G G and P M Burrell Pty Ltd(ACN 006 006 613) v Butler Market Gardens Pty Ltd(ACN 007 019 865)
[2020] VSCA 31
•25 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0007
| G G & P M BURRELL PTY LTD (ACN 006 006 613) | Applicant |
| v | |
| BUTLER MARKET GARDENS PTY LTD (ACN 007 019 865) | Respondent |
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| JUDGES: | BEACH, KYROU and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 February 2020 |
| DATE OF JUDGMENT: | 25 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 31 |
| JUDGMENT APPEALED FROM: | [2018] VSC 768 (Richards J) |
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TORT – Negligence – Nuisance – Spray damage to spring onion crop – Damages – Assessment of damages – Likely crop yield – Extent of market for spring onions – Evidence – Extent of evidence – Competing evidence – Method of calculating loss – No error in judge’s assessment.
DAMAGES – Appeal – Assessment of damages – Advantages enjoyed by trial judge – Loss to be compensated – Method of calculating loss – Determination of likely yield rate – Application for leave to appeal granted – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr B F Quinn QC with Mr J F Richardson | Meridian Lawyers |
| For the Respondent | Mr D A Klempfner | Atticus Lawyers & Advisors |
BEACH JA
KYROU JA
KAYE JA:
In the months of March, April and May 2014, Butler Market Gardens Pty Ltd (‘BMG’) planted a spring onion crop on 12.14 hectares of land near Swan Hill in northern Victoria (‘the Swan Hill block’) leased from GG & PM Burrell Pty Ltd (‘Burrell’). The Swan Hill block was part of a farm on which Burrell grew other vegetables, including lucerne.
In July 2014, Burrell engaged one Gavin Wilson to spray the lucerne on its farm with herbicides that were designed to kill weeds. Over a number of days between 22 and 28 July 2014, Mr Wilson sprayed Burrell’s lucerne crop.
As a result of the spraying of Burrell’s lucerne crop, the entirety of BMG’s spring onion crop was damaged by spray drift. The damage occurred during a period when the supply of spring onions was usually low and prices were expected to be high. Following the spraying, none of the crop was saleable between late July and early September 2014. However, some spring onions were able to be harvested and sold between early September and mid October 2014.
In February 2016, BMG commenced a proceeding in the Trial Division against Burrell claiming damages for the loss of its spring onion crop as a result of the spray drift. It also claimed damages in respect of costs incurred by it associated with the assessment of its damage, and losses incurred purchasing spring onions from a Queensland grower, Campsey Ash Farms (‘Campsey’), which were needed to satisfy an obligation it had to ensure that its customer, Coles, was provided with a continuous supply of spring onions. BMG’s claim was both in nuisance and negligence.
The proceeding was heard over 12 days in September 2018. Liability, causation and quantum were all in issue.
On 10 December 2018, the trial judge found for BMG and assessed damages in the sum of $1,346,570.[1] Consequential orders were made giving judgment for BMG in the amount assessed, together with the sum of $374,588.63 for damages in the nature of interest. Burrell was also ordered to pay BMG’s costs on a standard basis up to 11.00 am on 17 August 2018, and on an indemnity basis thereafter.
[1]Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768 (‘Reasons’).
Burrell now seeks leave to appeal against those orders. The proposed appeal relates solely to the judge’s assessment of damages. In its application for leave to appeal, Burrell identified the following proposed grounds of appeal:
1. The learned trial judge erred in assuming that the Respondent’s intention to harvest and sell all spring onions it grew on the Swan Hill block in 2014 would have been realised, when there was no evidence supporting that conclusion [138].
2. The learned trial judge erred in finding that an achievable yield for the Swan Hill spring onion crop was 100,000 bunches per hectare when that assertion was unsubstantiated by any business records of the Respondent and was contrary to the weight of the evidence [150], [158].
3. The learned trial judge erred in finding that the Respondent harvested and sold 16,234 crates of spring onions from Swan Hill in 2014 when this was contrary to the weight of the evidence [140(c)].
4. The learned trial judge erred in finding that in order to meet its commitment to Coles the Respondent bought and transported spring onions from Queensland at a loss when this was contrary to the weight of the evidence [146].
5. The learned trial judge erred in failing to properly consider or assess the commercial value of the opportunity which was lost by the Respondent by reason of the damage to its Swan Hill spring onions.
6. The learned trial judge erred in failing to find that the correct measure of the Respondent’s loss was no more than the additional costs incurred in procuring replacement spring onions from Queensland.
At the commencement of oral argument, Burrell abandoned ground 3. In advancing its argument in this Court, Burrell made three complaints:
·the judge erred in finding an achievable yield for the Swan Hill spring onion crop was 100,000 bunches per hectare (ground 2);
·the judge erred in assessing damages on the basis that BMG would have been able to sell all of the spring onions it grew on the Swan Hill block in 2014 (grounds 1, 5 and 6); and
·the judge erred in finding that, in order to meet its commitment to Coles, BMG bought and transported spring onions from Queensland at a loss (ground 4).
Background facts in greater detail
In 2014, BMG was the trustee of Butler Market Gardens, a market garden business first established by Peter Butler in 1968. Peter’s son, Rick Butler, worked in the business, having done so since his youth in roles up to and including managing director.
In the years leading up to and including 2014, BMG grew a range of vegetables, mainly leafy green vegetables, on land that it owned or leased in the sand belt region of south eastern Melbourne and the Mornington Peninsula. It supplied those vegetables to the major supermarkets, and in particular, Coles, for whom it took on the role of ‘category captain’ for spring onions, and to whom it supplied the majority of its spring onions. Being a Coles category captain for spring onions meant that BMG was responsible for ensuring a continuous supply of spring onions to Coles, either from its own crops or from other growers.
Burrell is another family company that, until 2015, owned a 1,150 acre farm at Beverford, near Swan Hill. Craig Burrell lived on that farm with his wife and children from the mid-1990s, and developed the farm’s irrigation system. For some years, the Burrells grew vegetables at Beverford and in about 2010 moved to growing broadacre crops such as lucerne.
Spring onions are not a winter crop. They do not grow well in southern Victoria, where BMG operated, in the colder months of July and August.
In the winter of 2012, spring onions were particularly scarce. BMG had an arrangement with a Queensland grower to supply enough spring onions over winter to meet BMG’s supply commitment to Coles. However, the price for spring onions in Queensland was so high during that winter that the grower was able to sell his whole crop in the Brisbane market, and was not interested in sending any to Victoria. Rick Butler had to travel to Queensland and ‘knock on some doors’ to secure the stock that he needed. After that experience, he looked for ways to have a more certain supply the following winter.
