Stringer & Stringer v Elders Ltd & South East Seed No. DCCIV-96-1558 Judgment No. D3737

[1998] SADC 3999

STRINGER  V  ELDERS & SOUTH EAST SEEDS

Civil
Judge Bright

The plaintiff is a farmer and grazier who made hay in 1995.   When it grew it was infested with a weed, melilotus.   He asserts that the cause for that must have been contamination of the seed he sowed, which he bought from the defendant, a stock and station agent.   The defendant denies that, but joins the seed merchant from whom it procured the seed as a third party.   There is little dispute that the crop was infested, but there is great dispute about the cause.

The plaintiff left school at 15 and worked on the land in various capacities.  For some time he was a shearer and lived in the mid north.   He began to buy, improve, and sell properties.  He was obviously industrious, competent and made money on his sales.   He ploughed the profits into further properties and so developed until he was able to acquire a mixed grazing and cereal property at Lochabar, near Naracoorte, in 1981.   He is still on that property, Merunga Downs.          He has wide experience in farming, and is a shrewd businessman, despite his lack of formal education.   He did have a severe set back when he, like many another, borrowed overseas money and got caught by changing exchange rates.   He nearly went under.   He was, no doubt at a price, carried through by the defendant, towards which he is generally well disposed.

In his evidence, it seemed to me that he was rather defensive and not as forthcoming as he might have been.   There was some contrast between the certainty with which he deposed in detail to matters essential to his claim, on which I expect he had been proofed and the uncertainty with which he deposed to other matters.   I sensed an unwillingness to commit to unanticipated questions and answers, lest his answers might carry some adverse inference, of which he was not immediately aware.  He professed a virtually complete ignorance of the financial affairs and records of his business.  True it is that they were handled by his wife and accountant, and it is understandable that he might not have had the detail at his fingertips, but I would have expected him to have been at least a little better informed than he was.    When questioned about the history of his own physical activities farming on Merunga Downs he again was a mixture of detailed recall and surprising vagueness.   It was submitted, at least by the third party, that he was simply a liar who deliberately concealed the use of cheap seed obtained from another source.   I will come to that in more detail later, but I do not think that the case is as simple as that.

Melilotus is a clover-like plant  apparently introduced to Australia a long time ago.  Like many such introductions, it is now seen not to be beneficial.   It does have value as stock feed for grazing, but is not as good as modern strains of clover.  It has a particular draw back, which is that, when cut or crushed, it has a strong, unpleasant smell.   (The plaintiff could smell his cut hay from almost a kilometre away.)  If lactating animals eat it, their milk is tainted.   In particular, it ruins milk from dairy cattle.   If it contaminates a grain crop, such as wheat, it can taint flour made from that grain.   It appears that its disadvantages greatly outweigh its advantages.  

It has the characteristic that it flowers and sets seed over a fair period of time.   That seed is of two sorts:  soft and hard.   Hard seed may survive, ungerminated, in the soil for fifteen to thirty years, or more.   The exact period is not known.   If that seed is activated by any of a number of factors it can germinate, sometimes after lying dormant for many years.     Factors which may trigger germination include moisture, warmth, light, physical scratching of the husk of a seed, the placement of a seed in relation to the surface and various combinations of those factors. Thus, outbreaks of melilotus are often noted in wet years, or in wet parts of a farm. 

Cultivation of a paddock can permit moisture, warmth, or light to penetrate soil in which dormant seed is present.   It may bring seed into a more favourable position in relation to the surface.   It may scratch the seeds.   Cultivation can precipitate an outbreak.   The evidence does not permit me to attribute relative weight to these various factors, though it appears that moisture is particularly important.   However, it appears that a paddock may be cultivated, perhaps several times, without triggering dormant seed.   The next year conditions may be such that apparently identical cultivation and preparation will trigger an outbreak.

