Wilkins v Dovuro Pty Ltd

FEDERAL COURT OF AUSTRALIA

Wilkins v Dovuro Pty Ltd [1999] FCA 1816

NEGLIGENCE – Supply of canola seed taken from lines contaminated by weed seeds  Canola seed produced in New Zealand by second respondent on behalf of first respondent – Seed supplied to Western Australian farmers – Weeds not known in Western Australian agricultural areas but not prohibited from importation into Western Australia – Losses and expenses sustained by farmers in following recommendations of Western Australian Department of Agriculture – No evidence of an observed weed plant emanating from the seed – Claim for recovery of losses and expenses – Whether first respondent was negligent in failing to ascertain acceptability of the seed in Western Australia and/or warning farmers – Whether second respondent owed a duty of care to farmers – Whether second respondent breached any duty of care.

TRADE PRACTICES – Whether either respondent was under a duty to speak, so that its failure to warn constituted misleading conduct.

SALE OF GOODS – Implied terms – Whether first respondent relied on second respondent’s skill or judgment – Whether seed was of merchantable quality.

Trade Practices Act 1974, s52
Sales of Goods Act 1908 (NZ), s16

ROBERT JOHN WILKINS, EILEEN JOYCE WILKINS, TREVOR IAN WILKINS, SUSAN CAROLINE WILKINS and LOCHIEL NOMINEES PTY LTD AS TRUSTEE FOR THE R & E WILKINS FAMILY TRUST all t/as R & E WILKINS v DOVURO PTY LTD, CROP MARKETING NEW ZEALAND SOCIETY LIMITED, DOVURO PTY LTD – First Cross Applicant, CROP MARKETING NEW ZEALAND SOCIETY LIMITED – First Cross Respondent, CROP MARKETING NEW ZEALAND SOCIETY LIMITED – Second Cross Applicant and DOVURO PTY LTD – Second Cross Respondent

NG297 of 1998

WILCOX J
SYDNEY
23 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG297 of 1998

BETWEEN:

ROBERT JOHN WILKINS, EILEEN JOYCE WILKINS, TREVOR IAN WILKINS, SUSAN CAROLINE WILKINS and LOCHIEL NOMINEES PTY LTD AS TRUSTEE FOR THE R & E WILKINS FAMILY TRUST all t/as R & E WILKINS
Applicants

AND:

DOVURO PTY LTD
First Respondent

CROP MARKETING NEW ZEALAND SOCIETY LIMITED
Second Respondent

DOVURO PTY LTD
First Cross Applicant

CROP MARKETING NEW ZEALAND SOCIETY LIMITED
First Cross Respondent

CROP MARKETING NEW ZEALAND SOCIETY LIMITED
Second Cross Applicant

DOVURO PTY LTD
Second Cross Respondent

JUDGE:

WILCOX J

DATE OF ORDER:

23 DECEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.Insofar as it relates to the claim against the second respondent, Crop Marketing New Zealand Society Limited, the principal proceeding be dismissed.

2.Each of the cross claims be dismissed.

3.The first cross applicant, Dovuro Pty Limited, pay to the first cross respondent, Crop Marketing New Zealand Society Limited, the costs incurred by the said cross respondent in relation to the proceedings, other than any costs that were incurred only by reason of the joinder of Crop Marketing New Zealand Society Limited as second respondent to the principal proceeding.

4.The applicants, Robert John Wilkins, Eileen Joyce Wilkins, Trevor Ian Wilkins, Susan Caroline Wilkins and Lochiel Nominees Pty Ltd all…