A long-running legal battle between a group of sorghum farmers and a major seed company has ended with the Queensland Supreme Court dismissing the case.
- Farmers sought damages from Advanta Seeds for selling contaminated sorghum seed
- The case was dismissed by a Supreme Court judge in Brisbane and plaintiffs have 28 days to appeal
- The judge found the multi-million-dollar damages claim was not reasonably accurate
About 120 sorghum growers in New South Wales and Queensland joined the class action, arguing bags of MR43 Elite sorghum seed supplied by Advanta Seeds, formerly known as Pacific Seeds, were contaminated with the seeds of a weed called shattercane.
The contaminated seed was advertised as 99 per cent pure and the plaintiffs claimed damages for negligence or misleading conduct on the part of the company.
Advanta Seeds strenuously denied the allegations of negligence or breaches of duty and managing director Barry Croker said the company was pleased with today’s ruling.
“From here we intend to continue to invest in research, technology and new products and support those hardworking farming businesses who are the backbone of Australia’s agricultural sector,” he said.
Mr Croker said Advanta would not make further comment on the case.
The plaintiffs have 28 days to appeal the court’s decision.
Case dismissed in court
The contaminated crops were planted in 2010 and the weed infestation that ensued cost some farming enterprises millions, according to Dan Creevey from Creevey and Russell Lawyers.
The plaintiffs argued the certified seed bags were contaminated with shattercane and retailed with negligence and inadequate warning.
The allegations of negligence centred around breaches of the duty of care farmers believed Advanta Seeds owed them.
But Justice David Jackson concluded there was no duty of care.
“The plaintiffs do not establish that, for the tort of negligence, the defendant owed a duty of care to the plaintiffs to take reasonable care to avoid the risk of economic loss of increased expenses of farming operations and decreased revenue from sorghum sales if MR43 seed was contaminated,” he wrote.
In its defence Advanta Seeds argued that the “terms of sale” printed on the bags operated as a disclaimer of an assumption of responsibility.
“Pacific Seeds Pty Ltd will not be liable to you or any other person for any injury, loss or damage caused or contributed to by Pacific Seeds Pty Ltd (or its servants or agents), directly or indirectly arising out of or related to the use of the product in this bag, whether as a result of their negligence or otherwise,” the terms read.
Breach of duty
The farmers also accused the seed company of failing to adequately test or “grow out” the MR43 Elite prior to sale, which may have revealed contamination.
A grow-out refers to planting and growing a sample of seed from a production batch to assess if it is contaminated.
Advanta Seeds stopped doing grow-outs of samples of sorghum seed produced for commercial sale from 2006, according to court documents.
Justice Jackson found Advanta Seeds did breach a standard of care for failing to conduct a grow out prior to the sale of the contaminated batch of sorghum seeds.
The plaintiffs also accused the seed company of breaching its duty by failure to warn customers of contamination until mid-March 2011.
Employees of the company became aware of the problem in mid-December 2010.
Justice Jackson made no finding on whether Advanta breached duty or was misleading or deceptive by keeping silent.
Justice Jackson said the individual plaintiffs’ damages claims were not accurate enough for him to award aggregated damages to the class action group.
The defendant argued there were a number of variables not represented in the plaintiffs’ evidence of losses.
They included the variability of sorghum yields, sale prices and overhead costs, the area planted with contaminated seed, and farming practices and rotations.
“An overall reading of the evidence as to the losses suffered by the plaintiffs and sample group members is itself enough to demonstrate the high degree of variability in the losses suffered by group members, which cannot be simply averaged on either an area or per bag purchased or planted basis to give a reasonably accurate assessment of the individual losses,” Justice Jackson said in his judgement statement.
Justice Jackson is yet to issue orders in regard to the legal costs of the defendant and has called for submissions before making the decision.
The plaintiffs’ lawyer was unable to be reached for comment.