Mallonland Pty Ltd v Advanta Seeds Pty Ltd - [2023] QCA 24

SUPREME COURT OF QUEENSLAND

CITATION:

Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd [2023] QCA 24

PARTIES:

MALLONLAND PTY LTD
ACN 051 136 291
(first appellant)
ME & JL NITSCHKE PTY LTD
ACN 074 520 228
(second appellant)
v
ADVANTA SEEDS PTY LTD
ACN 010 933 061
(respondent)

FILE NO/S:

Appeal No 5214 of 2021
SC No 4103 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2021] QSC 74 (Jackson J)

DELIVERED ON:

28 February 2023

DELIVERED AT:

Brisbane

HEARING DATE:

19 and 20 October 2021

JUDGES:

Morrison and Bond JJA and Williams J

ORDERS:

1. Appeal dismissed.

2. The appellants pay the respondent’s costs of and incidental to the appeal, to be assessed on the standard basis.

CATCHWORDS:

TORTS – NEGLIGENCE – PURE ECONOMIC LOSS: NEGLIGENT ACTS, OMISSIONS OR REPRESENTATIONS – DUTY OF CARE: EXISTENCE – DISCLAIMERS AND ASSUMPTION OF RESPONSIBILITY – where the appellants brought proceedings under Part 13A of the Civil Proceedings Act 2011 (Qld) on behalf of a group of commercial sorghum farmers – where the respondent manufactured sorghum seed under the brand name “MR43 Elite” – where the respondent supplied MR43 Elite only to distributors, either by sale or consignment – where, between 2010 and 2014, the appellants purchased MR43 Elite from distributors – where MR43 Elite was contaminated with a seed known as shattercane – where the appellants suffered pure economic loss due to planting of contaminated MR43 Elite – where the primary judge found that the seed was sold in bags with a prominent and clear disclaimer of liability printed on it – where the case was run not as one where physical damage was suffered but only that pure economic loss was suffered – where the only element of negligence in issue was the duty of care – where the primary judge found that no duty of care was owed to the appellants – whether the primary judge erred in finding that the disclaimer was on the bags at the time the appellants purchased them – whether the disclaimer was effective as a clear and prominent disclaimer of a duty of care which might be owed by the respondent to the appellants – whether a duty of care was owed to the appellants in the circumstances

TORTS – NEGLIGENCE – PURE ECONOMIC LOSS: NEGLIGENT ACTS, OMISSIONS OR MISREPRESENTATIONS, DUTY OF CARE: EXISTENCE – GENERALLY – where the respondent manufactured sorghum seed under the brand name “MR43 Elite” – where the respondent supplied MR43 Elite only to distributors, either by sale or consignment – where the appellants purchased MR43 Elite from distributors – where MR43 Elite was contaminated with a seed known as shattercane – where the appellants suffered pure economic loss due to planting of contaminated MR43 Elite – where the respondent had not assumed responsibility to the end users of MR43 Elite – where the respondent had disclaimed responsibility for loss suffered by the ultimate consumer of MR43 Elite – where the alleged duty of care was a duty to take reasonable precautions during the production of a product to avoid a risk that the end user of a product might suffer pure economic loss upon the use of that product – where the legislative regime in the Australian Consumer Law contemplates protections for end consumers as distinct from commercial consumers – whether the common law should recognise a duty of care in the circumstances

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – TORTS – OTHER TORTS AND MATTERS – where the respondent manufactured sorghum seed under the brand name “MR43 Elite” – where the respondent supplied MR43 Elite only to distributors, either by sale or consignment – where the appellants purchased MR43 Elite from distributors – where MR43 Elite was contaminated with a seed known as shattercane – where the appellants suffered pure economic loss due to planting of contaminated MR43 Elite – where the claim was initiated on 24 April 2017 – where the MR43 Elite was purchased, planted, and germinated at a point prior to 24 April 2011 – where the respondent pleaded that the action was brought outside the applicable six year limitation period under s 10(1) of the Limitation of Actions Act 1974 (Qld) – where the limitation period begins to run from the date on which the cause of action “arose” or “first accrues” – where the primary judge found that the appellants did not suffer any damage when the planting or germination of the contaminant seeds occurred, but suffered damage to their financial interest in lost cash flows – where the primary judge found that the occurrence of the damage comprising the loss of those cash flows was when the cause of action arose or first accrued – where the primary judge rejected the argument that proceedings were out of time –whether the primary judge erred in finding that no loss had been suffered by the appellants prior to 24 April 2011 – whether the primary judge erred in finding that the negligence claim was not statute barred

Australian Consumer Law 2011 (Cth), s 3(2)(b)(i), s 54, s 271
Limitation of Actions Act 1974 (Qld), s 10(1)

ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; [2014] FCAFC 65, cited
AIU Ins Co v Superior Court 51 Cal.3d 807, 274 Cal.Rptr 820, 799 P.2d 1253 (1990), cited
Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1; [2015] HCA 33, distinguished
Barclay v Penberthy (2012) 246 CLR 258; [2012] HCA 40, cited
Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36, considered
Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17, considered
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13, cited
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; [1976] HCA 65, considered
Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258, considered
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59, considered
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51, considered
Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476; [2000] FCA 1902, considered
Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241; [1997] HCA 8, cited
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, cited
Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15, considered
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] UKHL 4, cited
Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215, considered
Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520; [1982] UKHL 12, considered
Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169, cited
Martindale v Burrows [1997] 1 Qd R 243; [1996] QSC 113, considered
Minchillo v Ford Motor Co of Australia (1995) 2 VR 594; [1995] VicRp 78, considered
Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners) [1947] AC 265, considered
Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36, considered
Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27; [1993] VicRp 4, cited
Ranger Insurance Co v Globe Seed & Feed Company 865 P 2d 451 (1993), considered
Smith v Eric S Bush (a firm) [1990] 1 AC 831; [1990] UKHL 1, cited
Suosaari v Steinhardt [1989] 2 Qd R 477, considered
Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41, cited
Swick Nominees Pty Ltd v LeRoi International Inc (No 2) (2015) 48 WAR 376; [2015] WASCA 35, considered
The Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16, considered
University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481; [1985] HCA 28, followed
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, cited
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55, considered
Williams v Network Rail Infrastructure Ltd [2019] QB 601; [2018] EWCA Civ 1514, cited
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16, considered
Zabic v Alcan Gove Pty Ltd (2015) NTLR 209; [2015] NTCA 2, cited

COUNSEL:

J T Gleeson SC, with N M Bender and B A Hall, for the appellants
P J Dunning KC, with E J Goodwin and M Y Barnes, for the respondent

SOLICITORS:

Creevey Russell Lawyers for the appellants
Clifford Gouldson Lawyers for the respondent

MORRISON JA: The appellants brought representative proceedings under Part 13A of the Civil Proceedings Act 2011 (Qld) on behalf of a group of commercial sorghum farmers.
Between 2010 and 2014 those sorghum farmers purchased sorghum seed manufactured by the respondent, Advanta.[1] The farmers grew sorghum for two purposes, animal feed and bio-fuel.
[1]At that time it was called Pacific Seeds.
The particular brand of seed purchased was known as MR43 Elite.
The MR43 sold to the farmers had a contaminating seed in it, known as shattercane, which competed with the normal sorghum. The difficulty with shattercane was that its head would shatter, spreading the contaminated seed, which would then grow vigorously.
An adverse consequence of having shattercane in the sorghum crop was that its effects can be felt over many seasons, and ultimately the only way to prevent it from disrupting the sorghum growing business was to stop growing sorghum and to remediate the fields.
The appellants purchased the contaminated seed from intermediate suppliers or distributors. None purchased directly from Advanta.
They all claimed to have suffered economic loss as a consequence of their crops being contaminated by shattercane. The claim was based in negligence and sought only pure economic loss. That loss was framed in two ways. One was the cost of roguing and applying insecticides and herbicides once the shattercane was discovered. The second was having to leave land lie fallow for a number of seasons or turn to less remunerative crops.
At trial that claim failed on the ground that the appellants had not established that Advanta owed a duty of care in the circumstances. The learned trial judge found that had a duty been established, the appellants had succeeded on all other relevant aspects of the claim in negligence, for example, breach, causation and loss.
The appellants challenge the finding that no duty of care was owed by Advanta. For the reasons which follow the appeal must be dismissed.
The pleaded facts
A number of facts were pleaded and relevantly admitted, or ultimately not in issue. Those that are relevant to the issues in the appeal are set out below.
Sorghum is a crop commercially grown and sold in Queensland and New South Wales for the provision of animal feed, and for the production of biofuels.
MR43 is a treated sorghum hybrid variety of seed sold and produced by Advanta and used by the crop farmers for purpose of commercial cultivation and sale of sorghum.
MR43 can only be used for cropping purposes. It cannot be fed directly to stock.
Advanta:
(a)was engaged in the business of the commercial production of seed, including sorghum seed, for sale and distribution to growers;
(b)produced or caused to be produced MR43 seed for the purpose of commercial planting and harvesting by growers; and
(c)made MR43 seed available to be sold and distributed to growers for planting during the period of the claim.
The production of commercial hybrid sorghum seed for commercial sale to farmers was a four-year process from initially increasing the desired hybrid parents to production of sufficient seed for Advanta to supply its distributors in bags.
The production of the relevant hybrid became a rolling process whereby the four-year production cycle was initiated and continued over the commercial lifetime of the hybrid.
Once established, that process continued on a rolling basis subject to expected demand and inventory levels. The desired hybrid characteristics could not be maintained by simply taking and planting a percentage of the commercial hybrid, as there would be a reversion to other genetic characteristics and a loss of type.
The MR43 production process included controls to obviate and preclude, or alternatively, minimise the occurrence of contamination by reason of outcross occurring.
The MR43 controls included: (i) commercial seed production; and (ii) commercial grow outs.[2]
[2]Although Advanta contended, for reasons which do not presently matter, that a grow out was impractical in this case.
Commercial seed production involved engaging commercial seed producers in areas considered to be free of wild sorghums and sub-weeds. Growing plants were inspected a minimum of seven times at the Pre-Basic, Basic and Commercial Seed production stages to confirm that undesirable plants were not present. Any undesirable plants, such as wild and weedy sorghums, found inside the isolation zones but outside the production area, were rogued (i.e. manually removed from the ground and destroyed). Any undesirable plants, such as outcrosses, found inside the production area were rogued.
A “commercial grow out” is an expression that refers to planting and growing a sample of seed from a production batch to assess whether, inter alia, the batch is contaminated with off-type or weed seed. Grow outs involved an inspection by Advanta during the growing stage, at each stage of production (i.e. Pre-Basic Seed, Basic Seed and Commercial Seed), for undesirable plants, including off-types.
Advanta admitted that in 2010 and 2011, and in the balance of the Claim Period to 2014, it knew that contamination of the MR43 seed by an off-type sorghum with shattering characteristics may cause damage to the growers or to the owners of land upon which the seed was planted.
Advanta admitted that in 2010 and 2011, and in the balance of the Claim Period to 2014, it knew that the production of grain sorghum seed required production processes to be implemented and followed in order to:
(a)minimise the risk of contamination of the seed by reason of outcross occurring;
(b)seek to identify, by testing of a reasonable kind, contamination of the seed by reason of outcross occurring; and
(c)as far as reasonably practicable, prevent the supply to distributors, and ultimately growers, of contaminated seed.
Advanta admitted that:
(a)it knew, in 2009, that sorghum off-types had been identified in three varieties of commercial grain sorghum it produced and sold, namely in MR Buster, MR Striker and MR43;
(b)its Territory Manager, Tony McCumstie: (A) noted that the presence of this off-type was a concern; and (B) had seen some off-type sorghum in MR43 crops for several years prior to 2009;
(c)it knew, in 2009, that a sorghum off-type with a shattering characteristic would be more difficult to control or eradicate if such plant germinated, matured and dropped seed;
(d)it knew, in 2009, that a grower was likely to have greater difficulty in controlling a sorghum off-type with a shattering characteristic in a sorghum crop.
Advanta admitted that it knew or ought to have known that, in 2010, if roguing was not used then there was a risk of harm to growers who purchased and planted the marketed MR43 seed, that in the absence of reasonable care being taken in and about production of the seed for marketing, the seed might contain an AGOTS[3] with a shattering characteristic.
[3]AGOTS is a term used for the weedy off-type sorghum otherwise called shattercane.
Advanta admitted that it was reasonably foreseeable that the eradication of shattercane would mean that the land on which it was located could not be used to its full commercial potential during the eradication period.
Method of sale
Advanta did not sell bags of seed directly to the farmers. Instead MR43 and other seeds were sold or supplied to distributors who were also referred to as resellers, suppliers or agents.
There were hundreds of such distributors around Australia who sold Advanta’s seeds. Some were independently owned businesses and others were nationally owned by companies such as Elders Ltd, Landmark Ltd or Rural Co Ltd.
Advanta supplied MR43 seed to distributors in two categories – by straight out sale or on consignment.
Plea of vulnerability
The defence pleaded a lack of vulnerability on the part of the growers, in paragraph 34AA:[4]
“(e)says that the Label and the bag terms and conditions made clear the position in respect of the content of each bag of MR43, and the purchasing grower's and Defendant's obligations respectively in respect thereof, and in this regard refers to and relies upon the matters pleaded above in this Defence in paragraphs 18 and 19;
…
(i)says each Plaintiff, or any Group Member, as a grower which or who planted MR43 seed following purchase of the same, was not so vulnerable in that such Plaintiff or other grower was able to protect his or her interests from damage by:
(i)reading the Labels and bag terms and conditions and acting in response thereto; …”
[4]AB 240, 241-242.
The only pleading by the growers of vulnerability was in the Second Amended Reply and in response to those paragraphs set out above. It consisted of a denial of a lack of vulnerability:[5]
“denies that the Plaintiff and Group Members were not vulnerable as they were able to protect their interest from damage by reading the Label or taking the benefit of implied or express warranties from the distributor on the basis that no terms and conditions were provided either on the Label or with the bags, and the Plaintiffs and Group Members vulnerability was not reduced merely because of an implied or express warranty of statutory guarantee.”
[5]Paragraph 25(g), AB 283.
Finding of breach
The learned primary judge found that, assuming a duty of care, there were two breaches of the duty of care.
The first was that there had not been comprehensive roguing and crop inspection at each stage of the production process to ensure purity of the seed produced.
The second was failing, before the seed produced was supplied to growers, to conduct a commercial grow out which would have prevented contaminated seed from being supplied to growers.
The conditions on the bags
The learned primary judge made a number of findings as to the content and positioning of the notice on the bags of MR43. Those findings were necessary because of a dispute at trial as to whether the terms and conditions were actually on the bags sold in 2010/2011.
Advanta’s pleaded case was that the bags of seed were clearly and prominently marked with the terms and conditions set out in paragraph [37] below, and that because the buyers could, inter alia, read the terms and conditions, they were not vulnerable.[6] The appellants’ pleaded response (in the Reply) was a denial that the buyers were not vulnerable, relevantly on the basis that “no terms and conditions were provided either on the Label or with the bags”.[7]
[6]AB 222, 242; paragraphs 18(i) and 34AA(i) of the Ninth Amended Defence.
[7]AB 283; paragraph 25(g) of the Second Amended Reply.
The terms themselves are as follows:
“ATTENTION
CONDITIONS OF SALE AND USE
Upon purchasing this product and opening the bag, the purchaser (“you”) agrees to be bound by the conditions set out below. Do not open this bag until you have read and agreed with all the terms on this bag. If, before opening the bag, these conditions are not acceptable to you, the product should be returned in its original condition to the place of purchase immediately, together with proof of purchase, for a refund. The product contained in this bag is as described on the bag, within recognised tolerances.
CONDITIONS
You agree that:
-     You acknowledge that, except to the extent of any representations made by Pacific Seeds’ labelling of the product in this bag or made in official current Pacific Seeds literature, it remains your responsibility to satisfy yourself that the product in the bag is fit for its intended use;
-     If the product in this bag does not comply with its description, within recognised tolerances, the liability of Pacific Seeds Pty Ltd ACN 010 933 061 will be limited, at Pacific Seeds’ option, solely to the cost of replacement of the product or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods;
-     Pacific Seeds Pty Ltd will not be liable to you or any other person for any injury, loss or damage caused or contributed to by Pacific Seeds Pty Ltd (or its servants or agents), directly or indirectly arising out of or related to the use of the product in this bag, whether as a result of their negligence or otherwise;
-     All warranties, conditions, liabilities or representations in relation to the product, whether expressed or implied, are excluded by Pacific Seeds to the extent permitted by law.
-     Without limiting any of these terms, if you chemically treat the product in this bag, Pacific Seeds Pty Ltd will not be liable for any loss or damage whatsoever you might suffer, howsoever caused, and this warranty is void as a consequence; and
-     You may only use the product in this bag for planting and growing crops. You must not use it for any form of plant breeding, genetic manipulation, genetic isolation, genetic analysis or genetic sequencing; and
-     You must not and will not export this seed from Australia without the express written permission of Pacific Seeds Pty Ltd.”
Formulation of duty of care

