IN THE FEDERAL CuonhT Gr AUSTRALIA ? ) NEN SOUTH WALES DISTVICT REGISTRY , No. 175 of 2382 ) SEVERAL DIVISiON ) BETWEEN : PATRICK JOSEPH MINEHAN and HAZEL JOSEPHINE MINEHAN apoitcanre: ANL: Jick FOWARL CYOUNG: ET. LInteeo Respondent ORDERS CORAM: ST. JOHN. J. DATE: 24 MAY 1984 PLACE: SYDNEY 1. Judgment for the applicants in the sum of nine thousand and ten dollars (89,010). 2. The respondent 18 ordered 9 pay the applicants' costs or the action. re S w Peas}en s RS] ce lal [as] tc! = las) Hy Ke] I~ oa H As tm fa) re w 1] ru Het Fat a t un Oo m, - vet wo ta BETAGEN : PATRICK JOSE Ht Jos YaZEL JOSEPHINE MINERAN t q Hed oat n= ye . Respondent EXTEMPORE 7: REASONS FOR JUDGMENT CORAM: ST. JOHN. J. DATE: 24 MAY 1984 PLACE: SYDNEY This application 15 for aamages oursuant tc S. G2 of nts, Patrick fo 1) the Traae Practices Act 1974 1n thicn the applic Ie wi Josepn Minehan and h wite, ace suing for damages 1n resvect to a baling machine supolied by the respondent comoany. Aiter some davs of hearing, the respondent samnitted liabiiity and I have heard evidence cirected to the question of che damages wnhicn snoula fiow from the baler nat being reasonablv fat For the vucpose for which 217 was supplied. The evidence relating to camage comes. in the main. in the form of CH MINEHAN and I .TobNS. ETT. - ney ta com che apolicant. Patrick Minenan, who nas Do as) we I~ ay st B ta ibQ 15) ball been a farmec in the Wombat district near Young for over thirty years. He had previocusiy been in vcssession cr, ana ar the time of this purcnase was still in possession of, a baling machine which baled hay into square pales. Tn or about June 3 ri, ee 'g Lo ee ta) fo re) 'O Ssy oO 'y Hi) fen ql Fe) i) rs 1D er) 'S fa)fat 1D i] rt company with the obtect af satisivina hRimseil wheatner of net he should puy a new tyoe of baler which procucea a rouna bale, eeally aocylindricai bale whicn was much heavier tnan the conventional square baie. The machine, which was later admitted not to be reasonably f1t for the wurpose. was delivered to him late in August and he persisted in attempting to make it work efficiently with and without the assistance or the respondent company until 17 November 1980, at which time a representative of the respondent company conceded that 10 would not work. At this per21od, the apolicanr, Patrick Minehan says fod that he had cut on his own property a numper of acras of hay and by the time 17 November had arrived. this hav had dried out to the extent that 1t was impossible ta bale, and in his view it had lost all nutritional value. He seexs to claim th ay total value of that hay which his counsel suts at some seventy-seven thousana doilars (877,000) as vart oF his damages. ua The other item of damace over which there is contention 1? Loss or prorit trom TREFATING 35 & convract rere he would co , paler for otner properties in the district w om cto them ana bale hay at a certain amount per bale. Over a 'S number of years he has done contract baline, but in 1979, or the financiai vear ending June 1980, ne had net done any contracting. #0 far as the ourchase of the baling nacnine 1s o This case, so far as the applicant is concerned, has been presented in a way which makes 1t extremely difficult for me to make any calculations at all in relation to whatever damage the applicant might have suffered. For example. there 1s absoluteiv no evidence at all as to the running costs of a aler or a new paier which croauc Ss round bt wo conventional square Dales. There 15 very little evidence as to what wouid be the average number of bales whicn coula be produced br a rouna baler and there is very little evidence as to what baling would have been available to Mr. Minehan hac the baler been operative, put as a general background, there 15 the evidence of Mr. Parker, an aqgronomist employed bv the Department of Agriculture in a district including the -selevant one. There are some statements oy him that I accept were selative to che aquestion of damac rt) ih Firstiv, Mr, Parker Said, with the beneltit af yetceshing his vrecollection cf rainfall by locking at one oF fu the exhibits to an atiidavit where the rainfall in particular area 1s recoraed, that the vear was not a good year for hay making. That is contrary to My. Minehan''s assertion, and = accept the evidence oF Mc. Par ec. r The nexco matr tg rois whether ar noc tne nay which Me. Minehan savs that ne had cut on his oropertrr, and he says naa dried out. could have been baled ana whether or not, had it been baled, 1t would have lost nutritional value. Mr. Parker says that the drying out of hay and the bleaching caused by the sun does not atrect the nutritional value of the hav and that 1t could have been baled early