WHETHER or not the Commonwealth will appeal the court ruling that paves the way for live cattle export suppliers to be compensated to the tune of hundreds of millions is still up in the air.
However, legal experts say it was likely there would be an appeal.
The Federal Court finding that then agriculture minister Joe Ludwig overstepped his authority in ordering the 2011 live-cattle export ban surprised many in the legal business.
Rural-based Queensland lawyer Dan Creevey, who has worked on agriculture class actions, said the tort of misfeasance - misuse of public office - was extremely rare, even more so where it involved a high level of public office.
"It was a fairly courageous decision and one which involves subjectivity," Mr Creevey said.
"When a judge has to assess the issue of the level of whether the ban went further than it should have, it is not a black and white decision.
"There is a sense of assessing what in fact was in someone's mind."
Mr Creevey explained there were four elements of the tort that had to be proven.
They were being a holder of public office, exercising power incident of that office, exercising power that was invalid and an element of bad faith.
"It's the final one which is the X factor. It is always a big hurdle for a plaintiff to prove and has been a stumbling block historically," Mr Creevey said.
"The test that has been applied as to bad faith is far from clear and Australian decisions from court to court have varied as to what constitutes it."
Mr Creevey said the ruling set a precedent in that it showed courts were prepared to find misfeasance.
He felt it did, however, raise concerns about whether courts overstep their role in taking a view on a decision made by a minister.
"I'm not arguing either way if that is the case, but I imagine that would be something aired in an appeal," he said.
The fact that then Senator Ludwig did not give evidence during the drawn-out legal process may well have influenced the ruling to his detriment, Mr Creevey said.
"There is a general principle in law that says if a witness who can give evidence does not, the court is entitled to draw an adverse conclusion as to the fact that evidence would have been against their interests," he said.
The defence's decision not to put Mr Ludwig in the box has raised questions among the cattle industry about the wider Gillard government's role in the decision.
Some have interpreted the ruling as painting a picture of a minister headed down the path of an alternative solution until the final cabinet meeting after which the announcement of a total ban was made.
In a press conference after the handing down of the ruling last week, facilitator of the class action Tracey Hayes said: "We heard today that something happened (in the cabinet meeting) and the minister's hand was forced."
Meanwhile, current agriculture minister David Littleproud is expected to make an announcement on an appeal any minute now.
Late last week, at a rural press gathering in Victoria, he described the decision made by Mr Ludwig as abhorrent and having ramifications for the whole beef industry.
He said his government was working through the implications of the judgement and would engage with the plaintiffs.
Mr Littleproud said he did not intend for the process to be protracted.
"As a Federal Government we understand the hurt that has been inflicted by that decision," he said.
"But it is a complex judgment - the implications around executive government and what that would look like in the future is something we would have to make sure we appreciate while also understanding the needs of the plaintiffs."
The story Appeal likely in live-ex ban court case: legal experts first appeared on Farm Online.