Cultivaust Pty Ltd v Grain Pool Pty Ltd

Franklin barley 15 Barley is a cereal crop. It is grown world wide, and is used for various purposes including malting for brewing beverages (beer and whisky), as an ingredient for food production, and for stock feed. In Australia, barley is usually sown in autumn and winter, and is harvested in late spring or early summer, although the sowing and harvesting period varies with the local climate. In broad terms, barley in Western Australia is sown from about early May in each season and is harvested from November to January or early February in each season. 16 Characteristics of barley include its dormancy period, that is the period of time between harvesting and the ability of the barley to be made into malt; its maturation period, that is the period of time between sowing and harvesting (affected by such matters as climate, geographical area, and soil conditions); its disease resistance; and its shape. In the 1960s, typical Australian bred barleys tended to be shorter and broader grains than typical European bred barleys. 17 Malt extraction refers to the percentage of sugars that can be extracted from barley that can be used as a substrate for yeast to ferment and produce alcohol in the production of beer and whisky. 18 The yield of barley is the amount (metric tonnage) of grain harvested per unit area. 19 Diastatic power is a term used in the malting industry that relates to differences between varieties of barley in enzyme activity or the amount of enzymes that are available to break down starch to produce sugars. Higher diastatic power means a better barley for malting purposes. 20 In the 1980s, the then available varieties of Australian barley produced lower malt extracts and lower diastatic power than varieties available internationally. As a result, Australia's share of the significant Japanese market for malting barley was reducing, particularly in the face of competition from certain varieties of Canadian malting barley. 21 The evidence about the development of Franklin barley is not in dispute. Wayne Vertigan (Mr Vertigan) was the agricultural scientist principally involved in the development of Franklin barley. He started work with the Tasmanian Department of Agriculture (now the Department of Primary Industries, Water and Environment) (the DPI, Tasmania) in 1963 after completing tertiary studies, and remained there until 1996. He then worked for four years with the Tasmanian Institute of Agricultural Research (TIAR), a joint venture between the DPI, Tasmania and the University of Tasmania. 22 Mr Vertigan began a barley breeding program in 1986. He was seeking to develop a barley breed resistant to a particular virus, and with characteristics more typical of European varieties of barley. That work led first to the development of a virus-resistant variety called Sharmon barley. Sharmon barley produced larger seed in high rainfall areas and smaller seed in lower rainfall areas. It was grown principally in Tasmania, and was used mainly for feed barley for animals or as an ingredient in food products. The barley variety principally used in Tasmania for malting and brewing until 1989 was a variety called Proctor, a variety used widely in the United Kingdom. 23 Stuart Smith (Mr Smith), the Team Leader of the Pastures and Grains Section of the Extensive Agriculture Branch of the Primary Industries, Water and Environment Department of Tasmania (the successor in title to the DPI, Tasmania) was employed from 1972 as a seed agronomist, of course with increasing seniority and responsibility. He confirmed that the DPI, Tasmania has since 1972 conducted plant breeding and development programs, and has released and 'commercialised' a number of cultivars, including Franklin barley. 24 In 1980, Mr Vertigan commenced tests on the German variety of barley called Triumph. That variety was then released in Tasmania in 1984. It had certain characteristics which were better than Sharmon barley or Proctor barley, but had a longer dormancy period. Mr Vertigan then conceived the idea of combining the best characteristics of Sharmon barley and Triumph barley, particularly directed to developing a barley suitable for brewing. He prepared a report and recommendation for the commencement of a barley breeding program, and was authorised to proceed. 25 The selective breeding program extended over several years, monitored in each generation in relation to growth characteristics, disease resistance, straw strength and yield potential and grain quality. Field trials were conducted during the 1986 to 1989 seasons. The field trials enabled testing for grain size and protein level. In addition malting tests were conducted to assess the potential for commercial malting of the newly developed variety. 26 In early 1989, Mr Vertigan started to prepare an application on behalf of the DPI, Tasmania for plant variety rights under the PVR Act in respect of one particular breeding line of barley from the Sharmon/Triumph breeding line. He ascribed to it the name Franklin barley. On 6 April 1989 the Registrar of the Plant Variety Rights Office notified the DPI, Tasmania that provisional protection under s 22 of the PVR Act thereby existed until the application was finally dealt with, as described in the genus Hordeum, species vulgare, variety Franklin. On 19 January 1990 plant variety rights were granted under s 26 of the PVR Act to Tasmania in respect of Franklin barley, until 6 April 2009. 27 Mr Vertigan described the major attributes of Franklin barley as being: high grain yield under suitable growing conditions; flexibility of sowing time; very good disease resistance; strong straw and resistant to head loss; high malt extract; high diastatic power (i.e. starch degrading enzyme activity); and short period of grain dormancy. Its high malt extract and its high diastatic power made it an attractive barley to maltsters. 28 Franklin barley was formally 'released' for the use of farmers and to the maltsters in Tasmania in 1989. It was well suited to Tasmania's climate. It proved to be very popular, and within a period of a few seasons replaced other species of barley then grown in Tasmania and became the dominant barley in Tasmania. 29 It was also assessed as being suitable to regions of Western Australia, South Australia, Victoria and New South Wales which were cooler and had a higher rainfall. To generate interest in those States, small supplies of seed were sent out to their departments of agriculture for testing. 30 Two malting companies, Joe White and Barrett Burston (Aust.) Ltd (Barrett Burston) conducted farm growing trials in Victoria in 1989 and 1990 and in South Australia in 1990 and 1991 leading to full scale malting trials. Those trials led the DPI, Tasmania to claim that Franklin barley was likely to produce higher yields than current malting varieties of barley in the cooler and higher rainfall areas across southern Australia, especially with careful attention to crop locations and sowing time, and that Franklin barley had performed well in commercial malting and brewing trials. 31 The conditions imposed upon Joe White and upon Barrett Burston by Tasmania through John Thorp, Chief Officer, Pastures and Field Crops Branch DPI, Tasmania (Mr Thorp), in respect of the growing trials conducted in 1990 and 1991 demonstrate the concern on the part of the DPI, Tasmania to lay down a regime for the use of Franklin barley in those trials to preserve its commercial value. They were anxious to avoid 'leakage' by the use of second generation seed, that is by the use of seed retained from a previous year's harvest by a grower. They were conscious that such control over the use of a cereal variety seed, to exploit the benefits available under the PVR Act, was a novelty or a 'first' within Australia. 32 As appears below, trials of Franklin barley were also conducted in Western Australia in the 1991 growing season. The GPWA was not involved in those trials. 33 The success of the trials of Franklin barley in 1991 led Joe White and Barrett Burston to pursue the growing of Franklin barley by growers in Victoria and South Australia in the 1992 and subsequent seasons. Growers were obliged to sell barley through the ABB. The ABB was the statutory marketing authority to which all growers of barley (and other crops) in those states were obliged to deliver the barley they wished to dispose of, and the ABB then marketed that barley on their behalf. There were discussions between the interested parties, including the ABB. The correspondence indicates that Barrett Burston (International) Pty Ltd (BBI) rather than Barrett Burston was involved in those discussions. Nothing in this matter turns upon whether the relevant entity was BBI or Barrett Burston, so I shall refer to the two entities hereafter indiscriminately as Barrett Burston. 34 The discussions included Cultivaust's claim to impose a production levy or end point royalty upon all Franklin barley delivered to maltsters through the ABB at some point in the handling process.

arrangement with cultivaust 35 Cultivaust was registered on 20 June 1989 under the name Cambridge Farms (Australia) Pty Ltd. It changed to its current name on 11 June 1991. Its director is now Timothy John Teague (Mr Teague) who was appointed on 7 June 1991. Peter Clifford Semmler (Mr Semmler) was a founding director. He resigned as a director on 14 November 1995. The third director at material times was William Farnell Cormack (Mr Cormack), also a founding director. Mr Cormack died on 8 January 2002. Cultivaust did not operate from dedicated premises, or have its own staff. Its affairs were conducted through its directors, and they used the resources of their respective companies, which were its shareholders, for administrative support. 36 Cultivaust's equal shareholders are Jill Cormack Holdings Pty Ltd, previously called Demeter Cormack Pty Ltd (Demeter Cormack) and Teague Australia Pty Ltd previously called T J Teague (S.A.) Pty Ltd (Teague SA), a company under the control of Mr Teague and his wife. The financial position of Teague SA at material times is not disclosed on the evidence, although since 24 October 1990 its assets and undertaking have been the subject of a fixed and floating charge to the National Australia Bank Ltd and since 15 November 1993 a further charge to that bank. 37 Demeter Cormack had as its principal business the export of agricultural produce from Fremantle in Western Australia. Both Mr Cormack and Mr Semmler spent time promoting the interests of Cultivaust. Demeter Cormack went into voluntary administration on 16 December 1994. The purpose of the voluntary administration was to determine whether the company should be placed into liquidation or should enter into a Deed of Company Arrangement. On 7 April 1995, the creditors resolved to enter into a Deed of Company Arrangement which was duly signed on 27 April 1995, under which each of Mr Cormack and Mr Semmler agreed to contribute funds to the company, and its business and assets were to be sold to the intent that the creditors should receive a dividend of not less than 36 cents in the dollar. Subsequently, the Deed was varied on 31 May 1996 to provide for a lesser minimum distribution, the funds for which largely came from a payment by an outside entity (now a shareholder of Demeter Cormack) for an assignment of its debts. Ultimately the administration came to an end on 25 July 1996. The directors of Demeter Cormack included Mr Cormack, until his death, and Mr Semmler, who resigned as a director on 31 October 1996. 38 Subsequent to 25 July 1996, Demeter Cormack and Mr Cormack played no active role in the promotion of the business of Cultivaust. Demeter Cormack granted a charge over its assets to the National Australia Bank Ltd on 2 October 1997. It is common ground that Demeter Cormack has not been in a position to directly provide shareholder finance to Cultivaust at any material time. 39 The DPI, Tasmania sought to secure a commercial return from its plant variety rights in Franklin barley. It decided to retain and deal with those rights within Tasmania. It invited tenders from potential licensees with a view to licensing an entity to exploit the rights to Franklin barley outside Tasmania. In the course of considering the responses, the concept emerged of royalty collection for the exploitation of plant variety rights in Franklin barley not just from the sale of barley seeds. Although barley growers may purchase fresh barley seeds for sowing in each year, it was also common for barley growers to retain from a previous year's harvest sufficient seeds for the next year's harvest. The use of farm saved seeds for subsequent years' crops had, in the past, meant the supplier of seeds had a once-only opportunity for exploiting its plant variety rights, namely at the point of sale of the seed. The idea of some form of 'end product royalty' thus emerged, payable either by maltsters on usage, or in some way at the point of sale by growers, or at the point of sale to maltsters (or to exporters). 40 On 4 April 1989, the DPI, Tasmania notified Teague SA that 'subject to satisfactory commercial arrangements' being resolved, Teague SA would be appointed as the agent for the disposition and control of Franklin barley within Australia, outside Tasmania. That appointment was confirmed by letter dated 6 May 1991 from the DPI, Tasmania. It was subject to a formal document being agreed upon, and to Ministerial approval. 41 The DPI, Tasmania had also provided Franklin barley seed for growing trials, through a United Kingdom based seed and grain merchant, in the United Kingdom and some European countries. It is not necessary to remark upon the outcome of those trials. 42 It seems clear enough, as Mr Vertigan said, that the development of Franklin barley was a major development in barley breeding in Australia, particularly resulting in a significant improvement in available malting quality barley in Australia. 43 I accept the evidence of Dr Walker and Mr Thorp that in 1991 to 1992 they were the officers within the DPI, Tasmania directly responsible for seeking benefits from the commercial exploitation of Franklin barley, including of course quite extensive consultations with Cultivaust. Dr Walker left the DPI, Tasmania in March 1994 about the time of a departmental restructure. By early 1991, they had each adopted the objective of securing an end product royalty as well as a royalty on seed sold, as a means of increasing the commercial benefits from the development of Franklin barley, and in that context to regulate the capacity of growers to retain barley grown in one harvest to be used as seed for succeeding seasons. That approach, and the means of securing those perceived commercial benefits (including by the means implemented by the conditions imposed on the growing trials of Joe White and Barrett Burston in 1990 and 1991) were discussed at length with both Mr Teague and Mr Semmler of Cultivaust during their negotiations, leading to the appointment of Cultivaust as the agent for Australia (excluding Tasmania) for the sale and release of Franklin barley. 44 The negotiations with Mr Teague and Mr Semmler extended then over the succeeding months of 1991. In the course of those negotiations, the entity to be granted the proposed licence was identified as Cultivaust, being in effect a joint venture company of each of Mr Teague through Teague SA and of Mr Semmler through Demeter Cormack. A draft licence agreement was submitted to Teague SA and Demeter Cormack jointly on 6 May 1991. Although those negotiations did not result in a formal licence agreement until 31 January 1992, Mr Teague and Mr Semmler were introduced to officers of the ABB and to representatives of Joe White and Barrett Burston in April 1991 as the proposed licensees and they participated in discussions about the basis of payment for Franklin barley grain for those maltsters from 1991, including the concept of an end product royalty to be collected by the ABB on Franklin barley received by it from growers. For the 1991/92 trial growing season, the ABB was to co-ordinate production of Franklin barley for those maltsters on the basis that growers would not keep grain for seed for succeeding seasons' crops. Any direct seed sales, other than under the aegis of the DPI, Tasmania would contravene the PVR Act. 45 The culmination was the licence agreement dated 31 January 1992 between Tasmania and Cultivaust. The licence granted was throughout the whole of Australia, excluding Tasmania, and outside Australia, for a period of 10 years. It included the power to grant to others rights to sell seed (that is the reproductive material of Franklin barley), but subject to the written consent of Tasmania in the case of the right to purchase seed outside Australia. The licence obliged Cultivaust to produce seed to meet the demand for it, and to promote the sale of Franklin barley. It expressly provided that the intellectual property rights in Franklin barley (the plant variety rights and subsequently the PBR) remained with Tasmania, and for Tasmania to enforce its rights under the PVR Act (and subsequently the PBR Act) in relation to the use of Franklin barley. Royalties were payable by Cultivaust in respect of the sales within Australia of Franklin barley at 50% of the total royalties agreed to be paid in writing for 'seed sales' in the following calendar year. In addition, Cultivaust was to pay for seed ordered from Tasmania at its ruling price. 46 The agreement between the DPI, Tasmania and Cultivaust does not refer to any end product royalty, or to the sharing of any end product royalty. However, all officers of the DPI, Tasmania and Mr Teague and Mr Semmler understood that any end product royalties, when and if received, were also to be shared equally. That is in fact what happened. Nothing in this case turns upon the absence of such a provision in that agreement. 47 Following the execution of that agreement the DPI, Tasmania expected Cultivaust to negotiate with the State marketing authorities of each State, and the maltsters, with a view to obtaining a royalty on the production of Franklin barley or upon that which they handled or acquired. It was largely left to Cultivaust to fulfil the role of exploiting the commercial benefits of Franklin barley. 48 In fact, Mr Teague was in part responsible, together with Mr Semmler and Mr Cormack from Cultivaust, in developing the notion of imposing a production levy or end point royalty on harvested Franklin barley as well as a seed royalty on the purchase of seed. Their consideration on that topic developed in consultation with Mr Thorp of DPI, Tasmania. Mr Teague was aware, from his past experience, that once certified seed was sold to a farmer, the farmer was likely to continue to produce crops of the same product from farm saved seed from a previous year's crop, and to be able to do so for several years. Consequently, he was aware that the next royalty recoverable for the sale of certified seed could be several years later. The production levy was conceived as a means of securing a longer term income stream. It was also conceived as enabling a lower 'up front' or sales royalty as the income stream would be able to be spread over the useful life of the crop which, he expected, would be at least 10 years.

