AN appeal has been lodged in the High Court in a long-running class action by farmers involving the alleged contamination of sorghum with seed from the weed shattercane.
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Queensland legal firm Creevey Horrell Lawyers lodged the appeal following a ruling by the Court of Appeal of the Queensland Supreme Court in a class action involving farmers against Advanta Seeds Pty Ltd.
The application seeks special leave to appeal the entire judgement in favour of Adanta Seeds given on February 28.
Shattercane is described as an "off-type" of sorghum. Growers argue shattercane outcompetes growing sorghum and as a grass similar to sorghum, it is impossible to control in growing crops.
As the name suggests, the seed heads on shattercane do not retain their seeds on maturity, allowing them to naturally drop to the ground. The seeds are also said to have an extended dormancy period.
Advanta supplies about 70-80 per cent of the sorghum seed planted in Australia.
The class action was originally lodged by growers in 2017. At that time, the Court of Appeal ruled in favour of Advanta Seeds in relation to Advanta's MR43 sorghum seed planted in Queensland and Northern NSW between 2010 and 2014.
Creevey Horrell principal Dan Creevey said the appeal was being sought on three grounds of appeal.
"The Court of Appeal erred in failing to find that the respondent manufacturer (Advanta) owed a duty of care to the applicant farmers as end users of its MR43 seed product, sold to them through distributors," Mr Creevey said.
"Advanta failed to take reasonable care to avoid the risk that such end users who used the product as intended on their land for sorghum farming would sustain economic losses by reason of hidden defects in those goods.
"The Court of Appeal also erred on the question of whether Advanta owed such a duty of care as manufacturer to the applicant farmers, in finding the presence of a disclaimer of liability on the product packaging for the MR43 seed product negated any assumption of responsibility by Advanta so as to preclude the duty of care on the part of the manufacturer arising.
"On the question of whether Advanta owed a duty of care as manufacturer to the applicant farmers, the Court of Appeal erred in proceeding on the basis that the potential for the farmers to avail themselves of contractual and statutory protection in their dealings with distributors, and the absence of statutory protection of the farmers as consumers in Commonwealth consumer protection legislation, were matters which supported not expanding the protection available to persons in the position of the applicant farmers by recognising a duty of care."
Mr Creevey said the application was also seeking for the respondent to pay the applicant's costs of the appeal and the trial.
Advanta Seeds managing director Andrew Short said in a statement that Advanta Seeds respected the right of the plaintiffs to lodge an appeal with the High Court in the class action Mallonland Pty Ltd and ME&JL Nitschke Pty Ltd v Advanta Seeds Pty Ltd.
"We will again vigorously defend our position in this instance," Mr Short said.
"Advanta Seeds was pleased that the Queensland Court of Appeal on February 23, 2023, ruled in our favour, upholding the first instance decision in the class action Mallonland Pty Ltd and ME&JL Nitschke Pty Ltd v Advanta Seeds Pty Ltd.
"Advanta Seeds began in Central Queensland more than 60 years ago and we're extremely proud of the contribution we've made to farming right across Australia.
"Throughout this case, and indeed over our entire history, Advanta Seeds has worked closely with growers to support improved crop productivity and profitability.
"We are committed to continued innovation and investment in our ever-evolving agricultural industry; to develop new varieties and technologies which assist those hardworking farming businesses who are the backbone of Australia's agricultural sector."
