FEDERAL COURT OF AUSTRALIA

Cultivaust Pty Limited v Grain Pool Pty Limited [2005] FCAFC 223

CORRIGENDUM

CULTIVAUST PTY LIMITED v GRAIN POOL PTY LIMITED AND ORS

SAD135 OF 2004

FINN, EMMETT AND BENNETT JJ

28 OCTOBER 2005 (CORRIGENDUM DATED 3 NOVEMBER 2005)

ADELAIDE

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

CORRIGENDUM

1                     [56] of the judgment should read:

            “In dealing with s 14 of the Plant Breeder’s Act the primary judge considered the meaning of s 14(1)(b), which is in the same terms as s 15(b).  The primary judge, in dealing with whether Tasmania had a ‘reasonable opportunity to exercise the grantee’s right in relation to Franklin barley produced or reproduced without its authorisation’, the primary judge characterised Tasmania’s ‘rights’[sic]as ‘exclusive, but negative’ and said that the exercise of ‘those rights’ [sic] involved, if necessary, action under s 54 of the Plant Breeder’s Act.  However, s 54 simply provides that that an action for an infringement of PBR in a plant variety may be begun in the Federal Court.” 

2                     [57] of the judgment should read:

            “His Honour’s characterisation may involve a confusion of the concept of exercising the right that constitutes PBR with the concept of enforcing rights that arise under the Plant Breeder’s Act by reason of infringement of the right, conferred by the Plant Breeder’s Act, that constitutes PBR.  That is to say, if s 14(1) be relevant, the primary judge may have misconstrued s 14(1)(b) in failing to distinguish between the grantee’s right under s 11 and the secondary rights that arise by reason of infringement of that right, as provided for in s 53(1).  In the light of the conclusion reached above, it is unnecessary to resolve that question but it should not be thought that his Honour’s view of ss 14(1)(b) and 15(b) would necessarily be endorsed if the question arises in the future.”

Associate:

Dated:              3 November 2005