the legislation 49 Franklin barley variety of the genus Hordeum species vulgare, pursuant to s 27 of the PVR Act, was entered in the register of plant variety rights established under s 6 of the PVR Act and maintained under s 9 of the PVR Act. Section 12 of the PVR Act defines the nature of plant variety rights. It provides in part: '12.(1)Plant variety rights, in respect of a new plant variety, are - (a) the exclusive right to sell, including the right to license other persons to sell, plants of that variety; (b) the exclusive right to sell, including the right to license other persons to sell, reproductive material of plants of that variety; (c) the exclusive right to produce, including the right to license other persons to produce, plants of that variety for sale; and (d) the exclusive right to produce, including the right to license other persons to produce, reproductive material of plants of that variety for sale.' Section 12 was amended by the Primary Industries and Energy Legislation Amendment Act (No 2) 1989 (Cth), s 3 and Sch 1. It is not necessary to refer to the amendments. The parties did not treat them as relevant. 50 The GPWA claims that it did not infringe the exclusive rights of either Tasmania or of Cultivaust. Section 40 provides the circumstances in which the exclusive plant variety lights under the PVR Act may be infringed. Section 40 provides: '40. Subject to sections 38 and 39, the plant variety rights of a grantee in respect of a plant variety are infringed by - (a) a person who, not being licensed by the grantee to sell plants of that variety, sells, or holds himself, herself or itself out as being willing to sell, plants of that variety; (b) a person who, not being licensed by the grantee to sell reproductive material of plants of that variety, sells, or holds himself, herself or itself out as being willing to sell, reproductive material of plants of that variety; (c) a person who, not being licensed by the grantee to produce plants of that variety for sale, produces plants of that variety for sale; (d) a person who, not being licensed by the grantee to produce reproductive material of plants of that variety for sale, produces reproductive material of plants of that variety for sale; (e) a person who, being a person to whom a licence has been granted in respect of that plant variety, does not comply with a term or condition of the licence; or (f) a person who uses the name of that plant variety, being the name entered in the Register, in relation to any other plant variety or in relation to any plant other than a plant of the first-mentioned variety.' 51 The GPWA contends that s 38 of the PVR Act enabled a farmer to obtain seed for the purpose of planting and harvesting a crop to sell the produced crop for food or consumer purposes without infringing the grantee's plant variety rights. It also contends that the same farmer could retain seed from the crop for replanting the next crop. In doing so the farmer would not be producing plants or reproductive material for the purposes of an infringing sale, contrary to s 40(c) and (d), as the next season's plants would be harvested so that the further crop would be sold for food or consumer purposes. Hence, it is contended, the PVR Act effectively allowed a farmer to keep seed from one crop for further cropping purposes. It is called farm saved seed. Not all plant varieties have the characteristic of the harvested crop also being propagating material. That is a characteristic of barley. It tends to be called 'seed' when sown, and 'grain' when harvested. The harvested grain can be retained as farm saved seed. 52 Section 38(1) provides: 'Notwithstanding that plant variety rights subsist in respect of a plant variety, any person may - (a) propagate, grow and use plants of that variety for purposes other than commercial purposes; (b) sell plants of that variety for use as food or for another use that does not involve the growing of the plants or the production of plants of that variety; (c) sell reproductive material of plants of that variety for use as food or for another use that does not involve the production of plants of that variety; (d) sell with a farm or other place at which plants of that variety are grown any plants or reproductive material of plants of that variety at that place; or (e) use, and do anything necessary or desirable for the purpose of using, plants or reproductive material of plants of the variety as an initial source of variation for the purpose of originating another new plant variety except where the person makes repeated use of plants or reproductive material of plants of the first-mentioned variety for the commercial production of the other variety.' 53 Section 38(1)(c) is further explained by s 38(3) in the following terms: 'The right of a person under paragraph (1)(c) to sell reproductive material of plants, of a plant variety in respect of which plant variety rights subsist includes - (a) the right of the person to use plants, or reproductive material of plants, of that variety purchased or otherwise acquired by the person without any infringement of those plant variety rights to - (i) produce reproductive material of plants for the sale; or (ii) produce plants, or reproductive material of plants, from which reproductive material of plants for the sale may be derived; and (b) the right of the person to use plants, or reproductive material of plants derived by the person from plants, or reproductive material of plants, of that variety, purchased or otherwise acquired by the person without any infringement of those plant variety rights to - (i) produce reproductive material of plants for the sale; or (ii) produce plants, or reproductive material of plants, from which reproductive material of plants for the sale may be derived.' 54 As noted, the PBR Act came into force on 10 November 1994. It repealed the PVR Act but preserved existing plant variety rights under the PBR Act as if they had been granted under the PBR Act as PBR. Section 11 defined PBR in the following terms: 'Subject to sections 16, 17, 18, 19 and 23, PBR in a plant variety is the exclusive right, subject to this Act, to do, or to license another person to do, the following acts in relation to propagating material of the variety: (a) produce or reproduce the material; (b) condition the material for the purpose of propagation; (c) offer the material for sale; (d) sell the material; (e) import the material; (f) export the material; (g) stock the material for the purposes described in paragraph (a), (b), (c), (d), (e) or (f).' There are definitions of 'conditioning' and of 'propagating material' in s 3(1) of the PBR Act. 55 It is not disputed that the seed or grain of Franklin barley is both 'reproductive material' within the meaning of s 12 of the PVR Act and is also 'propagating material' within the meaning of s 11 of the PBR Act, except insofar as it is harvested material within s 14 of the PBR Act or insofar as it is a product made from harvested material within s 15 of the PBR Act, in which case it is to be treated as if it is propagating material for the operation of s 11. 56 Section 14 of the PBR Act extends PBR to harvested material in certain circumstances. It provides: '(1) If: (a) propagating material of a plant variety covered by PBR is produced or reproduced without the authorisation of the grantee; and (b) the grantee does not have a reasonable opportunity to exercise the grantee's right in relation to the propagating material; and (c) material is harvested from the propagating material; section 11 operates as if the harvested material were propagating material. (2) Subsection (1) applies to so much of the material harvested by a farmer from propagating material conditioned and reproduced in the circumstances set out in subsection 17(1) as is not itself required by the farmer, for the farmer's own use, for reproductive purposes.' 57 Section 15 further extends PBR to products obtained from harvested material in certain circumstances. It provides: 'If: (a) propagating material of a plant variety covered by PBR is produced or reproduced without authorisation of the grantee; and (b) the grantee does not have a reasonable opportunity to exercise the grantee's rights in relation to the propagating material; and (c) material is harvested from plants grown from the propagating material but the grantee does not have, in the circumstances set out in section 14, a reasonable opportunity of exercising the grantee's rights in the harvested material; and (d) products are made from the harvested material; section 11 operates as if those products were propagating material.' 58 Tasmania and Cultivaust contend that ss 14 and 15 of the PBR Act, by reason of conferring 'opportunities' on the holder of PBR at three stages (namely, in respect of propagating material, in respect of 'harvested material' from propagating material, and thirdly in respect of 'products made from harvested material', in the circumstances to which they respectively apply), provide the holder of PBR with the opportunity to impose an 'end point' royalty as opposed to, or as well as, a royalty on the farmer/producer of Franklin barley at acquisition or usage of seed or farm seed. 59 Section 11 is expressly subject (inter alia) to ss 17 and 18, which were also the subject of detailed submissions. Section 17(1) of the PBR Act provides as follows: 'If: (a) a person engaged in farming activities legitimately obtains propagating material of a plant variety covered by PBR either by purchase or by previous operation of this section, for use in such activities; and (b) the plant variety is not included within a taxon declared under subsection (2) to be a taxon to which this subsection does not apply; and (c) the person subsequently harvests further propagating material from plants grown from that first-mentioned propagating material; the PBR is not infringed by: (d) the conditioning of so much of that further propagating material as is required for the person's use for reproductive purposes; or (e) the reproduction of that further propagating material.' 60 Section 18(1) of the PBR Act at material times provided: 'Despite the fact that a plant variety is covered by PBR, any act referred to in section 11: (a) that is done in relation to the propagating material of plants of that variety; and (b) that enables the use of that propagating material: (i) as a food, food ingredient or fuel; or (ii) for any other purpose that does not involve the production or reproduction of the propagating material; does not infringe the PBR.' Section 18 was repealed and replaced by the Plant Breeder's Rights Amendment Act 2002 (Cth), s 3 and Sch 1 Pt 1 Item 4. 61 The GPWA contends that the philosophy underpinning ss 17 and 18 of the PBR Act is to permit acts which are not done to produce plants or propagating material to be sold for a commercial profit to a person, who then intends to grow further plants or propagating material of the same type from the material sold. Section 17 creates an express exception for farm saved seed, so that a farmer who legitimately obtains propagating material of a plant variety covered by PBR is entitled to use propagating material harvested from a crop grown from the initial propagating material to produce further crop. It is said that s 17 thereby simply makes express the limitation which was already manifest under the PVR Act. Section 18 is said to permit an act to be done in relation to propagating material without infringing PBR where it enables the use of propagating material 'as a food, food ingredient or fuel' or 'for any other purpose that does not involve the production or reproduction of the propagating material'. Section 23 is said to limit the extension or 'cascading' of PBR in relation to propagating material legitimately sold by the grantee or with the grantee's consent, so that s 23 complements ss 14 and 15. They deal with the opposite scenario, namely the extension of PBR to harvested material and products derived from propagating material produced or reproduced without authorisation of the grantee. 62 In its opening submission, the GPWA then summarised the circumstances as follows: 'Accordingly, if a farmer purchases seed covered by PBR, and then plants that seed and obtains a crop, the farmer may sell, and third parties may acquire, grain from the crop for a purpose of final consumption (ss 18 and 23(1)); and that farmer may also lawfully retain seed out of that crop for the purposes of replanting a further crop (s 17(1)).'

franklin barley in western australia AND CHRONOLOGY OF EVENTS 63 It is convenient before recording my findings about the way in which Franklin barley came to be grown, and handled, in Western Australia, to say something generally about the evidence and the witnesses. Much of the evidence comprised contemporary documentation. There was no suggestion that it was not an accurate perception or record of the events to which it referred, at least from its author's understanding at the time. I have accepted and acted upon the contemporary documentary material. There are a few instances where contemporary document material does not present a straightforward picture. Where that has occurred, I have endeavoured to explain in a little more detail what findings I have made about those events. 64 Evidence was given by a range of persons. The principal witnesses were Mr Teague and Mr Semmler from Cultivaust and Kevin Swan (Mr Swan) and Peter Wells (Mr Wells), who were at material times the General Manager/Chief Executive Officer of the GPWA and the Assistant General Manager, Finance and Legal, of the GPWA respectively. Mr Wells described his position as akin to what was once called the company secretary. Their evidence was complemented by a range of witnesses, to whom I have referred in the course of recording my findings. 65 I am satisfied that each witness who gave evidence endeavoured to be frank and truthful. Indeed, the areas of disagreement between them are limited. There is some disagreement about the detail of conversations Mr Teague and Mr Semmler had with officers of the GPWA (not Mr Swan or Mr Wells) on around 4 and 5 May 1992. There is also some disagreement about the detail of a meeting between Mr Teague, Mr Semmler, Mr Swan and Mr Wells on 13 November 1992. I have recorded in more detail my findings about those matters, and my reasons for them. Those findings do not reflect adversely on any witness. They are the result of my consideration of the respective understanding and expectations of the witnesses, the inherent probabilities, and the context established by the contemporary documentation. 66 Subject to those remarks, it is convenient to record my findings about all matters touching upon the several causes of action relied upon in a more or less chronological sequence before formally addressing whether the causes of action, or any of them, are made out. 67 As much of the evidence is not contentious, I have not in all respects explained why a particular finding has been made or the foundation for the finding. I have done so where I have considered it necessary. 68 In early 1991, Mr Vertigan and subsequently Mr Thorp from the DPI, Tasmania had some contact with Peter Portmann (Mr Portmann), Principal Officer, Crop Improvement Branch, Western Australian Department of Agriculture (WADA), about the possible conduct of growing trials of Franklin barley in Western Australia. That contact included a facsimile from Mr Vertigan dated 21 February 1991, which included the following: "We would also need an assurance that the seed sent and that harvested from the W.A. crops would not be used for further seed multiplication without permission from the D.P.I. Tasmania or its Australian licensee." On March 1991, Mr Portmann for the WADA notified the DPI, Tasmania that it wished to proceed with commercial evaluation of Franklin barley, involving evaluative trials within the WADA, selected growers, the GPWA, maltsters and the Swan Brewery. In the letter from the WADA dated 12 March 1991, Mr Portmann recognised that Tasmania 'stands to gain commercially' from efforts to do commercial work in Western Australia involving Franklin barley. It was agreed that two tonnes of Franklin barley seed would be supplied at the standard price for commercial malting evaluation. By letter dated 26 March 1991, the WADA indicated that the freighting of the seed would be arranged through the GPWA. 69 By letter dated 11 April 1991 from Mr Thorp, the DPI, Tasmania stipulated that the two tonnes of Franklin barley was sent: '… on the understanding that all grain produced from the WA crops will be used for malting and none will be retained for further seed multiplication. Your Department will need to take appropriate steps to ensure that growers who receive the seed comply with this requirement …' Mr Portmann for the WADA acknowledged that letter and agreed to abide by its terms. He did so on a copy of the letter which he returned to Mr Thorp. Mr Portmann clearly understood the terms of the then arrangement. In a letter which he sent to growers who were to conduct trial evaluation growths of Franklin barley, he included the following: 'I remind you that under the terms of the agreement with the owners of Franklin, all grain of Franklin must be delivered to the grain pool. If there is a small amount remaining after filling the truck that is not economic for the grain pool to collect it must be disposed of as feed barley to the bin or fed to stock. It cannot be retained for seed purposes without the written permission of the owner or agents responsible for marketing the variety.' 70 Despite that arrangement, one of the growers who participated in the 1991 growing trials did retain about 10 tonnes of the 50-55 tonnes of Franklin barley grown. The balance, as with the other Franklin barley grown in those trials, was delivered to the GPWA in accordance with its statutory monopoly. 71 Apart from those trials in Western Australia, Kirin also approached the DPI, Tasmania in the first half of 1992 for supplies of Franklin barley for malting in Western Australia. Those negotiations were conducted through Michael Tempone (Mr Tempone), the Operations Manager of Kirin in Western Australia until 1995, and Mike Walter (Dr Walter), then Chief Officer, Pastures and Field Crops Branch and Michael Hart (Mr Hart), Deputy Chief Officer, Pastures and Field Crops Branch, DPI, Tasmania as well as with Mr Vertigan. 72 In fact during 1992 and in the next succeeding few years, Kirin acquired supplies of Franklin barley direct from Tasmania, through the Tasmanian statutory marketing authority the Tasmanian Grain Elevators Board (TGEB) from growers of Franklin barley in Tasmania. Kirin bore the transport costs of that barley, in excess of 16,000 tonnes over some three or so years. The then chairman/manager (now managing director) of the TGEB Anthony Wright (Mr Wright) has confirmed that the TGEB agreed with Kirin by agreement dated 18 November 1992 to sell and supply 20,000 tonnes of Franklin barley to Kirin in Western Australia during 1993 and 1994 at about $206 per tonne. Due to a lack of suitable grain, the tonnage ultimately supplied under that contract was somewhat less than 20,000 tonnes. Kirin paid the freight on that grain from the TGEB storage facility including its shipment from Tasmania to Western Australia. 73 The maltsters in Western Australia (Joe White and Kirin) were, following the trials of Franklin barley in 1991, anxious for it to be introduced to growers for commercial growing in the 1992 growing season. The principal barley then grown in Western Australia was the Stirling variety. The evidence indicates that the barley grown in Western Australia in the preceding few years had become less attractive for exporting to overseas brewers compared to barley available from other countries. There was an understandable desire to maintain the availability of a competitive quality of barley for export to maintain and develop those markets. As at December 1991, Kirin was contemplating a substantial expansion of its malting plant at Welshpool in Western Australia, but announced that 'the production of a barley with special malting properties' was an obstacle standing in the way of the proposed development. The GPWA was aware of its attitude. Joe White had also, at least by January 1992, conveyed to the GPWA its concern that a higher quality malting barley be produced in Western Australia than the Stirling variety most commonly then grown for malting purposes. The issue was discussed at a substantial industry forum on 14 February 1992. 74 It is at this point that the respective positions of the parties diverge. Franklin barley came to be supplied to growers in Western Australia for the 1992 crop (and the 1992/93 harvest) and for subsequent years. The Franklin barley seed supplied into Western Australia for the 1992 crop was largely through dealings between Cultivaust and Joe White (as the ultimate acquirer of the crop, albeit through a Franklin barley marketing pool established by the GPWA). However, there were also dealings between the GPWA and Cultivaust leading up to the supply of Franklin barley seed into Western Australia for the 1992 season. 75 The GPWA says that Cultivaust simply sold Franklin barley to farmers in Western Australia who then grew a crop. The farmers retained part of their Franklin barley crop as farm saved seed, in accordance with their statutory right to do so. The farmers then replanted their Franklin barley seed in ensuing seasons to produce the next year's crop. The farmers disposed of the non-retained part of the Franklin barley crops to the GPWA for malting or feed purposes, that is for final consumption purposes. As noted earlier, the GPWA contends that both the PVR Act and the PBR Act permitted this course of conduct to occur lawfully without any infringement of plant variety rights or PBR. Hence, it contends, there was nothing which could properly be described as 'unlicensed barley', in the sense that it was produced or sold in contravention of the PVR Act or the PBR Act. 76 The GPWA identifies the contract claim, based upon an alleged agreement formed on 5 May 1992 between Cultivaust and the GPWA, as being based upon two alleged terms, namely: (a) that Franklin barley seed supplied by Cultivaust in 1992 was solely for the limited purpose of conducting growing trials of Franklin barley in Western Australia, and after harvesting, all the grain grown from the seed was to be delivered to two maltsters, Joe White and Kirin; and (b) that the GPWA would consider what assistance it could offer to Cultivaust in the promotion and development of Franklin barley seed sales and grain production in Western Australia. The GPWA denies the existence of any agreement on such terms as a matter of fact. It claims that it did agree with Joe White that it would facilitate a 1992 growing trial in Western Australia conducted by Joe White with Cultivaust's concurrence. It did not do anything to contravene that agreement. It further contends that, if any agreement was concluded of the nature alleged by Cultivaust, neither John Orr (Mr Orr) nor Chris Maughan (Mr Maughan) (officers of the GPWA with whom the alleged arrangement was entered into) had any authority to enter into any such agreement in terms which bound the GPWA. Further, it denies that any estoppel arose to prevent or hinder it in the exercise of its statutory powers, or to prevent the performance of its statutory functions, or that any such estoppel could have any binding effect. 77 I have referred above to the other responses of GPWA to the applicants' claims. 78 After the 1991 trial of Franklin barley in Western Australia, Mr Teague of Cultivaust was anxious to get Franklin barley available for farmers for the 1992 sowing season. The latest supply date for that purpose was about the end of April 1992. In the period March-April 1992, he dealt at some length with Joe White to arrange the supplies of seed to it for provision to growers. Joe White, for its part, was keen to participate because it perceived Franklin barley as providing a superior barley for malting purposes and so as a means of retaining its existing export markets. 