slaughtered for the production of food for humans, and other animals. There is no room for applying the old distinction between animals ferae naturae and animals mansuetae naturae, which was developed by the common law for the purpose of determining whether it was possible to own an animal of a particular species. Farm animals are as much a part of the environment as are wild animals, feral animals and domestic animals. There is no reason why the protection of the conditions in which farm animals are kept should be excluded from the concept of environmental protection.

65 Although Mr Hahnheuser has pleaded reliance on s 45DD(3) of the Trade Practices Act in his amended defence, there is a question whether he is entitled to rely on that provision when he has not participated in the trial of the proceeding. In other words, there is a question as to whether the onus of proof of the elements of s 45DD(3) falls on the person seeking to rely on it, or whether the party contending that a contravention of s 45DB(1) has occurred carries the onus of proving that the elements of s 45DD(3) did not exist. The resolution of this question must lie in ascertaining the intention of the legislature from the provisions of the legislation. Often, the fact that a provision is expressed as an exception to a general provision, whether or not it appears in the same section as the general provision, will be a significant indicator that the onus lies on the party seeking to take advantage of the exception. This is not a conclusive rule. See Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 at 519 and Attorney-General of the Australian Capital Territory On The Relation of Olaseat Pty Ltd v The Australian Capital Territory Minister for the Environment, Land and Planning (1993) 43 FCR 329 at 335-336.

66 Section 45DD was inserted into the Trade Practices Act as a unified provision, by Act No 60 of 1996. The Bill for that Act was, of course, amended in the Senate, but the section emerged as a whole and has not been amended subsequently, save for the reference to s 298B(1) of the Workplace Relations Act 1996(Cth), which was updated in 2006, consequent upon amendments to that Act. Subsections 45DD(1) and (3) provide for circumstances in which a person "does not contravene, and is not involved in a contravention of" earlier provisions of the Trade Practices Act, including s 45DB(1). Similarly, s 45DD(2) provides that persons who fulfil the specified conditions "do not contravene, and are not involved in a contravention of" those same provisions of the Trade Practices Act. In each case, the language is that of exception or exemption. This is emphasised by the provisions of s 45DD(6) which have the effect that, notwithstanding that some persons contravening, or involved in a contravention of, the earlier provisions may fall within s 45DD(1), (2) or (3), persons who do not fall within those subsections are still to be regarded as contravening, or involved in the contravention of, the earlier provisions. Each of these three subsections has as one of its elements the dominant purpose of a person or persons. There is no reason to suppose that this is anything other than a subjective purpose. It is possible to ascertain the state of a person’s mind at a particular time without hearing evidence from that person, but the fact that an element of each of the three subsections is the subjective purpose of a person is an indicator that the person would normally be expected to provide evidence of his or her state of mind. Thus, the words used to indicate the existence of exceptions and the fact that a subjective purpose is an element suggest that the onus of proof of the elements of each of the three subsections lies upon any person seeking to avail himself or herself of the exceptions for which they provide.

67 The symmetry of s 45DD is shattered, however, when subs (7) is examined. The form of that section differs markedly from the formula adopted in subss (1), (2) and (3). Subsection (7) also provides for an exception in relation to s 45DB(1), but the exception operates as "a defence if the defendant proves" the specified elements. Both of the paragraphs of subs (7) relate to matters of which the person seeking to raise the defence would be expected to have knowledge. Importantly, the element in subs (7)(b) is that of a dominant purpose. In light of the fact that s 45DD was enacted as a whole, the difference of wording between subss (1), (2) and (3) is important. Only subs (7) contains a specific provision about the onus of proof. The effect of this provision is to place the onus of proof on the person seeking to rely on either of the exceptions referred to in subs (7). It seems clear from this change that the legislative intention was not to cast upon the person seeking to take advantage of subss (1), (2) and (3) the onus of proving the elements enabling them to do so. It seems clear that Parliament intended that those three subsections should operate by way of qualification on the elements of the relevant preceding provisions of the Trade Practices Act, so that the person alleging contravention of any of those provisions would be required to establish that the elements referred to in any of the three subsections, on which reliance was placed in pleadings, were not present.

68 I therefore approach the issue of the application of s 45DD(3) on the basis that it was not necessary for Mr Hahnheuser to appear at the trial and give evidence, because the onus of proof of the elements of s 45DD(3) does not fall on him. Rather, it falls on the applicants to establish on the balance of probabilities that Mr Hahnheuser did not have a dominant purpose substantially related to environmental protection when he engaged in the conduct complained of. Having regard to the definition of "industrial action", contained in s 45DD(4) and (5), no issue arises as to the conduct being industrial action, for the purpose of s 45DD(3). No part of the conduct was concerned with the performance or non-performance of work by Mr Hahnheuser for either of the applicants, or indeed for anybody else. The applicants led no evidence that would enable me to conclude that Mr Hahnheuser, or any of the persons with whom he acted in concert, were engaged in industrial action.

69 As I have said, the determination of the subjective purpose of a person will usually involve the giving of evidence by that person as to what his or her subjective purpose was. This case is perhaps exceptional in that the applicants have tendered a substantial amount of evidence in which Mr Hahnheuser expressed what his state of mind was at the time he engaged in the relevant conduct. His statements in those interviews emphasised animal welfare and animal protection, and described the conditions to which animals were subjected while being transported overseas in strong terms, with particular reference to the suffering of those animals as a result of being crowded into relatively small areas on ships, travelling through hot and humid areas. It is clear from this evidence that Mr Hahnheuser’s dominant purpose was the protection of animals from the suffering that he perceived they would undergo if they were shipped to the Middle East.

