HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJDOVURO PTY LIMITED APPELLANT
AND
ROBERT JOHN WILKINS & ORS RESPONDENTS
Dovuro Pty Limited v Wilkins [2003] HCA 51
11 September 2003
S357/2002ORDER
1. Appeal allowed with costs.
2.Set aside paragraph 1 of the orders of the Full Court of the Federal Court made on 21 December 2000 and paragraphs 3, 4 and 6 of the orders of that Court made on 5 March 2001 and, in lieu thereof, order that:
a)the appeal by Dovuro Pty Ltd ("Dovuro") against the declarations made by Wilcox J on 19 May 2000 be allowed with costs; and
b)the declarations made by Wilcox J on 19 May 2000 be set aside and, in lieu thereof, judgment be entered for Dovuro with costs.
On appeal from the Federal Court of Australia
Representation:
B W Rayment QC with M M Macrossan for the appellant (instructed by Griffith Hack Lawyers)
C T Barry QC with J E Rowe for the first respondents (instructed by Long Howland Lawyers)
No appearance for the second and third respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
GLEESON CJ. The principal issue in this appeal concerns a challenge to a finding of negligence on the part of a producer and distributor of canola seed. The finding was made by Wilcox J in the Federal Court[1], and upheld by a majority in the Full Court of the Federal Court[2] (Branson and Gyles JJ, Finkelstein J dissenting).
[2]Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476.
In Graham Barclay Oysters Pty Ltd v Ryan[3] I set out my views on the approach this Court should take where there are concurrent findings of negligence (or absence of negligence) at a trial and in an intermediate court of appeal. It is unnecessary to repeat what was said there. The problem that arises in the present case (coincidentally also involving a decision of the same trial judge and a division of opinion in the intermediate court of appeal) is of a similar nature.
[3](2002) 77 ALJR 183 at 194-196 [48]-[55]; 194 ALR 337 at 351-353.
The facts of the case, and the issues that arose at trial and on appeal, appear from the reasons for judgment of other members of the Court. I agree that the appellant should not be permitted to resile from its concession as to duty of care. I will confine my attention to the challenge to the finding of a breach of duty.
The case presented an unusual problem. The canola seed distributed by the appellant was not sold as being free of weeds. It was sold as of "minimum 99% purity". It conformed to that description. There is nothing unusual about such a product containing small quantities of weed seeds. This canola seed contained small quantities of…
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- Case
- [2003] HCA 51
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether Dovuro had breached its duty of care to the Wilkins in negligence, and whether it was reasonably foreseeable that the presence of these weed seeds would result in the weeds being declared prohibited plants by the Western Australian Government, thereby causing financial loss to purchasers. Additionally, the Court considered the availability and appropriateness of making an interlocutory declaration of liability under Part IVA of the *Federal Court of Australia Act 1976* (Cth). The Court also examined the distinction between an admission and an apology in civil proceedings and whether an issue could be argued for the first time on appeal if a concession had been made at trial.
The High Court allowed Dovuro's appeal, setting aside the declarations of liability made by the primary judge and the Full Court of the Federal Court. The Court reasoned that it was not reasonably foreseeable that the weeds present in the canola seed would be declared prohibited plants by the Western Australian Government, leading to financial loss for purchasers. The Court found that the primary judge had erred in making declarations of liability, and that the appeal should be allowed on this basis. The Court also noted that the Wilkins' claims under the *Trade Practices Act 1974* (Cth) had been rejected at trial and were not pursued on appeal.
Consequently, the High Court ordered that the appeal be allowed with costs. The previous orders of the Full Court of the Federal Court were set aside, and judgment was entered for Dovuro Pty Ltd with costs.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside paragraph 1 of the orders of the Full Court of the Federal Court made on 21 December 2000 and paragraphs 3, 4 and 6 of the orders of that Court made on 5 March 2001 and, in lieu thereof, order that:
a) the appeal by Dovuro Pty Ltd ("Dovuro") against the declarations made by Wilcox J on 19 May 2000 be allowed with costs; and
b) the declarations made by Wilcox J on 19 May 2000 be set aside and, in lieu thereof, judgment be entered for Dovuro with costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: HUGH J, HEYDON J
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