79 Joe White in March 1992 proposed to arrange the growing of some 100-150 tonnes of Franklin barley in high rainfall areas in 1992 to secure a more extensive trial for it. It proposed to the GPWA that it would enter into direct buyer-grower contracts, avoiding the need for any Franklin barley grain pool to be established by the GPWA. Kirin also, on 2 April 1992, wrote to the GPWA seeking the opportunity to arrange even more extensive testing of Franklin barley in the southern areas during 1992. At a meeting held on 8 and 9 April 1992, the GPWA decided it would 'become involved' in a large scale trial of Franklin barley in 1992. It was conscious that, if the maltsters Joe White and Kirin dealt directly with growers, its function as a grain marketing authority would be diminished. Mr Swan acknowledged that there was pressure from Joe White and Kirin to deal with barley 'outside the system'. It therefore determined also to establish a Franklin barley grain pool for the 1992/1993 season. 80 On 10 April 1992, a meeting took place between officers of the GPWA, and of Joe White and Kirin. It was agreed that Joe White would procure about 200 tonnes of Franklin barley seed for a further growing trial in 1992, and that the GPWA would be responsible for the allocation and distribution of that seed. The notes of that meeting record that growers were to deliver all but 'seed stocks for personal use in the following season' to the GPWA. 81 In the succeeding few weeks, Cultivaust dealt with both Joe White and officers of the GPWA. The particularly significant conversations with officers of the GPWA took place on or about 4 and 5 May 1992. The allegation by Cultivaust and Tasmania is that on about 5 May 1992 Cultivaust and the GPWA agreed that Cultivaust would supply Franklin barley seed to Western Australia for further evaluation trials for the 1992 season, upon the basis that: (a) the seed supplied would only be used for the growing trials, and after harvesting would all be delivered to Joe White and Kirin; and (b) the GPWA - 'would consider what assistance it could offer to [Cultivaust] in the promotion and development' of Franklin barley in Western Australia. 82 The critical discussions took place between Mr Teague and Mr Orr who was a market research officer of the GPWA between March 1992 and May 1995, and Mr Teague and Mr Semmler and Mr Maughan, who was the marketing officer of the GPWA until 13 August 1993. Each of those persons reported to the marketing manager Rory Coffey (Mr Coffey), who in turn reported to Mr Wells. 83 The discussions did not reflect precisely the arrangement which previously existed between Cultivaust and the WADA (Mr Portmann) as set out above in respect of the 1991 growing trial. There was no agreement between the GPWA on the one part and Cultivaust on the other part about any end point royalty payments in respect of Franklin barley. Indeed, the suggestion of end point royalty payments as discussed between Cultivaust and Joe White was in slightly different terms, and somewhat less restrictive. The background to those discussions is reflected in a facsimile dated 27 April 1992 from Cultivaust to Joe White concerning the supply of Franklin barley for a growing trial in the immediate future. The memorandum to Joe White included the following: 'Considering the very good relationship that was developing between our Companies we are rather dismayed at what has now transpired in West Australia. The model that has now been operating in South Australia and Victoria for the last three years should also be the basis for the situation in West Australia. We, therefore seek your co-operation to negotiate an agreement between our Companies in regard to the procedures for Franklin barley in West Australia, as this must be resolved before the Seed currently in transit arrives.' 84 On 30 April 1992, Cultivaust, by facsimile, again wrote to Joe White regarding the development of Franklin barley in Western Australia. That facsimile repeated Cultivaust's desire to establish a viable long term royalty stream, which should include an end product royalty. Mr Teague (who sent that memorandum) suggested that the end product royalty should begin on all Franklin barley produced from the 1993/94 season (i.e. the December 1993 harvest) rather than on the 1992 harvest. The memorandum then continued: 'Seed is made available for sowing in Western Australia on the proviso that an end product levy system as explained can be established. We would appreciate your explaining this point to both Kirin and the W.A. Grain Pool.' The memorandum further suggested, in respect of the 1992 proposed trial, that the GPWA should purchase grain grown under the trial from Joe White on the basis that it is 'aware that an end product levy will be due on all grain beginning with next years harvest' and that 'none of the resultant crop from this seed is sold/given away as seed'. It did not purport to put an embargo on the use of barley grown during the trial as farm saved seed for the following year's crop. 85 Consistent with that memorandum, Joe White provided the growers with a document for signing which included an acknowledgment that the barley supplied was covered by plant variety rights which prohibited it from being sold, bartered or given away without the written consent of Cultivaust or Tasmania. It did not restrict the grower from retaining seed for the following year's harvest. 86 At the same time, Cultivaust was communicating directly with the GPWA. Mr Maughan had been asked to do some operational work in relation to the proposed Franklin barley trial. He had apparently spoken to Mr Teague, in circumstances which are unclear, in relation to seed availability. Following that conversation, on 4 May 1992 Cultivaust through Mr Teague by facsimile communicated to Mr Maughan at the GPWA. That facsimile message asserted that Franklin barley is protected under the PVR Act and continued: 'It is our responsibility to act for the best interests of the breeder, the Tasmanian Department of Primary Industry; to do this we cannot allow seed sales into Western Australia until we have established a long term royalty system for the breeder. To do this we feel that an end product levy collected on grain received is the long term solution and we would wish to discuss this with you prior to authorising any seed sales. This system has been established in other States of Australia.' 87 Despite that communication, or more specifically any written acceptance of its terms, Cultivaust then released and supplied seed to Joe White for the proposed trial. The facsimile of 27 April 1992 suggests that seed had been despatched by that date. When releasing the seed to Joe White, apparently on 4 May 1992, Cultivaust sent Joe White a further facsimile asserting that the release was under the conditions set out in the earlier facsimile to Joe White of 30 April 1992. 'That a system of end product levy be established on Franklin barley received in Western Australia …' It sought written confirmation. 88 I accept that following the facsimile to the GPWA of 4 May 1992, Mr Maughan had a conversation with Mr Teague. Mr Maughan has no clear record or recollection of the content of that conversation. However, I accept his evidence that he was conscious that his dealings with Cultivaust were out of his usual role, and that he was also conscious that he should not himself make any commitment, and did not have any authority to make any commitment, on behalf of the GPWA. In my view he did not do so. I accept his evidence that he asked Mr Teague to put any proposal in writing for consideration by his superiors. To the extent to which Mr Teague has placed more emphasis upon that conversation than Mr Maughan has acknowledged, in my view he is in error. In particular, I do not find that Mr Maughan gave any assurances to Mr Teague as to the terms on which the GPWA would receive and handle any Franklin barley supplied by Cultivaust, whether to Joe White or to the GPWA. He may have discussed with Mr Teague that the GPWA would sell the Franklin barley grown during 1992 and then acquired by the GPWA to either Joe White or Kirin. They were the maltsters who had been encouraging the GPWA to support the 1992 growing trial. Mr Maughan may also have discussed that the GPWA was co-operating in the proposed growing trial, as it was. But any such general discussion was not in any sense one from which, in my view, Mr Teague was entitled to draw any contractual commitment on the part of the GPWA. I do not think the conversation had that character. 89 Mr Orr in April 1992 had been directed by his superiors to assist Joe White in relation to the proposed growing trial and malting evaluation of Franklin barley. His role was mainly to identify a spread of suitable growers in various geographical locations, particularly in higher rainfall areas, for the trials to be conducted. He was also to assist in the distribution of Franklin barley seed, and generally to liaise with the growers. He did not have a role in GPWA in policy making or entering into agreements with suppliers in respect of the provision of Franklin barley. Over the succeeding short period, he did manage the supply of, and arrange for distribution to growers of, about 137 tonnes of Franklin barley seed. 90 Apart from the telephone contact with Mr Maughan, Mr Teague had more extensive telephone contact with Mr Orr in early May 1992. It is common ground that those discussions were generally concerned with logistical issues relating to the delivery of Franklin barley seed into Western Australia. I accept Mr Orr's evidence that he, too, did not occupy a position within the GPWA which gave him any authority to negotiate terms of any agreement between Cultivaust and the GPWA, and that he was conscious of not doing so. The subsequent facsimile message from Cultivaust to Mr Orr at the GPWA of 21 May 1992 deals with logistical matters, and is consistent with that view of the conversation which took place at that time. It does, however, repeat the expectation or desire of Cultivaust for a long term agreement between Cultivaust and the GPWA, including a production levy on Franklin barley seed grown in Western Australia. The letter asked for Mr Orr's views 'so that we can try and get an Agreement worked out for the future'. Mr Orr did not take that matter further. As I have found, he was sufficiently aware of his role to back off from any prospect of involvement in such negotiations. He did, however, on the instructions of Mr Wells, at about this time secure from the ABB a copy of the then current draft proposed agreement between Cultivaust and the ABB whereby Cultivaust proposed to appoint the ABB as its licensee for Victoria and South Australia to produce and deal in Franklin barley, including for the payment of a production levy. Mr Orr's subsequent role was restricted to following up with growers the results of the Franklin barley growing trial in Western Australia in 1992. 91 On instructions from the general manager of GPWA, on 5 May 1992 Mr Orr wrote to the growers conducting the trial of Franklin barley including the following: 'The Grain Pool, following a request by Joe White Maltings, has identified a number of growers such as yourself throughout the suitable growing areas in WA to grow an area of Franklin barley for quality testing purposes. An allowance has been made to retain seed for future plantings, however this variety is covered by plant variety rights and as such, on sale is not permitted.' It would appear that Joe White had conveyed to the GPWA the terms of the supply of Franklin barley seed for the 1992 growing season in accordance with the request of Cultivaust. 92 At the same time, Joe White responded to Cultivaust's facsimile of 4 May 1992 to the effect that the question of an end product levy on Franklin barley for the 1993/94 season (harvest December 1993) be deferred for further discussion at a later date and that, by taking the seed which it had acquired for the trial in 1992, it did not accept that condition. 93 It is plain that up to that point no commitment to Cultivaust to pay any form of production levy had been agreed either by Joe White or by the GPWA. By facsimile from Joe White to Cultivaust of 5 May 1992, Joe White indicated that the issue of an end product levy had been raised, in particular in respect of the 1993/1994 growing season. Joe White referred to earlier conversations, and indicated expressly that, by acquiring Franklin barley seed for the 1992 growing trial, it did not accept that any such end product levy should or would be agreed. 94 On 5 May 1992, the GPWA also wrote to Cultivaust. The letter explained the limited role of the GPWA in relation to the 1992 growing trial. It then said: 'If this 1992/93 season project is successful, we agree that it will be important to ensure there is registered seed production in WA. However, your inference to eventually applying an end product levy is definitely not an acceptable arrangement and would in itself present Franklin barley as a less attractive option to growers.' That letter was sent under the hand of Mr Swan. I do not think it left any room for misunderstanding. 95 There may have been some optimism at that time, which turned out to be misplaced, on the part of Cultivaust about reaching an arrangement with the GPWA about an end point royalty. Mr Teague said that, at that time, Cultivaust was not too concerned by the non-acceptance of the proposed conditions of sale involving an end product royalty, as a seed royalty had already been paid on the seed provided for the 1992 growing trial, and Cultivaust had waived any claim to a production royalty as against maltsters for that season in order to promote Franklin barley and its use by maltsters. 96 It is consistent generally with that picture that the Producers' Council of the GPWA meeting held on 7 May 1992, when discussing the Franklin barley trial, noted that growers buying Franklin seed under the trial arrangement could retain seed grown on their property for personal seeding stocks or for farm feeding, and with the balance to be delivered to the GPWA for domestic maltsters. Such seed was not to be sold without a further royalty arrangement in place with the plant variety rights holders. 97 There was then a lull in communications for a few months. Those which occurred related to operational features of the growing trial and its progress. The picture which emerges over that period is that there was an expectation by Cultivaust that Franklin barley would be grown in Western Australia during the 1993 growing season because maltsters and growers (as they got a higher price for good quality malting barley) would be likely to pursue that outcome. 98 In August 1992, the GPWA invited Cultivaust to indicate its proposed arrangements for the supply of Franklin barley seed in the forthcoming season. Cultivaust responded on 28 October 1992. It repeated its desire to establish a production levy payment for Franklin barley grown in Western Australia. It was by then apparent that the 1992 trial was likely to be successful, so that Franklin barley either alone or blended with another variety of barley would be a preferred barley variety for maltsters in Western Australia. In the result, about 5,400 metric tonnes of Franklin barley was received by the GPWA and was sold to Joe White, from the 1992 growing trial. 99 On 13 November 1992, the three directors of Cultivaust attended a meeting in Western Australia with Mr Swan and Mr Wells of the GPWA to discuss the proposed further supply of Franklin barley for the 1993 growing season. The Cultivaust representatives at that meeting again raised their desire to secure a production levy or an end point royalty on production of Franklin barley for the 1993 and subsequent growing seasons. Before dealing with those discussions and their outcome, it is convenient to note certain negotiations between Cultivaust and the ABB. 100 In mid 1992, negotiations between Cultivaust and the ABB for securing an income stream from Franklin barley in Victoria and South Australia were progressing apparently smoothly. Drafts of a proposed agreement concerning Franklin barley grown on the Eyre Peninsula of South Australia were considered, including a condition that the Franklin barley grown be provided to the ABB (thus not permitting any farm saved seed) and for a royalty on the sale of certified Franklin barley seed as well as a levy on each tonne of Franklin barley seed sold by the ABB. A draft provided to the ABB by Cultivaust on 2 June 2002 provided for a production levy of $2.50 per metric tonne on tonnage sold up to 7,500 tonnes per season, then reducing to $2 per metric tonne for further tonnage sold. A copy of that draft agreement was provided by the ABB to the GPWA, in response to the request made through Mr Orr referred to above. 101 The GPWA in the latter part of 1992 had, at least at a management level, firmed in its opposition to a production based levy on Franklin barley. It did so, however, with the support of Joe White and of the Producer's Council of the GPWA (the growers representative body of the GPWA). Despite that general view, the meeting of 13 November 1992 did not involve any outright rejection of a production royalty payment. There is some disagreement, albeit of emphasis, as to whether the officers of the GPWA present at that meeting expressed a neutral position with respect to a production levy, subject to the views of the Western Australian Farmers' Federation Inc (WAFF), or expressed mild support for it, again subject to the views of the WAFF. It is not suggested that any commitment was made at that meeting. Mr Swan described the GPWA as the servant of the growers. The GPWA at that time had a liaison committee called the Growers' Consultative Committee. It comprised representatives of the WAFF, and of the Pastoralists' and Graziers' Association. The WAFF had made known to the GPWA that, at least to that point, it was opposed to any production levy or end point royalty. There is no reason to think Mr Swan would have made any commitment to Cultivaust about a production levy inconsistent with the views of the WAFF. Nor is there any reason to think he would have expressed the views of the WAFF as being generally supportive of a production levy. The greater Cultivaust perceived the obstacle to a production levy, the lower any production levy ultimately agreed (if one came to be agreed). On the other hand, the pressure from maltsters and growers for access to Franklin barley would have dictated to Mr Swan that he should not shut the door entirely to Cultivaust. I accept his evidence that he indicated to Cultivaust at that meeting that he would raise with the Board of the GPWA the proposal for a production levy or end point royalty. I also accept that Mr Swan said at that meeting that the Board of the GPWA would further consult with the WAFF, and that such consultations might be delayed until February 1993 due to growers being caught up until then by harvesting. Mr Swan's evidence is confirmed by Mr Wells. It also reflected Mr Wells' own views. 102 Despite the clear indication that no commitment would be made by the GPWA at that meeting, I also find that some discussions took place about the rate of any production levy which might come to be agreed. Mr Wells sought to 'talk down' the suggested figure. In that context, Mr Swan pointed out that Franklin barley had not by then been shown to be as suitable for growing in Western Australia as it was in Tasmania. 103 I find that the meeting concluded on the basis that Mr Swan would raise again with the Board of the GPWA a production levy for Franklin barley, but that it was likely that no decision would be made without further consultation with the WAFF, and that the harvest period meant no final decision was likely until some time in February 1993. Mr Wells described the outcome of the meeting as being that the GPWA would further consider the proposed production levy. That I find to be an accurate description of the outcome. I accept the evidence of Mr Teague and Mr Semmler that, following that meeting, they were not discouraged from pursuing the provision of Franklin barley to Western Australia for the 1993 growing season by any firm indication that a production levy or end point royalty would simply never be agreed. They did not assert that any agreement for a production levy was made at that meeting. 104 In my view, the meeting of 13 November 1992 did not include any indication on the part of the GPWA through Mr Swan that it agreed in principle with the concept of a production levy or an end point royalty levy, or that the consent of the WAFF was a formality. I think Mr Semmler and Mr Teague read into the meeting and the comments of Mr Swan more than was conveyed. In the result, I do not think it matters too much because the position was clarified by an exchange of correspondence soon thereafter. Apart from the conflicting evidence, the pressure on the GPWA to secure supplies of Franklin barley during 1993 was, in substance, similar to that which existed during 1992. Despite that pressure, the GPWA in the past had been careful not to make any such commitment, and indeed had conveyed to Cultivaust that it was opposed to an end product royalty. Whilst commercial reality or pressure may ultimately have led to it accepting such an end product royalty, there is no reason to think that it would have acceded readily to doing so. I accept the evidence of Mr Teague and Mr Semmler that the attitude of the WAFF was discussed at that meeting, and that it was clear that any outcome of the meeting would be subject to the views of the WAFF. I also accept that Cultivaust had reason to hope that, if the WAFF expressed no opposition to, or expressed support for, an end product royalty as the price of its members having available Franklin barley seed for the 1993 growing season, the GPWA would not have itself impeded such an arrangement somehow being implemented. It was in essence the body through which the growers of barley in Western Australia were to secure their best price for their harvests. 105 It is consistent with that meeting, in particular that Mr Teague and Mr Semmler were not positively discouraged from pursuing an end point royalty, that on 27 November 1992 Cultivaust sent to the GPWA a draft proposed licence agreement. Under the proposed agreement the GPWA was to be licensed to deal in and sell Franklin barley seed, and to license others to sell and produce the seed on the conditions in the agreement. The conditions included an end point royalty of $1 per metric tonne together with a premium depending upon the price achieved for Franklin barley by the GPWA in sales of Franklin barley compared to other malting varieties of barley with which it dealt. A revised draft was sent on 30 November 1992. 106 On 14 December 1992, the GPWA returned to Cultivaust the proposed agreement with some changes and comments. It removed the amounts specified for an end point royalty, leaving those figures to be inserted, but not the clause containing provision for such a royalty. The enclosure indicated that the document reflected 'preliminary thoughts on licensing arrangements'. The enclosed letter made it plain that the comments were made without prejudice to the position of the GPWA, and that it reserved the right to vary or withdraw any aspects of the document which it then put forward. It pointed out that it understood growers' ideas to be that any end point royalty should be somewhere in the order of up to $0.50 per tonne. It also provided some additional payment provisions (unspecified as to an amount) under an 'Extension and Development Fund' for Franklin barley in Western Australia. The idea for such a fund arose from a discussion between Mr Wells and Brian Banbury (Mr Banbury) of the ABB. 107 The GPWA on 14 December 1992 provided to the ABB a copy of the document which it had also submitted to Cultivaust. Accompanying that document was a letter from the GPWA to the ABB, in which the following comments appear: 'We are aware that Cultivaust is endeavouring to pressure people into what we consider very expensive, onerous and inappropriate licensing arrangements for Franklin barley. The Grain Pool Board is moving towards a concept of having an arrangement whereby production levies are collected on behalf of licensees in preference to having PVR varieties priced at exorbitant levels… It is our belief that the figure should be less than $1 per tonne. From early contact with the Grower Groups it is expected they will be arguing for a figure of less than 50 cents. We clearly reject the proposal put forward by Cultivaust that the levy could be as high as $3 per tonne. If the variety is as superior as they claim the production levy will generate significant revenue as Franklin becomes an established variety. ... We appreciate that the circumstances in W.A. may be different to those applying in your State, however, we would seek your assistance in containing the aspirations of Cultivaust. We believe it is incumbent upon the likes of the Grain Pool and yourselves to ensure that the interests of barley growers are protected and that they should not be at the mercy of PVR licence holders or their agents.' The letter was sent by Mr Wells. Mr Swan did not authorise its terms, and was in fact unaware it had been sent. 108 Mr Banbury was the General Manager, Administration and Finance, of the ABB. He was also the secretary of the Australian Grains Marketing Federation, the peak federal body of statutory marketing authorities. It had a Coarse Grains Committee which dealt with barley. 