Jack Howard (Young) Pty Ltd v Minehan, Patrick J

[1984] FCA 165

Xesponaene

CO9AM:	ST. JOHN. S .
D S :	34 M..Y 1984

PLACE	: SYDNEY
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7 . The respondent 1 s ordered ~3 pay t h e appilcancs'

coscs of r;he acclon.

m:	ST. J O H E , J
D B :	24 MAP 1984

PLACE : SYDNEY

15 f o r c

ieallp ,I cylinirlcal bit15 vhicn was much ;?ezner cnan LE

conventionai square bale. The machine. whlcn was lacer

admitted noc to be reasonably flt for che purpose. was

delivered to hlm late in Auuust and he persisted in actemoclnq

to make it work efflclently with and wlthouc che asslscance of

the respondent conpany until 17 November 1980. at xhch clme a

representatlve of the resp0nder.t	comuany conceded tnar; l e
would noc work.

Br; this perl+t. che appllcanr,, Tar,rlcx Flmeban szys

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that he had. cue on his own 3roperr;y a numger of acr-3~ of 'nay

and by the clme l? Ncvember had arrlved. chis nay had &rled

out to cne excenc thac le was lmposslble m baie. a d In nis

v ~ e w it, had lost ail nurrlclonal value. 3e 9eeT.s eo clam Lie cotal value of thac hay whlch hls counsel zcts SE some

sevency-seven r;'rousana d o l l a r s ( S ? > ,0!301 9s Far: 5 ?.IS

dhmaae S.

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Thls case . so far as the app l l can t 1 s concerned, has

been presented in a way which makes It extremely difficult f o r

me t o rake ary ca l cu la t ions ac a l l i n r e l a t l o n CO whatever

damaqe the appl icanc mlght have suffered. For example. there

1s abso lu te ly no evidence a t a l l as eo the runnlnq coscs of a

concent lonai square baler or a new b a i e r welch Frocuces round

bales . There IS verlr 1lcr; le evidence as C O wnar; uould be r;ne

averw-e number of ba l e s wincn coula be produced. by a rcunc

baler and the re 1 s very l l t c l e v idence as t o w h a ~ ba l lng

would have been a v a i l a b l e t o Mr. Minehan hac cne baler been

oFerac ive , ou t as a qene ra l bxkgrouna , criers I S the evldence

of ?lr. Parker , a n aTronomlst employed by the Departmenr; of

Pq r l cu l tu ro ~n a d i sc r i c r ; lncludlnu che relevanc m e . mer?

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?-re some sr ,sr ;em~r.~s D? h m chac I accepr: w e e -e la r ; lve CO ~ k s

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que 3 L 1 an 21 c.am.z.?+.

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The ?evz macixr 1 3 *.her,;2er ??’ noc t n e 5-34’ whlc:? Y r .

Minenan saps thar, he had c ~ c on h ~ s ?ra?ercy, zc6 k e sa:rs n a i

drled OUT;, couia have 3een baled ana whecher a r not,, nad l c

been baled. lt would have	losc nutrltlonal value. Mr. Parker
says thac the drymu out	of hay and the bleachinu caused by

the sun does noc affecc che nutrlclonai value of cne hay and.

that It could have been baled early in the mornlng a i c e r che preciplcaclon of dew, or in che evenlnq afcer thac evenc haa

taken place. Mr. Minehan aarees that chls is posslble and

says chac l e rmuid noc be saiesble bec?.xe zf LZS k c x uf welqhr:. I am prepared r,o accepc char, i c wouia noc be as

accrac-,ive to purchasers, bur, so far as loss CO Mr. Xlnehan 1s

concerned, che fact char; he did not bale che hay was che

result of his own iunorance char: It had nat losc nuccitionai value 2nd chac he hsd pers~scec ~ l r ; h 3-2s a c ~ ; % p c zn ?e5 the

round baler working In circumscances &ere It mlahc have been

more ?rxden-, f q c k m cc a b a z i x c h a c z c c e ~ ~ c and z > “se %.S

32uare baier eo bale hls zcm hay.

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Acain, I would emphasise m reiatlon eo char;, c n a ~

there is no evldence at all of the runnlna costs of the r@+c

baler. There is no evldence of whac che hlre purcnas charqes

would have been had the hire purchase aureemenc concnued m

exlccence, because no doubt the hire purchase aureement wculd

have continued in existence had che baler been able tc. be

operatea efficlentlp, so thac in assessir.? hls claim f o r loss

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af r;he use of th? baler 02 p r ~ g r r c l ? s ocber than i r l s owr:. I

hav? CO Indulge In whar; miunt be descrlbed as pwre sFeculzclon as c0 vnat che real neasure of damacre =as f c r a nunjer of

reasons. lnciudlnu the lack of evldence as eo what the

operatin? coscs vere.

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5.

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A s to hls ciaim in respecr. of che hay on hls own

properr::v, zhere are a number of faccors whlch mitigace auainsc

It. Flrstlg, I am of the opnion char; the cyanticies thzc he

saps ne would have baled from char: property b v e been arossly

exaugeraced. if they were worr:h sevenrp-swen thoussn6

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dollars ! s i 7 . C O O ) , ir; ;;cjul?. De che cr5acesi; ;-ear i:? n3.z nzc :I?

farmina snce 1977 by many chousancs of 6~llars. ir. fact. =he farmina operaclon which he conducced drew Its FrofIcs from

sheep and cattle. from ?roperc:r cenc. contractlng. whear;,

araln, oats and hay. So far a c hay and scraw xere concerned.

f o r che ?rev~ous four years includinc -,be reievanr. :7~ar . 20

profit had been made whatever from ha:J and scraw.

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Again. domg Che best I can In relaclon to damaqes

for such loss as he suscainea from hls own crop, I am prepare6

to award under that head. of damaues che sum of four thousand

dollars ( $ 4 , 0 0 0 ) . There wlll therefore be a verdict and

~udgment for the applicants in the sum of nine chousand and

ten dollars (59,0101 and tne respofiaent 1 s craered to pay the

mpllcancs' cDsts of tne aczlon.

I certify chat thls and che

rrrecedlna ,ages are 3- true copy of che

Ext-emFore Reasons for Judqmenc herem

of h ~ s Honour Mr. Justlce St. John.

Assoclate: W Daceo : d J u n e i9SG

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