Before this Court, Mr Gleeson SC, appearing for the appellants, articulated the contended duty of care in this way: a manufacturer of a mass-produced product, owes, in favour of end users who use the product as intended in the course of their business, a duty to take reasonable care in the production process to ensure that the product is free of hidden defects, which, if they later emerge, are likely to cause a particular kind of financial loss, or relevant financial loss to the business interest of the end user.
I pause to note that the duty so formulated was different from that advanced at trial, and as revealed in the reasons of the learned trial judge. In the appellants’ pleading there was no allegation of a duty of care.[8] Rather, the statement of claim assumed one by pleading breaches of a duty of care. That remained the case, leading the learned trial judge to observe that “the postulated duty is not identified with precision”.[9]
[8]Reasons below at [105]-[106].
[9]Reasons below at [194].
At trial the appellants framed the duty as a “duty of care to the Plaintiffs and group members to take reasonable care to avoid injury [by way of pure economic loss] arising from the sale of contaminated seed”,[10] and “to take reasonable care to avoid the Group Member’s suffering the economic losses that they suffered as a result of using the contaminated MR43 seed”.[11]
[10]Plaintiffs’ written submissions paragraph 223, AB 545.
[11]Plaintiffs’ written submissions paragraph 260, AB 556.
Ultimately it seems his Honour understood the duty being advanced as: “a duty of care to the plaintiffs to take reasonable care to avoid the risk of economic loss of increased expenses of farming operations and decreased revenue from sorghum sales if MR43 seed was contaminated by shattercane or other off-type grassy sorghum plants”.[12]
[12]Reasons below at [206].
As articulated before this Court the duty would be stricter than that run at trial. It requires Advanta to take reasonable care to “ensure the product is free of hidden defects”.
Accepting that relevant loss could vary, it was then submitted that it was sufficient that the defects, if they emerge, will damage, or interfere with the productive capacity of other core assets of the business, which, in turn, will require the business owner to suffer increased cost of working or reduced production and revenue during the period the damaged assets are being remediated.
The appellants submitted that the duty was established for a number of reasons:
(a)first, it either falls within the established category of duty of care of a manufacturer to an end user or arises by close analogy with it because the reasonable assumptions of the parties are the same;
(b)secondly, while the duty is to take care to avoid farmers suffering economic loss, the primary concern with economic loss, which is indeterminacy, is not present;
(c)thirdly, reasonable foreseeability of the kind of loss being suffered absent due care is clearly established; and
(d)fourthly, and perhaps most critically, the farmers were vulnerable to a lack of care by Advanta in at least four ways.
(i)Advanta had all of the means to prevent contaminated seed getting to market, and the farmers had none;
(ii)it was unrealistic with this type of transaction to expect the farmers to negotiate for or obtain a relevant warranty or indemnity from Advanta or the distributer for these kinds of losses;
(iii)if the seed was contaminated it would likely damage the fundamental income producing asset upon which the business depended; and
(iv)in terms of timing, because the seed is planted shortly after purchase, but its shattering qualities do not emerge for some time, by the time the contamination emerges it is simply too late for the farmers to readily or cheaply reverse its effects on the productive capacity of the land; and
(e)fifthly, for the same reasons, Advanta was the person with control of the risk coming home to the substantial exclusion of the farmers; there was known reliance and there was assumption of responsibility.
The nature of the damage claimed
The framing of the case before this Court was that the damage caused by the contaminated seed was to the productive capacity of the land as an asset in the business.[13]
[13]Appeal transcript T1-16 lines 38-40.
As it was put the appellants case was:[14]
“ … you are the owner of a business, and in your business you draw upon the productive capacity of different assets. And one of those assets clearly enough is the land. If someone negligent who supplies you with a product that you put into that land, if that does damage the productive capacity of that asset and there’s relevant foreseeability and there’s vulnerability, so it’s a kind of financial loss which can give rise to a duty of care.”
[14]Appeal transcript T1-18 lines 1-7.
However, it was accepted that the case run at trial was not as a damage to property case, but rather as pure economic loss. Further, on appeal it was not sought to recast the case.
Basis for a duty of care in respect of economic loss only
The case as put below, and before this Court, was one of economic loss only. The learned trial judge examined the development of the law in Australia in relation to claims for economic loss only where the cause of action is negligence.[15] In doing so his Honour identified the questions that have centrally informed the development of principle for such claims of loss, particularly where the liability was that of a manufacturer of goods and the loss is sustained by an end user who has purchased goods via intermediate purchasers.
[15]Commencing at [142] of the reasons below.
By reference to authority commencing with Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstad”,[16] and progressing through Bryan v Maloney,[17] Suosaari v Steinhardt,[18] Minchillo v Ford Motor Co,[19] Swick Nominees Pty Ltd v Leroi International Inc (No 2),[20] Perre v Apand Pty Ltd,[21] and thence to Woolcock Street Investments Pty Ltd v CDG Pty Ltd[22] and Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288,[23] his Honour examined the development of the principles held to be relevant to determining whether a duty of care was owed in this case.
[16](1976) 136 CLR 529; [1976] HCA 65.
[17](1995) 182 CLR 609; [1995] HCA 17.
[18][1989] 2 Qd R 477.
[19][1995] 2 VR 594.
[20](2015) 48 WAR 376 (‘Swick Nominees’).
[21](1999) 198 CLR 180; [1999] HCA 36.
[22](2004) 216 CLR 515; [2004] HCA 16 (‘Woolcock Street Investments’).
[23](2014) 254 CLR 185; [2014] HCA 36 (‘Brookfield Multiplex’).
Specifically, his Honour identified the case as one where the issue was whether a manufacturer of a product owed a duty of care for pure economic loss, where that loss was caused by negligence in the manufacture of the product, and the loss was sustained by an end user who purchased the product from intermediaries but was not in a direct contractual relationship with the manufacturer.[24]
[24]Reasons below at [141].
In the course of that analysis his Honour examined a number of salient features relevant to the duty of care issue, including:
(a)whether the particular sort of loss was reasonably foreseeable;[25]
(b)the state of authority revealing the type of relationships where a duty was found or not found as between a manufacturer and an end user; thus:
(i)where it was owed: Bryan v Maloney, where a duty was held to be owed by a negligent house builder to a subsequent purchaser from the owner of the land; Junior Books Ltd v Veitchi Co Ltd,[26] by a negligent sub-contractor to the building owner; Suosaari v Steinhardt, by a negligent designer of trailers to the owner of the trailer; and
(ii)where it was not: Minchillo v Ford Motor Company, a negligent truck manufacturer where excessive vibration caused loss to an end user; Swick Nominees, negligent manufacturer of air compressors where economic loss was caused to an end user;
(c)whether liability would be indeterminate;[27]
(d)the protection of the autonomy of individuals;[28] the common law regards individuals as autonomous, able to make their own choices and be held responsible for those choices; therefore, as long as a person is legitimately protecting or pursuing their social or business interests, the common law will not require that person to be concerned with the effect their conduct on the economic interests of other persons; and
(e)the extent to which the defendant knew of the particular risk and its magnitude.[29]
[25]Reasons below at [145] referring to Caltex Oil, and [160] referring to the reasons of Hayne and Callinan JJ in Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51.
[26][1983] 1 AC 520.
[27]Reasons below at [160] referring to the reasons of Hayne and Callinan JJ in Dovuro Pty Ltd v Wilkins.
[28]Reasons below at [162] referring to Woolcock Street Investments at [164].
[29]Reasons below at [162] referring to Woolcock Street Investments at [164], and Barclay v Penberthy (2012) 246 CLR 258; [2012] HCA 40 at [173].
It is evident from his Honour’s approach that he was conscious of the fact that a multifactorial approach should not be treated as providing a list of factors, much less an exhaustive list, all of which must have application in a particular case. To the contrary, it merely identifies a number of potentially relevant factors that should be considered, depending on the particular case.
The learned trial judge then identified several “salient features”[30] that warranted particular discussion in terms of establishing a duty of care in cases of pure economic loss.
[30]To use the term from case such as Brookfield Multiplex at 193 [4], 203 [30] and 224 [115].
The first was vulnerability, by which is meant that it concerns the ability of a plaintiff to protect itself from economic loss or damage caused by the defendant’s failure to take care.[31]
[31]Reasons below at [163], citing Brookfield Multiplex at 229 [130]; [185].
The second was the coherence of the disputed duty of care having regard to the existing legal frameworks that regulate or affect the relationships among the parties and others.[32] Here Advanta sought to exclude liability for contaminated seed by its contractual terms with stockist distributors and the terms on the bags. That raised the question of coherence as a salient feature. As his Honour noted:[33]
“The incoherence in question is that between refusal of the defendant to undertake contractual responsibility for the quality of the contaminated MR43 seed to the distributor as buyer of the seed from the defendant, which it may legally do, with the conclusion that it has assumed or should be subjected to the same excluded liability to a sub-buyer who is a non-contracting party vis a vis the defendant.”
[32]Reasons below at [192].
[33]Reasons below at [192].
The third was the assumption of responsibility, which his Honour noted,[34] had been a salient feature in determining the existence of a duty of care since Hedley Byrne & Co Ltd v Heller & Partners Ltd.[35] The assumption of responsibility was an important feature of the finding of a duty of care in Bryan v Maloney, and the lack of it was a reason why no duty of care existed in Woolcock Street Investments. The learned trial judge noted that an assumption of liability can be negated by an express disclaimer of responsibility.[36] As his Honour rightly noted:[37]
“The substance of the point of the defendant’s reliance on the terms on the bags, in my view, is that they may negate the defendant’s assumption of responsibility, as a salient feature, in determining whether there is a duty of care to avoid economic loss only in the circumstances of this case.”
[34]Reasons below at [201].
[35][1964] AC 465.
[36]Reasons below at [203].
[37]Reasons below at [200].
The learned trial judge concluded that the present case was one where it may be unrealistic to expect the seed buyers to extract warranties from Advanta that might protect them; the goods were sold by brand name by a retailer or distributor who had acquired them from Advanta, and they were supplied in a packaged condition that meant they were not examinable.[38] Thus his Honour’s conclusion was that the buyers were vulnerable in the relevant sense.[39] Before this Court both parties construed that finding as being that the aspect of vulnerability was neutral. For reasons explained below at paragraphs [205] to [211]. I consider that his Honour found there was vulnerability.
[38]Reasons below at [190]-[191].
[39]I shall deal with the terms of that finding in greater detail later in the reasons.
As to incoherence, his Honour noted that Advanta excluded or sought to exclude liability for contaminated seed by its contractual terms with stockist distributors and the terms on the bags. Based on Brookfield Multiplex there was incoherence with the postulated duty of care, which, though framed imprecisely, could be understood as a duty to take reasonable care that the MR43 seed was free of any contamination by shattercane. As with Dovuro Pty Ltd v Wilkins,[40] the seed was not being sold as free of any weeds, as it was sold on the basis of a minimum purity[41].
[40](2003) 215 CLR 317. At first instance, (2000) 105 FCR 476.
[41]Reasons below [192]-[196].
As was noted above in paragraph [51], the learned trial judge identified salient features beyond the three his Honour expressly dealt with. Given that his Honour concluded that the feature which denied the existence of a duty of care in this case was the evidence concerning Advanta’s disclaimer of responsibility, it may be taken that his Honour found the other features neutral. The central finding on the issue of whether a duty of care arose in this case was whether there was a disclaimer of such a nature as to negate the assumption of responsibility.
The resolution of that question involved two aspects. First, were the terms and conditions on the bags sold in 2010 and 2011? The learned trial judge found they were. Before this Court there was a sustained attack on the evidentiary foundation for that finding. Secondly, was the disclaimer in the terms and conditions enough to negate the assumption of responsibility? It is to those questions that I now turn.
Were the conditions on the bags in 2010 and 2011?
The learned primary judge referred to the evidence as to the presence of that notice on the bags of seed, summarizing it in these terms:
“[130] Barry Croker said that the terms were part of the artwork provided to the manufacturer of the defendant’s bags for MR43 seed in 2010. He said that he can recall the size of the bag and design and layout on the bags used in 2010. He can recall the font of the conditions of sale and use that were printed on the bag in 2010. He said there is no discernible difference between the artwork and terms printed on MR43 seed bags in 2010 and that on the bag in a photo of the MR Buster variety hybrid grain sorghum seed that is attached to his statement. That photograph contains terms on the bags as set out above.
[131]From 2006, Liam Anderson was employed by the defendant as a marketing support manager, reporting initially to Gregg Supple and then to Nick Gardner. He was responsible for the artwork and branding that was printed on the bags of MR43.
[132]In 2007/2008 the defendant changed its label artwork including the seed bag labels and markings. The terms on the bags set out above were part of the artwork that was printed directly onto the bags when they were produced in China. They were printed on the bags for MR43 seed produced for the 2010/2011 summer season.
[133]Mr Hemmings and Mr Perkins said that there was no warning or disclaimer on the label of their bags of contaminated MR43 seed. But they did not deal specifically with the terms alleged by the defendant to have been printed on the bags. Mr Morrice identified the label attached to his statement as being in the same form as on the bags that he purchased but did not deal specifically with the alleged terms on the bags. Mr Jenner said that he did not read the label but did not deal specifically with the alleged terms on the bags. Otherwise, the plaintiffs’ witnesses did not deal with the question.”
His Honour described the evidence on this topic, on all sides, as not “completely satisfactory”, commenting that on Advanta’s part, one might have expected direct evidence from those responsible for producing the bags that the terms were applied to them. His Honour also commented that on the part of the growers it might have been expected that their attention and evidence would have been drawn specifically to the terms on the bags.[42]
[42]Reasons below [134].
His Honour’s ultimate finding was expressed thus:[43]
“[135] In the result, in my view, on this evidence, it is more likely than not that the contaminated MR43 seed bags did bear the terms alleged.”
[43]Reasons below [135].
Before this Court the appellants spent considerable effort in attacking the quality of the evidence given on this topic and challenging the findings above. For that reason, it is necessary to examine the evidence with a view to determining if his Honour’s conclusion was open.
Advanta’s evidence
Croker
Mr Croker was the Managing Director of Advanta, having been appointed Acting Managing Director in September 2009, and Managing Director from April 2010.
His statement,[44] which was admitted into evidence said this concerning the bag and label issue:[45]
[44]Exhibit 21, AB 1012.
[45]AB 1065-1066.
“285.After the seed is released by QC,[46] it is bagged into labelled bags.
[46]AA reference to Quality Control (“QC”).
286.A bag containing seed produced by Advanta always had a label printed or stencilled onto the actual bag as well as either a sticker or a bag tag attached to the labelled seed bag.
287.In 2010, the seed bags used by Advanta were labelled and also had a bag tag attached to them via a plastic connector. The bag tags were made from untearable plastic material.
288.In 2010, Advanta had seed bags produced under a contract with a manufacturer in China or Thailand.
289.That manufacturer also printed a label directly onto the bag. Advanta provided the manufacturer with the artwork or get up that was required to be printed on the bag.
290.Exhibited to me at DEF.300.000.000.004A is the artwork provided to the manufacturer of Advanta's bags for MR43 Elite in 2010.
291.The Conditions of Sale and Use were part of the artwork or get up.
292.That artwork was designed by the marketing team at Advanta at the time and the Conditions of Sale and Use were incorporated into the artwork which was provided to the manufacturer.
293.Exhibited to me at DEF.400.000.000.0147E, DEF.400.000.000.0147F and DEF.400.000.000.0147G are copies of photographs I took of the current bag used by Advanta for the MR Buster variety of hybrid grain sorghum seed.
294.I can recall the size of the bag used and the design and lay out on the bags used in 2010. I can also recall the of the font of the Conditions of Sale and Use that ·were printed on the bag label in 2010.
295.There is no discernible difference in size between what I can recall about the label used in 2010 and, in particular, the size of the font used in 2010, and that on the bag in my photo. The bags hold the same volume of seed although the dimensions may differ very slightly.”
In summary the relevant parts of that evidence were:
(a)a bag containing seed produced by Advanta always had a label printed or stencilled onto the actual bag;
(b)in 2010, the seed bags used by Advanta were labelled;
(c)in 2010 the bag manufacturer printed the label directly onto the bags;
(d)the artwork used in 2010 was that in DEF.300.000.000.004A,[47] in the terms set out in paragraph [37] above;
(e)he recalled the size of the bag used and the design and lay out on the bags used in 2010;
(f)he recalled the font of the Conditions of Sale and Use that were printed on the bag label in 2010; and
(g)the size of the label and the font used in 2010 were no different from that shown in the exhibited photos of the bag currently used by Advanta for a particular type of sorghum seed.[48]
[47]AB 1179.
[48]AB 1180-1182.

