A GROUP of sorghum growers is awaiting the outcome of a class action against seed company Advanta Seeds, with a High Court of Australia hearing concluding last week.

Law Firm Creevey Horrell Lawyers, on behalf of Darling Downs growers, Andrew Jenner, trading as Mallonland Pty Ltd, and ME & JL Nitschke Pty Ltd successfully applied for special leave to appeal to the High Court in October after losing an appeal in the Supreme Court of Queensland.

Both parties are representing a cohort of about 100 sorghum growers from Queensland and New South Wales who claim they suffered losses after planting sorghum seeds.

The action relates to a sorghum seed product, MR43, sold by Advanta Seeds (then Pacific Seeds) between 2010 and 2014.

The appellants claim seed was contaminated with shattercane, which corrupted the growth of the sorghum crop as well as future crops grown in the paddock.

The sorghum seed was packaged in bags labelled with the respondent’s terms and conditions of sale, which included a disclaimer of liability.

Both sides agreed that Advanta knew the seed was contaminated by shattercane and it was “reasonably foreseeable” that the shattercane would impact the production potential of the land.

In the Supreme Court of Queensland and the subsequent Court of Appeals hearing, Advanta has successfully argued that a disclaimer warning “clearly and prominently marked” 2010/2011 summer season MR43 sorghum seed told growers of the risks.

The company claimed the warning told growers that it could not guarantee the purity of the batch, nor take responsibility for any negligence in the manufacture of the product.

The appellants alleged that Advanta had breached a duty of care by engaging in misleading or deceptive conduct in connection with the supply of the seed, which resulted in loss or damage.

They argue that Advanta had failed to conduct a grow-out of the contaminated seed before supplying it to the public, had failed to undertake scientific testing, and had failed to warn them of the need to remove the shattercane.

Creevey Horrell Principal Dan Creevey said the appellants “have been suffering from the impacts of shattercane for a long time and continue to suffer”.

Mr Creevey said the Court of Appeal erred in failing to find Advanta owed a duty of care to the applicant farmers as end users of its MR43 seed product, sold to them through distributors.

“We submit 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,” Mr Creevey said.

“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.

“It is our position that disclaimer should not operate to allow Advanta to avoid responsibility for the contamination.”

The original class action against Advanta Seeds was launched in 2017.

According to the plaintiffs, about 28,000ha of land was impacted by shattercane infestations, causing about $105 million in losses.

Sources: High Court of Australia, Supreme Court of Qld and Court of Appeals, and Creevey Horrell Lawyers