After spending some time at a family property in Swan Hill in late 2012, Rick Butler developed a plan to secure BMG’s spring onion supply for the next winter, by growing a winter crop in Swan Hill that would be ready to harvest in the dead of the southern winter. He contacted Mr Burrell and arranged for BMG to lease 60 acres of land under irrigation at the western end of the Burrell farm, to the south of the Murray Valley Highway, to grow spring onions, some parsley and a few other herbs.
In about February 2013, Mr Burrell and Mr Wilson did the work for BMG to prepare his block for planting. Greg Rankin, BMG’s farm production manager, went up to Beverford and planted the spring onion crop between mid-March and May 2013. Mr Rankin took care of the pre-emergent spraying and BMG engaged Mr Wilson to do other spraying that was needed as the crop grew, using Burrell’s tractor and spray boom.
The spring onions grew well and the crop was ready to harvest during the target months of July to September.
There were, however, some problems with the crop in 2013. Mr Rankin recalled that there were mildew issues that affected the yield, and that some areas were so badly affected that they were not harvested at all. Rick Butler had a different recollection. He said that the only problem with the 2013 crop was that BMG had planted too much. There were still spring onions in the ground in October, when the weather had warmed in Southern Victoria. It was not economic to transport spring onions from Swan Hill when there was a good supply available closer to Melbourne, and so BMG did not harvest about 20 per cent of the crop. Mr Butler said that the downy mildew only took hold in that part of the crop that BMG had already decided to leave behind.
Although part of the crop was left in the ground due to oversupply, or downy mildew, or both, BMG’s first planting of spring onions at Swan Hill was a moderate success. The soil and the climate proved suitable for growing spring onions in winter. In October 2013, the BMG production team reviewed the season. They were keen to plant another spring onion crop at Swan Hill the following winter, although they identified several areas for improvement. One was for BMG to rely less on Burrell’s capabilities, which would mean supplying its own labour and equipment.
In January 2014, Rick Butler produced a document headed ‘Swan Hill 2014’ that drew on the experience of the previous year to propose leasing less land in a different location on the Burrell property to grow spring onions and parsley, with five to six plantings of spring onions totalling 30 acres (approximately 12.14 hectares) for harvest in the gap period in July and August. He proposed that Adam Langshaw, a tractor operator employed by BMG, would work at Swan Hill three days a week, with Mr Butler and Mr Rankin visiting in alternate weeks. His plan was agreed upon and implemented.
Rick Butler and Mr Rankin went to Swan Hill in late January 2014. They agreed with Mr Burrell to lease a different block in 2014, on the eastern side of the Burrell farm near the sheds on Scotties Point Road, to the north of the Murray Valley Highway. The area leased in 2014 was 14.4 hectares (about 35.5 acres).
In 2014, BMG planted 49 rows of crops on the Swan Hill block – 43 rows of spring onions and 6 rows of parsley. The area planted to spring onions was 12.14 hectares. The rows ran in a north–south direction. Rows 1 to 21 were spring onions, rows 22 to 27 were parsley, and rows 28 to 49 were spring onions. Burrell had a lucerne crop to the north and north-west of the Swan Hill block, with a smaller oat crop immediately to the north. The 2014 spring onions were planted between March and May 2014.
By late July 2014, the first of BMG’s spring onion crop was ready to harvest as planned. Rick Butler was at the Swan Hill block on Monday 28 July 2014, when the first spring onions were harvested, somewhere between row 12 and row 18. Mr Butler gave evidence that on that afternoon they loaded ‘a bit more than 500 crates’ of spring onions into BMG’s truck.
Lucerne is a perennial crop. Once established, it has a root system that endures from year to year. It is dormant in winter, providing an opportunity for a winter clean up that is usually done between late July and mid to late August. The winter clean up involves spraying the crop with broad spectrum, non-systemic herbicides designed to kill all weeds. Although any foliage on the lucerne is also burnt off, it regenerates once the lucerne becomes active again in the spring.
In July 2014, Mr Burrell asked Mr Wilson to do the winter clean up of the lucerne on the Burrell farm, including the lucerne crop to the north and north-west of the Swan Hill block. Mr Burrell did not give Mr Wilson any specific instructions, beyond asking him to get it done and to be mindful of the spring onions.
Mr Wilson’s diary records that he ‘sprayed lucerne’ between 22 and 28 July 2014. On 28 July 2014, the diary notes ‘Sprayed lucerne 10 hrs’. There is no other record of when, where or what he sprayed.
Whilst harvesting the first of BMG’s 2014 Swan Hill spring onion crop on 28 July 2014, Rick Butler observed Mr Wilson in a tractor spraying the lucerne crop to the north of the spring onion crop. Mr Butler also observed empty SpraySeed containers around the tank filling area. Before that day, the spring onions were in ‘fantastic’ condition and were ready to harvest exactly on target. There was no sign of damage before the spraying.
The following day, by which time Rick Butler had returned to Melbourne, BMG employees observed what they thought to be chemical damage to the spring onion crop.
BMG’s entire spring onion crop was damaged by spray drift. The damage coincided with the window from late July, when supply was usually low and prices were expected to be high. None of the crop was saleable between late July and early September.
In view of the damage, BMG did not attempt to harvest any of its Swan Hill crop until early September 2014. The least damaged spring onions, in rows 1 to 6 on the eastern side of the block, were also the youngest and ‘grew through’ the damage. Some spring onions on the eastern side of the block were able to be harvested and sold between early September and mid-October 2014. However, about half of the spring onions that were sent from Swan Hill to BMG’s packing shed at Heatherton during this period were so damaged that they were not saleable and had to be discarded.
The judge’s reasons
The judge found that BMG’s spring onion crop was in good condition before being damaged by the spraying of Burrell’s lucerne crop on 28 July 2014. She described the nature and extent of the damage caused by the crop spraying in the following terms:
BMG’s entire spring onion crop was damaged by spray drift. The crop in the north-west corner of the block was destroyed. There was spotting and tip damage throughout the crop, which dissipated to the south and east of the block.
Spring onions are not ornamental plants, however, and the description of the cosmetic damage is only a starting point. This was a commercial crop, grown to meet the product specifications of the big supermarkets. Coles’ specification requires ‘bright, straight, erect leaves tightly wrapped around the central core’. Major defects include broken, damaged leaves, tip burn and stem browning. The Woolworths specification is similarly stringent. Both supermarkets will reject a consignment where more than 2% of spring onions are affected by major defects.