Mr Croker was cross-examined extensively but not as to what he said above. Nor was it put to him that the Advanta bags had no terms and conditions provided either on the label or with the bags.[49]
[49]That is, the positive case pleaded in paragraph 25(g) of the Reply.
Anderson
Mr Anderson was the Media and Promotions Officer of Advanta. He was responsible for the artwork and branding on Advanta’s seed bag labels.[50] His statement[51] said:
“36.In 2007/2008, Advanta changed its label artwork and consequently, all packaging including labels and seed bag tags were rebranded with the new artwork.
37.Annexure LJA8 (DEF.300.000.000.0004A) is a true and correct depiction of the 2009 Elite Hybrid Sorghum Seed label, which was created in June 2008 by my marketing team and commenced being used on seed bags in 2009. This label is printed directly onto the bag when it is produced in China.
38.Annexure LJA9 (DEF.300.000.000.0056) is a true and correct copy of the conditions of sale as they appear on the above seed label at LJA8. These conditions are saved in a separate document.
39.I cannot recall who provided me with the conditions of sale details for the artwork. These were the conditions printed on the bags of Advanta seed in 2010/2011.”
[50]AB 1109, paragraph 35.
[51]Exhibit 56, AB 1105.
In summary, the main points of his evidence were:
(a)DEF.300.000.000.0004A showed[52] the 2009 Elite Hybrid Sorghum Seed label, which was created in June 2008 by his marketing team; it commenced being used on seed bags in 2009;
(b)that label was printed directly onto the bag when it was produced in China;
(c)the label contained the conditions; and
(d)those conditions were printed on the bags in 2010/2011.
[52]Exhibit 27; the photograph at AB 1179.
Mr Anderson was not cross-examined.
Short
Mr Short was the Marketing Manager for Advanta. He had been the Territory Manager for North West New South Wales from July 2010. In his statement he said:[53]
“46.When I started as a Territory Manager, and during the 2010/2011 season, there was a paper tag attached to the bag with a plastic tie. The tag had the relevant batch number and quality information printed on it. Over time this has evolved to now be a sticker that is physically adhered to the bag. During my time with Advanta the terms and conditions of sale have always been printed directly on the bag.”
[53]Exhibit 48; AB 938; emphasis added.
Mr Short was the only witness cross-examined on the labelling and conditions aspect of the case. The entire exchange is:[54]
“You started at Advanta in April 2010 and you say - - -?---July, I believe it was, yes.
July 2010. And you say during your time with Advanta the terms and conditions of sale have always been printed directly on the bag?---Correct.
Can I suggest to you that that may not have been the case in that season of 2010/2011?---That would surprise me.
But you have no specific recollection of it that year?---I have no recollection of it – them ever not being on the bag.”
[54]AB 1532 lines 36-45.
Two things may be noted about that exchange. First, the questions stopped short of putting the positive pleaded case, i.e. that no terms and conditions were provided either on the Label or with the bags. Secondly, Mr Short’s response was that the terms and conditions were on the bags, and he could not recall them ever not being on the bags.
Appellants’ evidence
The evidence from the appellants consisted of Mr Perkins, Mr Hemmings, Mr Burns, Mr Ruhle, Mr Morrice, Mr Jenner and Mr Cook. All of them were growers or former growers.
Perkins
Mr Perkins’ statement relevantly said:[55]
“62.I remember that I looked at the label on the bags of MR43 when I purchased them because I texted the telephone number on the label to confirm the germination percentage of the seed. This was my usual practice because the germination percentage is critical to the population being achieved (that is, how many seeds I would need to plant per hectare) and I would have texted this number on most, if not all, occasions that I purchased MR43. It was an automated system and I got a text back. I did not speak to anyone. In all the years that I planted sorghum, this was the only sorghum that I ever marked in my diary as being of low germination which would have been from the text that I received back. Marked and attached at EXH BP-02 is a copy of a page from my planting diary showing the MR43 planted at the Hill being "LOW GERM".
63.I no longer have any of the bags of MR43 that I bought in about 2010. Nor did I retain copies of any of the labels from these bags. Marked and attached at EXH BP-03 is a copy of a photograph of a label which has been provided to me by my solicitors and which, to the best of my recollection, is in the same form as was on the bags of MR43 that I purchased (save that I cannot now recollect the specific batch numbers of the seed that I purchased).
64.I did not receive any warning or written conditions of sale at the time I purchased the MR43. I have been shown a copy of written conditions of sale as contained in paragraph 18(g) of Pacific Seed's defence in this Proceeding. I am certain that I did not receive anything like this at the time that I purchased the seed because it was my practice to read any such warnings or conditions if they were provided to me and I would remember if this was the case. I was not provided with any such warning.”
[55]Exhibit 19, AB 702.
Several matters are apparent from what Mr Perkins said:
(a)the “label” to which he referred was the item that contained germination rates; that was what others called the bag tag; in paragraph 63 he identified a June 2010 label with germination information;[56] germination information is not part of the conditions;
(b)his focus was on the germination information as that was “critical to the population being achieved”;
(c)his usual practice was to look at the germination information;
(d)he would almost invariably text the number on the germination label;
(e)that practice colours acceptance of what he said in paragraph 64; and
(f)his certainty about not receiving a “warning” was because it was his “practice to read any such warnings or conditions if they were provided to me”.
[56]AB 743.
Hemmings
Mr Hemmings was a farm manager and grower of sorghum. His statement relevantly said:[57]
“32.I do look at the labels of the bags of seed I purchase, including MR43 because it is important to read the germination percentage. Pacific Seeds usually give a guarantee regarding the germination of the seeds. I cannot recall what that is exactly, but I believe it is around a minimum of 85%. The germination tells me how many seed I should be planting per hectare. It is my practice to plant with a precision planter and use GPS to track my rows to ensure it is all accurate. I try and grow approximately 50,000 plants per hectare. I also recall that the label said that the seed had 99 percent purity.
33.I have no memory of any form of legal disclaimer on the label. As discussed above, I focussed on the germination, but would also note the variety, to ensure I had been provided with the right seed, and the other planting information like the date of production and seeds per kilo. If there was anything different about the label, it would have been obvious to me given the number of times I have purchased MR43 in the past and I am confident there was no warning attached to the label on this occasion because I have never seen a warning attached to a bag of MR43. Nor was I provided with any warning at the time of purchase.
34.I was never provided with any form of warning or disclaimer with the MR43, I would certainly remember if I was given one.”
[57]AB 811.
Mr Hemmings, too, was focussed on the germination data, and that was on what he called the “label”. If that was what he referred to in paragraph 33, it is not surprising that there was no legal disclaimer on it, as that label was not part of the conditions. He then refers to the absence of a “warning”. In context he was referring to a warning of something wrong with the seed.
Those matters colour acceptance of his evidence as a basis to find that the bags did not have conditions attached or printed on them.
Burns
Mr Burns’ statement relevantly said:[58]
“21.Nobody at the distributor and nobody from Pacific Seeds told me that there might be a problem with the seed or that it may not be safe to use. Nobody said anything like this to me. I simply ordered and collected the seed like I did every year. I remember that the seed had a label on it that the label was similar or the same to the copy of the label attached and marked "EXH RJB- 02" to this statement (this copy was provided to be by my solicitors). There was no other documentary warning provided to me with the seed. I know this because it would have been unusual and would have concerned me and I would remember if this had occurred.”
[58]AB 901.
Mr Burns’ statement exhibited the germination label from June 2010.[59] The thrust of his statement is that there was no documentary warning, which in context meant a warning of something wrong with the seed. Like others, Mr Burns was focussed on the germination data.
[59]Ex RJB-02 to his statement; AB 924.
Ruhle
Mr Ruhle’s statement was succinct on this topic:[60]
“21.When I purchased the MR43, no one at the Distributor said to me or told me in any manner that there could be a problem with the MR43 or that it might not be safe to use. I remember that the MR43 had a label on it. I recall this because I often reviewed the label for the percentage rate of germination and the seeds per kilo which informs farmers as to the rate of planting. I do not recall seeing any form of disclaimer.”
[60]AB 843, paragraph 21.
He was focussed on the germination information on that label. He was not told there might be a problem, and he could not recall seeing a disclaimer.
Morrice
Mr Morrice’s evidence on this topic was also short:[61]
“24.I recall that there was a label on the MR43 because it was my usual practice to check the germination and how many seeds per hectare to plant. However I do not recall ever reading any disclaimer on the label. I did not keep the labels from the bags of MR43 that I bought in 2010. Marked and attached at "EXH AM-02" is a true copy of a photograph of a label which has been provided to me by my solicitors and which, to the best of my recollection, is in the same form as was on the bags of MR43 that I purchased.”
[61]AB 1149, paragraph 24.
Like others he was focussed on the germination data. That was on the only label he recalled and identified. Not surprisingly, he could not recall reading a disclaimer on that label. He did not address at all, the question of conditions printed on the bag itself.
Jenner
Mr Jenner’s evidence was to the effect that he did not read labels as a matter of habit and relied on his contractor to read anything that was pertinent, such as to germination or a warning that the seed was unsafe:[62]
“33.I know from experience there is a label on all bags of seed, but it was never my practice to read them. I hired contractors on behalf of Mallonland to plant the seed. While I did not read the label it was a part of the role of the contractor to work out the correct planting rate and this is determined by the germination percentage on the label, so I believe the contractor who planted the seed for me in spring 2010 would have read the label. I further expected that if the label had included some warning to the effect that the seed may not be safe to use or may contain a contaminant, the contractor would tell me that when he read the label. This did not occur.”
[62]AB 759, paragraph 33.
Cook
Mr Cook’s evidence was to the effect that he only, but not always, looked at the germination data:[63]
“48.I know from my experience and general practice that all of the bags of seed from Pacific Seeds come with a label. However, I only looked at the label to check the quantity of seeds per kilogram and the rate of germination. That being said, I would not always look at the label because in general, the distributor would mention to me that a particular seed had a particular germination percentage and that I needed to plant at a certain rate given that germination percentage.”
[63]AB 965, paragraph 48.
Photographic evidence
The photographic evidence revealed the appearance of the artwork on the 20kg bags of seed.
The first photo[64] was a printout of the artwork done for the 2010 bags. Mr Croker’s evidence was that the size of the label and the font used in 2010 were no different from that shown in exhibited photos of the bag currently used by Advanta.
[64]AB 1179; DEF.300.000.000.0004A.
The second photo[65] is of one of Advanta’s current bags. It shows that the portion of the artwork which highlighted the type of seed, nett weight of the bag, and germination data was on the front of the bag, and the artwork covered the whole of the front.
[65]AB 1180; DEF.400.000.000.0147E.
The third photo[66] is of the label containing the germination data one of Advanta’s current bags. That label contains the words:[67]
“Minimum Germination:                  85     %
Minimum Purity:   99     %
Maximum Other Seeds:                  0.1     %
Maximum Inert Matter:                  0.5     %”
[66]AB 1181; DEF.400.000.000.0147F.
[67]The 2010 label was exhibited to Mr Morrice’s statement, AB 1176.
The fourth photo[68] is of the back of one of Advanta’s current bags. It shows that the “WARNING” which appears on the 2010 artwork[69] was next to the conditions when the artwork was printed on the bag. The “conditions” artwork occupies the bulk of the rear of the bag. On any view the words “ATTENTION” under which followed “CONDITION OF SALE AND USE”, were prominently displayed, and in a font much larger than the terms of the conditions themselves.
[68]AB 1182; DEF.400.000.000.0147G.
[69]AB 1179.
The learned primary judge’s finding
The learned primary judge’s finding that it is more likely than not that the 2010 seed bags did bear the “conditions” set out in paragraph [37] above, contains an implicit acceptance that the font, positioning and prominence of the conditions were as revealed in photographs.[70]
[70]AB 1179-1182.
In my respectful view, there was an ample evidentiary foundation for the finding that the 2010 and 2011 bags had the “conditions” printed on them, and in the manner shown in the photographs at AB 1179-1182.
Moreover, as will appear, the attack made in this Court on the evidence of Mr Croker, Mr Anderson and Mr Short suffers from several difficulties. First, none of the suggested deficiencies in the evidence was identified as such at the trial. Secondly, none of the suggested deficiencies was put to any relevant witness. Thirdly, no such deficiency was made the subject of submissions to the learned primary judge, nor was his Honour asked to weigh the evidence with those deficiencies in mind.
The specific challenges to the factual findings
Croker
It was suggested that Mr Croker’s evidence had difficulties that impacted upon its acceptance. These were said to be such that there was a substantial deficiency in proof of the 2010 conditions and whether they were on the 2010 bags:
(a)his evidence as to what was printed or stencilled onto the bag was ambiguous, in that:
(i)it was not clear if he meant printed or stencilled on the whole bag or only part of it;
(ii)it was not clear what the white box shown on AB 1179 was for, and one possibility was that the terms and conditions were to go in that space;
(b)that there was a problem because the terms of the conditions on the current bag[71] were different in some respects from those on the 2010 bag;[72]
(c)the terms on the 2010 sticker[73] did not match the terms on the current sticker,[74] in that they did not refer the reader to the conditions on the bag.
[71]AB 1182.
[72]AB 1179.
[73]AB 924, 1176.
[74]AB 1181.
I consider there was no such ambiguity or difficulty in terms of proof. Mr Croker distinguished between what was printed or stencilled on the bag, and what was on a “sticker or bag tag” attached to the bag. The bag tags were made from untearable plastic. The artwork at AB 1179 was to be printed on the bag. The conditions were part of the artwork, and thus to be printed onto the bag. Those conditions matched those found by the learned primary judge: see paragraph [37] above. Mr Croker said he could remember the size of the bag used in 2010, the font and size of font used for the conditions in 2010, and the design and layout on those bags. He said there was no discernible difference between what is shown at AB 1179, and what he recalled of the 2010 bags.
Mr Croker was not deposing that the various items from the artwork in 2010 were identical to the current bags, but rather that there was no discernible difference between the bags used in 2010 when compared to the current bags, especially as to the size of the font used for the conditions in 2010, and the design and layout of the label printed on 2010 bags.
A similar submission was made in respect of Mr Anderson’s evidence. Here it was said that Mr Anderson’s statement exhibited a set of conditions[75] which he said were the 2010 conditions, but they were, in fact, the 2020 conditions.
[75]At paragraph 38, AB 1109, and the document at AB 1144.
In my view, the evidence does not suffer such deficiencies that it meant that it was not open to the learned primary judge to make the findings he did. Mr Anderson was the person responsible for the new artwork developed by 2008.[76] That artwork was used on bags from 2009. He identified that artwork as the photo at AB 1143. That is the same artwork separately identified by Mr Croker. More importantly, as with Mr Croker, Mr Anderson said the artwork was printed directly onto the bags in 2010, and the artwork “were the conditions printed on the bags of Advanta seed in 2010/2011”. Even if the document at AB 1144 was wrongly identified as the conditions that appeared on the 2010 bags, the artwork was identified by him, he was responsible for it at the time, and he deposed it was used from 2009 on Advanta bags. The error does not destroy the balance of the evidence.
[76]Paragraph 35, AB 1109.
Finally, one cannot leave the evidence of Mr Short out of account on this issue. He deposed that during his time (which included 2010/2011) the terms and conditions of sale were always printed directly on the bags. He was indirectly challenged as to that in cross-examination but adhered to his evidence: see paragraphs [72] to [74] above.
Further, in respect of each of Mr Croker and Mr Anderson, there was no cross-examination on this issue. If it were to be argued that their evidence was fatally flawed by the errors referred to, they were entitled to have that put to them, so they had a chance to respond. That was not done, and the criticisms raised above were not advanced at the trial.
In fact, the case put by the appellants at trial was that the primary judge should find that there were no conditions on the bags, but only by reference to the evidence given by the appellants’ witnesses.[77] No submission was made by the appellants below as to what should be made of the evidence of Mr Croker, Mr Anderson and Mr Short as to the question of the labels on the bags.
[77]Plaintiffs’ closing submissions, paragraphs 359-365, AB 592-594. An alternative basis was that the allegation in paragraph 18 of the defence was inconsistent with a pleading in a different case: paragraphs 361-363, AB 593.