It goes without saying that planting seed contaminated with melilotus seed can also cause an outbreak.   The question is whether the plaintiff has proved that this was the cause in this case.

He asked for “certified” seed.   There is no dispute that, either impliedly, or expressly, he made it known to the defendant that he required his seed to be free of melilotus.  He intended to plant a mixture of Tetila rye grass and Kyambro clover to grow hay to be sold to a dairy farmer.  Rye grass is a relatively large seed.   Kyambro clover seed is small, and melilotus seed is even smaller.   Having regard to the way a seed cleaning machine works, it is most improbable that melilotus seed would not be effectively separated from rye seed in the ordinary cleaning process.   There has been no evidence suggesting a problem with the Tetila rye seed, of which the plaintiff purchased 800 kilograms.      There is greater difficulty in separating Kyambro and melilotus seed, and all suspicion in this case was directed to the Kyambro seed, of which the plaintiff purchased 75 kilograms.

South Australia is a major producer of seeds.   The South Australian Department of Primary Industries administers a scheme for certifying the purity and germination rates of seeds.   It is, without going into detail, a careful, rigorously administered scheme, which complies with certain strict international protocols enabling certified seed to be exported widely.       In the end, after hearing the evidence the plaintiff accepted that the seed certification procedures are such that, although a line of certified seed could contain minute traces of melilotus, or other contaminants, it is not realistically  possible that it could contain enough melilotus seed to explain the plaintiff’s outbreak.

The defendant and the third party say that they supplied certified seed to the plaintiff, accordingly they say that the cause of his problem lies elsewhere:
either he has activated dormant seed already present in his paddocks, or he has added other weed infested seed to the mixture of seed he sowed.

The plaintiff said that the Kyambro seed he collected from the defendant was in three white woven poly bags of 25 kilograms each.   They were sewn across the top.   The word “Kyambro” was written on each, vertically in black “texta” ink.   There were no cardboard tags sewn into the tops of the bags identifying them as certified seed.   Nor were the bags printed with what the evidence discloses is the normal trade mark and other identifying information.  

“Kyambro” is a particular strain of clover developed by the South Australian DPI, which licences certain approved producers to grow it and certain approved processors to process, clean and bag it.   Each batch of seed is called a “line” and is given an individual registration number.   Each of the producers paddocks is given a separate line number and, within a large paddock, each batch of 50 tonnes is separately identified.   Each line is separately examined and classified, with a certificate recording the result of that analysis.      Not all seed grown in South Australia is certified.   Much good seed is processed and cleaned, with each producer’s product being serially identified by a registration number, though not having been submitted for certification.

After clean seed has been extracted from the bulk seed brought by a producer to be cleaned, there remains a mixture of “offal” consisting of dirt, straw and chaff, together with residual seed in which the good seed was not successfully separated from weeds and rubbish.   This residual seed is known as “seconds”.   I have not been taken to the relevant law, but it appears that it is illegal to sell seconds.   Despite that, sales are said to occur.   Much seed is cleaned for growers to reuse on their own properties in succeeding years.   Some growers may not much mind recirculating weeds which already exist on their property:   others are more fussy.   When the third party cleans seeds, producers are told that seconds, separately bagged, can be collected within a specified period - commonly fourteen days.   The bags used are white woven poly bags - or other old second hand bags.   If seconds are not collected in that time, the seconds and the offal are sent to a pelletising plant in Victoria for use in the export live sheep trade.

On realising that defective, but certified seed was impossible to prove, the plaintiff shifted his aim to the possibility that through either error or fraud the third party had sold bags of ‘seconds’ to the defendant which, in turn, had sold them to the plaintiff.   Work and manufacturing procedures of the third party were explored to see whether it could be shown that bags of ‘seconds’ could get mixed with stores of bags of certified seed.   I am satisfied that both the procedures usually followed, and also the distance between the shed where ‘seconds’ are stored and that where certified seed is stored makes that most unlikely.

