Fleming's Nurseries Pty Ltd v Hannaford - [2009] FCA 884

FEDERAL COURT OF AUSTRALIA
Fleming’s Nurseries Pty Ltd v Hannaford [2009] FCA 884
FLEMING'S NURSERIES PTY LTD (ACN 006 532 556) and HER MAJESTY THE QUEEN IN RIGHT OF CANADA (AS REPRESENTED BY THE MINISTER OF AGRICULTURE & AGRI-FOOD CANADA v TONY HANNAFORD, ROSELYNE NURSERIES PTY LTD (ACN 072 821 893) and GEOFFREY ROBERT BRITTON; TONY HANNAFORD; HER MAJESTY THE QUEEN IN RIGHT OF CANADA (AS REPRESENTED BY THE MINISTER OF AGRICULTURE & AGRI-FOOD CANADA) and FLEMING'S NURSERIES PTY LTD (ACN 006 532 556)
VID 1432 of 2005
KENNY J
14 AUGUST 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1432 of 2005

BETWEEN:
FLEMING'S NURSERIES PTY LTD (ACN 006 532 556)
First Applicant

HER MAJESTY THE QUEEN IN RIGHT OF CANADA (AS REPRESENTED BY THE MINISTER OF AGRICULTURE & AGRI-FOOD CANADA
Second Applicant

TONY HANNAFORD
Cross-Claimant

AND:
TONY HANNAFORD
First Respondent

ROSELYNE NURSERIES PTY LTD (ACN 072 821 893)
Second Respondent

GEOFFREY ROBERT BRITTON
Third Respondent

HER MAJESTY THE QUEEN IN RIGHT OF CANADA (AS REPRESENTED BY THE MINISTER OF AGRICULTURE & AGRI-FOOD CANADA)
First Cross-Respondent

FLEMING'S NURSERIES PTY LTD (ACN 006 532 556)
Second Cross-Respondent

JUDGE:

KENNY J

DATE OF ORDER:

14 AUGUST 2009

WHERE MADE:

MELBOURNE

UPON THE RESPONDENT/CROSS CLAIMANT giving to the Court the Undertakings set out in paragraphs A, B and C below:
A.The Respondent/Cross Claimant (Respondent), whether by himself, his servants, agents or howsoever otherwise, undertakes to permanently refrain from:
(a)       producing or reproducing;
           (b)       conditioning for the purpose of propagation;
           (c)       offering for sale;
           (d)       selling;
           (e)       importing;
           (f)        exporting;
           (g)       stocking for the purposes described in sub-paragraph (a), (b), (c), (d), (e) or (f)   above;
  propagating material of:
(i)        the Sweetheart variety;
(ii)       the ‘Black Star’ cherry variety (Black Star variety);
(iii)any variety of which the owner or exclusive licensee of the PBR (as defined in s 3 of the Plant Breeder’s Rights Act 1994 (Cth)) in Australia is the First Applicant/Second Cross Respondent (First Applicant) and/or the Second Applicant/First Cross Respondent (Second Applicant) and/or Graham’s Factree Pty Ltd (the Fleming’s varieties) (as defined in Schedule A to this Order);
(iv)any variety of stone fruit of which the owner of the PBR in Australia is Zaiger, Inc., being a variety that is not included in the Zee Sweet program (the Zaiger varieties) (as defined in Schedule A to this Order); and
(v)any stone fruit variety of which the owner or exclusive licensee of the PBR in Australia is Zee Sweet (the Zee Sweet varieties) (as defined in Schedule A to this Order).

B.The Respondent, whether by himself, his servants, agents or howsoever otherwise, undertakes to permanently refrain from procuring, inducing and/or directing any other person to:
(a)       produce or reproduce;
           (b)       condition for the purpose of propagation;
           (c)       offer for sale;
           (d)       sell;
           (e)       import;
           (f)        export;
(g)stock for the purposes described in sub-paragraphs B(a), (b), (c), (d), (e) or     (f) above;

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.

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Details

Case: [2009] FCA 884
Decision Date: 14 August 2009

CaseChat Overview and Summary

Fleming’s Nurseries Pty Ltd, the applicant, and Tony Hannaford, the respondent, were involved in a dispute concerning alleged breaches of plant breeder’s rights under the Plant Breeder’s Rights Act 1994 (Cth). The case was before the Federal Court of Australia, presided over by Gilmour J. The applicant sought declarations regarding alleged breaches of its rights by the respondent, including unauthorised propagation, supply, and removal of plant material. The respondent filed a Further Amended Defence and Second Further Amended Cross-claim in response to the applicant’s claims.

The central legal issue in this case was whether the respondent had breached the applicant’s plant breeder’s rights by engaging in activities such as the propagation, supply, and removal of plant material without authorisation. The court had to consider the statutory provisions under the Plant Breeder’s Rights Act 1994 (Cth) and the specific rights conferred by s 11, alongside the admissions made by the respondent. The court also needed to determine whether declaratory relief was appropriate and justified in the circumstances, considering the discretionary nature of such relief as outlined in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

Gilmour J determined that the applicant had a real interest in securing the relief sought, and that the declarations would serve a public interest. The court reviewed the pleadings, associated documents, and a confidential report from the Centre for Plant Conservation Genetics. After considering these materials, the court concluded that the declarations and orders were appropriate. The respondent, upon receiving professional advice and the confidential report, agreed to the declarations. The court made the declarations and orders, subject to the respondent providing a statutory declaration detailing various aspects of the propagation, supply, and removal of plant material. The proceeding was to be discontinued, with a right to reinstate limited to 24 months. Schedule A to the order was to be kept confidential.

