The class action, led by Creevey Horrell, alleged that farmers suffered significant loss and damage as a result of alleged contamination of sorghum with seed from the weed shattercane.

The appeal was first lodged in the Queensland Supreme Court in 2021 after the court ruled in favour of Advanta Seeds in the class action originally launched by growers in 2017.

At the time, Creevey Horrell (formally Creevey Russell) principal Dan Creevey said he was “disappointed” in the ruling.

“While disappointed for the farmers with the ultimate finding of the court in the primary case, in terms of an appeal, we were pleased the judge did in fact find in the farmers’ favour in a number of key respects,” he said in 2021.

“This includes with respect to the cause of the contamination, the fact the farmers who gave evidence had suffered considerable economic loss as a result of the contamination, and that the farmers were not out of time to bring their claims.

“One of the key points for the appeal will be whether the primary judge was correct in finding that the duty of care owed by Advanta to the farmers was negated by a disclaimer he found to have been on the bags of the Advanta seed purchased by the farmers around 2010.”

Now, on behalf of the applicant farmers, the firm has applied for special leave to appeal the entire judgment of the Court of Appeal of the Supreme Court of Queensland.

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The judgment of the Court of Appeal found that although the farmers were vulnerable end users, Advanta’s disclaimer made the manufacturer exempt from any assumption of responsibility — and as such, unanimously found that Advanta did not owe the farmers a duty of care.

The disclaimer in question effectively read: “you should be aware this product may contain contaminants which could cause losses to your business … And if you buy our product, you must take on that risk”.

However, Creevey Horrell disagrees with this notion and is seeking three grounds of appeal in the High Court 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.”

Mr Creevey said the application seeks for the orders made by the Court of Appeal of the Supreme Court of Queensland on 28 February 2023 to be set aside and the orders made by the Supreme Court of Queensland on 9 April 2021 also be set aside.

“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,” he added.

“We are also seeking for the respondent to pay the applicant’s costs of the appeal and the trial.”