There was suspicion that the third party was a secret peddler  of seconds.   Documentation relating to “bulk” seed was examined in case it could be shown that this was a cover for ‘seconds’.   Mr. Prebble denied that this was so.  No direct evidence of this sort of fraud was exposed.   All that remained was that, working backwards from the infestation this was a theoretical possibility.

Without going into detail, the documentation of the defendant and third party show the purchase by the third party of twenty 25 kilogram bags of certified Kyambro seed, line 5015; and the subsequent sale of three of those bags to the defendant, whose records show that those three bags were collected from the third party and then sold to the plaintiff, who collected them from the defendant.   If the plaintiff, as he asserts, in fact got three bags of contaminated seed, it must have occurred as a result of some error not recorded in the documents.   If that occurred, it is most improbable that it was deliberate - the loss of reputation for either defendant or third party for such an act, the small amount of money to be made by substituting seconds for certified seed in the quantity, involved here and the great probability of detection when the seed grew, all support that inference.   The plaintiff’s case has, in the end, been conducted on the basis of such a mistake.

Accordingly, much attention was devoted by the plaintiff to trawling through the “paper trails” of the defendant and third party in regard to this sale, this line of seed and to business recording systems generally.   At the beginning of the trial, the plaintiff opened on the basis of the purchase of certified seed.   As the rigour of the certification scheme became apparent, the focus turned to the possibility of error leading to the supply of uncertified seed.

As that issue had not been pleaded, no detailed discovery of documentation beyond that relating to the purchase and sale of the three bags to the plaintiff and the purchase and sale of those bags and that line of seed by the third party had been made.   During the trial, a great volume of documentation was produced by, in particular, the third party, which was painstakingly analysed on behalf of the plaintiff, albeit somewhat on the run.   If there be any complaint by the plaintiff at the late production of this documentation, I note my view that it went well beyond discovery in relation to the issues pleaded.  In fact, rather than there being any blame attaching to the third party, I record that it produced its documentation without any order from me, in the knowledge that it was by no means certain that I would have made such an order.     Having regard to the developing nature of the plaintiff’s case, I allowed questions and lines of questions to be pursued which went well outside the issues pleaded.   I do not think the plaintiff was strictly entitled to that leniency.

Despite intense investigation, I was not persuaded that there was any evidence of actual error relevant to this case having occurred.   It is true that the documentation in respect of large areas and periods of business showed up minor short cuts and defects in processing documentation, which occurred with both defendant and third party.   For example, weights of seed traced through sales and compared with a physical stock take showed minor disparities.   Documents purporting to record receipt of goods appear sometimes to have been filled out in anticipation of imminent receipt.       This said, I saw no evidence of institutionalised error, either actually demonstrating error in this case, or making it likely.  

All that remains is that, in any organisation which processes and deals with millions of kilograms of seed, or other products, the possibility of error in relation to one individual sale of a small quantity cannot be totally excluded.

Thus there are several possible causes for the plaintiff’s trouble including:-

1.      Somehow, he was sold the wrong seed.

2.      He has not told the truth about what seed he used.

3.      Climatic and/or cultivation conditions activated dormant seed.

4.      There is some other explanation, not revealed by the evidence.

......... The plaintiff will succeed if he establishes that possibility 1) is, on the balance of probabilities, the cause.   I telescope a lot of law into that statement, but that is the position.   If possibilities 2, 3 or 4 are as probable, or more probable, he must fail.

......... I have noted the plaintiff’s description of the bags he said he received and opened.   He said he particularly recalled that the bags were not the usual bags which had a fair bit of printing and other designs on them.   He said he was aware that the tags which should have been sewn into the tops of the bags to identify the line of seed and to confirm that the contents were certified Kyambro were missing.   He said that normally one can cut one thread at one end of a line of stitching, upon which the other thread can be pulled out, thereby releasing all of the stitches.   In this case this practice could not be followed, the thread would not simply pull free and he had to cut his way along all of the stitches.  I presume that the third party’s bag sewing machines normally sew in the manner usually experienced by the plaintiff.   I am not sure where this variation, if it occurred, leads us.