Mr Burrell readily accepted that the damage to BMG’s spring onion crop that he saw in late July meant that the onions would be rejected by Coles. Mr Munro, the crop assessor, concluded in early August that the burning of the foliage on all plants made them unsaleable. The timing of the damage coincided with the window from late July, when supply was usually low and prices were expected to be high. None of the crop was saleable between late July and early September.
In view of the damage, BMG did not attempt to harvest any of its Swan Hill crop until early September 2014. The least damaged spring onions, in rows 1 to 6 on the eastern side of the block, were also the youngest and ‘grew through’ the damage. Some spring onions on the eastern side of the block were able to be harvested and sold between early September and mid October 2014. However, Peter Butler’s observation was that about half of the spring onions that were sent from Swan Hill to the packing shed at Heatherton during this period were so damaged that they were not saleable and had to be discarded.[2]
[2]Reasons [87]–[90]. See also, Reasons [75].
The judge then concluded that the damage to BMG’s spring onion crop caused by Burrell’s spraying on 28 July 2014 was a substantial and unreasonable interference with BMG’s use and enjoyment of the Swan Hill block.[3] She also concluded that Burrell failed to take reasonable precautions, and did not take reasonable care, to avoid the foreseeable risk of herbicide spray damage to BMG’s spring onion crop.[4] Burrell’s liability in nuisance and negligence was thus established.
[3]Ibid [91]–[111].
[4]Ibid [118]–[130].
Having concluded that the damage to BMG’s spring onion crop was caused by Burrell’s spraying on 28 July 2014,[5] the judge turned to the quantification of BMG’s loss and damage. In assessing BMG’s damages, the judge accepted that it was BMG’s intention to harvest and sell all of the spring onions it grew on the Swan Hill block, during the six-week period from late July to early September 2014 when supplies were low and prices were high.[6] The judge then said the loss that fell to be compensated by an award of damages was the damage caused by the spray drift to BMG’s entire crop, just as it was ready to harvest, making it unsaleable during that window (late July to early September).[7]
[5]Ibid [55]–[86].
[6]Ibid [134].
[7]Ibid.
Next, the judge summarised the methodology by which each party submitted BMG’s damages should be calculated. Her Honour said:
BMG submitted that its loss should be calculated using the following method:
(a) first, identify the likely yield in bunches per hectare;
(b)second, calculate the total number of crates that would be harvested from 12.14 hectares, at the rate of 20 bunches per crate;
(c) third, multiply the total number of crates by the likely price per crate;
(d)fourth, subtract the actual income from the sale of the spring onions that were able to be harvested and sold in September and October 2014;
(e)fifth, subtract the savings in transport labour costs, because most of the crop was not harvested;
(f)sixth, add the loss incurred by BMG in purchasing and transporting spring onions from a Queensland supplier, in order to meet its supply commitment to Coles;
(g)finally, add pre-litigation disbursements, being the cost of two reports submitted to Burrell’s insurer in support of BMG’s claim.
Burrell challenged both this method of calculating BMG’s loss, and the figures that BMG said should be used in the calculation.
As to the method, Burrell submitted that the preferable method was simply to quantify how much BMG had spent to ensure that it was able to meet its supply commitments to Coles. The evidence was that, between 8 August and 16 October 2014, BMG spent about $665,000 buying spring onions from a Queensland grower, Campsey Ash Farms, and transporting them to Victoria. It was this amount, Burrell said, that reflected the cost to BMG of replacing the damaged spring onions.[8]
[8]Ibid [135]–[137].
The judge rejected Burrell’s methodology, saying that she did not accept that it would produce an accurate measure of BMG’s loss. The judge held that Burrell’s method only assessed the amount that BMG had to spend to maintain its relationship with Coles, ‘when what BMG lost was the opportunity to sell its entire crop, during a narrow winter window when spring onions were in short supply’.[9] Referring to the evidence of Rick Butler, and a letter sent to him by Coles, headed ‘Agreement to supply Coles Supermarkets’, dated 14 January 2014 (‘the Coles agreement letter’) about which we will say more below, the judge said:
BMG had committed to Coles to supply about 98,000 crates of spring onions, plus or minus 15%, over the period from 28 April to 21 October 2014. When it could not meet this commitment from the Swan Hill crop, in August and September 2014, BMG had to buy and transport spring onions from a Queensland grower. However, the supply commitment was a minimum, not a ceiling on the amount that BMG could sell to Coles. Rick Butler’s evidence was that BMG had in previous years supplied Coles in excess of its supply commitment. He was confident that BMG could sell all of the spring onions it harvested during the window — ‘there’s always a home for stock in August’. In addition, although Coles was BMG’s main customer, it was not its only customer — BMG also sold to Woolworths and at the wholesale market.[10]
[9]Ibid [138].
[10]Ibid.
The judge held that the method of assessment proposed by BMG was an appropriate way to quantify its loss.[11] Her Honour then described a number of the variables within that method as being straightforward as follows:
[11]Ibid [139].
(a)I accept that 12.14 of the 14.4 hectares leased by BMG from Burrell in 2014 were planted to spring onions.
(b) It was agreed that there are 20 bunches of spring onions to a crate;
(c)BMG established to my satisfaction that it actually harvested 16,234 crates of spring onions from the Swan Hill block between 6 September and 16 October 2014. This figure is the difference between BMG’s total sales of spring onions over that period (29,228 crates), and its purchases from Campsey Ash, its Queensland supplier, over the same period (12,994 crates). BMG’s income from the sale of the Swan Hill spring onions in 2014 was $383,771.76.
(d)BMG quantified the amount it saved in transport labour costs as $372 per trip, with the number of trips saved dependent on the yield rate.
(e)BMG calculated its loss from the purchase and transport of spring onions from Campsey Ash in Queensland, in order to meet its supply commitment to Coles, to be $35,955.00. I accept that calculation.
(f)The pre-litigation disbursements were proved to be a total of $8,922.01, being $1,387.01 for Stuart Grigg’s report and $7,535.00 for the Freshlogic Market Report.[12]
[12]Ibid [140].
The conclusion in (e) above is the subject of proposed ground 4.
After a discussion about contingencies for which Burrell contended,[13] in the course of which the judge said she was not persuaded that she should make any additional allowance for contingencies beyond the judgment she had formed about the likely yield rate and average price per crate,[14] the judge turned to the issue of yield — the issue which was the subject of the first of Burrell’s three primary contentions in this Court.
[13]Ibid [141]–[147].
