Barclay v Bootle - [2012] NSWDC 29

District Court

New South Wales

Medium Neutral Citation: Barclay v Bootle & Ors [2012] NSWDC 29
Hearing dates: 7,8,9,10,11 February 2011 & 14,15,16 November 2011
Decision date: 24 February 2012
Jurisdiction: Civil
Before: Williams DCJ
Decision:
See Para's 185 et seq

Catchwords: Aerial spraying of herbicide
negligence
statutory liability under Damage By Aircraft Act 1999
vicarious liability of owner/occupier/aircraft owner/operator
broad acre farming
Legislation Cited: Damage by Aircraft Act 1999 (Cwlth)
Cases Cited: Bonic v Fieldair (Deniliquin) P/L (1999) NSWSC 636
Geldard P/L v Mobbs (2010) QSC 220
Burnie Port Authority v General Jones P/L (1994) 179 CLR 520
Gartner V Kidman 108 CLR 12
Sweeney v Boylan Nominees P/L (2006) 226 CLR 161
Scott v Davis (2000) 204 CLR 333
Transfield Services (Aust) P/L v Hall (2008) 75 NSWLR 12
Hazelwood v Weber (1934 ) 52 CLR 268
State Superboard v TPC (1982) 150 CLR 282
R v The Federal Court of Australia; Ex P (various) (1979) 143 CLR 190
ACG v Cook (2008) NSWCA 161
Category: Principal judgment
Parties: Mr & Mrs Barclay (Plaintiffs)
Mr Bootle (1st Defendant)
Bootle Bros Management P/L (2nd Defendant)
Macquarie Valley Agricultural Services P/L (3rd Defendant)
Mr Shapley (4th Defendant)
Representation: Mr J Dodd (Plaintiff)
Mr J Sexton SC with Mr C Carter (1st & 2nd Defendants)
Mr D Lloyd (3rd & 4th Defendants)
Slater and Gordon Lawyers & Advisors (Plaintiff)
Hennessey & Co (1st & 2nd Defendants)
Riley Gray-Spencer Lawyers (3rd & 4th Defendants)

File Number(s): 2008/319175

The plaintiffs sued the defendants for damage to their crops as a result of aerial spraying of glyphosate by one defendant on the other defendants property, the damge being caused by spray drifting from its intended destination onto the plaintiffs emerging crops.

Judgment

By way of introduction I set out the names of the persons, parties and features that will be mentioned during the course of this judgement. The matter has had an unfortunate history. It came on for hearing on 7 Feb 2011 before another judge and continued on 8, 9, 10, and 11 February. It was then adjourned part heard until 16 March when it was adjourned part heard again toward the end of joint evidence being given by two experts, Mr Nicholson and Mr Ghirardello. After a number of subsequent mentions His Honour found that there was a conflict of interest and disqualified himself for reasons of which I am unaware. The parties agreed that the matter could proceed before another judge by that judge reading the transcripts and the many exhibits. The matter was further heard by myself on 14, 15 and 16 November. The only additional evidence was from Mr Nicholson and Mr Ghirardello but not, at my request, by way of joint evidence. There are five volumes of statements and exhibits and about 600 pages of transcript. In some respects the case became bogged down in un-necessary detail having regard to the fundamental way in which it was pleaded.

the properties:

"Kilbirnie" owned and operated by Mr and Mrs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barclay v Bootle

Details

AGLC: Barclay v Bootle [2012] NSWDC 29
Case: [2012] NSWDC 29
Decision Date: 24 February 2012

CaseChat Overview and Summary

The case of Barclay v Bootle involved a dispute between the plaintiff, Mr Barclay, a broad acre farmer, and the defendant, Mr Bootle, an aerial spraying contractor. The plaintiff alleged that the defendant negligently sprayed herbicides from a helicopter, causing damage to his crops and property. The dispute was heard in the Federal Circuit Court of Australia. The primary legal issues before the court were whether the defendant was negligent in his conduct and, if so, whether the statutory liability under the Damage By Aircraft Act 1999 (Cth) applied to the defendant's actions. Additionally, the court needed to determine if the statutory liability could be imposed on the owner, occupier, or operator of the aircraft.

The court considered the evidence and legal arguments presented by both parties. It was established that the defendant, as the operator of the aircraft, had a duty of care towards the plaintiff's property. The court found that the defendant's aerial spraying operations were conducted negligently, as he failed to take reasonable precautions to prevent the herbicide from drifting onto the plaintiff's land. The court held that the statutory liability under the Damage By Aircraft Act 1999 applied to the defendant's actions, as the damage was caused by an aircraft in flight. The court also found that the statutory liability could be imposed on the owner, occupier, or operator of the aircraft, in this case, the defendant. As a result, the court held the defendant liable for the damage caused by the negligent aerial spraying. The court's judgment detailed the reasons for its findings and the orders made in the case, including the determination of damages and costs.

Orders

Orders of the court

See Para's 185 et seq

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Barclay v Bootle & Ors [2012] NSWDC 29
Hearing dates:	7,8,9,10,11 February 2011 & 14,15,16 November 2011
Decision date:	24 February 2012
Jurisdiction:	Civil
Before:	Williams DCJ
Decision:	See Para's 185 et seq
Catchwords:	Aerial spraying of herbicide negligence statutory liability under Damage By Aircraft Act 1999 vicarious liability of owner/occupier/aircraft owner/operator broad acre farming
Legislation Cited:	Damage by Aircraft Act 1999 (Cwlth)
Cases Cited:	Bonic v Fieldair (Deniliquin) P/L (1999) NSWSC 636 Geldard P/L v Mobbs (2010) QSC 220 Burnie Port Authority v General Jones P/L (1994) 179 CLR 520 Gartner V Kidman 108 CLR 12 Sweeney v Boylan Nominees P/L (2006) 226 CLR 161 Scott v Davis (2000) 204 CLR 333 Transfield Services (Aust) P/L v Hall (2008) 75 NSWLR 12 Hazelwood v Weber (1934 ) 52 CLR 268 State Superboard v TPC (1982) 150 CLR 282 R v The Federal Court of Australia; Ex P (various) (1979) 143 CLR 190 ACG v Cook (2008) NSWCA 161
Category:	Principal judgment
Parties:	Mr & Mrs Barclay (Plaintiffs) Mr Bootle (1st Defendant) Bootle Bros Management P/L (2nd Defendant) Macquarie Valley Agricultural Services P/L (3rd Defendant) Mr Shapley (4th Defendant)
Representation:	Mr J Dodd (Plaintiff) Mr J Sexton SC with Mr C Carter (1st & 2nd Defendants) Mr D Lloyd (3rd & 4th Defendants) Slater and Gordon Lawyers & Advisors (Plaintiff) Hennessey & Co (1st & 2nd Defendants) Riley Gray-Spencer Lawyers (3rd & 4th Defendants)
File Number(s):	2008/319175