......... He knew a tag should have been present, but said that sometimes tags were torn off bags in transit.   I accept that, but note that it is odd that he should have received three bags, all of which were without tags, if that were the reason.   He acknowledged that, if that had occurred, the lower part of the tag, below the stitching, should have been retained inside the bag.   He had seen that in the past, but did not recall it in this instance.  

......... He said he paid little attention to it - he simply assumed that the defendant had supplied what he had ordered.   It is a matter of concern to me that he, an experienced farmer, aware of his desire to use certified seed, and aware of how certified seed was packed and marked, would nevertheless collect and use bags which were obviously different, without any check with the defendant.   I do not suggest that it is impossible, but it is a little improbable.

......... He used the seed on four paddocks.   He could not recall the exact seeding rate, but believed he used about 19 kilograms on the first (40 acre) paddock and the rest at a much lower rate, on the other three paddocks.   He ran out in the fourth paddock, about 20 acres short of completing the job.

......... He used his own seeder.   He mixed seed by pouring a bag of Tetila rye seed into the container of his seeder and then putting a few jam tins of Kyambro on top, mixing it in with his hand.   Then he would finish by pouring more Tetila on top of that mixture and further mixing it by hand.   In the last paddocks he was using only a “shandy” or light, dilute mixture of Kyambro.   He pulled his seeder through the paddocks in particular patterns, which he drew on rough plans of those paddocks.   When he ran out, he purchased more seed from Naracoorte seeds, another seed merchant, and planted the last 20 acres with that.

......... Then he burned all of the bags which had contained seed.   He did not notice any Kyambro certification tags, nor did he find any of the bottom parts of tags sewn inside bags or loose among the rubbish which he was collecting to burn, nor were there any remnants of tags loose in the seed bin of his seeder.

......... I turn to one criticism of the plaintiff made by the third party, which alleges that, even accepting that the three bags of Kyambro were grossly contaminated with melilotus seeds, the sowing rate, though varying between paddocks, was always so light that the melilotus crop which was later observed was much heavier than could be explained by three bags of contaminated seed.   The third party therefore suggested that other seed must have been added.   The plaintiff denies this.   Further, it is suggested that the density of Kyambro clover which grew exceeded that which could be attributed to 75 kilograms of seed.

......... The evidence, apart from that of the plaintiff, leaves that question open.   Certainly the sowing rate appears to have been light.   I did not hear any expert evidence about the density of the Kyambro crop.   The plaintiff said that sowing rates correlated poorly with crop density.   Other factors, such as the density of competing plants had to be considered.   With less competition a low density planting may do better than a high density planting.   The crop with which plants are mixed will also have a bearing.   Rye grass can provide support, allowing at least melilotus and, I infer, Kyambro to grow taller.

......... It seems to me that the critical evidence has to be the (unsupported - and it is no criticism that it is unsupported) evidence of the plaintiff.   I did not think he was just a liar.   He would certainly have known the truth about this question.   Given the various factors, I do not accept the submission that the outbreak of melilotus, by itself, proves that other seed was introduced.

......... The reason for this divergence from a chronological narrative is that I now note that, at the time of seeding, there was no reason for the plaintiff to consider preserving what later can be seen to be very important evidence - the bags in which the Kyambro seed came.   While he cannot be criticised for this, it certainly weakens his case.