[14]Ibid [144].
The judge found that the likely yield was 100,000 bunches per hectare, giving BMG the capacity to grow and harvest 60,700 crates of spring onions from the Swan Hill block.[15] In doing so, the judge accepted one of four possible yield rates contended for by BMG, and rejected five ‘alternative’ methods of calculation advanced by Burrell. Having regard to the importance of the yield question, it is desirable to set out her Honour’s reasoning in full on this issue, including her description and analysis of each of Burrell’s five alternative methods. Her Honour said:
[15]100,000, bunches per hectare multiplied by 12.14 hectares, divided by 20 bunches per crate equals 60,700 crates.
The first variable on which the calculation of BMG’s loss depends is the likely yield per hectare. BMG has only recently started to keep yield records and there was, unfortunately, no yield data from the 2013 spring onion crop at Swan Hill. BMG put forward four alternative yield rates:
(a)120,000 bunches per hectare — the estimated yield rate at Heatherton, given by both Greg Rankin and Andreas Cruz in their evidence;
(b)115,000 bunches per hectare — the highest rate among the yield records tendered by BMG;
(c)100,000 bunches per hectare — the rate actually used by Mr Cruz for planning purposes, as ‘the most safe, easy to achieve for us through history from all my measurements’;
(d)92,249 bunches per hectare — the average yield across the yield records tendered by BMG.
None of these alternatives is entirely satisfactory. The first two are best case scenarios that include no allowance for contingencies. The fourth is based on very limited data indeed – only four yield records were in evidence, from 2016 and 2017 — and does not provide a sufficient basis for calculating average yield.
The third alternative is the best of those available. It is an informed estimate by a qualified and experienced agronomist, who does BMG’s production planning, and who has settled on 100,000 bunches per hectare as an achievable yield. It makes an appropriate allowance for contingencies that might otherwise have to be factored in to my assessment. I would have preferred to have more evidence about the ‘measurements’ on which Mr Cruz based his estimate, but am willing to accept it given his expertise, his role at BMG and his evidently scrupulous approach to keeping records. It is also significant that Burrell did not challenge this aspect of Mr Cruz’s evidence.
On that basis, the likely yield from the 12.14 hectares of the Swan Hill block that were planted to spring onions in 2014 was 1,214,00[0] bunches, or 60,700 crates.
Burrell submits that none of these rates should be accepted, and proposed several alternative methods of working out the likely yield rate. As I explain below, I am not persuaded that any of these alternative methods is preferable to using the estimated yield rate given by Mr Cruz.
The first alternative method was based on the number of spring onions that were actually harvested on 28 July 2014. Rick Butler described half filling BMG’s truck with spring onions harvested from ‘more than one entire row’ that day. The capacity of the truck is 1,188 crates, and Mr Butler estimated there were ‘a bit more than 500 crates’ harvested that day. Burrell submits that this can be multiplied by the number of rows (43) to calculate the likely yield from the Swan Hill block — around 25,000 crates.
The difficulty with this method is that it is based on a misunderstanding of Mr Butler’s evidence. In cross-examination, he said that the spring onions were harvested from ‘multiple rows that are on one land’. This highlighted some confusion about the meaning of the word ‘row’ as used by Mr Butler. He explained during his evidence that there are three rows in each ’land’ of spring onions. In its submission, Burrell used the word ‘row’ to refer to what Mr Butler called a ‘land’. The result is that, applying Burrell’s first alternative method, the estimated yield from the Swan Hill block in 2014 would have been more like 75,000 crates. This suggests that the yield of 60,700 that I have arrived at is a conservative figure.
Burrell’s second alternative method is based on Rick Butler’s evidence that he would expect to harvest 10 bunches of spring onions per metre of row – or 30 bunches per metre across the three rows in a ‘land’. The basis for this estimate was not explained, and I am not confident of its accuracy. In any event, it is not possible to use it to calculate the likely yield, because there was no evidence of how many metres of spring onions BMG planted at Swan Hill in 2014. Burrell proposed a figure of about 13,000 metres, calculated by counsel using the scale shown on the aerial photograph at Figure 2. That is far too imprecise a means of working out either the length of the crop, or the likely yield.
The third alternative proposed involved extrapolating from a production guide published by a seed company, Terranova, which indicated that for its ‘Onion — Bunching’ seeds the average marketable yield is five tonnes per hectare. The hypothesis that this figure reflects BMG’s actual yield was not put to any of BMG’s witnesses. In those circumstances it would not be fair to accept it, even leaving aside the uncertain state of the evidence about how much seed was planted per hectare and the average weight of a bunch of spring onions.
The next alternative was based on a planning document prepared by Rick Butler in early 2014, which predicted sales to Coles of 600 crates per day in the period May to October. Burrell calculated that, over the six week window from late July to early September, this amounted to only 25,200 crates of spring onions. This submission overlooked the predicted sales to other customers, which were estimated to range from 120 to 720 crates per day depending on demand. It also overlooked that spring onions from Swan Hill might be harvested and sold throughout September and into October – as in fact occurred. More fundamentally, I do not accept that the high level sales predictions in this document are a reasonable basis for estimating yield per hectare.
The final alternative basis for calculating the yield rate was based on a marketing presentation made by Rick Butler to Coles in April 2014, which referred to the sale of 1,000,000 bunches of spring onions from Swan Hill in 2013. Burrell submitted that, since BMG grew only half the area of spring onions in 2014, it would only have sold 500,000 bunches, or 25,000 crates in that year. This does not take account of the fact that about 20% of the 2013 crop was not harvested. In addition, Mr Butler clarified that the figure of 1,000,000 bunches represented sales to Coles only, and so it does not represent the entire Swan Hill crop from 2013. And again, I cannot accept that a figure in a marketing document is a reasonable basis for estimating crop yield.[16]
[16]Reasons [148]–[158].
The judge then dealt with the remaining variable (price per crate). She rejected BMG’s claim that it could have sold all of its spring onions harvested ‘during the window’ for $32 per crate. After analysing the evidence, the judge concluded that the availability of 60,700 extra crates of Victorian spring onions ‘could only have reduced the price below its winter peak of $32’.[17] The judge said:
Doing the best I can, I consider that $28 per crate is a fair estimate of the average price that BMG’s spring onions would have fetched if they had been saleable from late July 2014 as planned.[18]
The judge then concluded her assessment of BMG’s damages as follows:
At that rate [$28 per crate], BMG could have sold 60,700 crates of spring onions for a total of $1,699,600.