That approach by the appellants at trial must also be seen in light of an exchange had between Senior Counsel for the appellants at the trial and the learned primary judge. Senior Counsel objected to that part of Mr Croker’s statement which dealt with the labelling issue, i.e. paragraphs 285 to 300 of Exhibit 21[78]. The basis of the objection was that those matters had not been put to the appellants’ witnesses, and that infringed the rule in Browne v Dunn, to such an extent that the paragraphs should be excluded. The objection failed, but in the course of submissions Senior Counsel for the appellants accepted that: (i) it had always been expressly pleaded that the bags contained such conditions, in paragraph 18 of the defence; (ii) that pleaded issue came as no surprise to the appellants, i.e. they were always on notice as to that issue; and (iii) the appellants’ witnesses had not dealt with the paragraph 18 conditions in those terms. In those circumstances the failure to cross-examine Mr Croker or Mr Anderson, and the indirect challenge to Mr Short, followed by the absence of any submission as to their evidence on this issue, provides no proper basis to attack their evidence in the way now attempted before this Court.
[78]AB 1400 line 27 to AB 1403 line 2.
Conclusion on the factual challenge
In my respectful view, the challenge to the factual finding by the learned trial judge, namely that it was likely that the pleaded conditions were on the bags sold by Advanta at the relevant times, fails.
Negating the assumption of responsibility
The learned primary judge correctly understood the thrust of Advanta’s case based upon the fact that the conditions were printed on the bags:
“[200] The substance of the point of the defendant’s reliance on the terms on the bags, in my view, is that they may negate the defendant’s assumption of responsibility, as a salient feature, in determining whether there is a duty of care to avoid economic loss only in the circumstances of this case.”
The learned primary judge accepted authority that the assumption of responsibility was one of the salient features in establishing a duty of care.[79] His Honour also accepted authority that assumption of authority may be negated by an express disclaimer of responsibility.[80]
[79]Reasons below [201]-[202], referring to Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, 529; Bryan v Maloney (1995) 182 CLR 609, 625; and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, 532 [26].
[80]Reasons below [203], referring to Hedley Byrne at 492, 504 and 533; Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, 250-251; ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1, 117 [603]; and Smith v Eric S Bush (a firm) [1990] 1 AC 831, 856, 872-873.
Neither of those two propositions were challenged by the appellants. Rather, their contention was that, assuming the conditions were printed on the bags, the disclaimer was not clear enough or prominent enough to negate the assumption of responsibility.
His Honour’s conclusion on the issue of disclaimer of the assumption of responsibility was expressed:[81]
“[205] In my view, the defendant’s submission that the terms on the bag operated as a disclaimer of an assumption of responsibility to negate the existence of a duty of care to avoid economic loss that the MR43 seed supplied would be free of contamination by shattercane or grassy off-types should be accepted.
[206]It follows that the plaintiffs do not establish that, for the tort of negligence, the defendant owed a duty of care to the plaintiffs to take reasonable care to avoid the risk of economic loss of increased expenses of farming operations and decreased revenue from sorghum sales if MR43 seed was contaminated by shattercane or other off-type grassy sorghum plants.”
[81]Reasons below [205]-[206].
The appellants formulated the following as the test for determining whether the disclaimer had the type of clarity and prominence that, they contended, would be sufficient:[82]
“ … the disclaimer needs to be so explicit as to destroy all of the assumptions which would otherwise arise in the circumstance; what a disclaimer would need to do is to overwhelm every other message on the attractive bag and say to the consumer, “Beware, this product may contain contaminated seed, and if it contains contaminated seed and you suffer grievous losses, don’t come back”.”
[82]Appeal transcript T 1-13 lines 29-35.
The case was then put a little more strongly, seeking to draw a distinction between negligent statements and negligent conduct:[83]
“… where it’s negligent conduct, the question must be does the alleged disclaimer contain sufficient prominence and clarity of meaning to destroy the entire set of features of the case and the reasonable assumptions of the parties which otherwise ground the duty.
…
So for the disclaimer to defeat the duty of care, it must convey, we would submit, the clear message to the consumer, “You should be aware this product may contain contaminants which could cause substantial losses to the business, and you must be aware that if losses emerged, they’re at your risk, not ours. And if you buy our product, you must take on the risk it may be so contaminated.””
[83]Appeal transcript T 1-29 lines 25-28, 36-40.
That formulation was to emphasize that there were two elements: (i) clarity of content, and (ii) prominence. As to that, the appellants submitted that where the bag of seeds was packaged attractively, from a known supplier whose brand and label was on the bag and contained messages about seeds that were familiar because they had been used previously, “the work … a disclaimer will have to do to defeat that message is going to be quite strict – quite severe”.[84]
[84]Appeal transcript T 1-30 lines 11-12.
The test has to be capable of being articulated in a way that then responds to the differing fact situations. Use of language such as “strict” or “severe” are not, in my view, helpful. Nor is it helpful to phrase the test as requiring the disclaimer to “destroy the entire set of features of the case and the reasonable assumptions of the parties”.
Rather, the test can be articulated in a way that responds to variable cases. It is that the disclaimer must be of such clarity and prominence as to convey that the manufacturer is not accepting responsibility for the product supplied in the event it causes relevant loss.
In my view, that is to be assessed objectively. It cannot be the case that a clear and prominent disclaimer could be ineffective simply because the user has a subjective view about its meaning or clarity or prominence. Mr Gleeson SC accepted that if the disclaimer was sufficiently clear and prominent the end user could not escape its effect by not seeing it.[85]
[85]Appeal transcript T 1-30 lines 3-8.
The assessment of the effectiveness of the disclaimer cannot depend upon subjective views about its characteristics, such as size of font, colour, clarity or prominence. The impact of a printed disclaimer on the bags cannot be diminished, much less negated, just because the particular buyer is: illiterate; blind; colour-blind; too lazy to be bothered reading it; too impatient to be bothered reading it; impatient and reads it hurriedly, missing parts; distracted and stops reading; or indifferent to the fact that terms and conditions are on the bag.
A party’s assumption of responsibility is a fact found from evidence relating to the relationship between the parties, their conduct, and the reliance of the other party. So, too, the question whether conduct has the effect of negating the assumption of responsibility is a question of fact based on evidence.
The appellants submitted that if Advanta was going to signal its disclaimer of responsibility it should have done so in a way more prominently than was done, and with greater clarity.
Were the conditions on the bags clear and prominent?
The learned trial judge plainly accepted that the conditions were of such a quality that they evidence a disclaimer of responsibility. Though his Honour did not make specific findings as to clarity and prominence, that does not stand as a bar to this Court making those findings. There is no disputed evidence that needs to be considered, and the appellants’ approach to the factual challenges on the appeal compel it.
Clarity
The headline “ATTENTION” used a common word, easily understood. The use of that word has long been a standard way to focus the attention of the reader on what is to follow.
The next headline “CONDITIONS OF SALE AND USE” used very common words, easily understandable without legal knowledge. The use of the word “CONDITIONS” plainly signified that what followed was not just some sort of advertising but words that mattered. Moreover, they mattered not just to the sale of the product in the bag, but also to its use.
The next paragraph of text made a number of points in language which are not legal or convoluted:
(a)if you buy this product and open the bag, you agree to be bound by the conditions set out underneath;
(b)do not open the bag until you have read and agreed with all the terms on the bag;
(c)if these conditions are not acceptable to you, return the bag in its original condition to where you bought it for a refund; and
(d)the product contained in the bag is as described on the bag, within recognised tolerances.
That paragraph of text was followed by another headline (albeit in smaller font than the previous headlines), “CONDITIONS”. And that was immediately followed by discrete paragraphs.
The first stated: you (the buyer) acknowledge that, except to the extent of any representations made by the labelling of the product in this bag, it remains your responsibility to satisfy yourself that the product in the bag is fit for its intended use.
The second stated: if the product in the bag did not comply with its description, within recognised tolerances, the liability of Pacific Seeds will be limited to the cost of replacement of the product or the supply of equivalent goods.
The third stated that: Pacific Seeds[86] will not be liable to you for any loss or damage caused or contributed to by Pacific Seeds, arising out of or related to the use of the product in this bag, as a result of Pacific Seeds’ negligence.
[86]The then name of Advanta.
The fourth stated that all warranties, conditions, liabilities, or representations in relation to the product, whether expressed or implied, are excluded by Pacific Seeds to the extent permitted by law.
The wording of the conditions was not phrased in an archaic or overly legalistic way; rather, it used relatively plain words to convey several clear propositions. Those stated clearly were:
(a)the bag must only be opened if the buyer had read and agreed with the conditions;
(b)return the bag if the conditions are not acceptable;
(c)if the product in the bag did not comply with its description, within recognised tolerances, Pacific Seed’s liability would be limited to the cost of replacement of the product; and
(d)Pacific Seeds would not be liable for loss and damage caused by the use of the product, including by its negligence.
The reference to “tolerances” would have been readily understood by buyers. The evidence from buyers, as outlined in paragraphs [75] to [88] above, showed that they concentrated on the germination data which was contained on its own label.[87] But that data also contained three statements as to the contents of the bag: (i) the “Minimum Purity” was 99%; (ii) the “Maximum Other Seeds” was 0.1%; and (iii) the “Maximum Inert Matter was 0.5%.
[87]For example, AB 924.
All of those paragraphs referred to simple concepts and were delivered in plain words without any complicated syntax or legalistic terms. All were, in my view, easy for a lay person to understand. All of them stated plainly that the risk of using the product lay with the buyer and that Pacific Seeds was not accepting any responsibility for loss and damage caused by negligence on its part.
These paragraphs do not fall to be tested as though they were part of a contract between the buyer and Pacific Seeds. As the learned trial judge recognised,[88] it was no part of the case advanced by Advanta that “by a plaintiff or group member opening the bag and using the seed, a contract was made between the plaintiff or group member and the defendant under which the plaintiff or group member agreed to those terms”.
[88]Reasons below [128]-[129].
Rather, they are to be examined for whether they reveal a clear disclaimer of an assumption of responsibility. In my view, they do so.
Prominence
The conditions section on the 2010 bags was, in my view, quite prominent.
It occupied a substantial proportion of the rear of the bag, immediately under some designs and words that would have drawn attention.
First, there was a blue logo at the top with the words “Powered by CRUISER, Concep II”. Directly under that was the following text, in bold type:
“Treated with
Cruiser 600-Active Ingredient “Thiamethoxam"
Concep 2 -Active Ingredient "Oxabetrinil"
Suitable for use with Dual and Primextra herbicides”.
Then followed the headline “ATTENTION”. That word was not only in a much larger font than the other words, but it was also in bold type.
That headline was immediately followed by another, in the same size font, saying “CONDITIONS OF SALE AND USE”. That, too, was in bold type. The word “CONDITIONS” was repeated in bold type shortly thereafter, albeit in a slightly reduced font size.
It is difficult to see how the conditions could have been made more prominent. They occupied the bulk of one side of the bag; they could not have been made bigger.
A deliberate step
In my view, the prominence and clarity of the words on the bags must also be seen in light of the fact that they did not get there by accident. Rather their presence was the consequence of deliberate steps taken by Advanta:
(a)in 2008 Advanta went to the trouble and expense of developing new artwork intended to be printed on the seed bags;
(b)that was to replace already existing artwork on seed bags;
(c)that new artwork included words disclaiming responsibility for loss and damage, even for negligence;
(d)the artwork was sent to the overseas manufacturer of the bags;
(e)the manufacturer was instructed that the artwork was to be printed on every bag;
(f)from 2009 the artwork was printed on every bag;
(g)it can be inferred that the above process was at some cost to Advanta; and
(h)the position and size of the artwork on the bags meant it could hardly be missed; moreover, the conditions were intended to cover a considerable portion of one side.
That Advanta took those steps to publish words disclaiming responsibility on every bag of seeds is a significant matter in assessing its assumption of responsibility, or more accurately, its disclaimer of an assumption of responsibility. In effect Advanta was plainly saying that its preparedness to engage in commerce was on the basis that the terms and conditions applied.
The words were on every bag. They were there to be seen and read if people could be bothered to do so. The words were plain and clear, not buried in legalistic or archaic terms. They conveyed the clear message set out in paragraph [129] above.
In my view, adopting for present purposes the formulation by the appellants, the words did deliver the clear message to the consumer: “You should be aware this product may contain contaminants which could cause losses to the business, and you must be aware that if losses emerged, they’re at your risk, not ours. And if you buy our product, you must take on the risk it may be so contaminated.”
It follows, in my view, that the learned trial judge was correct to conclude that there was no duty of care in this particular case.
Duty of care – appeal issues
The appellants contended that this Court should conclude that there was a duty of care owed by Advanta. The appellants submitted that the duty was established for a number of reasons which will be examined below.
The first contention was that this case either fell within the established category of duty of care of a manufacturer to an end user or arose by close analogy with it because the reasonable assumptions of the parties were the same.
This proposition was articulated by the appellants in this way:[89]
“… the law of tort has long recognised as an established category the duty of a manufacturer to take reasonable care to protect the consumer or end user from risk of injury when using the product as intended, at least where the risk of injury is to person or property. The Appellants then urge that, when regard is had to the close physical relationship between the parties, and Caltex and the observations of the Full Court and High Court in Dovuro, it is but a short step to recognise that the category of manufacturer/end user duty extends to a case where the risk of injury is to the business interest or cashflows of the end user when that person uses the product as intended on land being worked by it.”
[89]Appellants’ Outline in Reply, paragraph 13.
The contention as to the alleged “close physical relationship” will be dealt with later. For the present I turn to the support sought to be drawn from Dovuro Pty Ltd v Wilkins,[90] both in the High Court and the Full Court.
Impact of Dovuro v. Wilkins
[90]Federal Court: Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476. High Court: Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317. In these reasons I shall refer to the High Court decision as Dovuro, and differentiate the Full Court decision as needed.
The appellants contend that the two decisions in Dovuro v Wilkins,[91] strongly support the conclusion that a duty of care should have been found in the present case.
[91](2003) 215 CLR 317. At first instance, (2000) 105 FCR 476.
The learned trial judge made three points about Dovuro concluding that as a matter of precedent, neither judgment was a binding authority on the question of the existence of a duty of care, because:[92]
(a)the way the case was run, and dealt with in the High Court, it is no part of the ratio decidendi that the seed merchant owed a duty of care to the end users of the seed; the appeal to the High Court was allowed and the judgment in favour of the plaintiff in the court below was set aside, so it is no part of the ratio decidendi in the High Court that the defendant seed merchant owed a duty of care to the end users of the seed;
(b)the appeal was allowed by the High Court, so no part of the reasons in the Full Court is part of the ratio decidendi for the final judgment; and
(c)at trial the defendant seed merchant admitted the existence of a duty of care, although it sought to withdraw the admission on appeal and to raise as a ground of appeal that no duty of care was owed.
[92]Reasons below at [158].
Nevertheless, his Honour said the reasoning in both courts may be of persuasive authority in the present case.
The facts of Dovuro must be noted:
(a)Dovuro was a producer and distributor of agricultural seed, including Karoo canola seed;
(b)Cropmark entered into a contract with Dovuro under which Cropmark agreed to cultivate and sell approximately 250 tonnes of Karoo canola seed to Dovuro;
(c)the canola seed was cultivated in New Zealand and was harvested in March 1996;
(d)the seed was then cleaned and packed into 25 kg bags by a contractor to Cropmark, and delivered to Dovuro at sites in Melbourne and Fremantle;
(e)a label attached to each bag contained the statement: “Minimum 99% Purity; Minimum 85% Germination”;
(f)Cropmark informed Dovuro of the presence of three weed varieties, cleavers, redshank and field madder, in the canola seed; those weeds were common in New Zealand and not prohibited there;
(g)analysis certificates issued by the New Zealand authorities certified that the Karoo canola seed was 99.8 per cent or 99.9 per cent pure (depending on the sample taken) and that it “[c]omplie[d] with the Seeds Acts of all Australian States”;
(h)of the total quantity of 168 tonnes (6,720 bags) sent to Dovuro from New Zealand, 67.5 tonnes (2,700 bags) were made available in Western Australia and were resold to local suppliers, including Elders;
(i)the Wilkins conducted a farming and grazing business in Western Australia; in May 1996, Elders supplied 40 bags of the Karoo canola seed to Wilkins; Wilkins sowed 278 hectares with the seed and 238 hectares eventually returned a good Karoo canola crop;
(j)in June 1996 Agriculture Western Australia (“AgWest”) became concerned about the presence of the three weeds varieties in the seed distributed by Dovuro;
(k)on 5 July 1996 the Agricultural Protection Board declared each of these species to be prohibited from importation and sale in Western Australia; the declarations also required the eradication of such weed plants;
(l)on 9 July 1996, AgWest issued an information package to Western Australian canola growers, including Wilkins;
(m)the package enclosed a letter indicating that the Karoo canola seed imported from New Zealand by Dovuro had been found to contain “undesirable weeds” including cleavers, redshank and field madder;
(n)the information package also included a booklet setting out AgWest’s recommendations as to the most effective methods for controlling the three weeds; these methods involved the thorough cleaning of windrowers and headers used in affected paddocks, the cessation of livestock grazing in the affected paddocks, and the destruction of seed derived from the affected paddocks for a period of at least five years;
(o)work was done by Wilkins to comply with the recommendations;
(p)despite many growers planting the canola seed, none reported the growth of the weed plants;
(q)in 1998 the declarations were cancelled;
(r)Wilkins instituted proceedings against Dovuro in the Federal Court of Australia alleging negligence and contravention of the Trade Practices Act 1974 (Cth); and
(s)Wilkins brought the proceedings on behalf of themselves personally and as representative of other farmers who, in 1996, purchased and seeded Karoo canola seed supplied by Dovuro to distributors in Western Australia, and which allegedly included cleavers, redshank and field madder seeds.