......... It was about six months later, as the crop neared maturity, that the plaintiff said he first noticed a bushy plant with a yellow flower.   Kyambro has a pink flower.   Until maturity, or near to maturity, it can be hard to notice a difference between the two.   The plaintiff claims never to have seen that flower before (either on his property or elsewhere).         Wondering what it was, he called in Mr. Owen Williams, a well qualified  agronomist employed by the defendant.   His evidence is most important.   Again, the plaintiff was not planning litigation.   Neither he, nor Mr. O. Williams, examined the crop, or recorded observations in the detail which would now be helpful.   I make no criticism of this, but, again, it does not help the plaintiff.  Mr. Williams no longer works for the defendant.   I do not understand this to have resulted from any dissatisfaction with his services.   I mention it only to note that there is now no reason to suspect bias in his evidence.   He gave it carefully and clearly.

......... His daily work involved inspecting crops and paddocks of many clients of the defendant.   While he has some recall of this paddock, he is, at least to a large extent, dependant on a note that he made in what is called a paddock inspection book.   Some weeks later, using his note, he prepared a short report, exhibit P26.   Mr. Williams translated his hand writing at transcript P 322:-

“ I was contracted by Barry Stringer to look at a paddock of Kyambro clover and rye grass that had been sown on the 25/5/95.   When looking at this paddock, Barry and myself noticed a lot of foreign plants known as melilotus.   After observing this, we established that the melilotus was in a straight line pattern that ran down the drill lines.   I then contacted John Prebble who Elders had bought the seed off on the understanding that it was certified (see letter attached).   John Prebble and Martin Flower from DPI at Struan investigated the paddock and also observed the melilotus.   While out in the paddock both of them noticed an overlapping effect caused by the seeder, and where this was present, the melilotus was double the thickness.   Several weeks later I recommended that the paddock be cut for hay so that the melilotus doesn’t set seed, but the big problem is that there is still seed in the soil for following years.   If you have any queries, please contact myself on the following numbers.   Owen Williams, Elders Agronomist.”

Perhaps the two critical points are:-

1.      The observation that the melilotus was “in a pattern which ran straight down the drill lines”, and

2.      The alleged “overlapping effect caused by the seeder”.

......... Mr. Williams (and he was supported in this by the plaintiff) parted the crop in areas of infestation “as one parts a fleece on a sheep”, then he knelt down to look at the plants at ground level.   The plaintiff watched more or less over his shoulder.

......... The plaintiff’s seeder is a 20 line seeder.  It has four rows of tines offset in such a fashion that it turns shallow furrows 3½ inches apart.   Half the furrows (at 7 inch spacing) have seed placed in them while the other half do not.   It is the plaintiff’s practice to overlap each circuit of the seeder by a few inches with the marks of the last previous circuit.   This practice results in lines of seed close together in the overlap and lines of seed 7 inches apart for the main part.   The overlaps should be about 11 feet apart, as that is the overall width of the seeder.  

......... Mr. Williams recognised the possibility of the seed having been introduced by the seeder at once.   He was also alert to the possibility that cultivation might trigger dormant seed.   If the latter had occurred, one would expect lines of weeds at 3½ inch centres, whereas. if the former had occurred, at 7 inch centres.

......... Mr. Williams did not note taking any measurement of the distance between the lines of weed which he observed.   He did note a pattern following the drill lines, by which I took him to mean the lines of the tines which put seed in, rather than of those tines which merely cultivated.

......... At page 326.14 of the transcript is the following:-

“Q.    Can you explain to His Honour the process that you followed on that day, and how you go about ascertaining that the melilotus is in a straight line pattern, running straight down the drill lines.

A. With the machine that Barry was working with it’s seven inches I think between the actual sowing points, so as it runs down these rows it just pierces the ground and so in here nothing is disturbed at that point, the ground isn’t disturbed when it’s sown, so the plants obviously germinate from those lines, they stand up, and if they are bushy what you do is you break it apart, just like breaking wool apart on a sheep, and you can see the lines, you can see the dead straight lines.   You see a little bit of scattered seed throughout the middle but the majority of it is straight down the lines.”