109 I accept Mr Banbury's evidence that, whatever the intention of Mr Wells by the letter of 14 December 1992, he promptly indicated to Mr Wells that he was concerned not to have discussions between the statutory marketing authorities about the terms they might address with Cultivaust for the supply of Franklin barley. He said such discussions might render the statutory marketing authorities vulnerable to conduct contravening certain provisions of the Trade Practices Act 1974 (Cth) (the TP Act). I also accept Mr Banbury's evidence that the ABB did not in fact seek to pursue any such discussions. It rejected the overture of Mr Wells, whatever the reason for that overture may have been. 110 The subsequent dealings between the ABB and Cultivaust indicate that it proceeded to deal with Cultivaust independently of the GPWA. I shall refer in greater detail to that aspect below. Moreover, the terms of the agreement which came to be reached between the ABB and Cultivaust differed in material respects from the agreement which came to be reached between the New South Wales Grain Board (NSWGB) and Cultivaust. The terms of the agreement are also different in material respects from the documents which were exchanged between the GPWA and Cultivaust in late 1992. Those differences came to exist although, as Mr Banbury said, each of the statutory marketing authorities came to know through either the Course Grains Committee or the Australian Barley Marketing Federation the terms of the agreements between the ABB and Cultivaust, and between the NSWGB and Cultivaust. 111 Mr Wells described his letter to the ABB of 14 December 1992 as being 'to ensure that the interests of Western Australian barley growers were protected'. I thought his explanation that he was fearful of a $3 per tonne levy, if agreed by others, would work to the detriment of Western Australian growers as they might not agree to such a high figure to be somewhat disingenuous. I accept that he thought the lower the levy he could negotiate, the better for Western Australian growers. But the means by which he sought to negotiate a low levy involved in part, communication with the ABB (and with the NSWGB). I cannot see a reason for such a communication, having regard to its terms, other than being at least as an invitation to the ABB to negotiate with Cultivaust for a production levy at a figure not too different from that of the 'belief' of the GPWA as to what was an appropriate figure. 112 Mr Banbury certainly understood it that way. It was for that reason he immediately rejected the overture of the GPWA. His understanding of the communication is referred to briefly in a memorandum he sent to the general manager of the ABB on 9 February 1993, dealing with a range of matters. 113 The GPWA then referred to grower organisations for comment the proposed end point royalty or production levy. It received a prompt response from the WAFF, who opposed any production levy. Before the GPWA had met further to discuss whether it should progress any agreement with Cultivaust, Mr Teague telephoned officers of the GPWA to try to expedite a decision. There were several telephone conversations in January and February 1993. Correspondence at the time indicated that Cultivaust realised it should not proceed to supply Franklin barley seed for the growing in the 1993 season without such an agreement. 114 In January and February 1993, Mr Semmler had several discussions with Mr Wells prior to receiving the letter of 5 February 1993 endeavouring to progress with him the proposed arrangement. It does not appear that specific terms of the arrangement or proposed licence agreement were discussed, but more generally the issue as to acceptance of the concept of an end point royalty or production levy. I accept that Mr Wells at that time did not indicate any firm opposition to the concept, and indeed may have communicated to Mr Semmler that if the WAFF were in agreement, it was likely that the GPWA would proceed with the negotiations. I also accept, as Mr Semmler said, that he and Mr Wells discussed ways in which the GPWA might be induced to progress with their discussions. It was a result of those discussions, and subsequently the GPWA letter to Cultivaust of 5 February 1993 that Mr Semmler and then Mr Teague undertook further communications with the WAFF officers. 115 On 4 February 1993 there was a meeting of the Growers' Consultative Committee, including representatives of the WAFF. The WAFF maintained its opposition to any production levy or end point royalty. The Chairman of the GPWA indicated then that, because there was not total support for the proposed licence agreement with Cultivaust, the GPWA would withdraw its offer to assist Cultivaust with regard to the commercialisation of Franklin barley seed. 116 That attitude was conveyed the following day. By letter dated 5 February 1993, the GPWA (Mr Wells) wrote to Cultivaust in the following terms: 'Following the outcome of a meeting with grower representatives held on Thursday February 4, 1993 we have little alternative but to withdraw from discussions on Franklin barley PBR matters. We appreciate your situation with respect to servicing Western Australian seed demand and the desire of all concerned to have commercial matters resolved at the earliest time. To this end we believe the matter now rests with yourselves.' 117 If there were any scope for Cultivaust to be optimistic as to the prospect of a licensee agreement with the GPWA, including a production levy or end point royalty, that optimism could no longer have existed. Mr Semmler had previously regarded the receipt of the letter of 14 December 1992 and its enclosure as encouraging. It is easy to understand why. At the time that document was submitted on a without prejudice basis, so the Grain Pool reserved any rights to vary or withdraw from the prospect of an agreement. Mr Semmler (wrongly) regarded the reservation as being limited to a right to change the amount of the production royalty. The letter did not provide him with a foundation for believing that final agreement was subject only to an arrangement being made with growers as to the amount of the production levy. 118 Upon receipt of the letter from the GPWA of 5 February 1993, Cultivaust understood that it should direct its endeavours to the WAFF. On 10 February 1993, by facsimile, it communicated with that organisation. It noted that negotiations for a licensing agreement for Franklin barley in Western Australia had stalled, and that there was not a further meeting of the WAFF until mid March 1993. It urged the acceleration of that process. 119 In the sequence of events, I note that on 24 February 1993 agreement was reached between Cultivaust and the NSWGB for that body to deal in and sell Franklin barley in New South Wales. The agreement included a production levy or end point royalty of $1 per tonne with a formula for an increased premium up to $3 per tonne, depending upon the relative price acquired from the sale by that body of Franklin barley grown in New South Wales compared to other barley. Over that period of time, and in the succeeding months, negotiations with the ABB and Cultivaust in relation to growing Franklin barley in South Australia and Victoria were also continuing. 120 In March 1993, Cultivaust provided to the GPWA some technical and promotional material relating to the supply to Western Australian growers of Franklin barley, which it said was prompted by ongoing inquiries from Western Australian growers. There was also clearly ongoing interest from Joe White and Kirin, and from the Western Australian Maltsters' Association, for Franklin barley to be available to maltsters in Western Australia. That commercial pressure was recognised by the GPWA. Its meeting of 8 April 1993 recorded that its Board continued to support the concept of negotiated plant variety rights production levies collected through a pool, but that it could take no further action until the WAFF had a clear policy on the issue. The meeting recognised the ongoing interests of maltsters in Franklin barley being grown in Western Australia. The GPWA also established for the 1993/1994 season a Franklin barley grain pool, for the extent to which Franklin barley would become available in Western Australia, and fixed a grower payment for that barley which was equal to the premium price for Stirling barley suitable for malting. It informed Cultivaust of that decision. 121 By that time, most of the grain harvested from the 1992 growing trial of Franklin barley had been supplied to Joe White or Kirin for processing. However, notwithstanding the absence of any agreement, early in 1993 Cultivaust appointed Seed & Grain Brokers (WA), wholesalers of seeds for use by farmers in Western Australia including barley seed, as its agent to sell to farmers in Western Australia Franklin barley seed. The principal of Seed & Grain Brokers (WA) was an uncle of Mr Teague. That entity proceeded to sell Franklin barley to farmers in Western Australia directly, and through regional sub-agents, for the purposes of the 1993 and subsequent growing seasons. It accounted to Cultivaust for the royalty received from seed sales. The tonnages of Franklin barley seed were relatively modest. In 1993 there were about 174 tonnes of Franklin barley seed sold to farmers, and in that year and to the years up to the 1996 growing season, less than 1,000 tonnes of Franklin barley seed had been sold to farmers. In the succeeding few years the tonnages of Franklin barley seed sold reduced dramatically to several tonnes each year. The barley variety of preference by that time appears to have changed to that known as 'Harrington' or that known as 'Gairdner'. 122 The seed sold through the agent and sub-agents in Western Australia contained a warning as to usage on the bag in the following terms: 'Unauthorised commercial propagation or any sale, conditioning, export, import or stocking of propagating material of this variety is an infringement under the Plant Breeders' Rights Act 1994.' 123 Also, in the first months of 1993, Cultivaust's discussions with the ABB in respect of a licence agreement for Franklin barley to be grown in Victoria and South Australia were continuing. A similar commercial pressure existed, that is to reach agreement for the sowing season during 1993. On 27 April 1993, the ABB and Cultivaust agreed to the release of Franklin barley seed to the ABB for growing in South Australia and Victoria under the terms of the then expressed draft agreement, although they were unresolved on one issue. That issue subsequently came to be resolved. 124 Communications between Cultivaust and the GPWA appear to have been much more desultory for the remainder of 1993. Nevertheless some contact was maintained. On 6 September 1993, Cultivaust again wrote to GPWA expressing a desire to finalise a sole licence agreement with the GPWA for Franklin barley in Western Australia. It invited a response as to how the parties might progress that ambition. The GPWA responded on 10 September 1993. It pointed out that the WAFF had issued a discussion paper on plant variety rights, and had not formalised its position. The letter indicated that the GPWA would not be able to progress any discussions for an agreement for the introduction of Franklin barley into Western Australia until the grower associations had arrived at a clear position. That process does not appear to have been hasty. Nevertheless both Joe White and Kirin, the maltsters operating in Western Australia, continued to hold the view that Franklin barley was superior to the other and more predominant barley in Western Australia, Stirling barley, and urged its use for the purpose of malting. Indeed, from 30 December 1993, Kirin informed the GPWA that it would purchase all available Franklin barley grown in Western Australia up to a maximum of 20,000 tonnes. It was not anticipated that there would be a sufficient supply of Franklin barley to meet that request, and in fact the GPWA was able to supply only 3,000 tonnes of Franklin barley to Kirin at about the end of 1993. 125 On 1 December 1993, Cultivaust sought the support of the GPWA in promoting the sale of Franklin barley seed in Western Australia including through the GPWA mailings. The GPWA provided some information in response to that request, but declined itself to become directly involved with the promotion of Franklin barley as (it said) it was not satisfied that the quality problems could be overcome so as to penetrate export barley markets. 126 It is also appropriate to note that in the meantime negotiations between Cultivaust and the ABB about the proposed licence agreement, now apparently related to its finer points, continued. 127 As with the 1993/1994 season, the GPWA established a Franklin barley grain pool for Franklin barley in the 1994/1995 season and graded it as malting grade barley. Again the evidence indicates that both Kirin and Joe White sought Franklin barley and had unsatisfied demand for it in respect of that season. 128 Despite the ongoing interest of the maltsters in Franklin barley, and the difficulty they experienced in getting sufficient supplies of it through the GPWA, on 30 May 1994 the GPWA wrote to Cultivaust in the following terms: 'At various times throughout 1993 the issue of imposing a levy on production of Franklin barley grown in Western Australia was the subject of discussion between our respective organisations. As part of those discussions we made available a concept the Grain Pool had some interest in which would have positioned the Grain Pool as a sub-licensee in Western Australia for Franklin barley. Matters have progressed since that time to the extent that the Grain Pool has withdrawn its interest with respect to Franklin PVR matters. Whilst we currently do not have any interest in being directly involved in the commercialisation of Franklin seed, the Grain Pool clearly reserves its rights under the Grain Marketing Act with respect to Franklin barley as a prescribed grain in terms of the Act. By the actions of the Grain Pool in the 1993/94 season the Board has demonstrated its commitment to encouraging production of Franklin and the Grain Pool's marketing strategy in future will continue to offer growers encouragement to consider Franklin as part of their cropping options.' 129 It appears that behind that letter was a decision of an industry organisation to discourage the GPWA from direct involvement as a licensee for Cultivaust in Western Australia. Neither Mr Wells nor Mr Swan were able clearly to recollect the reasons for it. In my view, it was somehow associated with representations being made to government at the time, and the views of the WAFF as to the future role of the GPWA in relation to the introduction of new barley cultivars and other cultivars of grain into Western Australia. 130 There is really no dispute about subsequent events. In succeeding years, the GPWA performed its same function as in previous years with respect to Franklin barley. It declared a Franklin barley grain pool. It exercised its powers under the GM Act to receive Franklin barley grown. It fixed a price for the sale of Franklin barley, by reference to malting quality. It sold the barley to maltsters in Western Australia or for export to maltsters. 131 In October 1994, both Kirin and Joe White applied for permits to the GPWA under s 22A of the GM Act to purchase direct from growers significant quantities of Franklin barley. Those permits were issued on 17 October 1994. They were for the 1994/95 season. Similar permits were issued for subsequent seasons. The permits granted under s 22A of the GM Act appear to have been, at least in part, as a result of representations Kirin and Joe White made to the GPWA and to the relevant Minister. 132 As noted earlier in these reasons, Kirin in addition arranged direct from Tasmania further supplies of Franklin barley for its malting operations in Western Australia. 133 On 10 November 1994 the PBR Act came into force. 134 On 13 January 1995 the licensing agreement between Cultivaust and the ABB was formally executed, although (as noted) it had been operating de facto for some two seasons. The ABB licensing agreement provided for a production levy of $1 per tonne on Franklin barley in addition to a royalty on seed sales. That agreement remains in force. It provided for the production levy to commence with the 1992 harvest. 135 On 7 April 1995 the GPWA received from senior counsel an opinion on the inconsistency or potential inconsistency between the GM Act on the one hand and the PBR Act on the other, the latter of course having only recently come into force. Following his analysis of those provisions, counsel advised that the GM Act is inconsistent with the PBR Act to the extent that it prohibits the grantee of PBR or a licensee of the grantee from selling grain as they chose, and to that extent the GM Act is invalid and inoperative. Counsel also considered that the GM Act may be further inconsistent with the PBR Act because, if the grantee of PBR sold prescribed grain to a third party, that third party in Western Australia may also be liable to deliver the grain so purchased to a grain pool established by the GPWA, and have the right to sell that grain converted into a right to compensation. That process under a statutory marketing scheme may therefore impose a constraint upon the prices and terms of purchase which potential purchasers are prepared to offer the grantee of PBR and any licensee of PBR. 136 In those ways, counsel thought, the objects of the PBR Act may be frustrated because the ability of the grantee of PBR to develop and encourage new plant varieties with the prospect of potentially valuable rights is diminished. The 'orderly marketing arrangements' available under the statutory scheme would impede the rights contemplated by PBR in the grantee of the PBR stock. 137 I do not infer from the fact of the opinion of senior counsel being sought that the GPWA was doing other than considering the implications of the PBR Act. It was an appropriate course of action to follow upon its introduction. I do not think it is appropriate to infer that it reflects a particular concern by the GPWA about its past conduct or dealings with Cultivaust. The absence of records explaining why that opinion was sought does not, in my view, support the inference to the contrary for which Cultivaust contended. 138 The next significant correspondence is the letter before action from the solicitors for Cultivaust to the GPWA dated 16 April 1996. 139 To complete the chronological findings, it is appropriate to record the subsequent history of Franklin barley in Western Australia. The evidence on this topic included from growers, from Kevin Young, the Senior Research Officer of the WADA, from Mr Portmann, and from Mr Tempore, as well as data from the GPWA provided through Mr Wells. 140 Franklin barley remained the preferred variety for malting in the 1995 and 1996 growing seasons. Despite that, there was considerably more Stirling barley grown in Western Australian in all relevant seasons, by a factor of 10 or more. There is no evidence that that is a consequence of any lack of available Franklin barley seed from and after 1993. 141 In the 1997 season, Franklin barley more than Stirling barley was affected by a disease called spot-type net blotch, a form of leaf rust. The disease dramatically reduced the Franklin barley harvest for the 1997/1998 season. There was a perception thereafter that Franklin barley was disease prone, perhaps because it was seen as developed mainly for Tasmanian growing conditions. 142 In addition, through the WADA, Mr Portmann had been developing a further variety of barley for malting called Gairdner barley. It was developed to respond to one of the perceived weaknesses of Franklin barley as a malting barley, namely its size. It was a standard requirement of malting barley that there should be only a small percentage of 'screenings', that is grain which passed through a 2.5 mm screen. Franklin barley did not consistently meet that standard. Due to its other qualities maltsters were prepared to accept it, provided it satisfied the screenings requirement through a 2.2 mm screen. Gairdner barley came on to the market for the 1999 growing season. It had many of the malting qualities of Franklin barley, and was a larger plumper grain. 143 In addition to Gairdner barley, further varieties of barley were developed and came on to the market for growers in 1998 and later years including the Schooner variety, the Harrington variety and the Fitzgerald variety. The Schooner variety had the attraction of a shorter dormancy period, so it was attractive as a malting barley for some export markets that sought barley earlier in each season. 144 The consequence is that by the end of the 1998/1999 season, there was little Franklin barley grown in Western Australia. Mr Tempone, by then running W.A. Malt Co (a procurer for Joe White of malting barley) confirmed that after that season there was little interest in Franklin barley. Kirin also stopped seeking Franklin barley after that season. 145 Over the seasons 1991/1992 to 1999/2000, the GPWA received and handled some 326,000 tonnes of Franklin barley, of which about 131,000 tonnes were sold for malting purposes and about 195,000 tonnes were sold for animal feed. That includes sales effected through Agra Corp Pty ltd, a wholly owned subsidiary of the GPWA which was established as its trading agent from about October 1996. That figure does not include Franklin barley directly purchased by Joe White and Kirin from growers under permit, or imported into Western Australia by Kirin. 146 Accordingly, although over the later seasons of the 1990s the demand for Franklin barley in Victoria and South Australia appears to have remained high, in my judgment the demand for Franklin barley petered out after the 1998 growing season. Nevertheless, even in the 1998 growing season Joe White was seeking substantially more Franklin barley than it could acquire in Western Australia. Over the later years of that decade, Cultivaust was free to meet growers' requirements for Franklin barley. There was no impediment upon it imposing conditions of sale and supply of Franklin barley seed involving a production levy payable by the grower of the first and subsequent generations of crops. It may be, as Alan Dagg (Mr Dagg), the General Manager for Marketing of Agra Corp Pty Ltd said, the maltsters demand for Franklin barley reduced because they were aware that not much of it was grown. But the GPWA had previously been prepared to establish Franklin barley pools for each season, and I accept would have continued to do so if sufficient quantities of Franklin barley grain were harvested. In addition, by that time, Joe White and Kirin were able to directly contract with growers for the supply and sale of Franklin barley. 147 On the whole of the evidence, I am not satisfied that at least in Western Australia, there was any significant ongoing demand for Franklin barley after the end of the 1998/1999 season.

