Perre & Ors v Apand Pty Ltd - [1998] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A27 of 1998

B e t w e e n -
FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, RANGARA PTY LTD, PASQUALE PERRE, GRACE PERRE, FRANCESCO PERRE and MARIA PERRE
Applicants
and
APAND PTY LTD

Respondent

Application for security for costs

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON TUESDAY, 8 SEPTEMBER 1998, AT 4.25 PM

MR M.A. FRAYNE: If the Court pleases, I appear for the the applicant, respondent to the appeal, applicant to this application. (instructed by Phillips Fox)

MR T.A. GRAY, QC: May it please the Court, I appear with my learned friend, MR J.S. RODER, for the appellant, the respondent to this application. (instructed by Townsends)

HER HONOUR: Thank you, Mr Gray. I apologise for your having been kept waiting. Unfortunately, the earlier case did not end when it was thought it would. Yes, Mr Frayne.

MR FRAYNE: If the Court pleases, hopefully the Court has before it an application by summons dated 1 September 1998, and two supporting affidavits relied upon by the applicant, an affidavit of Andrew Ian Fairbank of 31 August 1998, with exhibits, and Peter John Norman, 1 September 1998, with exhibits.

HER HONOUR: I believe so, but perhaps you had better deal with it more slowly than you might otherwise.

MR FRAYNE: Yes, very good, if the Court pleases. And also the Court, hopefully, will have an outline ‑ ‑ ‑

HER HONOUR: Yes, I have the outline, and I can tell you the summons, and I have the affidavit of Andrew Ian Fairbank, but I have not yet located the other one. Affidavit of Peter John Norman I have, as well.

MR FRAYNE: Yes, of 1 September 1998. Thank you, your Honour. It is sought by the applicant to rely upon those affidavits and exhibits in support of the application. I am unsure as to whether the respondent is seeking to rely upon any information and, if so, exactly what it is, so I will not pause at the moment, unless invited by your Honour to ascertain that.

HER HONOUR: No, I think you should make your case, if you wish, yes.

MR FRAYNE: Yes, your Honour.

HER HONOUR: Now, I have read the affidavits but I could not say I am completely familiar with what I am to take from the exhibits.

MR FRAYNE: Perhaps if I can take the Court to that information. The application, as is clear from the summons, is an application for security for costs. It is brought in the light of the fact that special leave to appeal has recently been granted. I think it is 19 June although I stand to be corrected in relation to that date.

HER HONOUR: August, was it not?

MR FRAYNE: I think…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perre & Ors v Apand Pty Ltd

Details

AGLC: Perre & Ors v Apand Pty Ltd [1998] HCATrans 311
Case: [1998] HCATrans 311
Decision Date

CaseChat Overview and Summary

The case of *Perre & Ors v Apand Pty Ltd* concerned a claim brought by potato growers against a seed potato supplier. The growers alleged that the supplier's negligence in supplying contaminated seed potatoes caused them economic loss. The dispute centred on whether the supplier owed a duty of care to the growers in circumstances where the harm suffered was purely economic and not consequential upon physical injury to person or property. The matter was heard by Gaudron J in the Supreme Court of South Australia.

The central legal issue before the court was whether a duty of care could be established in favour of the plaintiffs for pure economic loss arising from the defendant's negligent conduct. Specifically, the court had to consider the established principles of negligence and their application to situations involving economic harm, particularly where there was no direct physical damage to the plaintiffs' property or person, but rather a loss of market access and profitability due to contamination.

Gaudron J applied the principles of negligence, considering the established categories of liability for pure economic loss. Her Honour examined the foreseeability of the harm, the proximity between the parties, and the policy considerations relevant to imposing a duty of care. The court considered the potential for indeterminate liability and the need to avoid imposing an undue burden on the defendant. Ultimately, Gaudron J found that a duty of care was owed by the defendant to the plaintiffs in these circumstances, recognising that the economic loss was a reasonably foreseeable consequence of the defendant's negligent supply of contaminated seed potatoes.

Orders