From that amount must be deducted the $383,771.76 that was received for the sale of the spring onions that could be harvested, and savings in transport labour costs of $14,136.00.[19] To that amount must be added the loss of $35,955.00 incurred in purchasing and transporting spring onions from Queensland, in order to meet BMG’s supply commitments to Coles. Pre-litigation disbursements of $8,922.01 should also be added.
I assess BMG’s loss occasioned by the damage to its spring onion crop at a total of $1,346,570.[20]
[17]Ibid [161].
[18]Ibid [162].
[19]BMG estimated that 52 trips would have been required to transport 60,700 crates, 38 more than the 14 trips used to transport the 16,234 crates that were harvested. The saving of 38 trips at $372 per trip is $14,136.
[20]Reasons [163]–[165] (footnote in original).
Ground 2: the yield issue
Parties’ submissions
Burrell submitted that, in concluding that the likely yield was 100,000 bunches per hectare, the judge accepted ‘the throw-away estimate of Mr Cruz’, an agronomist employed by BMG. In relation to Mr Cruz’s evidence about the likely yield, Burrell made the following points:
(1)Mr Cruz was not called as an expert, and he was not employed by BMG when it was growing spring onions in Swan Hill in either 2013 or 2014.
(2)Mr Cruz did not rely on any data from Swan Hill, and professed no experience in growing in Swan Hill.
(3)On a fair analysis, at its highest Mr Cruz’s evidence was in relation to an average yield for Heatherton, where BMG did not grow in the relevant winter target period, and in 2017, rather than the period relevant to BMG’s claim. Moreover, Mr Cruz’s evidence about the likely yield in Heatherton, outside the relevant winter target period, was ‘no more than mere assertion’. He gave no foundation for his figure other than to say that it was an amount which he thought was the ‘most safe, easy to achieve for us through history from all [his] measurements’.
(4)Notwithstanding that Mr Cruz gave evidence that BMG already maintained yield records when he commenced employment in his role in 2015, the only records tendered at trial were, as the judge described them ‘based on very limited data indeed’, not providing a sufficient basis for calculating the likely yield.[21] Having rejected those records on the basis that they were too limited, the judge was wrong to accept Mr Cruz’s evidence which was ‘based solely on an assertion derived from data apparently available, but which was never produced’.
(5)To the extent that Mr Cruz attempted to give any foundation for his yield calculation, his evidence was based on a simple arithmetical calculation of plants per hectare. However, Rick Butler’s evidence was that a key component of yield was the amount of seed planted. An analysis of the invoices that were tendered at trial in relation to BMG’s purchases of seed for the relevant period (which Burrell accepted may not have been complete) did not support a yield figure of the order given by Mr Cruz.
[21]Ibid [149].
Burrell submitted that the judge was wrong not to accept one or more of the five methods it put to the judge as to how the yield should be calculated and that, even if those methods were not accepted, they at least showed that great caution needed to be exercised before one accepted one of the yield rates contended for by BMG. Burrell ultimately contended that, paying proper attention to the evidence, the likely yield that the judge should have found for the entire 2014 Swan Hill crop was:
·no more than 21,500 crates using method 1;[22]
·in the range 12,900 to 25,800 crates using method 2;[23]
·16,861 crates using method 3;[24]
·23,002 crates using method 4;[25] and
·31,250 crates using method 5.[26]
[22]Described by the judge at Reasons [153]. See [38] above.
[23]Described by the judge at Reasons [155]. See [38] above.
[24]Described by the judge at Reasons [156]. See [38] above.
[25]Described by the judge at Reasons [157]. See [38] above.
[26]Described by the judge at Reasons [158] — although at trial it would appear that Burrell submitted that method 5 would result in a yield of only 25,000 crates. See [38] above.
In response to Burrell’s submissions, BMG supported the reasoning of the judge. It submitted that the judge carefully analysed all of the evidence and was entitled to accept the evidence of Mr Cruz, which was not the subject of any direct challenge by Burrell in cross-examination.
BMG also submitted that the judge correctly rejected each of Burrell’s five alternative methods of calculating the yield of the Swan Hill block. While the existence of an evidentiary foundation, and the arithmetic basis, of each of Burrell’s calculations was not disputed by BMG, the calculations were said to ‘highlight the danger of trying to extrapolate figures from disparate unrelated sources’. BMG submitted that the best evidence was the evidence of Mr Cruz. Moreover, the calculations put forward by Burrell could not stand in the face of the judge’s conclusion that the entirety of the crop was damaged and yet in excess of 16,000 crates were ultimately managed to be harvested and sold to Coles.
Analysis
The judge was tasked with weighing a good deal of competing evidence about the likely yield of the 2014 Swan Hill crop. As her reasons disclose, she carefully considered each of the alternatives contended for by the parties, rejecting two higher yield rates advanced by BMG and the much lower yield rates advanced by Burrell.
There were difficulties with, and unsatisfactory aspects in, the evidence relied upon by each side for the positions they advanced. The judge identified a number of the difficulties in relation to some of the submissions. The judge was faced with a number of discrete pieces of evidence that were capable of being used to support different likely yield amounts. Some parts of that evidence were likely to be more reliable than other parts. Having made conclusions about the nature and extent of the crop damage and the number of crates actually harvested and sold, the judge was necessarily bound to reach a conclusion about the likely yield figure which was consistent with these findings.
All of that said, the points made by Burrell in this Court in relation to the evidence of Mr Cruz are not entirely without substance. Notwithstanding those points, however, Mr Cruz’s evidence about yield was admissible, not objected to by Burrell at trial and, as the judge observed,[27] not the subject of challenge in cross-examination.
[27]Reasons [150].
Senior counsel for Burrell sought to meet the assertion that Mr Cruz’s evidence about yield was not challenged. He did so by taking us through a chronology of the trial and Mr Cruz’s evidence in an attempt to downplay the significance of this evidence in the context of other witnesses, who might have been expected to give evidence of yield, having been called and having not given evidence on the yield issue. As part of this argument, it was submitted that the purpose for which Mr Cruz was called was unrelated to the issue of yield. Mr Cruz’s evidence was primarily concerned with an issue relevant to liability.[28] Thus it was submitted that Mr Cruz’s evidence of likely yield was a ‘throw-away line’.
[28]The use of a software product known as Live Farmer into which one enters data concerning the application of agrochemicals.
Ultimately, the judge was required to determine the likely yield of the 2014 Swan Hill crop on the whole of the evidence. A finding by the judge as to the likely yield, which was inconsistent with findings about the nature and extent of the damage to the crop and the amount that was actually sold after the crop was damaged, could not be allowed to stand.