the claim under the PBR ACt 148 The GPWA has acknowledged that in the growing years 1992 to 1999 it received, sold and at times exported Franklin barley without the authorisation of Tasmania or of Cultivaust. It did not pay Tasmania (or Cultivaust) for having done so. To the extent already discussed, payment was made either by Joe White or by growers for certified Franklin barley seed acquired from Cultivaust or from its Western Australian agent. The GPWA accepted delivery of the Franklin barley grown from that seed, and Franklin barley grown from farm saved seed. 149 It is not alleged by Tasmania or by Cultivaust that the GPWA received Franklin barley, or sold it or exported it, for the purpose of it being reproduced. It was acquired by the GPWA, and sold by it, for the production of malt for use by maltsters and to some extent for animal feed. 150 For the purposes of considering whether, in the circumstances, the GPWA has infringed the plant variety rights or the PBR in those circumstances, I shall assume that Tasmania (and Cultivaust as its licensee) may licence another person to produce or reproduce Franklin barley upon terms which include the imposition of a production levy or sum payable per tonne of Franklin barley grown from seed sold and supplied to that person, including second generation crops. It is not necessary to determine whether the grantee of plant variety rights or PBR may also impose as a term of sale of propagating material to a grower that the grower must not retain any of the harvested crop for further use as propagating material: cf s 14(2) of the PBR Act. Neither Tasmania nor Cultivaust imposed such a condition on the sales of Franklin barley seed in Western Australia in or after 1992. 151 The PVR Act was enacted following an inquiry and recommendations by the Senate Standing Committee on Natural Resources about the Report to the Minister for Primary Industry, Australia's Plant Breeding Needs, Lazenby, AGPS, Canberra, 1986. The self-evident purpose of the PBR Act was to enable plant breeders to apply for and receive proprietary rights for new varieties of plants which they develop. It allowed Australia to become a member of the Union for the Protection of New Varieties of Plants (UPOV) under the International Convention for the Protection of New Varieties of Plants 2 December, as revised at Geneva on 10 November 1972, 23 October 1978 and 19 March 1991 (the Convention). 152 The efficacy of the PVR Act was reviewed, and reported upon, to the Minister for Primary Industries and Energy and the Minister for Industry, Technology and Commerce by Byrne in the report Legal Protection of Plants in Australia under Patent and Plant Variety Rights Legislation, Australia Patent Office, 7 November 1990. The review took account of the 1991 amendments to the Convention. The review then culminated in the PBR Act. 153 To the extent that Australia is a party to the Convention, the PVR Act and the PBR Act were each intended to give effect to Australia's obligations under the Convention: s 5(b) of the PVR Act and s 10(a) of the PBR Act. Australia was bound by the Convention from 1 March 1989, and by the Convention as revised in 1991 from 20 January 2000: see GPWA v Commonwealth at 489 - 490. 154 The PVR Act, and then the PBR Act, were recognised by the High Court in GPWA v Commonwealth as creating incentives for research and development into new plant varieties by creating a statutory monopoly in favour of the plant breeder: per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ at 496 - 497. 155 Section 12 of the PVR Act conferred exclusive rights on a grantee of plant variety rights to sell and produce plants and 'reproductive material' from plants in the way set out. Those rights then entitled the grantee to restrain another from engaging in conduct that would be inconsistent with them; s 40. As noted above, there were limits expressed upon the extent to which those rights could be asserted, relevantly contained in s 38(1)(b) and (c): sale for use as food or for another non-reproductive use that does not involve the growing of the plants or the production of plants of that variety, and in s 38(1)(a): propagation for purposes other than commercial purposes. Moreover, the GPWA contends, growing plants for the purpose of retaining seed for a subsequent year's crop would not itself involve any act prohibited by s 40 because it would not involve use of reproductive material for a prohibited sale; the next year's crop would itself be intended for use as food or other non-reproductive purposes. 156 The focus of the submissions was upon Tasmania's rights under the PBR Act and as if the PBR Act were in force at the time Tasmania was granted plant variety rights under the PVR Act. That is because s 82(1) of the PBR Act provides that plant variety rights under the PVR Act, following the commencement of the PBR Act, are to have effect as if the PBR Act was in force at the time those rights were granted and as if those rights had been granted as PBR under the PBR Act. However, s 82 operates so that plant variety rights have effect under the PBR Act only on and after the commencing day of the PBR Act, namely 10 November 1994. The transitional provision operates in the manner described only 'on and after that day'. That is a reference to the commencing day of the PBR Act: s 81, and the PBR Act was proclaimed to commence on 10 November 1994. The PBR Act does not purport retrospectively to create rights or liabilities under the PBR Act which did not exist under the PVR Act. Sections 83 and 84 apply to preserve proceedings under the PVR Act. Any infringement of plant variety rights under the PVR Act up to the time of its repeal giving rise to accrued enforceable rights under ss 40 and 41 of the PVR Act would remain enforceable notwithstanding the repeal of the PVR Act: ss 7 - 9, Acts Interpretation Act 1901 (Cth). 157 To the extent that the GPWA received Franklin barley and stocked it, and dealt with it by sale or export up to 10 November 1994, in my view any rights which Tasmania (or Cultivaust) may have under legislation must be established under the PVR Act. 158 Tasmania and Cultivaust do not claim conduct by the GPWA infringed the plant variety rights or the PBR in Franklin barley until the GPWA received the Franklin barley grain harvested in the 1992 growing trial (sometime early in 1993). The receipt of the 1992/1993 harvest, and the receipt of the 1993/1994 harvest, and the sale of those harvests, by the GPWA would therefore fall under conduct which may have infringed plant variety rights under the PVR Act. It could not have infringed PBR under the PBR Act. That applies also to the act of the GPWA granting under s 22A of the GM Act to Joe White and Kirin on 22 October 1994 a permit to contract directly with growers of Franklin barley. 159 Neither Tasmania nor Cultivaust have, in their final submissions, sought to make out a discrete entitlement to relief for conduct engaged in by the GPWA up to 10 November 1994 allegedly in infringement of the exclusive rights under s 12 of the PVR Act. Their submissions in respect of statutory rights focused only on the PBR Act. Indeed, in their written closing submissions, Tasmania and Cultivaust point out that under the PVR Act, the grantee of plant variety rights which has sold propagating material to a grower, where the grower has retained seed from the harvest and used it for a second generation harvest, has 'no statutory rights' over the disposal of the second generation harvest. They contrast that position with the extended PBR granted by s 14 of the PBR Act. 160 If that acknowledgment be correct, as I think it is, it provides a firm reason why s 82 of the PBR Act should only operate prospectively. If it had been intended to operate retrospectively, and if s 14 of the PBR Act has the effect for which Tasmania and Cultivaust contend, s 82 would retrospectively create infringing conduct by the GPWA which, at the time, did not infringe the plant variety rights of Tasmania. Such a legislative intention is not clear, and there is no reason to infer it: see e.g. per Fullagar J in Fisher v Hepburn Ltd (1960) 105 CLR 188 at 194. As I have said, I think s 82 is clearly not intended to have that consequence. 161 The plant variety rights which existed under s 12 of the PVR Act were of a somewhat different character to PBR under the PBR Act. They were described more generically by reference to plants of a particular variety, rather than to particular propagating material. The plant variety rights were the exclusive right to sell plants of the variety or reproductive material of plants of the variety, and to produce plants of the variety and reproductive material of plants of the variety. 162 Section 38 of the PVR Act described acts which, despite the existence of plant variety rights in respect of a plant variety, could be undertaken. Those acts included selling plants or reproductive material of plants of that variety for use as food or for a use that did not involve the growing or production of plants of that variety: s 38(1)(b) and (c). Section 38(3) appears to authorise the retention of farm saved seeds, and their use to produce a second and subsequent generation of plants or reproductive material, and the sale of the crop or crops so harvested for use as food or for other uses that do not involve the production of plants of that variety. Accordingly, in my view, once the grantee of plant variety rights had sold Franklin barley plants to a grower (impliedly authorising the sale of the harvest of those plants), the grower could produce plants and reproductive material of plants of Franklin barley in the absence of any contractual restraint upon that conduct provided the second and subsequent generations of crop were used either as farm saved seed or delivered to the GPWA for malting or animal feed usage. 163 Consequently, prior to the PBR Act coming into force, the supply by growers to the GPWA of crops harvested from Franklin barley seed acquired from Tasmania or Cultivaust or its agent, and of crops harvested from Franklin barley seed retained from a previous year's crop and used to produce second and subsequent generations of Franklin barley did not contravene the plant variety rights of Tasmania. Also, the sale by the GPWA of those crops, being for a purpose which fell within s 38(1)(b) and (c), did not infringe the plant variety rights of Tasmania. 164 In addition, the issue of permits by the GPWA under s 22A of the GM Act to Joe White and Kirin, authorising them to purchase Franklin barley directly from farmers was not, either directly or indirectly, a contravention of the plant variety rights of Tasmania or Cultivaust. Both Joe White and Kirin were permitted to purchase from farmers Franklin barley which fell into one or other of the categories referred to in the preceding paragraph. The farmers were entitled under s 38(1)(c) and (3) to sell that Franklin barley to them, as their proposed use of it was for malting. The grant of the permits was effected on or about 17 October 1994, prior to the commencement of the PBR Act. 165 However, I think the PBR Act made significant changes to that situation, in particular in relation to second and subsequent generations of crops from farm saved seed. I turn to explain why I have reached that view. 166 The rights granted under the PBR Act are more extensive than plant variety rights under the PVR Act. They extend the grantee's exclusive rights to a greater variety of acts. They also explicitly 'cascade' (an expression used in Lahore, Patents, Trade Marks and Related Rights, Butterworths 2001 at [45,070]) to cover material harvested from the propagating material and products made from harvested material. 167 The nature of PBR is first set out in s 11 of the PBR Act. On its face, and subject to the qualifications, Tasmania has the exclusive right to produce or reproduce Franklin barley, or to licence another person to do so. Franklin barley is accepted to be 'propagating material' as defined in s 3 of the PBR Act, because it is seed or grain from which further Franklin barley can be produced. Tasmania has the exclusive right to offer Franklin barley for sale, or to sell it either directly or through Cultivaust, and to export Franklin barley. The exclusive rights so granted create a statutory monopoly in Tasmania to do all of the acts set out in subs (a) to (g) in relation to the propagating material of Franklin barley. 168 The protection afforded to the PBR grantee under the PBR Act is relevantly extended by s 14. It extends PBR to material harvested from propagating material where there is unauthorised production or reproduction of propagating material and where the grantee of PBR does not have a reasonable opportunity to exercise the PBR in relation to the propagating material. Harvested material retained and used for the grower's own use as farm saved seed is protected from the extended scope of PBR, but otherwise harvested material in the circumstances set out in s 17(1) is the subject of PBR. 169 Section 15 further extends PBR to products made from harvested material, as if those products were themselves propagating material. Again the extended scope of PBR arises if there is unauthorised production or reproduction of propagating material, where the grantee of PBR does not have a reasonable opportunity to exercise the PBR in relation to that propagating material and if material is harvested from the propagating material without the grantee of PBR having a reasonable opportunity to exercise the PBR in the harvested material. It therefore builds on the protection afforded by s 14. 170 If ss 11, 14 and 15 were unqualified, and subject to considering the effect of Tasmania through Cultivaust or its agent having sold Franklin barley to Joe White in 1992 and to barley growers in Western Australia in succeeding years, at first sight the GPWA had no entitlement to stock Franklin barley for sale or export or to offer to sell or to sell or export it (s 11(c), (d), (f) and (g)). 171 Section 53 then provides that acts which amount to the apparent exercise of PBR under s 11 (as extended by ss 14 and 15) without the authorisation of the grantee of PBR constitute an infringement of PBR. Section 54 entitles Tasmania to bring an action for the claimed infringement of its PBR in Franklin barley. Following the joinder of Tasmania as an applicant in this proceeding, it is not necessary to address the challenge to the standing of Cultivaust to do so. The challenge to standing was made before Tasmania became an applicant. 172 The PBR so granted are expressed to be subject to ss 16, 17, 18, 19 and 23 of the PBR Act. Acts covered by those sections do not infringe PBR: s 53(1) of the PBR Act. It is not necessary to refer further to ss 16 or 19 in any detail. Sections 17 and 18 create express exceptions to PBR by authorising certain acts in relation to particular plants covered by PBR. Section 23 is concerned generally with the circumstances in which PBR is exhausted. 173 Each of ss 16, 17 and 18 identify, by reference to particular purposes for which acts which might otherwise infringe PBR are carried out, circumstances in which the PBR are not infringed. Each provision therefore applies by reference to the particular use of particular propagating material, rather than generally in relation to any propagating material. 174 Section 16 relates to acts done for private and non-commercial purposes, for experimental purposes, or for the purpose of breeding other plant varieties. 175 Section 17 relates to acts done by a grower who has legitimately obtained propagating material in order to maintain and use farm saved seed from the harvest for future harvests. Its operation is reflected in the limit upon the extension of PBR by s 14, as explained in s 14(2). 176 Section 18 relates to acts done to enable the use of the propagating material as a food, food ingredient or as fuel, or its use 'for any other purpose that does not involve the production or reproduction of the propagating material'. I shall call that 'the food exemption'. 177 By way of contrast with ss 16 to 18, s 23 applies generally to any propagating material which falls within the circumstances to which it refers. It sets the limit at which PBR are, in effect, exhausted. Any act which would otherwise be inconsistent with the PBR referred to in s 11 is not within the PBR if it takes place after the propagating material has been sold, unless the act of alleged infringement of the PBR either 'involves further production or reproduction' of the propagating material, or involves the export of propagating material to a country that does not provide PBR in relation to the particular variety and is for a purpose other than 'final consumption'. 178 The issue between Tasmania (and Cultivaust) on the one hand and the GPWA on the other depends in large measure upon how the PBR Act deals with second generation Franklin barley, that is Franklin barley grown and harvested from farm saved seed. 179 I am satisfied that all Franklin barley grown by farmers in Western Australia in the relevant period was grown and harvested from seed purchased either from Cultivaust or its agent or from Tasmania, or from farm saved seed grown from such purchased seed (either a second or subsequent generation crop). There is no evidence to make a finding that any grower of Franklin barley engaged in the sale of Franklin barley to any other grower. There was some evidence that in 1996 and 1997, some unlicensed seed merchants advertised Franklin barley seed for sale. Cultivaust was quick to take steps to stop such sales. The evidence does not trace any of the Franklin barley received by the GPWA to Franklin barley grown from any such unauthorised seed sales. Apart from farm saved seed, the growers were obliged under the GM Act to deliver the Franklin barley they grew each season to the GPWA. As I have found, the evidence also points clearly to the GPWA having sold the Franklin barley it so received to maltsters for malting for beer or whiskey, or having sold that of lesser quality for animal food. The sales were either to Western Australian based maltsters or for export to maltsters in China, Chile, Japan and South Africa. The GPWA did not stock or sell any of the Franklin barley it acquired for the purpose of it being used to propagate further Franklin barley. In addition, on about 17 October 1994 and in subsequent years, the GPWA granted permits pursuant to s 22A of the GM Act to Joe White and to Kerin allowing each of them to purchase Franklin barley grain directly from growers. The evidence shows that the GPWA expected that Joe White and Kirin would use any Franklin barley grain so acquired for malting, and that each did use Franklin barley grain acquired under those permits for malting. 180 It is also clear that neither Tasmania, nor Cultivaust on its behalf, gave express permission to the GPWA to deal with the Franklin barley grain grown in Western Australia in the manner in which it did. Both Tasmania and Cultivaust were, however, aware of the general way in which the GM Act operated in Western Australia, including that the GPWA was the sole marketing authority of barley to be sold (from 1997, following amendment to the GM Act the sole marketing authority of barley to be exported from Western Australia) and was obliged to establish a compulsory barley marketing pool for barley (or marketing pools for varieties of barley). 