Perre v Apand Pty Ltd

[1998] HCA 63

HIGH COURT OF AUSTRALIA

GAUDRON J

FRANK PERRE & ORS  APPELLANTS

AND

APAND PTY LTD  RESPONDENT

Perre v Apand Pty Ltd (A27-1998) [1998] HCA 63
15 September 1998

ORDER

1. Respondent's application dismissed with costs on receipt of undertakings of appellants in the form specified in the reasons for judgment.

1. Certify for Counsel.

Application for security for costs.

Representation:

T A Gray QC with J S Roder for the appellants (instructed by Townsends)

M A Frayne for the respondent (instructed by Phillips Fox)

Notice:  This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. GAUDRON J.   The appellants are members of the Perre family or, in the case of the corporate appellants, companies associated with them.  It is convenient to refer to them collectively as "the Perres".  At the relevant time, the Perres grew potatoes in the Riverland region of South Australia.  They sold them primarily in Western Australia where, they claim, the wholesale price was stable and, usually, higher than elsewhere in Australia.

2. At all relevant times, it was a condition of the entry of potatoes into Western Australia that they not be grown or packed within 20 kilometers of an outbreak of bacterial wilt detected in the previous five years.  The property upon which the Perres grew their potatoes is situated near a property owned by members of the Sparnon family ("the Sparnons").  The Sparnons grew an experimental potato crop on that land using seed potatoes supplied by the respondent, Apand Pty Ltd ("Apand").  The crop was infected with bacterial wilt.  The Perres' crop was not affected but they were no longer able to sell their potatoes in Western Australia.  They claim that, in consequence, they suffered economic loss.

3. The Sparnons and the Perres commenced proceedings in negligence against Apand, the Minister of Primary Industries and the State of South Australia in the Federal Court of Australia[1].  The proceedings were heard together before von Doussa J.  His Honour held that there was no negligence on the part of the Minister of Primary Industries or the State of South Australia but that the Sparnons were entitled to a verdict against Apand.  However, his Honour found that Apand owed no duty of care to the Perres, who suffered economic loss only, because there was no relationship of proximity between them.

   [1]The Perres also claimed damages against Apand under s 82 of the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct under s 52 of that Act.

4. Apand appealed to the Full Court of the Federal Court from the decision and orders made against it in the Sparnon proceedings, challenging the finding of negligence and, also, various factual findings upon which that finding was based.  The Perres appealed from the order dismissing their action.  Apand filed a Notice of Contention in the appeal by the Perres, raising the same issues as in their appeal in the Sparnon matter.  The appeals were heard together.  In the result, neither appeal was…