70 Counsel for the applicants submitted that s 45DD(3) could not apply in the absence of evidence that the sheep would in fact suffer cruelty or have their welfare diminished if they had been loaded onto the Al Shuwaikh and transported to the Middle East. Such evidence is unnecessary. Section 45DD(3) applies to exclude the operation of s 45DB(1) if a person has a subjective dominant purpose that is substantially related to environmental protection. Plainly, a subjective purpose of this kind remains a subjective purpose, whether or not it is objectively justifiable. Indeed, a purpose related to environmental protection is very often incapable of objective justification, because it relates to matters that are susceptible of a range of opinions. Obviously, those who engage in the live sheep export trade to the Middle East would be prepared to argue that the sheep they export do not suffer undue cruelty and are not in need of protection. Those who provide official sanction for the trade would be of the same view. They would see the export trade, with its current safeguards, as striking the right balance. There are others who would take a contrary view. This contrary view is far from irrational. There can be little doubt that the conditions in which sheep are placed on ships during live export are disadvantageous to the sheep, when compared with the conditions in which they would generally be placed on farms. In general, sheep would have a much greater opportunity to wander over wider areas, and to eat live vegetation, when on farms than they do when on ships. Even when transported to abattoirs by road, sheep are likely to spend much less time in crowded conditions than they are on ships going to the Middle East. The very fact that sheep are in effect compelled to become used to eating pellets might be thought by some to make their lives less pleasant than if they were eating vegetation growing in pastures. These are the sorts of issues that courts ought not to be called upon to determine, because they are matters of opinion. For that reason alone, I reject the submission that there has to be some objective demonstration of the need of sheep for protection from harm they would suffer during shipping to the Middle East. All that a subjective dominant purpose requires is that the person holding it have a belief that such protection is necessary. Plainly, on the evidence in this case, Mr Hahnheuser had such a belief.

Conclusion

71 It follows from what I have said that the effect of s 45DD(3) is that Mr Hahnheuser did not contravene, and was not involved in a contravention of, s 45DB(1) of the Trade Practices Act, because he engaged in the relevant conduct with a dominant purpose that was substantially related to environmental protection, and his conduct was not industrial action. Accordingly, neither applicant can succeed in establishing contravention of s 45DB(1) by Mr Hahnheuser in this proceeding. There are two additional obstacles to success by Rural Export, namely that its trade and commerce was not prevented or substantially hindered by anything that Mr Hahnheuser did and, in any event, the trade and commerce in which it engaged relevantly was not trade or commerce involving the movement of goods between Australia and places outside Australia.

72 The amended statement of claim contained an alternative allegation of trespass to Samex’s sheep, said to have been constituted by entering the feedlot and placing pig meat in the feeding and drinking systems. Counsel for the applicants made no submission on this trespass claim. This is probably because trespass to goods is limited to direct and immediate interference with possession of a chattel. Although owned by Samex, the sheep concerned were in Mr Peddie’s possession at the time when Mr Hahnheuser engaged in his conduct. Further, there is no evidence that Mr Hahnheuser interfered directly with the sheep. There is an obvious distinction between direct interference of the kind required to constitute a trespass and leaving something that sheep might or might not choose to eat in a place where they might or might not choose to go for the purpose of eating. It has been held that laying baits for dogs, which were subsequently taken by the dogs of a passing drover of sheep, did not amount to trespass to the dogs. See Hutchins v Maughan [1947] VLR 131. Indeed, the evidence, so far as it goes was that there was untouched matter found in at least one of the feeding troughs, which the sheep had apparently chosen not to eat. Whether any sheep actually ingested any adulterated feed must remain a matter of speculation.

73 For reasons I have already stated in [3], there must be an order dismissing the application as against the second respondent, with no order as to costs. That order is made by consent of the applicants and the second respondent. As a result of the conclusions I have reached, there must also be an order dismissing the application as against Mr Hahnheuser. In my view, there should be no order as to costs. In particular, costs should not follow the event because Mr Hahnheuser received the benefit of pro bono legal representation (not organised through the legal referral scheme operated by the Court under O 80 of the Federal Court Rules) until he declined to avail himself of it any further. It is not even altogether clear that the Court would have any power to award costs in his favour in those circumstances.

74 I should also say that, if I had been satisfied that there had been a contravention of s 45DB(1) of the Trade Practices Act, I should certainly not have been prepared to make a declaration, or to grant an injunction, in any of the forms specified in either of the application or the applicants’ outline of argument. All of the suggested forms of both orders are inadequate to specify with the precision necessary the conduct in which Mr Hahnheuser has engaged or the conduct he would be required to refrain from engaging in. It is unnecessary to say more than that.

75 Because the proceeding is a test case, I should also comment on one other issue that might have arisen, if I had found that Mr Hahnheuser’s conduct contravened s 45DB(1) of the Trade Practices Act in respect of Samex, but not in respect of Rural Export. That is the issue as to whether both applicants would have been entitled to claim damages. The issue was not argued fully, but counsel for the applicants did suggest that s 82 of the Trade Practices Act entitled both applicants to damages, even if the contravention related only to one of them. There appears to be a dearth of authority about the extent of the reach of s 82 in this respect. Such authority as does exist tends to relate to questions of damages resulting from misleading and deceptive conduct. It is well-established that, in the case of misleading and deceptive conduct, resulting in the diversion of potential customers from a competitor to the corporation engaging in the misleading and deceptive conduct, the competitor is entitled to claim damages, even though not itself misled or deceived. This line of authority appears to have begun, at least, by way of analogy to the tort of passing off. Outside that line of authority, it seems strange that a party in respect of whose trade or commerce there has been no contravention of s 45DB(1) could nonetheless claim damages, on the basis that a contravention has occurred in relation to another party. On the view I have taken, it is plainly unnecessary to resolve this issue, as it is to make any assessment of the damages to which either applicant would have been entitled if I had found a contravention to have occurred.


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