Wilkins v Dovuro Pty Ltd [1999] FCA 1816

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