181 The starting point for consideration of the contentions must be the wording of the relevant provisions, in the context in which they appear, both within the Part of the Act in which they appear and in the Act as a whole: Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397 per Dixon CJ; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514 per Mason J. 182 All of the directly relevant provisions are in Part 2 of the PBR Act. Reference was also made to the purpose of the PBR Act as described in its long title, to certain definitions in s 3, and to s 53 in Part 5 dealing with the infringement of PBR. I note in particular the definition of 'propagating material': 'propagating material, in relation to a plant of a particular plant variety, means any part or product from which, whether alone or in combination with other parts or products of that plant, another plant with the same essential characteristics can be produced.' And 'propagation' is also defined: 'propagation, in relation to a living organism or its components, means the growth, culture or multiplication of that organism or component, whether by sexual or asexual means.' There is also a definition of 'reproduction': 'reproduction, in relation to propagating material of a plant of a particular variety, means any process, whereby the numbers of units of that propagating material that have the capacity to grow into individual plants is multiplied.' 183 Having regard to the competing contentions, I consider those definitions have especial significance. 'Propagating material' is defined to refer to a particular plant with reproductive capacity. It is not defined generically, so as to refer to all plants with reproductive capacity as being some form of collective propagating material. Its emphasis is upon the reproductive unit from which another essentially similar unit can be produced. That is consistent with the definition of 'propagation' as referring to the process by which a plant grows or multiplies. It also is consistent with the definition of 'reproduction', as referring to the process by which particular propagating material, i.e. a plant capable of reproduction, is able to generate multiple individual plants capable of reproduction. 184 The exclusive rights given by s 11 of the PBR Act are in relation to 'propagating material'. Having regard to the definitions referred to, in my view that is a reference to the Franklin barley grain or seed supplied to growers in Western Australia by Tasmania or Cultivaust either directly or through its agent over the relevant period. 185 The next step is to determine the extent of the restraint effected by those exclusive rights. Section 11 is expressed to be 'in relation to propagating material' of Franklin barley. Because ss 14 and 15 extend PBR in certain circumstances, the nature of the extension will inform the nature of the rights granted directly by s 11. 186 Section 14(1) applies to the production or reproduction of propagating material without the authorisation of the grantee. The status of a first generation crop from seed provided by the grantee or its agent is, as Tasmania and Cultivaust acknowledge, able to be stored and sold by the grower (other than for reproduction of the propagating material) because the supply of the seed necessarily authorised the use of that seed to grow a crop and the sale of the crop from that seed. That use of the first generation crop is not therefore without the authorisation of the grantee. 187 Section 14(1), however, does inform the status of a second generation crop grown from farm saved seed. Its status depends upon whether it is a crop produced or reproduced without the authorisation of the grantee. The status of a second generation crop can be discerned from the interaction of s 17(1) and s 18 and s 14(2). Section 17(1) authorises from the first generation crop, and from subsequent generations of crop (by reason of the reference in subs (1)(a) to the alternative: the previous operation of the section), the retention of farm saved seed. It also authorises the use of the farm saved seed in producing a further crop and the harvesting of further propagating material from plants grown from that seed. My use of the word 'authorises' is a little loose. Strictly speaking, as s 17(1)(d) and (e) provide, in such circumstances PBR is not infringed by the use of farm saved seed for reproducing propagating material or by the reproduction of that further propagating material. Section 17(1) does not indicate what the grower may do with propagating material generated from farm-saved seed beyond its further use as farm saved seed. 188 To discern whether the grower may sell that further propagating material without contravening the exclusive rights of the grantee, reference must be made to s 14(2) of the PBR Act. In my view, s 14(2) describes the status of second and subsequent generations of crop (other than that retained for farm saved seed), so that the second and subsequent generations of crop are also to be treated as if the harvested material were propagating material covered by s 11. The second and subsequent generations of crop assume or meet the description of propagating material covered by PBR. Section 14(2) is quite explicit. It directs that s 14(1) applies to the harvest from farm-saved seed, except for that part of the harvest which is itself retained as farm saved seed. Section 17(1) enables a grower to retain farm saved seed from the crop grown from legitimately acquired seed, or from a further crop grown from farm saved seed. Section 14(1) deals with the status of crops grown from farm saved seed, if that crop is itself propagating material. The harvest from farm saved seed, except for further farm saved seed, is to be treated as if it were propagating material to which s 11 operates, that is it is propagating material the subject of PBR. 189 The GPWA pointed out the difficulty in statutory marketing authorities, and others, being able to determine whether a particular harvest is one grown directly from lawfully acquired seed, or is a second or subsequent generation of crop grown from farm saved seed. That may present factual difficulties. It is unlikely to present such factual difficulties to the grower, who should reasonably readily be able to know whether particular parts of a crop are first generation crops from lawfully acquired seed, or are from farm saved seed. Assuming a grower's crop, including both first and second generation seed grown in those circumstances, was delivered to the GPWA to a Franklin barley grain pool, the GPWA would have difficulty in knowing which of the crop delivered was the subject of PBR by reason of s 14(1) of the PBR Act. However, the wording of s 14(1) is in my view quite clear. And, for reasons to which I now refer, the difficulty confronting the GPWA (or other statutory marketing authorities, or other direct buyers of second and subsequent generations of crop from farm saved seed) is not so onerous as might first appear. The reasons derive from s 14(1)(a) and (b). 190 Section 14(1)(a) contains the first requirement for a second generation crop, if it involves the production or reproduction of propagating material, to be the subject of PBR. The first requirement is that the second generation crop not be authorised by the grantee of the PBR. Section 14(1)(b) contains a second requirement. It is that the grantee does not have a reasonable opportunity to exercise its PBR in relation to the propagating material. That is, both the second generation crop, and any crop harvested from it, are to be treated as propagating material on which s 11 operates, provided firstly that the production or reproduction of the crop is without the authorisation of the grantee, and provided secondly that the condition in s 14(1)(b) is also met. 191 Each of those provisos involves a question of fact. 192 The sale of seed for the 1992 trial of Franklin barley in Western Australia or the subsequent sales of Franklin barley seed did not include an express authorisation of the use of farm saved seed for second and subsequent generations of crop. Whilst Tasmania and Cultivaust acknowledge that, by implication, they necessarily authorised the sale of the first generation crop, there is no reason to conclude by implication that they authorised the use of farm saved seed for second and subsequent generations of crop or the sale of second and subsequent generations of crop. Their conduct, to the contrary, indicated a desire to control the disposition of the second and subsequent generations of crop by imposing upon such dispositions of the harvest a production levy or some other means of securing an end point royalty. 193 The propagating material to which s 14(1)(b) refers is propagating material produced or reproduced without the authorisation of the grantee of PBR. As I have earlier noted, not all propagating material which attracts PBR routinely results in a harvest which is itself propagating material. Franklin barley, and other grains, do however have that characteristic. 194 Tasmania and Cultivaust were well aware of that. They knew that the Franklin barley seed sold to Joe White to be supplied to growers in Western Australia for the 1992 growing trial could result in growers retaining farm saved seed for further harvests. Similarly, they knew that the growers who acquired Franklin barley seed from Cultivaust or its Western Australian agent or subagents in and after 1993 could retain farm saved seed for further harvests. It was precisely because of that knowledge that they sought to secure some arrangement for a production levy or end point royalty. 195 By reason of the monopoly role of the GPWA as the statutory marketing authority for prescribed grains in Western Australia (and the corresponding roles of the ABB in Victoria and South Australia, and the NSWGB in New South Wales in that State), Cultivaust chose to direct its efforts to secure a production levy or an end point royalty through those bodies. But the state markets did not have to be structured in that way (the GM Act as noted was substantially amended in 1997). That was and is a matter for the State legislatures. Even while there were monopoly statutory marketing authorities, Cultivaust and Tasmania could have sought to exercise their PBR in relation to the propagating material comprising second and subsequent generations of crops as against the growers who had retained farm saved seed. They could have sought to exercise their PBR also against the GPWA. 196 It is important to notice that the 'reasonable opportunity' to which s 14(1)(b) refers is in relation to the exercise of the grantee's PBR rights. Those rights are exclusive, but negative, rights: see GPWA v Commonwealth at 513 - 514. The exercise of those rights involves, if necessary, action under s 54 of the PBR Act. The relief which may be sought includes injunctive relief, and damages or an account of profits: s 56(3). 197 Neither Cultivaust nor Tasmania has sought to exercise the PBR in the second and subsequent generations of Franklin barley crops grown from farm saved seed against any of the growers who grew those crops so as to prevent those growers from dealing in those crops. That is not because they did not know that such crops were being grown and harvested. They did. They knew those crops were being produced: s 11(a). They knew those crops were being stocked for sale and export: s 11(g). They knew some of those stocks were, or may have been, sold direct to maltsters in Western Australia: s 11(d). Nor is it because they did not appreciate that the crops were themselves the subject of PBR by reason of s 14. That is, and was at all material times, their claim. At the time of the initial sale of certified Franklin barley, Tasmania and Cultivaust could have imposed conditions upon the disposition of second and subsequent generations of crops. Whilst their decision not to do so was no doubt made because the GPWA, as the monopoly statutory marketing authority, was the preferred entity to secure a production levy or end point royalty, they could have done so. 198 After it became apparent that the GPWA would not readily agree to establish a structure or process for a production levy or end point royalty, Tasmania (or Cultivaust) could have sought then to exercise the PBR in relation to the propagating material of Franklin barley of the second and subsequent generations of crop. Section 54 provides the means by which they could have done so. They did not then do so. 199 In my judgment, in respect of the second and subsequent harvests of Franklin barley from farm saved seed which were grown in Western Australia, at least for the 1993/1994, 1994/1995 and 1995/1996 harvests, Tasmania and Cultivaust did have a reasonable opportunity to exercise Tasmania's PBR in relation to the propagating material leading to each harvest and so s 11 does not operate as if the harvested material were propagating material under the PBR Act. The factual element required by s 14(1)(b) before PBR extended to those harvests is not shown to have existed. Neither Tasmania nor Cultivaust took up that opportunity. I have assumed that, upon the commencement of the PBR Act, the propagating material then held by growers as farm saved seed should be treated as propagating material under the PBR, even though plant variety rights under the PVR Act may not have attached to that material. 200 In reaching that view, I have not needed to address the defence of laches raised by the GPWA. Section 14(1) does not impose a time limit upon the exercise of PBR. It provides substantive factual conditions which must be met before the extended scope of PBR arises. It contemplates two circumstances. One is where the grantee of PBR does not (for whatever reason) have a reasonable opportunity to exercise PBR in relation to certain propagating material. If that is the fact, PBR may extend to the harvested material from that propagating material. The other is where the grantee of PBR has a reasonable opportunity to, and does, exercise the PBR rights. Section 14(1) cannot have been intended to exclude the enforcement of PBR rights by their assertion and exercise. In this matter, any exercise of Tasmania's PBR rights did not take place until, at least, the letter before action of 16 April 1996. That is, I find, after the 1995/1996 harvest. Nor can it have been intended to enliven such rights retrospectively by their claimed exercise some time after the harvest or succeeding harvests have occurred and where the factual condition imposed by s 14(1)(b) for the extension of the scope of PBR by s 14 has not occurred. In other words, in my view, s 14 contemplates the extension of PBR to the harvest from propagating material only if the grantee did not have a reasonable opportunity to exercise PBR in relation to the propagating material. By the exercise of PBR, the harvest would not become subject to PBR, but the grower would be liable for infringement of the PBR including accounting for the benefits of the infringement. 201 After 16 April 1996 (the letter before action to the GPWA), s 14 cannot operate to extend Tasmania's PBR. The letter before action illustrates that the factual condition for the extension of PBR imposed by s 14(1)(b) cannot be satisfied. On the other hand, from that point it is appropriate to recognise that Tasmania (and Cultivaust) were in fact exercising PBR to the extent to which they were then able to do. 202 By 16 April 1996, there was available to growers in Western Australia farm saved seed of Franklin barley from the harvests of previous crops (either first or second or subsequent generations) in respect of which s 14 had not operated to extend PBR for the reasons given. That propagating material not subject to PBR would include all farm saved seed from the 1992 trial, or from seed sold and supplied for the 1993, 1994 and 1995 growing seasons and the harvests of that seed. 203 From 16 April 1996, Cultivaust asserted and then exercised its PBR rights. Those rights would, upon my analysis, apply to so much of the harvests after that time as grew firstly from farm saved seed from the harvest of seed sold for the 1995 growing season, and secondly from subsequent harvests from that or later farm saved seed from the 1996 growing season. Section 14(1)(b) would not apply because, self-evidently, Cultivaust and Tasmania did have a reasonable opportunity to exercise the PBR which they assert. They exercised the PBR. The PBR would not apply to the first generation of harvests delivered to the GPWA: s 23, and the authority implied from the sale of seed as acknowledged by Cultivaust and Tasmania. The harvests after 10 April 1996 which would attract PBR would therefore not include the first generation crops for 1996/1997 and subsequent years. 204 According to Mr Wells, some 59,000 tonnes of Franklin barley were delivered to the GPWA from the 1996/1997 harvest. The tonnage delivered in 1997/1998 was only 9000 tonnes, for the reasons I have referred to above. It was minimal thereafter. The claim by Cultivaust and Tasmania under the PBR would, in my view, be limited to an accounting or damages in respect of that part of those two Franklin barley grain pools which did not represent the harvest of Franklin barley seed sold in 1996 for growing, or the harvest of Franklin barley from farm saved seed from harvests which were generated from seed supplied for the 1994 or earlier growing periods. The evidence does not enable any precise quantification of the amount of deliveries to the GPWA from those two harvests which was handled by the GPWA arguably in infringement of Tasmania's PBR. Were it necessary to do so, the Court would have to make a finding on that matter. As I have concluded below that, by reason of s 18, the GPWA has not in any event infringed the PBR of Tasmania in Franklin barley, it is not necessary to do so. 205 Section 15 extends PBR to products obtained from harvested material in certain circumstances. It is not necessary to refer to it in detail. There is no claim by Tasmania or Cultivaust against the maltsters in Western Australia. It is structured in the same way as s 14, except that it imposes as factual conditions for its operation that the grantee of PBR not have a reasonable opportunity to exercise the PBR rights at two points: at the point of the use of propagating material for a further harvest: s 15(1)(b), and at the point of the harvest itself which comes to be made into the products over which PBR may then apply: s 15(1)(c). For the reasons already given, on the facts in this matter, s 15 does not operate to extend PBR. 206 I note the absence of any claim under the PBR Act against growers and maltsters for Franklin barley grown and supplied to Joe White and Kirin directly (in accordance with their permits under s 22A of the GM Act). On the view I have formed about s 14, PBR also would not have extended to the harvests from farm saved seed used to satisfy those direct supply arrangements. 207 It remains to consider ss 16, 18, 19 and 23 of the PBR Act, as s 11(as extended by ss 14 and 15) is also expressly subject to those provisions. I have addressed ss 17, to which s 11 is also expressly subject, above. 208 Section 16 of the PBR Act does not have present significance. It provides that certain acts done for private, experimental or breeding purposes do not infringe PBR. The GPWA claimed in its defence that, in respect of the 1992 trial growing of Franklin barley for the 1992/1993 harvest, s 16 applied. As Tasmania and Cultivaust do not claim any relief in respect of the role of the GPWA in relation to the 1992/1993 harvest, it is not necessary to further address that issue. Section 19 also is not said to be relevant to the present proceedings. 209 Section 23 is relied upon by the GPWA to protect it from what, upon my analysis so far (and but for the view I have taken about the applicability of s 14(1)(b) and s 15(1)(b) and (c)), may have amounted to conduct infringing the PBR of Tasmania by the sale of Franklin barley from second and subsequent generations of crops. It provides that, unless certain circumstances apply, PBR are spent, in relation to propagating material of Franklin barley, where the allegedly infringing act takes place after the propagating material has been sold with the grantee's consent. If the act involves the further production or reproduction of the propagating material, or if it involves export to a country which does not provide PBR in relation to the variety and is for a purpose other than final consumption, s 23 does not operate. Clearly then there is an intention for s 23 not to operate where the allegedly infringing act may involve further propagation of the propagating material. 