This case illustrates the court’s discretionary power in granting declaratory relief and the importance of considering the real interest of the parties and the public interest in such matters. The outcome reflects the court’s assessment of the statutory rights, admissions by the parties, and the practical implications of the relief sought.

Orders

Orders of the court

3. Within twenty eight (28) days from the date of the signing the Deed of Settlement, the Respondent provide to the lawyers for the Applicants a statutory declaration (Statutory Declaration) in which full and complete disclosure to the best of his reasonable knowledge is made to the reasonable satisfaction of the Applicants of the following information:

(a) details of all cultivars of the Sweetheart variety, the Black Star variety, the Fleming’s varieties, the Zaiger varieties and the Zee Sweet varieties, which have been purchased and/or acquired by the Respondent (whether in partnership with third parties or otherwise) and subsequently supplied to third parties, with such details to include the identity of the supplier of the cultivars, the identity of the recipient of the cultivars, the identity of the person responsible for propagation and the quantities and names of the varieties propagated (including the rootstock);

(b) details of the propagation of all cultivars identified in paragraph 3(a) above including the identity of the person responsible for the propagation of these cultivars, the quantity of cultivars propagated and, if any such propagated cultivars were supplied to third parties, the identity of the third parties;

(c) details of all cultivars presently growing on each and every property owned, leased, managed and/or operated or directly or indirectly controlled by the Respondent (whether in partnership with third parties or otherwise) including but not limited to the quantities and the names of the varieties (including the rootstock);

(d) details of all cultivars of the Sweetheart variety, the Black Star variety, the Fleming’s varieties, the Zaiger varieties and the Zee Sweet varieties propagated insitu on each and every property owned, leased, managed and/or operated or directly or indirectly controlled by the Respondent (whether in partnership with third parties or otherwise) including but not limited to the identity of the person responsible for the propagation of these cultivars, the source of the propagating material and the quantities and the names of the varieties (including the rootstock);

(e) details of any growing contract (whether oral or written) the Respondent has or has had with any third party for the Sweetheart variety, the Black Star variety, the Fleming’s varieties, the Zaiger varieties and the Zee Sweet varieties including, but not limited to, the identity of the person responsible for the propagation, the identity of the recipient of the cultivars, the consideration, the source of the propagating material and the quantities and the names of the varieties propagated (including the rootstock); and

(f) details of any propagating material of the Sweetheart variety, the Black Star variety, the Fleming’s varieties, the Zaiger varieties and the Zee Sweet varieties, which has been:

(i) provided to and/or received from any third party for any purpose whatsoever; and

(ii) received and/or taken from any third party, whether with or without that third party’s knowledge; and

(g) details of all cultivars of the Sweetheart variety, the Black Star variety, the Fleming’s varieties, the Zaiger varieties and the Zee Sweet varieties that have been removed and/or re-budded or reworked in any way to an alternative variety from each and every property owned, leased, managed and/or operated directly or indirectly controlled by the Respondent (whether in partnership with third parties or otherwise) for the time period commencing from 1 January 2000 up to and including the date of the Statutory Declaration.

4. The proceeding (including the Cross Claim) be discontinued, with a right of reinstatement limited to a period of twenty four (24) months from the date upon which the last of the parties to the Deed of Settlement has executed it.

5. Schedule A to this Order be kept confidential to the parties to the proceeding and may not be inspected or otherwise be made available to any person other than a party to the proceeding or their legal representative.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KENNY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

I have previously discussed the parties’ claims and responses in Fleming’s Nurseries Pty Ltd v Tony Hannaford [2008] FCA 591 at [4]-[10]. It is unnecessary to repeat this discussion. Mr Hannaford filed a Further Amended Defence and Second Further Amended Cross-claim on 6 April 2009. My attention was drawn to the admission contained in paragraph [36.2]. DECLARATIONS AND ORDERS SOUGHT The Court is not bound to make the declarations and orders on which the parties have agreed. The power of the Court to grant declaratory relief derives from s 21 of the Federal Court of Australia Act 1976 (Cth). This is a discretionary power. As Mason CJ, Dawson, Toohey and Gaudron JJ said in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, at 581:It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise”. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” or if “the Court’s declaration will produce no foreseeable consequences for the parties”. (citations omitted) Given the rights conferred by s 11 of the Plant Breeder’s Rights Act 1994 (Cth), and the conduct of the parties in relation to the litigation, including the admissions made by the first respondent/cross-claimant, it would appear that the applicants have a real interest in securing the relief that is sought and that the declarations may well serve a public interest of the kind outlined by counsel for the applicants/cross-respondents this morning. Whether or not there has been a breach of these rights might have involved a lengthy and contested hearing in proceedings that have already taken up significant time and, presumably, money. In this case, upon mature reflection and professional advice and after receiving the confidential report to which I have referred, Mr Hannaford has accepted that the declarations in question should be made. The confidential report has been provided to the Court, by consent, in order that it may inform itself as to whether or not the breaches referred to in the declarations have occurred. Having reviewed the pleadings and other associated documents (including the legislation to which they refer), read and considered the confidential report of the Centre for Plant Conservation Genetics, and heard the parties today, I am satisfied that the declarations and orders are appropriate and should be made. Accordingly, I would make these declarations and orders upon the respondent/cross-claimant giving the undertakings as he has indicated.

JUDGE:	KENNY J
DATE OF ORDER:	14 AUGUST 2009
WHERE MADE:	MELBOURNE