......... It does not appear that Mr. Williams himself observed the effect of overlapping.   He reported that this was something Mr. Prebble, of the third party, mentioned in a later telephone conversation in which the use of the seeder was mentioned as a possible cause.   Mr. Williams did not suggest that Mr. Prebble thought, or admitted that it was in fact “the cause”.   At page 333:-

Q.     So you understood that conversation as Mr. Flower or Mr. Prebble both, saying that there had been melilotus seed dropped by the sowing mechanism.

A.     No.   He just basically said that, not saying that it had actually been done or anything, but that could have been an option why there were some thicker plants throughout because in the paddock there were some thicker plant population throughout the paddock, again still following the line but it was a lot thicker that’s all........

At page 334:-

Q.     Yes.   It just re emphasised in my mind that the seeding - it could have come from the seed with that sort of agitation, but again it was nothing conclusive.”

............. Nor is it clear that Mr. Williams observed continuous lines of weed following the seeding pattern.   He looked at only one of four paddocks.   At T 335.15, in cross examination, he was asked:-

“Q.    If we follow the hypothesis that we are dealing with seed that has been lying dormant in the paddock and it comes up along the tine cuts where the drill has gone through, that little comes up between the drill cuts, is there any comment about the need to have that specific combination of cultivation and of moisture and of temperature to fire off dormant seed that makes it more or less likely that that is what happened.

A.     Really the only reason I said it could come up along that drill is because if it hasn’t come up before, generally what it suggested to me was all it needed was some placement within the soil, some sort of movement within that soil, to germinate these seeds.  Apart from that there was no other conditions, like, with that movement, that allowed the moisture, to get into the seed and germinate it.”

............. At T336 Mr. Williams agreed that the amount of moisture in the soil was an important factor in triggering germination in dormant seeds.   I, thinking that most years in the south east were pretty wet and, hence, that it was unlikely dormant seed would remain dormant for many years, asked (at 336.26):-

“Q.    Quite frankly with that, if moisture was the variation for the year, do you see the previous ten years as having been so dry that seed in the paddock would be expected to lie there ungerminated.”

......... He replied:-

“A.    Yes, it can lay there because the coating might be so hard, and until - the other way that the tillage can germinate those seeds is scratching the actual seed cover.   Now if the tine scratches that the water can get into it from there.   It weakens the coat.      

......... At 345.26, I was still sceptical of the “dormant seed” theory.   I asked Mr. Williams:-

“Q.    Still thinking about the theory of dormant seed in the paddock, I am told that some of the paddocks have been worked up and cultivated in recent years, and if that’s true, and if it is true that no melilotus was observed after that, does that have any bearing on whether it is likely that the melilotus you saw came up in that year.   In short, is it the working up of the paddock which is the critical factor or is it the moisture for the year.   What is it.”

......... He replied:-

“A.    It is more the working up that alerts me.   It either came from the seeding process or the seeding process brought up the dormant seed.   It wasn’t to do with the season or anything like that.   It was basically to do with that seeding process that has either brought in the foreign seed with the Kyambro seed or it’s basically made an ideal situation for that hard seed, dormant seed.

Q.     If you have a paddock with dormant seed, would you expect that seed to germinate the first time it is cultivated, or might it lie dormant for several cultivations.

A.     It could lie there.   It could have 20, 30 scarifications and still not have the right situation.   Generally, the more scarifying you do, the more dormant seed you are going to bring up.”

A passage commencing at 333.10 is the last I wish to quote.:-

“Q.    If I can just take you to your report, that conversation that you said Mr. Prebble had with you, where he told you that he and Mr. Flower had inspected and found melilotus and then you go on in your report “noticed an overlapping effect caused by the seeder”, was it your understanding of that conversation that it was the seeding effect that caused the germination, rather than the dropping of seed from a seeder.  

A.     No in that situation when I wrote that down I meant that there was an abundance of seed coming through there because of the overlapping from the actual seeder.