210 In my view, s 23 recognises that the purchaser of propagating material (which is not to be further used for production or reproduction), where the grantee of PBR has sold the propagating material or has consented to its sale, may then further deal with the propagating material without infringing PBR. It covers the sale of a first generation crop from lawfully acquired seed. In any event, that sale is by implication consented to by Tasmania and Cultivaust (as they acknowledge). It does not, however, extend to cover the sale of second and subsequent generations of crops, assuming they are grown from farm saved seed retained from lawfully acquired Franklin barley. Section 23, in my judgment, provides for the disposition and use of a first generation crop from propagating material which has been lawfully acquired. The first generation crop may be (and in the case of Franklin barley is) propagating material of the variety. Acts to which s 11 refers may be undertaken with respect to that first generation crop without infringing PBR, because PBR do not extend to those acts in the circumstances to which s 23 applies. It does not apply if the act involves the further production or reproduction of propagating material. The use of the word 'further' in s 23(1)(c) provides the reason for treating the first generation crop differently, and for excluding from the aegis of s 23 the second and subsequent generation crops. The alternative exclusion in s 23(1)(d) is, in my view, consistent with that construction of s 23 overall because it too is intended to preserve PBR, unless the exported propagating material is for final consumption. 211 Hence, s 23 complements the extension of PBR effected by ss 14 and 15. I do not accept that the submission of the GPWA that it excludes from the operation of s 11 (as extended by ss 14 and 15) all subsequent generations of crop from seed originally purchased from the grantee of PBR. That contention appears to place too much emphasis upon the words in subpar (a), namely 'propagating material of the variety', without having proper regard to the circumstance in which s 23 operates, namely after a sale by the grantee of the propagating material, and without having full regard to the qualification in subpars (c) and (d). 212 I have found above that neither Tasmania nor Cultivaust consented to the sale of second or subsequent generations of crop of Franklin barley grown and harvested in Western Australia during the relevant period. 213 Section 18 is of general application. Upon first reading, it is very wide in its application. It would apply where illegally obtained propagating material was sold for use as a food, food ingredient or fuel, or for any use which does not involve the production or reproduction of the propagating material. It would apply to second and subsequent generations of crops of propagating material, provided the act involved sale for use as a food or the like (non-reproductive) purposes. It would therefore 'authorise' the receipt by the GPWA of such crops of Franklin barley, and then sale, even though I have found that s 14 extends PBR to such crops. That is the construction for which the GPWA contends. 214 Section 18 must be construed in a manner which is harmonious with the other provisions of the PBR Act and its objects: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 - 382 per McHugh, Gummow, Kirby and Hayne JJ. The issue is whether s 18 was intended to create a 'blanket' exemption in dealing with propagating material to which PBR attach if the dealing in the propagating material comes within the food exemption. 215 One step which can readily be taken is to accept that the use of propagating material, lawfully acquired for non-reproductive purposes does not infringe PBR. As with patented goods, the acquirer of such goods may use them provided the use does not itself involve use inconsistent with the patentee's rights: cf National Phonograph Company of Australia Limited v Menck [1911] AC 336 at 353 - 354. The lawful acquisition of Franklin barley by (for example) Joe White, and its use for malting, would fall squarely within s 18. Similarly, the delivery of a first generation harvest of Franklin barley from seed acquired from Cultivaust or its agent to the GPWA, and the GPWA's dealing with that harvest, would fall squarely within s 18. 216 The difficulty is to determine whether s 18 has a more extensive operation, in relation to dealings with the second and subsequent generations of Franklin barley from farm saved seed. I have concluded such crops fall within s 14, and are so treated as if they were propagating material to which s 11 applies. I have also concluded that PBR in such crops persists, notwithstanding s 23 of the PBR Act. 217 I do not accept the contention of Tasmania and Cultivaust that s 18(1)(b)(ii) supports the conclusion that s 18 is confined to a first generation crop from lawfully acquired seed. Section 18(1)(b)(ii) does not identify a necessary, but an alternative, description of the permitted uses. Section 18(1)(b) contains alternative permitted uses. The alternatives relate to the purpose of the uses to which the propagating material is to be put. The permitted or non-infringing act is determined by the purpose of the use. If the otherwise infringing act is for a permitted purpose, then it does not infringe the PBR. Sections 14 and 15 do not alter or extend the nature of the acts which might infringe PBR. 218 Tasmania and Cultivaust acknowledge that there is an apparent conflict between the way ss 14 and 15 operates to extend PBR and the operation of s 18 to indicate when PBR are not infringed. I think it is plain from the wording of s 18 that the 'acts' to which it refers are the acts in respect of which the grantee of PBR has exclusive rights by reason of s 11. Section 18 does not refer specifically to ss 14 and 15. Those provisions extend PBR to apply to certain harvested material and to certain products obtained from harvested material. The device by which the extended operation is effected is to apply s 11 as if the products referred to in ss 14 and 15 were propagating material as referred to in s 11. The exclusive rights are still those expressed in s 11. Sections 14 and 15 do not alter the nature of the exclusive rights of the grantee of PBR. They extend the circumstances in which the exclusive rights may be exercised. 219 Consequently, I do not consider that the specific operation of ss 14 and 15 should be taken to apply so as to negate the effect of the more general terms of s 18. The provisions perform different functions. Sections 14 and 15 do not identify the nature of the exclusive rights. Section 18 provides for circumstances in which conduct which might otherwise infringe the exclusive rights will not in fact do so. 220 The purpose of the PBR Act is to create monopoly rights in certain plant varieties, to encourage the development of new plant varieties. It does so by controlling the circumstances in which new plant varieties may be produced or reproduced, and by controlling the commercial exploitation of both new plant varieties, the harvest from new plant varieties (s 14) and products obtained from the harvest from new plant varieties (s 15). The controls are not absolute, but qualified. They are limited in time (s 23). They are also limited so that certain uses of otherwise protected materials are permitted (ss 16, 17, 18 and 19). The circumstances in which the extended scope of PBR may arise under s 14 and 15 are carefully confined. Where they apply, the PBR Act clearly intends that further production or reproduction of propagating material should remain the exclusive right of the grantee of PBR. 221 However, the general exemptions to which s 11 is subject, demonstrate that the legislature has determined to exempt certain uses from being infringements of the PBR. Section 23 relates to the use of propagating material for a first generation crop. The other exemptions (ss 16, 17, 18 and 19) relate to how the propagating material is to be used. Sections 16 and 17 permit acts which involve, or have the purpose of, further production of propagating material. Section 18 relates to the 'food exemption'. Section 19 ensures the public benefit of reasonable public access to the propagating material. The common feature of those provisions is the balancing of the production and commercial use of the propagating material on the one hand with the public interest in having the benefit of access to the propagating material of the particular variety of plants on the other. It is not for the Courts to express a view whether it agrees with how that balancing has been made. It is for the Court to determine where the line has been drawn. 222 There is, in my view, nothing in the wording of s 18 which indicates that it should have a confined operation. Section 18 applies to acts done in relation to the propagating material of plants of the variety to which PBR attaches. It does not (as ss 14, 15 and 23 do) distinguish between first or subsequent generations of a crop, or between a crop harvested directly from seed provided by or with the approval of the grantee of PBR and other crops. As I have concluded that ss 14, 15 and 23 recognise such a distinction, s 18 could readily have done so if that were the legislative intention. It is true that if s 18 has such a wide operation, the opportunity for a production levy or end point royalty may be diminished if it has not already been imposed. That is why, in my view, s 14(1)(b) and s 15(b) and (c) are expressed as they are. The opportunity to impose a production levy or end point royalty is intended to be exercised with respect to lawfully acquired propagating material at the time of its acquisition. If that opportunity is not taken, then ss 14 and 15 do not extend the scope of s 11. If no such opportunity arises, then the remedies available under ss 54 may be pursued in respect of that production or reproduction of propagating material. Section 18 would not protect that act. Section 18 would operate only at the later stage, namely where an act is undertaken in relation to the harvest from propagating material which is within the 'food exemption'. 223 The alternative proposed use referred to in s 18(1)(b)(ii) concerns acts for a purpose which does not involve the 'production or reproduction' of the propagating material. That may be contrasted with the use in s 23(1)(c) of the words 'further production or reproduction'. Although the provisions do different work, the careful use of those different terms should be acknowledged. Section 18(1)(b) looks to whether the propagating material will be produced or reproduced. Section 18(2) then describes certain conduct which is not to be taken as involving production or reproduction of propagating material; it describes conduct which also is directed to the final consumption of the propagating material. I consider those provisions confirm the broad intention of s 18 to exempt from acts which might otherwise infringe PBR acts which fall within the food exemption. 224 In my view the words of s 18 should be given their normal meaning, and not be read down as Cultivaust and Tasmania intend. That conclusion reflects the structure of Pt 2 of the Act. It describes the PBR in ss 11, 14 and 15 and their limit in s 23, but it then provides that some acts which have a particular character should not infringe PBR. Section 18, the food exemption provision, is one of those categories of exempted acts. It reflects the words of s 18, both on their face and having regard to the use of the slightly different expression in s 23(1)(c). It draws the line for the food exemption by the particular act having regard to its immediate purpose, as s 18(2) highlights. It would not be within the scope of s 18 to grow and harvest propagating material, intending to duplicate or multiply the harvest over succeeding seasons and ultimately to dispose of the harvest as food. Section 18 focuses attention on the quality of the particular act that might otherwise infringe PBR. 225 It would not be within the scope of s 18 to grow propagating material from unlawfully obtained seed, intending to sell the harvested propagating material as food. Section 18 only applies where something is done to propagating material which enables its use within the food exemption. It is not the intention underlying the conduct, but the quality of the particular act which might otherwise infringe the PBR. 226 In my view, the particular acts of the GPWA, namely the storage and sale of Franklin barley for malting purposes (within the 'food exemption'), do meet the description of acts which enable the use of that Franklin barley within the food exemption. That is in essence the conduct of the GPWA which is said to infringe Tasmania's PBR. I do not need to decide whether the growing of the second and subsequent generations of Franklin barley from farm sowed seed was itself within the conduct contemplated by s 18. For reasons I have given, my tentative view is that it was not. 227 However, for the reasons given, I consider that the acts of the GPWA about which Tasmania and Cultivaust complain do fall within the scope of s 18. For that reason, I do not consider that the GPWA has infringed the PBR of Tasmania in Franklin barley in the manner alleged. 228 In those circumstances, it is not necessary to address the contentions as to whether the GM Act, either as it stood at 1992 or as amended in 1997, is inconsistent with the PBR Act and so (as Tasmania and Cultivaust contended) invalid to the extent of that inconsistency in accordance with s 109 of the Constitution.

the contract claim 229 In my judgment it has not been shown that any contract or agreement in the terms claimed was entered into between Cultivaust and the GPWA in May 1992 in respect of, or prompted by, the 1992 growing trial of Franklin barley in Western Australia. 230 A combination of circumstances induced Cultivaust to provide Franklin barley seed in early May 1992 for the 1992 growing trial without it having secured either from Joe White or from the GPWA any firm commitment to pay an end point royalty. They each, at about that time, indicated expressly that they would not make such a commitment. The communications at the critical period, moreover, did not insist upon there being no grower retained seed. That may have been an oversight on the part of Cultivaust, perhaps a consequence of the flurry of communications whereby it was endeavouring to secure some enforceable commitment when it had already sent Franklin barley seed to Western Australia for the 1992 growing trial. The timing was critical, because the growing trial could not really have commenced any later in that year. 231 Cultivaust could have refrained from supplying seed until it had a clear written commitment in terms which were satisfactory to it. It did not do so. On the other hand, for the reasons explained, there was considerable commercial pressure on both Joe White and the GPWA to participate or facilitate in growing trials of Franklin barley during 1992. But, relevantly, the GPWA made its position clear to Cultivaust, both in its letter of 5 May 1992 and then by supplying on 6 May 1992 a copy of its letter of instructions to growers (dated 5 May 1992) which included the direction that the grower could retain Franklin barley grain for future farm use. Cultivaust did not respond to dispute the accuracy of that direction. Indeed, Cultivaust acknowledged that it expected growers in the 1992 growing trial to retain some farm saved seed. Mr Semmler expected to exercise plant variety rights to control future crops grown from farm saved seed from the 1992 growing trials, but as I have found no steps to do so were taken against the growers. 232 The finding which Cultivaust sought was that the communications in that short period of time, whilst not leading to any express agreement, resulted in an agreement to be inferred from those communications and from the conduct of the parties. My chronological findings do not lead to that conclusion. The findings indicate that the 1992 growing trial was arranged and driven by Joe White, and was facilitated by the GPWA. There was no term agreed as to any production levy or end point royalty. Ultimately, Cultivaust did not seek one for that growing trial. Cultivaust, through Mr Teague, accepted in evidence that the GPWA made no commitment about how it would deal with Cultivaust concerning Franklin barley for any future growing seasons, and that there would be further discussion between them as to any further release of Franklin barley seed into Western Australia. Whilst I accept the evidence of Mr Teague and Mr Semmler that, in their discussions with representatives of the GPWA, there was discussion about Cultivaust's expectations for future growing seasons, there was no conduct either from what those representatives said on those conversations or in the correspondence from which I infer any agreement as Cultivaust claims. 233 Cultivaust contends that the conduct of the parties, in the light of the surrounding circumstances, shows a tacit agreement or understanding between Cultivaust and the GPWA in the terms it alleges. Even accepting, in the face of the written communications, that the evolution of a relationship may ultimately result in an inferred mutual assent to be bound to contractual terms: see e.g. Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, I do not consider such a position was reached in this matter. Cultivaust wanted an agreement for a production levy or end point royalty. It did not get one, at least on about 5 May 1992. Its officers, Mr Teague and Mr Semmler, understood that. Nothing was done by the officers of the GPWA which could reasonably have led Cultivaust to think there was a concluded bargain in the terms alleged. I observe that, on 6 May 1992, Cultivaust through Mr Teague reported to Tasmania that its negotiations with the GPWA were not 'progressing very far'. Mr Teague confirmed his understanding that the GPWA was not committed to future development of Franklin barley in Western Australia. No suggestion of an agreement as now alleged was reported to Tasmania. I also observe that, in its report to Tasmania on 17 September 1993, Cultivaust in discussing its attempts to secure a production levy or end point royalty in respect of Franklin barley grown in Western Australia, did not suggest it had in May 1992 made any contractual arrangement with the GPWA. 234 I do not mean to suggest that Mr Teague has in any way been dishonest in his evidence. Nor do I mean to suggest that Mr Semmler was in any way being dishonest in his evidence. To the contrary, I think each endeavoured to give evidence as frankly as possible. As I have noted, Mr Teague acknowledged in his evidence that Cultivaust did not intend to secure any end point royalty in respect of the Franklin barley grain during the 1992 growing trial. I think he simply deferred addressing the issue at that time. I have accepted the evidence of both Mr Maughan and Mr Orr simply because, apart from them being impressive witnesses, their circumstances and contemporary correspondence tends to support their assertions as to their limited role. 235 There was, I accept, a preparedness on the part of both Joe White and the GPWA to further discuss with Cultivaust in respect of future crops of Franklin barley after the 1992/1993 harvest whether some financial payment arrangement could be entered into between Cultivaust and Tasmania on the one hand and some entity in Western Australia. There is nothing to suggest any ill will between the parties in mid-1992. But the letter from the GPWA (signed by Mr Swan) of 5 May 1992 to Cultivaust gave a clear indication that an 'end product levy' was not accepted. Its offer of assistance in the future was very generally expressed. It did not amount to any contractual commitment by the GPWA. The overall exchange of communications between Cultivaust and the GPWA in that short period of time, in my view, did not lead to any enforceable agreement or commitment by the GPWA with respect to its future conduct.