Save for one part of the judge’s analysis dealing with her rejection of Burrell’s first alternative method of calculation,[29] which we do not consider to be material to the overall analysis, we see no error in the judge’s conclusions on the issue of yield. The following points may be made.
[29]The judge surmised, at Reasons [154], that there was a possible confusion in the evidence between the use of the word ‘row’ and the use of the word ‘land’. With respect, we do not think there was any confusion. Moreover, if the confusion was whether ‘a land’ (the equivalent of three rows) was harvested on 28 July 2014, then the resultant yield figure would have been a third of 21,500 crates — rather than three times that figure as suggested by the judge.
First, BMG was ultimately able to harvest and sell to Coles some 16,234 crates.[30] Rick Butler gave evidence that BMG harvested 25 to 35 per cent of the 2014 crop, only half of which was able to be sold. If one takes a mid-range figure and assumes 30 per cent was harvested and 15 percent was able to be sold,[31] the likely yield would be substantially in excess of the amount referred to by Mr Cruz.[32] On this evidence, consistently with calculations made by BMG,[33] the yield was approximately 178,000 bunches per hectare.
[30]That figure is no longer disputed. It should, however, be noted that in Burrell’s written case in support of the now abandoned proposed ground 3, Burrell contended that the judge was wrong in saying that only 16,234 crates were harvested and sold. Before it abandoned proposed ground 3, the figure that Burrell contended for, by reference to discrete pieces of evidence, was 25,357 crates; alternatively, 26,301 crates.
[31]15 per cent being half of 30 per cent.
[32]108,200 crates as against 60,700 crates.
[33]In a document headed ‘BMG’s Alternative Yield Calculation’, handed up in the course of oral argument.
Secondly, in circumstances where the judge found that the entirety of the crop was damaged and that only a small portion was able to be sold, the yield figures contended for by Burrell would suggest that, contrary to the judge’s findings, there was only a relatively small part of the crop that was damaged by the spray drift. More specifically, the yield figures contended for by Burrell (being in the range 12,900 to 31,250 crates) cannot sit with a finding that the crop was damaged in its entirety in circumstances where more than 16,000 crates were ultimately able to be sold to Coles.
Thirdly, the judge had the benefit of seeing and hearing the witnesses called at trial, and of having what were very detailed matters of evidence explained to her over the days which this trial occupied. Those advantages, not possessed by this Court, cannot be underestimated. In this case, they led to what we think, with respect, was a measured analysis by the judge.
Fourthly, it is not to the point that Mr Cruz was not called as an expert. He had relevant experience enabling him to give the evidence that he gave about yield. Additionally, the absence of more extensive records than those tendered at trial was a matter capable of being taken into account by the judge in her consideration of whether or not to accept Mr Cruz’s evidence. The absence of records (or records additional to those tendered in evidence) was not, however, a circumstance that prevented her Honour from accepting Mr Cruz’s evidence.
Fifthly, notwithstanding the correctness of the arithmetic used by Burrell to come to its suggested yield figures, none of the figures or analyses contended for by Burrell were actually put to a relevant witness. So, for example in relation to Burrell’s first method, while Burrell submitted to the judge that Rick Butler’s evidence of harvesting, on 28 July 2014, ‘a bit over 500 crates’ from ‘more than one entire row’ meant that the total yield of the Swan Hill block must have been less than 21,500 crates,[34] this proposition was never put to Mr Butler. Putting the proposition to him would have given Mr Butler the opportunity to answer Burrell’s contention. Experience shows that it can quite often be one thing for lawyers to argue about a conclusion that is said to arise from evidence given about primary facts, and quite another to consider the same issue in the light of evidence given about that matter once the posited conclusion is put to a witness who may be able to speak to that conclusion.
[34]500 crates x 43 rows = 21,500 crates.
In the course of dealing with the question of whether Mr Cruz’s evidence at trial about the likely yield was the subject of challenge, senior counsel for Burrell took us to passages in Mr Cruz’s evidence where he objected to Mr Cruz giving evidence on liability issues in relation to matters that occurred in 2014, before Mr Cruz commenced his employment with BMG.[35] Specifically, objection was taken to Mr Cruz giving evidence about what happened in 2014 in relation to the use of a software product known as Live Farmer. The judge upheld the objection to the extent that she ruled that Mr Cruz could not give evidence about how that software operated in 2014 ‘when he wasn’t there’. Burrell submitted that it was not entirely correct to say that it did not challenge Mr Cruz’s evidence about matters that occurred before he commenced employment with BMG. As we understood the submission, the objection that was taken in relation to Mr Cruz’s evidence on liability was to be construed as an objection to Mr Cruz giving any evidence about circumstances as they existed in 2014 before he commenced employment with BMG.
[35]Mr Cruz commenced his employment with BMG in 2015.
The short answer to this submission is that, as we have already observed, Burrell did not object to the evidence that it now seeks to characterise as a ‘throw-away line’. Its objection was made for a more limited purpose and on a more limited basis (hearsay). Moreover, Mr Cruz explained the basis upon which he gave his evidence about the likely yield of the Swan Hill block in 2014 and, as we have said, given his experience as a qualified agronomist in the employ of BMG, with access to BMG’s records, that evidence was admissible.
The judge’s analysis of the issue of yield showed that she carefully considered the relevant evidence and the parties’ submissions. The issue involved one of fact and degree, in which not all of the evidence told in one direction. Having performed the same exercise for ourselves, we are not persuaded that there was any material error in the judge’s analysis. Indeed, on all of the evidence, and having regard to the judge’s conclusion about the nature and extent of the damage to the crop and the amount that BMG was ultimately able to sell to Coles notwithstanding that damage, we would come to the same conclusion to which the judge came. Ground 2 must be rejected.
Grounds 1, 5 and 6: the market issues
Parties’ submissions
Under grounds 1, 5 and 6, Burrell contended that the judge was wrong to assess BMG’s damages on the premise that BMG would have been able to sell 60,700 crates of spring onions grown from the Swan Hill block. In support of that contention, Burrell made the following points:
(1)There was no evidence (documentary or oral) from either Coles or Woolworths, or any other party, suggesting that the demand for spring onions from BMG’s customers was not met by BMG during 2014.
(2)The ‘sole evidence’ relied upon by the judge on the ability of BMG to sell 60,700 crates was the oral evidence of Rick Butler, who stated that ‘there’s always a home for stock in August’. This, it was submitted, fell ‘significantly short of discharging BMG’s evidential burden in the absence of any supporting evidence’.