Q.     What do you mean by an abundance of seed.

A.     If you double up or you overlap you are going to have twice as much seed come into that double area.

Q.     In terms of being sowed.

A.     As being sowed.

Q.     So you understood that conversation as Mr. Flower or Mr. Prebble both, saying that there had been melilotus seed dropped by the sowing mechanism.

A.     No he just basically said that, not saying that it had actually been done or anything, but that could have been an option why there was some thicker plants throughout....”

............. The other factors were those I have already mentioned.

............. Mr. Williams never came to a firm conclusion as to the cause of the infestation.   He did not even elevate the contaminated seed theory above the dormant seed theory.   He did not document or recall observations on site which would enable others, looking back later, to come to a conclusion.

............. Soon after Mr. Williams’ visit, Mr. Prebble, together with Mr. Flower, the chief seeds officer from the nearby Struan Agricultural Centre inspected the crop.   They, and Mr. Flower in particular, felt that so much melilotus was growing between the rows from the seeder that it could not be attributed to the seeder.   This is odd, because if the seeder is not implicated, it is hard to understand why dormant seed germinated at that moment, in that pattern.

............. They put forward a further theory.   It is that, in previous years, when previous crops were harvested, the combine used separated trash, including melilotus seed, from the grain or other crop being harvested and threw it out the back of the harvester in concentrated “stripes”, giving rise to the “stripes” of melilotus they say they saw.   (“stripes” is my word, not theirs.)

............. The plaintiff described his harvester and explained that it was fitted with a Hannaford screen, which is a device designed to catch and trap weed seed, rather than to throw it out behind the combine.   He said that he always used the screen and produced a jar of what he said was waste seed, including melilotus seed, which he had caught in his Hannaford screen.   Moreover, he said, he did not harvest in the previous year in the pattern he said was disclosed by the stripes of melilotus.   That is not conclusive, as the pattern might reflect harvesting in earlier years, even in years before the plaintiff owned Merunga Downs.  

............. Mr. Flower has a great deal of experience with the seed certification scheme, though he is now self employed and independent.   Mr. Prebble is a seed merchant and seed cleaner on quite a large scale.   They both approached the problem from the view point that certified seed had been sown and that the infestation was far too extensive to be compatible with it resulting from certified seed.   Neither considered the possibility of incorrect seed having, in error, been supplied and used.

............. They considered the possible involvement of the seeder more in the context of cultivation triggering germination of dormant seed than as introducing new seed.   They considered the harvester “blow-by” theory.    Mr. Flower still prefers it.  They deny that either actually admitted to Mr. Owen Williams that “the cause” was the seeder, or admitted to “overlaps” caused by the seeder.   In my view, Mr. Williams did not claim that either made a clear admission.   Rather, he agreed that Mr. Prebble acknowledged involvement of the seeder as one of the possibilities.

............. The plaintiff claims never to have detected melilotus on his property before this year.   If that were true, it would be an important, though not conclusive factor.   If a paddock containing growing melilotus is grazed, the melilotus may be kept low and may show few or no flowers to mark it out from other clovers.   If it occurred in previous crops, it may have been hard to see if it grew only to a height less than that of the crop (though it should have been easy to smell on harvesting).       The plaintiff’s evidence covers some 15 years and a variety of grazing and cropping uses of the four paddocks the subject of this claim.   It is certainly strange for melilotus not to have been noticed sooner.

............. Mr. T.R. Williams and Mr. Miles are both experienced farmers, who are familiar with nearby farms over many years.   They both regard melilotus as endemic to the district, particularly in wet areas.  The amount varies from year to year, but it is always around.

............. Merunga Downs is part of what had been a larger property owned by the Majors.   Mr. R.W. Major was raised on it and, on leaving school, farmed it until he was about 35.   He sold it to the plaintiff.   He said melilotus was always present, but more so in wet years.   In such years it could be particularly thick.   (1995 was a fairly wet year, with early rain.)   He and his father used to be pleased to see melilotus as they regarded it as useful feed.   He has no axe to grind in this case.   From his evidence, it must follow that there would have been a good deal of melilotus seed naturally scattered over Merunga Downs for many years before the plaintiff owned it.

