Dovuro Pty Ltd v Wilkins

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

DOVURO PTY LIMITED  APPELLANT

AND

ROBERT JOHN WILKINS & ORS  RESPONDENTS

Dovuro Pty Limited v Wilkins [2003] HCA 51

11 September 2003
S357/2002

ORDER

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.

  1. 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.

  2. 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.

  3. 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.

  4. 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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Details
Case
[2003] HCA 51
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from Dovuro Pty Ltd concerning a dispute with the Wilkins. The Wilkins had purchased canola seed, known as "Karoo," which had been imported into Australia by Dovuro from New Zealand. The seed was found to contain weed seeds, specifically redshank, field madder, and cleavers. The Wilkins alleged that Dovuro was aware of the presence of these weeds in the seed and failed to notify either the Western Australian agricultural authorities or the growers, including themselves, of this fact. This failure, they contended, led to financial loss.

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

I approach the appeal with a proper sense of modesty about the capacity of a Court like this, in such a substantial contest, to place itself fairly, in substance, into the position of a primary judge: comprehending, and giving effect to, the entirety of the evidence. The need for a measure of restraint also derives from a perception of the proper, and restricted, role of this Court in such matters, limited as it is, in a true appeal, to the correction of error[77].[77]Eastman v The Queen (2000) 203 CLR 1 at 34-37 [108]-[115]; Fox v Percy (2003) 77 ALJR 989 at 995-996 [32]; 197 ALR 201 at 210.The facts The general nature of the claims brought at trial by the Wilkins (the first respondents) against Dovuro Pty Ltd (the appellant) and Crop Marketing New Zealand Society Ltd (In Liq) (the second respondent) are described in other reasons[78]. I shall use the same terms to identify the parties, the variety of the canola seed ("Karoo") imported into Australia and supplied by Dovuro to the Wilkins, as well as the three forms of weed with which the Karoo seed in question was affected (namely "redshank", "field madder" and "cleavers"). Unfortunately, in the way the appeal developed (substantially as a retrial in this Court based on the record) it will be necessary for me to refer to more of the evidence and to findings of the primary judge not contained in other reasons. [78]Reasons of Gummow J at [42]-[57]; joint reasons at [132]-[149]. At its highest level of generality (leaving aside claims brought which were rejected at trial and not pursued[79]), the outline of the case on which the Wilkins succeeded was relatively simple. The Wilkins purchased Karoo seed from a local seed merchant which Dovuro imported into Australia from New Zealand. Dovuro did not actually manufacture or sell the seed, but as other members of this Court point out, it "occupied a position in the chain of distribution … which was not significantly different from that of a manufacturer"[80]. The seed was labelled "minimum 99% purity". The Wilkins purchased the seed without knowledge that the Karoo included elements of the three weed varieties that were later discovered amongst the Karoo seed. Dovuro, on the other hand, knew of the presence of those weeds in the seed. It failed (1) to draw that presence to the specific attention of the agricultural authorities of Western Australia and, before importing it, to consult them about any problems which it might present in that State or elsewhere in Australia; and (2) to bring the presence of weeds to the specific notice of the growers who were intended to (and, like the Wilkins, did) purchase and sow the Karoo seed. [79]Such as the claim of the Wilkins against Dovuro based on an alleged breach of the Trade Practices Act 1974 (Cth), s 52 (see Wilkins v Dovuro Pty Ltd (1999) 169 ALR 276 at 311-313 [113]-[118]); the claim by the Wilkins against Cropmark (see (1999) 169 ALR 276 at 313-317 [119]-[128]) and the cross-claim of Dovuro against Cropmark (see (1999) 169 ALR 276 at 317-321 [129]-[153]).[80]Joint reasons at [155]; see also reasons of McHugh J at [29].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ (dissent) HUGH J GUMMOW J (dissent) KIRBY J (dissent) HEYDON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HUGH J, HEYDON J

Full text does not contain this section.