(3)The limited evidence that was tendered at trial in fact told against the proposition that there was any actual shortfall in BMG’s supply during the relevant period in 2014. Specifically, the evidence showed that during the relevant period in 2014, BMG sold more spring onions to Coles and Woolworths than it sold during the same period in 2013, having abandoned 20 per cent of its Swan Hill crop in September 2013, at least in part, because it had ‘grown too much’. Indeed, on her Honour’s finding of a yield of 100,000 bunches per hectare, BMG would have abandoned in excess of 24,000 crates in 2013, in circumstances where it supplied a little over 7,000 fewer crates than it did in the relevant period in 2014.
(4)BMG’s case was that it lost the opportunity to sell spring onions during the relevant period in 2014. The judge erred in not assessing that loss of opportunity, and in not discounting her assessment by reference to the various contingencies and vicissitudes of:
farming particularly in a new region at a different time of year for only the second time, and the imprecision of timing of a crop that was aimed at a very tight six week window, missing which could lead to the 20–30 per cent abandonment that occurred in 2013.
Burrell submitted that, there being no evidence that BMG failed to meet any demand for spring onions during 2014, the proper measure of damages was the additional costs incurred by BMG of procuring replacement spring onions from Queensland.
In response to Burrell’s submissions, BMG again supported the reasoning of the judge. It advanced two principal contentions: first, that it was not required to prove the extent of any market, the value of the spring onions being independent of any evidence of an actual demand for them; and secondly, that in any event the evidence well-established the fact that BMG would likely have sold the entirety of the crop the judge found would likely have been available for sale but for the damage caused by the spray drift (namely, 60700 crates).
Analysis
To the extent that BMG submitted that it was not necessary for it to establish any likelihood that it would have been able to sell an undamaged crop of 60,700 crates of spring onions so as to support the judge’s assessment of the value of such a crop, that submission must be rejected. Plainly, the judge’s assessment of damages in this case would have been very different (and rightly so) had there been little or no demand for spring onions during the relevant period.
The judge did not decide the case on the basis of BMG’s contention that it was unnecessary to establish the existence of a relevant demand. Her Honour decided the matter on the basis that there was a demand that was sufficient to enable BMG to sell a crop of 60,700 crates. Specifically, the judge was well-satisfied that the evidence established that BMG lost the ability to sell its entire crop (60,700 crates) during a narrow winter window when spring onions were in short supply. The judge based that conclusion on the Coles agreement letter and the evidence of Rick Butler.
The Coles agreement letter covered a supply period from the week commencing 28 April 2014 to 21 October 2014. By its terms, Coles made a request to purchase a total of 1,964,647 bunches of spring onions (being a little over 98,200 crates). The letter provided:
Volumes are an estimate only and have been based on reasonable projections and may increase or decrease by up to 15 per cent due to market demand.
Mr Butler’s evidence was that he had always sold to Coles in excess of Coles’s commitment to purchase. Specifically, at one point in his evidence, Mr Butler said:
I’ve actually exceeded their commitment by 100 per cent at some times because the guy next door couldn’t supply and I helped my customer out. So it’s just a guide.
For completeness, we should also note that Mr Butler gave evidence, that was not expressly relied upon by the judge, that there was always a shortfall of spring onions during the winter period.
Notwithstanding the fact that the Coles agreement letter covered a slightly wider period than the relevant period in this case, in our view it was well-open to the judge to conclude, as more probable than not, that BMG would have sold the entirety of its crop (60,700 crates) but for the damage caused to it by the spray drift. The fact that 20 per cent of the 2013 crop was not harvested was explained by Mr Butler’s evidence concerning the planting of that crop during a later period of that year — thus making it uneconomic to harvest and transport spring onions during the latter part of the 2013 Swan Hill harvest.
As to Burrell’s submissions about loss of opportunity and vicissitudes, we make the following points.
First, while the words ‘loss of opportunity’ were used from time to time at trial, in truth this was not a loss of opportunity case. BMG claimed, and then proved, that on the balance of probabilities it lost the ability to sell an undamaged crop of 60,700 crates of spring onions. The case was not put by BMG (at trial)[36] as a loss of opportunity case of the kind referred to in Sellars v Adelaide Petroleum NL.[37]
[36]Or in this Court.
[37](1994) 179 CLR 332.
Secondly, we see no error in the judgment’s treatment of vicissitudes (described by her Honour as ‘contingencies’). In our view the judge’s analysis discloses an entirely appropriate consideration of the issue as follows:
Burrell submitted that, if BMG’s method were to be used, it should include allowances for rejections, and for negative contingencies.
As to rejections, Burrell relied on Rick Butler’s evidence that around 95% of spring onions that are picked are saleable, and those that are not are left behind. It also pointed to evidence that, in 2012, Coles rejected 0.72% of the spring onions supplied to it by BMG. I consider that the yield rate that I have determined to use includes a sufficient allowance for rejections, in particular of those spring onions that may not be included in yield data because they are left on the ground.
As to negative contingencies, Burrell submitted that the value of BMG’s lost opportunity should be assessed according to the likelihood of its occurrence. Negative contingencies that it put forward for consideration were:
(a)The exigencies of growing the crop for only the second year in Swan Hill;
(b)The chances of downy mildew, nutrient deficiency or any other crop damage;
(c)The imprecision of the timing for harvest, and the real prospect that some of the crop would miss the window; and
(d)General commercial farming contingencies such as equipment breakdown and labour shortages.
I am not persuaded that I should make any additional allowance for these contingencies, beyond the judgment I have formed about the likely yield rate and the average price per crate. The evidence was, and I have found, that in 2014 BMG grew a healthy spring onion crop at Swan Hill, which was not damaged before 28 July, and which was ready for harvest on time in late July, at the beginning of the window. BMG had started to harvest the crop and had the necessary equipment and labour on hand to continue harvesting.
I have also considered whether I should make some allowance for the possibility that BMG might not have been able sell everything it harvested at Swan Hill. Burrell points out that in 2013, when BMG grew twice the area of spring onions at Swan Hill, it supplied a total of 216,567 crates of spring onions to Coles and Woolworths. Further, it had rarely sold more than 20,000 crates of spring onions to Coles in any one month, exceeding that figure for the first time in December 2013. Given that background, Burrell submits that it is unlikely that BMG could have sold between 55,995 and 72,840 crates of spring onions in the window between late July and early September, and that it would probably have left some of the 2014 crop to go to seed.