............. Some of that seed would have been soft and would not have remained long in the soil ungerminated.   Some would have been hard and could have survived for a long time, as I have noted, perhaps 30 years, or more.  I find that, in 1995, there was melilotus seed in the plaintiff’s paddocks, capable of germination in the right conditions.   The conditions in 1995 - early rain and cultivation - are conditions capable, in conjunction with other factors, of triggering germination.

............. I doubt the claim that no melilotus was detectable in the fifteen years before 1995, but I accept that it may not have been at all prevalent.   It may have been grazed down and hard to see.   To a layman, such as me, it is strange that a crop of hay grown the previous year was sold to a dairy farmer, apparently without problems.   Having regard to the deleterious effect of melilotus on milk, and to its smell in hay, and to the evidence that the purchaser inspected the growing crop, one would have expected trouble if there had been much melilotus in that hay.   I therefore accept the evidence that it was not noticed in the 1994 crop.

............. I accept that the plaintiff is convinced that he was sold contaminated seed.   I find that that most improbable, though possible in theory.   The only hard evidence is the later emergence of melilotus.   There is another explanation for that  which, though somewhat unlikely, is a good deal more likely than the sale of contaminated seed.   I am not persuaded by his evidence about the bags in which he said the seed was supplied.   I think that evidence was probably an inaccurate reconstruction by the plaintiff.   The pattern of the outbreak in each paddock is not clear enough to prove the case.

............. I should comment on a few details.   In part of paddock one, a different crop was sown, which was not infested.   Part of paddock four was later sown with seed from Naracoorte Seeds and that part was not infested.   It is implicit in the defence and expert evidence that a particular conjunction of factors is required to cause dormant melilotus seed to germinate.   I do not know what changes in climatic, soil or cultivation conditions may have applied to the two areas at the different times when they were planted.   I am not satisfied, even accepting they were weed free, that that was attributable only to them having been sown with clean seed.         The same general conclusion prevents me from working backwards through the subsequent history of infestation in the four paddocks to try to come to some conclusion about the cause of the infestation.

............. There was an attack on certain of the third party’s documentation of its purchases of seeds.   The third party has had stationery printed for various aspects of its business.   It has order books and also books in which to record the receipt of seed which it buys in.   Receipts should go in “inwards returns books” such as TP49.   One page in that book appears to record the receipt of some seed which is not elsewhere recorded in the documents produced by the third party.   Other seed was able to be traced from the moment it came in to the moment it left the third party’s premises.   The plaintiff suggests that TP49 may reveal seed wrongly supplied to him.

............. I prefer Mr. Prebble’s evidence to the effect that, because his company had run out of printed order books, TP49 was being used as an order book, rather than a receipt book.   The seed referred to would, he said, be further documented in other records not before the court and not produced because, until the very end of the case, he did not know they were needed.  I do not draw any adverse conclusion from the absence of further documents.    I mentioned earlier that the focus of the case changed markedly as it progressed.   I can readily accept that, in discovery going well beyond what was legally required, this argument and the plaintiff’s claim were not anticipated.   The plaintiff did get one witness to agree that TP49 was a receipt, rather than an order, but I prefer the evidence to the contrary.   Even if I am wrong, I would not conclude that this was the solution to the plaintiff’s problems.   That would require me to elevate a remote possibility to a probability.

............. For these reasons, I do not believe that the plaintiff has established, on the balance of probabilities, that the melilotus infestation from which he suffered in 1995 was caused by contaminated seed supplied to him by the defendant.   I dismiss the claim.   It follows that the defendant has not proved that it was, in turn, supplied with incorrect seed by the third party.   The claim against the third party is dismissed.   In these circumstances, it is not necessary to embark on the difficult task of assessing the plaintiff’s loss.