in the morning arter the precipitation or dew, or in the evening after that event had taken place. Mr. Minehan agrees that this is vossible and savs that 1t 'vould noc be saleable b @ of 1ts lack of iD a BY w weldght. I am prepared to accent that it would not be as attracsive to ourchasers, but so far as loss to Mr. Minehan is concerned, the fact that he did not bale the hay was the result of his own ignorance that 1¢ had not lost nutcitional value and chat he had € s un o ye} ad with nis attempt cto get che round baler working in circumstances where 1t miqght have been more prudent for nim to abandon that attemmpt and cto use his square bales to bale his ow hay. 5. Me. Minehan said that che baling s a Pn) a) ODH a a i) ember 50 Tnat in aS c Nn district was in November and be Le) wo or) £4) BQ ough the unavarlasility of th ct > oO tad o £ A what he mav have lost ry balér, attention should be directed only to those two months. As to what a round baler could bale in two months, there 1s 1davit of Mr. o fu ball ry oniy one piece of evidence and that is in th D Gardiner where he sav? that in avproximacteiv one month, from Ll <2 25 November, he bailed slianctiv under signt nundsed (245. nals: on a number or orovertiés in the area. Again, I would emphasise in relation to that, that there is no evidence at ali of the running costs of the round paler. There is no evidence of what the hire purcnas charges would have been had the hire purchase agreement continued in existence, because no doubt the hire ourchase agreement would have continued in existence had the baler been able tc be operatea efficiently, so that in assessing his claim for loss or the use of the baler on voroverties other than his own, 1 a have to indulge in what mignt be described as pure specuiation as to what the real measure of damaqg2 was for a number of reasons, inciuding the iack of evidence as to what the overating costs vere. Additionally, there us eviaence from Mr. Packer which I accept. that, because of lack of work for baling contvactors a wD Lal) 'S 1p () an the Yass district, a numpér oOo opie who aia that sort of work moved to Boorowa and w 1b a iv) re]ry fa qa ing there ana would cave 5. been avarlabie codo work aun the area where Mr. Minehan thar che 1¢ fa) rh snould worn. ZT am satis fe) u a aA ct ry rn) a p ib prop contract orice for baling a round bale was in the order of seven dollars ($7) cer baie and that there would be avallabie to Mr. Minehan approximately one month's work during the months of Novemper and Decemnoer 1980. Attemptina to puta figure on what his loss of protit might have oneéen is, in the cigtumetances, 2 Neoulous OUSINSss, CUT Che OSs - TAM aC 1s tu ct G say that, in my vier, a figure of tThres tacussnd aol ($3,000) would fully compensate nim for his less of vrofit due to the unavailability of the machine to do contract pbaline. As to his ciaim in vesvect of the hay on his own property, there are a number of factors which mitigate against ut. Farstly, I am of the opinion that the quantities that he says ne would have baled from that property nave been grossly exaqderated. Ir they were worth seventy-seven thousand dollars 18377,000), ic would pe the areatest + a had in wD fu ae} w rm) tw t tt ra) a ct at pp m Be farming since 1977 by many thousands or dolla a) Ss. n tarminag operation which he conducted drew I ct S profits from sheep and cattle, from property rent, contracting. wheat, grain, oats and hay. So far as hav and straw were concerned Tor the vrevious four vears including the relevant vear, no prortit had been made whatever from hay and straw. diligent in two ways; firstly, he did not bale it with the square baler or cali anyone else to bale ait and I am Satisfied, having reqard to Mr. Parker's evidence. there voula have been peaoria available to bale had he taken the trouble to make inquiries and engage someone to do so. In relation to that, of course, he took the view. because it had dried out, he did not realize that 1t still nad nutricvional value. coule re balea and cauld be used for stecwn, althcuds FI fae is) w 5) 2) iy 3] shat it would be less saleable aried and balea than it would Again, doing the best I can in relation to damages for such loss as he sustained from his own crop, If am prepared to award under that head or damages the sum of four thousand dollars (s4,000). There will therefore re a verdict and judgment for the applicants in the sum of nine thousand and ten dollars ($9,010) and the respondent is crdered to pay the applicants' costs or tne action. I certify that this and the preceding pages are a true copy of the Extempore Reasons for Judgment herein or his Honour Mr. Justice St. John. Associate: e Dated: 2 June