Some propositions concerning the policy of the law may also be usefully identified as starting points.
This is a case in which each of the farmers sought to advance their economic interests by contracting with a distributor to acquire a seed product which the farmer hoped could be used to produce a crop which would in turn generate profit for the farmer’s farming business. The essence of the farmers’ case is that their expectations were disappointed because the seed product which they purchased carried with it a risk that shattercane might also mature within the sorghum crop generated by the use of the seed. Consequently, sorghum yield would be reduced, they might even have to change crops, business income would be down, business expenditure would be up because of remediation and eradication measures, and, accordingly, business profits would be reduced.
One policy question is whether the common law of the tort of negligence should provide the farmers a remedy by enabling them to leapfrog up the contractual chain to look to the product manufacturer for a remedy rather than to the distributor.
It may be noted that statute law has effectively permitted that course in certain circumstances:
(a)Where a person supplies goods in trade or commerce to a “consumer”, s 54 of the Australian Consumer Law creates a statutory guarantee that the goods are of “acceptable quality” and s 271 permits that guarantee to be enforced against the manufacturer of the goods. “Acceptable quality” is defined in s 54 in these terms:
“(2)Goods are of acceptable quality if they are as:
(a)fit for all the purposes for which goods of that kind are commonly supplied; and
(b)acceptable in appearance and finish; and
(c)free from defects; and
(d)safe; and
(e)durable;
as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).
(3)The matters for the purposes of subsection (2) are:
(a)the nature of the goods; and
(b)the price of the goods (if relevant); and
(c)any statements made about the goods on any packaging or label on the goods; and
(d)any representation made about the goods by the supplier or manufacturer of the goods; and
(e)any other relevant circumstances relating to the supply of the goods.”
(b)But the Australian Consumer Law also reveals that the legislature has made the public policy choice not to extend the benefit of the guarantee of acceptable quality to all end users of goods, but to differentiate between end users on the basis of their purpose for acquiring the goods. Thus a person will not be taken to have acquired goods as a “consumer” if the person acquired the goods for the purpose of using them up or transforming them, in trade or commerce in the course of a process of production or manufacture.[227] That constraint would have proved problematic for the farmers in this case because their express purpose for acquiring seed was to plant the seed for the purpose of sorghum production as part of their farming businesses.
[227]See s 3(2)(b)(i) of the Australian Consumer Law.
Accordingly, a further policy question is whether the common law of the tort of negligence should extend the legal protection available to end users of manufactured goods notwithstanding the limitations imposed by the legislature by the definition of “consumer” or by the considerations adverted to in ss 54(2) and 54(3) of the Australian Consumer Law.
The judgment of Crennan, Bell and Keane JJ in Brookfield Multiplex also provides an appropriate starting point in relation to each of the policy questions just mentioned. Their Honours acknowledged –
(a)at [121]:
“Economic interests are protected by the law of contract and by those torts that are usually described as the economic torts, such as deceit, duress, intimidation, conspiracy, and inducing breach of contract.”
(b)at [132]:
“… the primacy of the law of contract in the protection afforded by the common law against unintended harm to economic interests where the particular harm consists of disappointed expectations under a contract.”
(c)at [133] and [134]:
“Statutory provisions may supplement the common law of contract by providing for special protection to identified classes of purchasers on the ground, for example, that they may not be expected to be sufficiently astute to protect their own economic interests. Part 2C of the Home Building Act 1989 (NSW) is an example of such a statutory regime.
By enacting the scheme of statutory warranties, the legislature adopted a policy of consumer protection for those who acquire buildings as dwellings. To observe that the Home Building Act does not cover claims by purchasers of serviced apartments is not to assert that the Act contains an implied denial of the duty propounded by the respondent. Rather, it is to recognise that the legislature has made a policy choice to differentiate between consumers and investors in favour of the former. That is not the kind of policy choice with which courts responsible for the incremental development of the common law are familiar; and to the extent that deference to policy considerations of this kind might be seen to be the leitmotif of this Court’s decision in Bryan v Maloney, the action taken by the New South Wales legislature served to relieve the pressure, in terms of policy, to expand the protection available to consumers.”