Against that submission is the considerable evidence that spring onions are in short supply in the south in the winter months. Very little can be grown to maturity in Victoria, and for a period of about six weeks spring onions can only be sourced reliably from Queensland. The Brisbane market price for spring onions is high throughout the winter months, particularly in August when it can exceed $50 per crate. In order to meet BMG’s supply commitment to Coles during August and early September, Rick Butler had to buy and transport spring onions from Queensland at a loss. In that market, I find that BMG would probably have been able to sell everything it could harvest at Swan Hill in the window from late July to early September. I do, however, consider that a plentiful supply of Victorian grown spring onions would have affected the price.
Even if BMG might not have sold its entire Swan Hill crop during the six week window, I find that it would have been able to continue to harvest and sell the crop throughout September and into October. It did, in fact, harvest and sell what could be salvaged from Swan Hill during this period, albeit at lower prices than might have been expected during the winter window.[38]
[38]Reasons [141]–[147] (footnotes omitted).
As with the judge’s analysis of the issue of yield, her Honour’s analysis of the issue of contingencies showed that she carefully considered the relevant evidence and the parties’ submissions. Like the issue of yield, this issue (contingencies) was one involving questions of fact and degree about which the judge was required to make an assessment. Having considered the judge’s analysis and assessment, we are not persuaded of the existence of any error. More generally, the fact that one may be able to perform certain arithmetic calculations based upon individual pieces of evidence should not be allowed to obscure the essential task facing the judge which was to make a proper assessment of BMG’s loss based on all of the evidence.
Finally, there is nothing in Burrell’s submission that BMG’s damages should have been limited to its cost of purchasing spring onions in Queensland. Again, we see no error in the judge’s conclusion on this issue, based as it was on the evidence of Mr Butler and the Coles agreement letter. Grounds 1, 5 and 6 must be rejected.
Ground 4: whether the judge erred in finding that BMG bought and transported spring onions from Queensland at a loss
At trial, BMG claimed the sum of $35,955 as an additional loss suffered as a result of purchasing 24,478 crates from Queensland between 8 August 2014 and 16 October 2014. The loss was calculated by subtracting $665,529 (being the total direct cost of the crates of $570,800 and the cost of their transport of $94,729) from $629,574 (being the figure for total sales, calculated by multiplying the average crate price of $25.72 by the total number of crates being 24,478).
Burrell made no submission to the judge about this calculation. Burrell’s submissions at trial on the question of quantum were largely limited to the matters to which we have already referred when dealing with Burrell’s other grounds of appeal and the now abandoned ground 3. Specifically, however, no submission was made to the judge by Burrell about any defect in BMG’s calculation of its loss from purchasing crates in Queensland.
Parties’ submissions in this Court
Burrell now contends that the evidence disclosed that the average price for the purchase of Queensland product was always less than the average sale price to Coles. It is now submitted that the judge erred in not deducting this profit.
In its written case in this Court, BMG accepted that ‘it led the judge to accept an erroneous calculation as correct’. The trial calculation failed to take account of Rick Butler’s evidence that BMG would have purchased crates from Queensland even if the Swan Hill crop had not been damaged. BMG would have made this purchase because, as Mr Butler put it in his evidence in chief, ‘the market was big enough to handle [the additional] volume’.
BMG accepted in this Court that the appropriate calculation that should have been made was one that accounted for any profit made on additional crates purchased from Queensland to cover the loss of product from Swan Hill. BMG calculated the profit on the replacement crop at $57,400,[39] but maintained that it still suffered loss because the transport costs (claimed in the amount of $94,729.86 both in the trial calculation and in the calculation in this Court) had to be deducted — making a net loss on the purchase of replacement crates of $37,329.86 (slightly more than was claimed by BMG at trial).
[39]While the tabular form of BMG’s calculation in this Court referred to the profit from the purchase of the replacement crates from Queensland as being $57,400 and BMG’s written case referred to it as $25,666, this apparent discrepancy is accounted for when one adds to the written case figure the additional transport costs of $31,734 that are otherwise taken into account in the total transport cost figure of $94,729.86.
Analysis
Ground 4 is without merit. Four points should be made.
First, it can hardly be said that the judge made some error in respect of a calculation advanced by one party at trial and not the subject of any submission or criticism by the other party.
Secondly, it is not correct to say that BMG’s trial calculation did not contain within it an allowance for the amounts it was paid by Coles for the relevant product. On its face, the trial calculation brought into account the amounts BMG received from Coles in respect of all of the Queensland product BMG sold to Coles.
Thirdly, notwithstanding Burrell’s complaints under this ground, in its written case and oral argument in this Court, Burrell failed to advance some figure that the judge (or this Court) should have arrived at on the evidence as to the loss sustained, or gain made, by BMG that Burrell contended should have been taken into account in the assessment of BMG’s damages. That said, to the extent that Burrell complained that the judge was wrong to find that BMG suffered any loss in relation to the purchase of product from Queensland, it may be accepted that Burrell contended that there was no loss.
Fourthly, if for no other reason, Burrell should be refused leave to appeal on ground 4 because it did not seek at trial to contest the matters now sought to be put in issue in relation to this aspect of BMG’s claim.
Finally, we should note for completeness that after we had prepared the reasons which are set out above, and after the parties were informed that judgment would be delivered this morning, the applicant sent an email to the Registry enclosing a document headed ‘Mitigation Costs and Sales Calculations’. This document contained further submissions in relation to ground 4. In the document, the applicant set out two additional alternative calculations which it contended showed that her Honour’s assessment of damages should be reduced either by $75,086.96 or $96,832.18.
We have not had regard to these further submissions. They should not have been forwarded to the Registry. As has been said repeatedly in the High Court and in this Court,[40] the idea that parties may, without leave, file supplementary written submissions after the conclusion of oral argument is misconceived. Once the hearing of an appeal has concluded, it is only in very exceptional circumstances, if at all, that the Court will later give leave to a party to supplement submissions. In the present case, it is sufficient to observe that no leave should now be given to advance further submissions which were not even made to the judge at trial.
[40]Carr v Finance Corporation of Australia Limited (No 1) (1981) 147 CLR 246, 258 (Mason J); Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318, 330 (McHugh J) Frugtniet v Law Institute of Victoria Limited [2012] VSCA 178, [46] (Warren CJ, Nettle JA and Beach AJA).
Conclusion
While ground 2 was sufficiently arguable to justify a grant of leave, leave to appeal should be refused in relation to BMG’s other grounds of appeal. Nevertheless, for the reasons given above, the appeal must be dismissed.
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