Although it would be wrong to suggest that there is some form of neat compartmentalisation between contract and tort,[228] these passages suggest the primacy of the law of contract as the remedial response provided by the common law in circumstances such as those revealed by the present case. They also recognise that the fact that a particular area of commercial conduct has been the subject of legislative regulation may influence the choices made by judges in the development of the common law. Common law courts should eschew the temptation to encroach into areas which would require a claim to political legitimacy and, accordingly, are more properly the purview of the executive or legislative arms of government.[229]
[228]Brookfield Multiplex at [56] to [59] per Hayne and Kiefel JJ.
[229]See Stevens, Torts and Rights (2007), p 312 et seq, cited in BrookfieldMultiplex at footnote [201].
Notably, in Brookfield Multiplex, Gageler J observed:
“[T]he plurality in Woolcock Street Investments noted that the actual decision in Bryan v Maloney had by then been “overtaken, at least to a significant extent, by various statutory forms of protection for those who buy dwelling houses which turn out to be defective”. The Court of Appeal in the present case referred in detail to the current statutory regime in New South Wales. If legal protection is now to be extended, it is best done by legislative extension of those statutory forms of protection.”
Analogous cases
Against the starting points just identified it is appropriate first to turn to a consideration of analogous cases.
The Australian appellate cases which have most directly considered issues concerning a manufacturer’s liability in tort for economic loss caused by negligently produced products are:
(a)Suosaari v Steinhardt[230];
(b)Minchillo v Ford Motor Company of Australia[231];
(c)Dovuro Pty Ltd v Wilkins[232]; and
(d)Swick Nominees.
[230]Suosaari v Steinhardt [1989] 2 Qd R 477 (Suosaari).
[231]Minchillo v Ford Motor Company of Australia (1995) 2 VR 594 (Minchillo).
[232]Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 (Dovuro), and in the Full Court (2000) 105 FCR 476.
Suosaari was concerned with negligently manufactured goods which were dangerous to the user and had in fact caused personal injury. The economic loss claimed was consequent upon the personal injury. The case may be distinguished on that basis. It concerned a situation not caught by the general rule expressed in Woolcock Street Investments and Brookfield Multiplex.
Minchillo, however, directly concluded that, putting to one side circumstances in which the product caused personal injury or property damage, a manufacturer of a product does not owe a duty of care to the ultimate consumer of the product to take reasonable care to guard against economic loss to the consumer arising out of a defect in the product rendering it unmerchantable or useless of limited assistance. The Court distinguished Suosaari in the manner referred to in the previous paragraph.[233] Although the reasoning adopted in Minchillo predated that of Woolcock Street Investments and Brookfield Multiplex, it does stand as a decision which is directly against the recognition of the alleged duty of care in the present case.
[233]Minchillo at 599 (Brooking J) and at 618-619 (Ormiston J, with whom Fullagar J agreed).
I agree with Morrison JA for the reasons expressed by his Honour that this Court should reject the farmers’ contention that Dovuro strongly supports a finding of the existence of the alleged duty.
Swick Nominees is the case analogous to the present which contains the most detailed analysis of the relevant law, including by examining Suosaari, Minchillo, and Dovuro. It is appropriate to consider it in a little detail.
Swick carried on business in Western Australia as a drilling contractor engaged principally in mineral exploration drilling. LeRoi was a company incorporated in the United States of America, which carried on business as a designer, manufacturer and supplier of air compressors. Norncott carried on business in Western Australia as a supplier, distributor and repairer of drilling equipment, including as a distributor of LeRoi air compressors.
Swick purchased a LeRoi air compressor from Norncott. The compressor was to be used to supply compressed air for a drilling rig. The air compressor failed on multiple occasions with the result that Swick could not use it until it had been repaired. Swick claimed damages from Norncott and LeRoi for the losses which it suffered as a result of alleged defects in the air compressor, including losses in the form of lost profits during the period when the compressor was unserviceable.
LeRoi’s pleading did not admit the existence of the alleged duty, but at trial the written closing address of counsel for LeRoi had accepted that LeRoi did owe Swick a duty of care but had submitted that LeRoi in fact exercised reasonable care. Accordingly, the primary judge did not examine the question of the existence of the duty. In the result, the primary judge agreed with LeRoi that negligence had not been proven and Swick’s case against LeRoi failed.
On appeal, Buss JA formed the view that counsel for LeRoi had not attempted to resile from the concession as to the existence of duty and concluded that it was unnecessary to consider the correctness of the proposition that the alleged duty was owed. His Honour went on to consider Swick’s challenge on appeal to the rejection of its breach of duty case on the assumption that the alleged duty was owed. His conclusion was that the appeal should be dismissed.[234]
[234]Swick Nominees at [110] to [155] and [347].
For their part, Murphy JA and Edelman J acknowledged that the issues on appeal all focused upon breach of duty. Their Honours were prepared to dispose of the appeal on premises which they expressly did not necessarily accept, namely that LeRoi had conceded that it owed a duty of care to end users to manufacture or design an air compressor that was of merchantable quality. They concluded that the primary judge was correct to reject the breach of duty case.[235]
[235]Swick Nominees at [431] to [467].
Although Murphy JA and Edelman J were content to dispose of the appeal on that basis, they had expressed the view that an assessment of breach of duty first required an answer to the anterior question of the nature of the duty of care.[236] Their Honours persuasively analysed the law affecting that question in an extended obiter discussion about which the following points might be made:
[236]Swick Nominees at [358].
(a)Their Honours started with the observation that in Woolcock Street Investments McHugh J said that since “the decision of the House of Lords in Hedley Byrne & Co Ltd v Heller & Partners Ltd, confusion approaching chaos has reigned in the law of negligence” (citations omitted) in circumstances where a plaintiff suffers economic loss that does not result from injury to the plaintiff’s person or other property.[237]
[237]Swick Nominees at [368].
(b)They acknowledged that in Brookfield Multiplex, Crennan, Kiefel and Keane JJ had said that “the expanded liability for economic loss established by Hedley Byrne & Co Ltd v Heller & Partners Ltd depended upon proof of the fact of assumption of responsibility by a person giving advice to another, and that other having relied upon the advice”.[238]
[238]Swick Nominees at [373].
(c)But their Honours thought that although assumption of responsibility lay at the core of the speeches in Hedley Byrne, their Lordships had also made remarks which could be seen to support an expansion of liability for pure economic loss beyond cases of assumption of responsibility. Their Honours thought that the difficulty came in determining the principle by which any expansion should occur.[239]
(d)Their Honours noted that the Australian approach as endorsed in Caltex Oil (Australia) Pty Ltd v Dredge Willemstad[240] and subsequent High Court cases had been to focus on the “salient features” of each particular case to determine whether a duty of care existed.[241] After pointing out difficulties in that approach, their Honours reached a conclusion favouring the incremental approach identified at [294] above.[242]
(e)Their Honours then turned their attention directly to the considerations which might affect the recognition of a duty of care where the claim was by an ultimate purchaser against a manufacturer of defective goods for pure economic loss.
(f)They acknowledged that one circumstance in which a duty of care to avoid pure economic loss might be recognised was where the supplier had assumed direct responsibility to the ultimate purchaser or client, albeit that there was no direct contractual relationship between the two. They noted that the decision in Junior Books Ltd v Veitchi Co Ltd[243] had been analysed as a case in which a nominated subcontractor had assumed a direct responsibility to a building owner. And they thought that the concept of assumption of responsibility had been endorsed by the High Court in Brookfield Multiplex, citing amongst other passages those which highlighted the significance of notions of assumption of responsibility.[244]
(g)Their Honours expressed the view that beyond cases of assumption of direct responsibility there was limited scope for a duty of care being owed by a manufacturer to non-contracting parties to avoid carelessly inflicting pure economic loss.[245] They addressed Suosaari noting that it had been distinguished in the subsequent decision of Minchillo in the way already mentioned.[246] They noted that Minchillo had preceded Bryan v Maloney and addressed whether the latter decision could be regarded as supporting the recognition of a duty of care, observing:[247]
“The decision in Bryan might have afforded some hope for an action in negligence by ultimate purchasers against manufacturers. The hope would be based upon a loose analogy between, on the one hand, the “salient features” of a relationship involving a builder of premises and the ultimate purchaser of the land on which the premises are built and, on the other hand, the “salient features” of a relationship between a manufacturer of chattels and an ultimate purchaser.”
(h)Their Honours concluded that the scope of the analogy was limited for four reasons. First, Bryan v Maloney relied heavily on now rejected concept of “proximity” as a conception determinant for the extension of the duty of care to the builder.[248] Second, the nature of the subject matter (namely a house rather than an ordinary chattel) had been regarded as significant in the case.[249] Third, the subsequent decisions of Woolcock StreetInvestments and Brookfield Multiplex had distinguished Bryan v Maloney on the basis of the presence of legislation in the area, drawing attention to the passages from Brookfield Multiplex quoted at [302](c) and [304] above.[250] Their Honours observed that “[t]his reasoning also applies to cases involving the liability of manufacturers to ultimate purchasers, where liability is governed by legislation including detailed provisions in the Australian Consumer Law 2011 (Cth) concerning liability of manufacturers to consumers.”[251] Fourth, Bryan v Maloney had not considered the significance of the terms of the initial contract to which the builder had been subject. Their Honours thought that “[a]n assessment of any duty of care between a manufacturer and an ultimate purchaser of goods would also require attention to be directed to the terms of any contract between the manufacturer and the seller of the goods.”[252]
(i)Their Honours ultimately did not find it necessary to express a view as to whether they would have recognised a duty of care owed by LeRoi to Swick.[253]
[239]Swick Nominees at [374].
[240]Caltex Oil (Australia) Pty Ltd v Dredge Willemstad (1976) 136 CLR 529.
[241]Swick Nominees at [375] to [384].
[242]Swick Nominees at [375] to [387].
[243]Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520.
[244]Swick Nominees at [389] to [391], citing Brookfield Multiplex at [22], [27] per French CJ, [50] per Hayne and Kiefel JJ, [115], [122], [128]-[129], [137], [143],[150] per Crennan, Bell and Keane JJ, [180] per Gageler J.
[245]Swick Nominees at [392].
[246]Swick Nominees at [396].
[247]Swick Nominees at [400].
[248]Swick Nominees at [401].
[249]Swick Nominees at [402] to [403].
[250]Swick Nominees at [405] to [407].
[251]Swick Nominees at [408].
[252]Swick Nominees at [411].
[253]Swick Nominees at [431] to [432].
The foregoing examination of analogous cases does not provide support for recognition of a duty of care where the claim is by an ultimate purchaser against a manufacturer of defective goods for pure economic loss, unless the case can be characterised as a case in which manufacturer has assumed direct responsibility to the ultimate purchaser.
The salient features in this case do not justify departure from the general rule

In my view, the salient features in this case do not justify departure from the general rule.
First, given the findings that Advanta sold seeds to the distributors in bags marked with a specific disclaimer of responsibility for loss suffered by the ultimate consumer, Advanta most assuredly had not assumed direct responsibility to the farmers. I agree with Morrison JA’s objective assessment of the effect of the conditions on the bags and with his Honour’s conclusion that they operated as a clear and prominent disclaimer of liability. This is not a case where the farmers have demonstrated assumption of responsibility by Advanta. The question whether it would be possible to advance a case of known reliance notwithstanding the disclaimers (if, say, Advanta could have been shown to know that the end users paid no regard to the conditions despite their prominence) need not be considered because such case was neither pleaded nor put to any Advanta witness.
Second, the conclusion about assumption of responsibility is supported by a consideration of the terms of the contracts to which Advanta had made itself subject, at least insofar as the evidence shed light on that subject. I have mentioned that the primary judge made no findings as to the terms of the contracts made by Advanta with distributors who purchased by straight out sales,[254] but that his Honour did find that there was evidence of the terms of contracts applicable to distributors who took stock on consignment.[255] Those proposed terms too were inconsistent with any relevant assumption of responsibility.
[254]Primary judgment at [113].
[255]Primary judgment at [115] to [123].

Third, as has been mentioned, the Commonwealth parliament has expanded the legal protection available to end users of goods supplied in trade and commerce, including by creating a remedy directly against manufacturers with whom the end user might have no contractual remedy. But the legislation has made a public policy choice to differentiate between types of end users, in favour of those who meet the statutory definition of “consumer”. And the legislature has specified other relevant considerations. I would apply to the present circumstances the observations made by Gageler J in Brookfield Multiplex quoted at [304] above. If legal protection is now to be extended to end users who do not meet the statutory criteria, it is best done by legislative extension of those statutory forms of protection.
Fourth, the farmers’ argument contended that a feature of the present case was that recognition of the duty of care for which they contended would not amount to recognition of an indeterminant liability for economic loss. The farmers argued that that feature should be regarded as a conceptual determinant for the recognition of a duty of care in a case such as the present. I agree with Morrison JA’s rejection of that argument.
Finally, I acknowledge that it was suggested that recognition of the duty of care was justified because the farmers should be regarded as relevantly “vulnerable” to a want of care by Advanta and that this feature would justify recognition of the duty of care for which the farmers contend. I am unable to accept that proposition.
The primary judge found each of the relevant transactions of sale by a distributor to a farmer was a “sale” and an “acquisition” of goods under applicable Sale of Goods Acts because it was a “contract of sale” within the meaning of that legislation.[256] The primary judge found that each of the farmers was a buyer under a sale that was subject to sale of goods legislation that implied a condition that goods bought by description should be of merchantable quality, unless such a term was excluded by the agreement.[257] He found that if the seed was not of merchantable quality, any loss or damage suffered by a farmer caused by breach of the implied term of merchantable quality may have been recoverable from the distributor as seller of the seed as compensatory damages, unless that term was excluded by agreement.[258]
[256]Primary judgment at [166].
[257]Primary judgment at [168] to [169].
[258]Primary judgment at [168] to [169].
As identified at [280] above, the evidence did not permit the primary judge to make findings as to the terms of the contracts by which the farmers purchased the seed from the distributors. The farmers did not seek to prove that implied terms as to merchantable quality were excluded. The primary judge concluded:[259]
“On this analysis, at least in theory, each of the plaintiffs might have been able to protect itself from the risk of the loss or damage they allege that they have suffered by an appropriate contractual term in the contract under which it purchased or acquired the contaminated MR43 seed from the relevant distributor.”
[259]Primary judgment at [170].
Even if “vulnerability” was a feature capable of justifying recognition of a duty of care in a case such as the present, it was for the farmers to prove the facts at trial which would justify their suggestion of vulnerability and they did not.
In any event, there are difficulties, as the primary judge recognised[260], with using vulnerability as a conceptual determinant for the recognition of a duty of care in a case such as the present. The vulnerability argument relies in one way or another on the farmers’ exposure as end users to the risk caused by Advanta placing into the chain of commerce a product which, unbeknownst to end users who chose that product for their farming businesses, had undesirable characteristics, namely shattercane contamination. But Advanta placed its product into the chain of commerce in bags which physically bore conditions advising that Advanta had disclaimed any liability for loss directly or indirectly arising out of or related to the use of the seed, whether as a result of its negligence or otherwise. That disclaimer was just as much a characteristic of the product (in the sense of a potential impairment on the utility of the product to the end user) as its other undesirable characteristics, yet that characteristic was not latent. An objective analysis would conclude that the disclaimer was just as much a characteristic of the product affecting the end users’ choice to acquire that product over other crop seed choices as its other characteristics. In any form of vulnerability analysis in this case, it is artificial to dissociate the undesirable characteristic of shattercane contamination from the undesirable characteristic of prominent disclaimer clauses. In those circumstances, it is difficult to see why any formulation of “vulnerability” should be regarded as a salient feature operating as a conceptual determinant for the recognition of the duty of care alleged in this case. The law of tort should not be turned into a remedy for inequality of bargaining power, not least because, again, that area of commercial unfairness has been the subject of legislative regulation and any increased protection for persons in such a position is best done by legislative extension of such protection.
[260]Primary judgment at [191].
The result is that I conclude that the examination of the salient features of the present case does not provide justification for the expansion of the protection available to commercial actors in the position of the farmers beyond that which they might have obtained in contract, or under applicable statute law. The common law of tort should not recognise the duty of care for which the farmers contend.
As the contention that the trial judge erred by failing to recognise that Advanta owed a duty of care to the farmers was the only issue pressed on appeal, the appeal must fail.

The notice of contention

As the appeal has failed, it is not necessary to determine the questions raised by the notice of contention.
However, for completeness, I record that I agree with Morrison JA. If, contrary to my view, Advanta did owe the farmers a duty of care to take reasonable precautions during the production of the seed to avoid the risk that, by using the seed, the farmers might suffer economic loss to their farming businesses in the form of increased expenses and decreased revenue, the farmers’ cause of action for damages for breach of that duty would have accrued when harm of that nature was suffered. On that analysis, the primary judge’s conclusion that the farmers’ cause of action was not statute barred must have been correct. Advanta’s argument on the notice of contention invited the Court to consider when a different cause of action founded upon a duty to avoid causing a different sort of harm might have accrued. That was not to the point.
Disposition of the appeal
I agree with the orders proposed by Morrison JA.
WILLIAMS J: I agree with the reasons of Morrison JA and the additional reasons of Bond JA. Further, I agree with the orders of Morrison JA.

CITATION:	Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd [2023] QCA 24
PARTIES:	MALLONLAND PTY LTD ACN 051 136 291 (first appellant) ME & JL NITSCHKE PTY LTD ACN 074 520 228 (second appellant) v ADVANTA SEEDS PTY LTD ACN 010 933 061 (respondent)
FILE NO/S:	Appeal No 5214 of 2021 SC No 4103 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2021] QSC 74 (Jackson J)
DELIVERED ON:	28 February 2023
DELIVERED AT:	Brisbane
HEARING DATE:	19 and 20 October 2021
JUDGES:	Morrison and Bond JJA and Williams J
ORDERS:	1. Appeal dismissed. 2. The appellants pay the respondent’s costs of and incidental to the appeal, to be assessed on the standard basis.
CATCHWORDS:	TORTS – NEGLIGENCE – PURE ECONOMIC LOSS: NEGLIGENT ACTS, OMISSIONS OR REPRESENTATIONS – DUTY OF CARE: EXISTENCE – DISCLAIMERS AND ASSUMPTION OF RESPONSIBILITY – where the appellants brought proceedings under Part 13A of the Civil Proceedings Act 2011 (Qld) on behalf of a group of commercial sorghum farmers – where the respondent manufactured sorghum seed under the brand name “MR43 Elite” – where the respondent supplied MR43 Elite only to distributors, either by sale or consignment – where, between 2010 and 2014, the appellants purchased MR43 Elite from distributors – where MR43 Elite was contaminated with a seed known as shattercane – where the appellants suffered pure economic loss due to planting of contaminated MR43 Elite – where the primary judge found that the seed was sold in bags with a prominent and clear disclaimer of liability printed on it – where the case was run not as one where physical damage was suffered but only that pure economic loss was suffered – where the only element of negligence in issue was the duty of care – where the primary judge found that no duty of care was owed to the appellants – whether the primary judge erred in finding that the disclaimer was on the bags at the time the appellants purchased them – whether the disclaimer was effective as a clear and prominent disclaimer of a duty of care which might be owed by the respondent to the appellants – whether a duty of care was owed to the appellants in the circumstances TORTS – NEGLIGENCE – PURE ECONOMIC LOSS: NEGLIGENT ACTS, OMISSIONS OR MISREPRESENTATIONS, DUTY OF CARE: EXISTENCE – GENERALLY – where the respondent manufactured sorghum seed under the brand name “MR43 Elite” – where the respondent supplied MR43 Elite only to distributors, either by sale or consignment – where the appellants purchased MR43 Elite from distributors – where MR43 Elite was contaminated with a seed known as shattercane – where the appellants suffered pure economic loss due to planting of contaminated MR43 Elite – where the respondent had not assumed responsibility to the end users of MR43 Elite – where the respondent had disclaimed responsibility for loss suffered by the ultimate consumer of MR43 Elite – where the alleged duty of care was a duty to take reasonable precautions during the production of a product to avoid a risk that the end user of a product might suffer pure economic loss upon the use of that product – where the legislative regime in the Australian Consumer Law contemplates protections for end consumers as distinct from commercial consumers – whether the common law should recognise a duty of care in the circumstances LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – SIMPLE CONTRACTS, QUASI-CONTRACTS AND TORTS – ACCRUAL OF CAUSE OF ACTION AND WHEN TIME BEGINS TO RUN – TORTS – OTHER TORTS AND MATTERS – where the respondent manufactured sorghum seed under the brand name “MR43 Elite” – where the respondent supplied MR43 Elite only to distributors, either by sale or consignment – where the appellants purchased MR43 Elite from distributors – where MR43 Elite was contaminated with a seed known as shattercane – where the appellants suffered pure economic loss due to planting of contaminated MR43 Elite – where the claim was initiated on 24 April 2017 – where the MR43 Elite was purchased, planted, and germinated at a point prior to 24 April 2011 – where the respondent pleaded that the action was brought outside the applicable six year limitation period under s 10(1) of the Limitation of Actions Act 1974 (Qld) – where the limitation period begins to run from the date on which the cause of action “arose” or “first accrues” – where the primary judge found that the appellants did not suffer any damage when the planting or germination of the contaminant seeds occurred, but suffered damage to their financial interest in lost cash flows – where the primary judge found that the occurrence of the damage comprising the loss of those cash flows was when the cause of action arose or first accrued – where the primary judge rejected the argument that proceedings were out of time –whether the primary judge erred in finding that no loss had been suffered by the appellants prior to 24 April 2011 – whether the primary judge erred in finding that the negligence claim was not statute barred Australian Consumer Law 2011 (Cth), s 3(2)(b)(i), s 54, s 271 Limitation of Actions Act 1974 (Qld), s 10(1) ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; [2014] FCAFC 65, cited AIU Ins Co v Superior Court 51 Cal.3d 807, 274 Cal.Rptr 820, 799 P.2d 1253 (1990), cited Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1; [2015] HCA 33, distinguished Barclay v Penberthy (2012) 246 CLR 258; [2012] HCA 40, cited Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014) 254 CLR 185; [2014] HCA 36, considered Bryan v Maloney (1995) 182 CLR 609; [1995] HCA 17, considered Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13, cited Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529; [1976] HCA 65, considered Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258, considered Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59, considered Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51, considered Dovuro Pty Ltd v Wilkins (2000) 105 FCR 476; [2000] FCA 1902, considered Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241; [1997] HCA 8, cited Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54, cited Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15, considered Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465; [1963] UKHL 4, cited Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215, considered Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520; [1982] UKHL 12, considered Marsh v Baxter (2015) 49 WAR 1; [2015] WASCA 169, cited Martindale v Burrows [1997] 1 Qd R 243; [1996] QSC 113, considered Minchillo v Ford Motor Co of Australia (1995) 2 VR 594; [1995] VicRp 78, considered Morrison Steamship Co Ltd v Greystoke Castle (Cargo Owners) [1947] AC 265, considered Perre v Apand Pty Ltd (1999) 198 CLR 180; [1999] HCA 36, considered Pullen v Gutteridge, Haskins & Davey Pty Ltd [1993] 1 VR 27; [1993] VicRp 4, cited Ranger Insurance Co v Globe Seed & Feed Company 865 P 2d 451 (1993), considered Smith v Eric S Bush (a firm) [1990] 1 AC 831; [1990] UKHL 1, cited Suosaari v Steinhardt [1989] 2 Qd R 477, considered Sutherland Shire Council v Heyman (1985) 157 CLR 424; [1985] HCA 41, cited Swick Nominees Pty Ltd v LeRoi International Inc (No 2) (2015) 48 WAR 376; [2015] WASCA 35, considered The Commonwealth v Cornwell (2007) 229 CLR 519; [2007] HCA 16, considered University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481; [1985] HCA 28, followed Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, cited Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55, considered Williams v Network Rail Infrastructure Ltd [2019] QB 601; [2018] EWCA Civ 1514, cited Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16, considered Zabic v Alcan Gove Pty Ltd (2015) NTLR 209; [2015] NTCA 2, cited
COUNSEL:	J T Gleeson SC, with N M Bender and B A Hall, for the appellants P J Dunning KC, with E J Goodwin and M Y Barnes, for the respondent
SOLICITORS:	Creevey Russell Lawyers for the appellants Clifford Gouldson Lawyers for the respondent