the estoppel claim 236 Cultivaust and Tasmania explain this claim, based on estoppel by conduct, as an alternative to the claim for infringement of Tasmania's PBR rights. They assert that the GPWA is estopped by its conduct from denying that: (1) Cultivaust agreed to supply Franklin barley seed in 1992 for the limited purpose of growing trials in that year; (2) the GPWA agreed to recognise, and act upon, that limited purpose so that it would not receive and sell Franklin barley grain other than for that limited purpose, without the further authorisation of Cultivaust; and (3) in any event, the knowledge by GPWA of the conditions on which Franklin barley seed was provided for the 1992 growing trial in Western Australia is sufficient to preclude the GPWA from acting inconsistently with those conditions. 237 The further allegations in the final version of the Statement of Claim, that the estoppel extends to an agreement with the GPWA that a production levy would be payable 'was imminent' and that the subsequent supply of Franklin barley seed would be covered by such an agreement, and that the GPWA would promote the development of Franklin barley seed in Western Australia, were not pursued in final submissions. The final submissions nevertheless referred extensively in the evidence touching upon those allegations. 238 I have concluded that the claim against the GPWA for infringement of Tasmania's PBR rights in respect of conduct prior to 10 November 1994 must fail, and I have also generally rejected the claim that the GPWA infringed Tasmania's PBR rights. It is therefore necessary to address this claim as refined in the final submissions. 239 Despite the focus of the contention, the written submissions did not fully dilate upon the factual basis for the claimed estoppel. They dealt more with later events. I have dealt with the relevant findings when addressing the contract claim. It is clear enough that the supply of Franklin barley seed to or through Joe White in 1992 was for a growing trial. The GPWA accepted delivery of the harvest from that growing trial and sold it to Joe White. It did not otherwise engage in conduct upon which Cultivaust relied, either in April or May 1992 or subsequently, which induced in Cultivaust any belief that the growers in the 1992 trial would not retain any farm saved seed. The contrary is the case. It did not also engage in conduct upon which Cultivaust relied as to whether it would or would not receive any Franklin barley grain from growers from a second or subsequent generation crop from such farm saved seed. 240 In my judgment, no conduct on the part of the GPWA in respect of the 1992 growing trial could have induced, or did induce, in Cultivaust the belief in the facts asserted. I also do not find that Cultivaust had those beliefs. Cultivaust simply proceeded to release the Franklin barley sold for the 1992 growing trial, knowing that it had not put in place any agreements to secure the exercise of its plant variety rights in the way it wished to do so. 241 Cultivaust, in support of its claim, refers to the exchange of draft agreements between Cultivaust and the GPWA in November and December 1992 under which it was proposed that the GPWA would be appointed as an agent for the supply of Franklin barley seed in Western Australia and would collect a production levy or end point royalty upon the harvests. At that point, it was generally understood that the 1992 growing trial was going to be successful. There was a firm desire by the maltsters in Western Australia and growers for Franklin barley seed to be available for the 1993 and subsequent growing seasons. The exchange of the draft agreements followed the malting of 13 November 1992 referred to in the chronological findings. 242 The GPWA through Mr Swan, had, on 5 May 1992, firmly indicated reluctance to support any production levy or end point royalty. Despite that, Cultivaust continued to press for a production levy or end point royalty in respect of any Franklin barley seed provided after the 1992 growing trial. Then, following the 13 November 1992 meeting, further exchanges took place on the topic, including as to particular provisions of the draft agreements. 243 That conduct, however, must be seen in the context of other communications. In particular, at the meeting of 13 November 1992, Mr Swan and Mr Wells made it clear that the GPWA would not enter into any agreement providing for a production levy or end point royalty without the support of the grower organisations. They also made it clear that the WAFF remained opposed to the concept. Cultivaust then took the step of providing a first draft of a proposed agreement. I find it did so without any misunderstanding of the position of the GPWA, namely that whatever its officers may have thought about the concept of an end point royalty, no agreement to provide for one was likely to be entered into without the support of the WAFF. Cultivaust proceeded as it did because it wanted to progress the content of an agreement which, if acceptable to the GPWA, could be presented to the WAFF for its support. That was a sensible course to follow in the circumstances. Cultivaust did not want to be delayed by negotiating details of the agreement after (and if) the WAFF supported the concept. The WAFF was not likely to form a different view about the concept until about February 1993 because its members were then in the harvesting season. To that time, it had expressed opposition to the concept. 244 In my judgment, Cultivaust was not led to believe by any conduct of the GPWA that any Franklin barley seed supplied in 1993 or subsequently would be subject to a production levy, or that the GPWA would enter any agreement on that topic without the support of the WAFF. I do not accept that the GPWA officers conveyed to Cultivaust that the concurrence of the WAFF to a production levy was a formality. 245 In early February 1993, following the reviewed opposition of the WAFF to a production levy or end point royalty, the GPWA formally withdrew from ongoing negotiations with Cultivaust. Cultivaust understood that, to progress any agreement to effect a production royalty, it would need to alter the views of the WAFF. I reject the contention that anything said orally to Mr Semmler by Mr Wells later in February 1993 conveyed to Cultivaust any matters upon which it relied in releasing Franklin barley seed into Western Australia in the 1993 growing season, or in subsequent seasons. I have not accepted the claim of Cultivaust that any conduct on the part of the GPWA induced it to release Franklin barley seed for the 1993 growing season when it otherwise would not have done so. In my judgment, it released Franklin barley seed for the 1993 growing season knowing it had no agreement for a production levy or end point royalty. It simply made a commercial judgment to do so, firstly hoping to stimulate demand for Franklin barley for later seasons and secondly in the hope that somehow it could then negotiate further for a production levy. 246 As I have found when addressing its claim under the PBR Act, Cultivaust could have imposed conditions upon the sale of Franklin barley seed to growers in Western Australia in exercise of its plant variety rights, and after 1 November 1994 Cultivaust had a reasonable opportunity to exercise its PBR in relation to the production of propagating material of Franklin barley seed sold and supplied by it, including second and subsequent generations of harvest and, at least until 16 April 1996, it did not exercise those rights. 247 In the light of those findings, the foundation for the claim of estoppel by conduct is not made out. The elements of such a claim are described in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394, e.g. per Deane J at 443 - 446. In my judgment, there was no assumption of fact adopted by Cultivaust that an agreement would be entered into between it and the GPWA for a production levy or end point royalty on Franklin barley which was induced in any sense by conduct of the GPWA or its officers. Whilst the GPWA during 1992 may have expressed progressively a more sympathetic attitude to the concept of a production levy, at no time did its conduct provide to Cultivaust any reasonable foundation for Cultivaust believing that such an agreement would be entered into. The release of Franklin barley seed by Cultivaust for the growing trial in 1992, and for crops in 1993 and subsequent years, was made as a commercial judgment not induced by any conduct by the GPWA which could reasonably give rise to the estoppel asserted. There was, in short, no unconscionable departure by the GPWA from any factual assumption adopted by Cultivaust as the basis for its conduct, because the GPWA did not conduct itself so as to reasonably induce in Cultivaust the factual assumptions which Cultivaust asserts in its pleading, and because Cultivaust did not in fact have those assumptions. Cultivaust's hopes or expectations for an agreement with the GPWA including a production levy on Franklin barley were the result of its commercial judgments and strategies, and not the result of conduct on the part of the GPWA in circumstances which would make it unconscionable for the GPWA to have acted as it did.

the fiduciary duty claim 248 The claim for breach of fiduciary duty is an alternative to the claim for infringement of Tasmania's PBR rights. The duty alleged is that the GPWA would not take advantage of the release of Franklin barley seed in Western Australia 'to the economic detriment of Cultivaust'. The pleading also asserts a fiduciary relationship between Tasmania and the GPWA, but that was not pursued in final submissions. 249 Despite the fact that a fiduciary relationship will not generally arise when parties are involved in commercial dealings with each other (see e.g. Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 (Hospital Products) at 70 per Gibbs CJ; Pilmer v The Duke Group Ltd (in Liq) (2001) 180 ALR 249; [2001] HCA 31, in particular circumstances there may nevertheless arise a fiduciary relationship between commercial dealers. The existence of a fiduciary relationship is not confined to fixed categories. 250 However, in my judgment, none of the circumstances which the Courts have treated as relevant to the existence of a fiduciary relationship exist in this matter as between Cultivaust and the GPWA. There was no undertaking or agreement by the GPWA to act for or on behalf of Cultivaust in exercising any of its powers or discretions that might have affected the interests of Cultivaust: cf Hospital Products at 96 - 97 per Mason J. There was no existence of a relationship of confidence: cf Tate v Williamson (1866) LR 2 Ch App 55. There was no inequality of bargaining power, nor any dependence or vulnerability on the part of Cultivaust which caused it to rely on the GPWA: cf Breen v Williams (1996) 186 CLR 71 at 107 per Gaudron and McHugh JJ. The relationship between Cultivaust and the GPWA was simply one of two parties negotiating towards a commercial result, and was not one founded on mutual trust and confidence: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410. The relationship was simply that of a supplier of a product and an acquirer of a product (indirectly, as a statutory marketing authority as the acquirer of the harvest of the product) negotiating at arms length. There are no circumstances which, in my view, elevate the relationship to one Cultivaust and the GPWA were to collaborate in any sense for their mutual advantage. The GPWA made it clear, and Cultivaust realised in any event, that the GPWA as the statutory marketing authority for Western Australia would perform its functions in the interests of the barley growers of Western Australia. 251 At all times, Cultivaust through Tasmania enjoyed the plant variety rights and then the PBR in Franklin barley. Its objective was the commercial exploitation of those rights. It perceived that objective as best served by securing a production levy or end point royalty through the statutory marketing authority for each State. It secured such an arrangement with the ABB and with the NSWGB. It failed to do so with the GPWA. 252 As the holder or controller of the plant variety rights and then the PBR, Cultivaust enjoyed a significant commercial position. Franklin barley was in demand by maltsters in Western Australia, so much so that Kirin incurred the extra cost of shipping Franklin barley grain to Western Australia for its malting operations. It was therefore also in demand by growers in Western Australia, because they could get a better price (or technically a better compensation payment from the GPWA) because good quality malting barley was sold at a higher price per metric tonne than feed barley. Understandably, Cultivaust sought to take advantage of the commercial situation. 253 If no satisfactory arrangement could have been reached in one growing season, Cultivaust could simply have declined to supply Franklin barley into Western Australia for that season. It was not suggested that it would have attracted the adverse operation of s 19 of the PBR Act by doing so. It chose not to do so. That is, it chose to release Franklin barley seed into Western Australia for the 1992 growing trial, and for the 1993 and subsequent growing seasons without securing the production levy or end point royalty payment arrangement which it was aiming for. 254 Contrary to Cultivaust's contention, it was not obliged to deal with the GPWA as the monopoly statutory marketing authority in Western Australia. The plant variety rights and then the PBR include the exclusive rights to produce or reproduce the propagating material. It could have exercised those rights by imposing upon growers the imposition of a production levy. It would no doubt have been easier to implement such a concept through the monopoly statutory marketing authority, but it need not have done so. Alternatively, it did not need to supply Franklin barley seed to growers until it had a satisfactory agreement with the GPWA. The GPWA, as the negotiations in November and December 1992 made clear, was conscious of its role as the 'servant' of the growers. Ultimately, Cultivaust had the commercial capacity to withhold Franklin barley seed in 1993 until (and if) the WAFF acquiesced in some form of production levy or end point royalty implemented through the GPWA was in place. It chose not to adopt that course. 255 I do not consider the dealings between Cultivaust and the GPWA over the period of about May 1992 to May 1994 demonstrate other than the relationship of arms length commercial negotiators. They do not show an evolving relationship of mutual trust and confidence, so that the GPWA was obliged to act in any other manner than as it did. The GPWA did not assume any obligation to act other than in its own interests, or the interests of Western Australian barley growers. It did not assume over that period any obligation to act in the interests of Cultivaust. 256 In the chronological findings, I have addressed the various matters to which Cultivaust has referred in submissions in support of its contentions. I shall not repeat them in detail. 257 The GPWA facilitated the 1992 growing trial of Franklin barley. It established a Franklin barley grain pool for the harvest from that trial. It sold the grain harvested (except for farm saved seed) to Joe White. In doing so, it acted in accordance with its statutory functions. Its communications with Cultivaust at the time do not provide any foundation for a finding that it then intended to, or would, promote the interests of Cultivaust. Indeed, the contrary is the case. Mr Swan was then unpersuaded that Franklin barley in Western Australia would have the qualities claimed for it. It made clear its limited role. It made clear that growers could retain farm saved seed (without demur from Cultivaust). It made clear its then reluctance to accept the concept of any production levy or end point royalty. 258 Nor does the subsequent conduct of the GPWA advance Cultivaust's claim. It was aware of Tasmania's plant variety rights and subsequently PBR. It undertook negotiations, which recognised those rights, in November and December 1992 with a view to reaching an agreement with Cultivaust. It expressly indicated those negotiations were subject to the views of the WAFF. Those negotiations were arms length negotiations. It withdrew from them on 5 February 1993. It then expressly left to Cultivaust the decision as to whether, and how, it released Franklin barley seed into Western Australia for the 1993 and subsequent growing seasons. 259 Overarching those communications, as Cultivaust points out, is the GPWA's general willingness to support the use of Franklin barley in Western Australia. Its attitude reflected the wishes of Western Australian maltsters, and consequently growers. I do not consider that attitude carries with it any element of obligation on the part of the GPWA to act for the benefit of Cultivaust. It is no more than the recognition that the GPWA's 'clients' perceived potential benefits in the availability of Franklin barley in Western Australia. 260 Nor do I consider the provision of agronomic information to the GPWA by Cultivaust in about August 1992, upon its request, as advancing the claimed fiduciary relationship. It was information the GPWA sought to assist in its performance of its statutory functions, to determine whether to establish a Franklin barley grain pool and where deliveries to that grain pool would occur. 261 In 1993 and subsequent years, because Cultivaust provided Franklin barley seed to growers in Western Australia in the manner referred to earlier in those reasons, Cultivaust recognised that it had possibly acted unwisely in a commercial sense. It recognised that, because so much Franklin barley seed was available, the growers would be resistant to any production levy. They had then the capacity to grow Franklin barley without such a levy. They could retain farm saved seed for future crops. However, to recognise that Cultivaust's commercial decisions may have made its negotiating position to secure a production levy or end point royalty more difficult, does not add any colour to Cultivaust's claim that its relationship with the GPWA was, or was evolving into, a fiduciary one. The GPWA's subsequent negotiations with Cultivaust during 1993 also do not have that effect. 262 As recorded above, on 30 May 1994 the GPWA formally notified Cultivaust that it no longer wished to be directly involved in the commercialisation of Franklin barley in Western Australia. It withdrew from any further discussions regarding the imposition of a production levy or end point royalty on Franklin barley in Western Australia. 263 Consequently, I reject the contention that the GPWA had a fiduciary relationship with Cultivaust as alleged. 264 There are additional matters leading to rejection of this claim. Cultivaust contends the fiduciary duty which arose was that the GPWA should not prefer its own interests to those of Cultivaust by taking advantage of Cultivaust's decision to release Franklin barley seed. The specific conduct alleged to breach that duty is the establishment of grain pools for Franklin barley in each season, and the acceptance of delivery of grain and its sale without Cultivaust's express authority, where certain of that grain was harvested by growers without Cultivaust's express authority (presumably second generation crops from farm sowed seed). However, the GPWA was simply fulfilling its statutory function. As the monopoly statutory marketing authority it was obliged to receive deliveries of grain, and to sell them, and to account to the growers in the particular pool by way of compensation. The GPWA had no capacity to refuse to accept deliveries of Franklin barley, or to sell that grain and to account for it. In my judgment, the statutory structure within which it operated explains its conduct, and it illustrates further why the relationship between Cultivaust and the GPWA was not a fiduciary one. Cultivaust had a sufficient understanding of the way statutory marketing authorities operated to appreciate that the conduct of the GPWA was not conduct giving rise to the fiduciary relationship it now alleges. 265 The GPWA was empowered to enter into an agreement with Cultivaust which included an end point royalty payable by it per tonne of Franklin barley delivered to it; the payment so made would then reduce the compensation to growers from that pool. It did not do so. The progress to such an agreement in late 1992 ceased. At that point, no figure for any end point royalty was agreed. There was then a significant difference between what Cultivaust wanted and what the GPWA thought might be acceptable to growers in Western Australia. The difference may have been irreconcilable. The fiduciary duty alleged, however, purports to impose on the GPWA the obligation to have acted towards Cultivaust in a way different from that which their respective commercial interests dictated at that time. That fact also tends to indicate that, in reality, the relationship between them was simply that of commercial negotiators.

the unlawful interference claim 266 Cultivaust contends that the GPWA attempted to reach an understanding with the ABB and with the NSWGB as to the level of the production levy or end point royalty that each, as statutory marketing authorities, would pay in respect of Franklin barley harvested in the States of New South Wales, Victoria, South Australia and Western Australia. 267 There are obstacles confronting the claim. The GPWA contends the Court does not have jurisdiction to hear and determine it. It also contends that Australian law does not recognise a cause of action for intentional infliction of economic harm caused by an unlawful act. The alleged unlawful act is the attempt referred to in the preceding paragraph. It is said to be unlawful, as being in contravention of ss 45(2)(a)(ii) and 76(1)(b) of the TP Act. Section 45A(1) of the TP Act deems certain conduct to have had the purpose or effect of substantially lessening competition in the relevant market or markets. That issue itself throws up complex issues as to the nature of the relevant market or markets. The GPWA further contends that, whatever its conduct, it did not interfere in the course of negotiations between Cultivaust and the ABB, and did not cause Cultivaust any loss. Finally, as the claim was first made by amendment on 18 July 2001, Cultivaust to the extent necessary seeks an extension of time to have instituted the claim to that date under s 48 of the Limitations of Actions Act 1936 (SA) (the SA LA Act). The GPWA disputes that it is entitled to such an extension of time, or that the SA LA Act is applicable. 268 As I have reached the conclusion that this claim must fail on the facts, it is not necessary to address all the issues raised by the pleadings. It is appropriate that I should briefly refer to three of them. 269 In my view, the Court has jurisdiction to hear and determine this claim. I think it is within the primary jurisdiction of the Court by reason of s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Judiciary Act) because it arises under a law made by the Commonwealth Parliament. I accept the contention of Tasmania and Cultivaust that the claim involves more than the interpretation of the TP Act, and in the relevant sense arises under it: see e.g. Felton v Mulligan (1971) 124 CLR 367. The cause of action, if it is to succeed, involves the establishment of conduct by the GPWA which would amount to a contravention of s 76(1) and s 45 of the TP Act. That the cause of action as pleaded requires also the proof of other facts does not lead to the view that the claim does not arise out of the TP Act: see LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581. 270 The circumstances in which there may arise a cause of action for unlawful interference with contractual relations may be uncertain: see e.g. Sanders v Snell (1998) 196 CLR 326; Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 2 VR 636. However, whether such a cause of action may be maintained by reason of a contravention of the TP Act where no remedy is sought under the TP Act is far from certain: see e.g. Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 at 504, 515. I do not need to determine that question. 271 The third matter to which I propose to refer briefly before turning to my findings of fact is whether the cause of action is statute-barred in any event. 272 Cultivaust contends that the relevant law is the law of South Australia. Section 35 of the SA LA Act imposes a six year limitation period on a tort action. That time would run from when the damage first occurred. In the light of my factual findings, I place that date as early April 1993. Section 48(3) then permits an extension of time to a period of 12 months after the ascertainment of facts material to the cause of action. Mr Teague for Cultivaust did not learn of the letter from the GPWA (Mr Wells) to the ABB (Mr Banbury) of 14 December 1992 until July 2001. Hence it presents a straightforward foundation upon which the exercise of the discretion to extend the time may arise. Then Cultivaust contends the justice of the case should lead to the favourable exercise of the discretion. If necessary, I would exercise the discretion in its favour. 273 The critical communication, namely the letter of 14 December 1992, was despatched from Western Australia and received in South Australia. The communication was effected in South Australia, and the loss was suffered in South Australia. I consider that to be the lex loci delicti. The SA LA Act should therefore apply: John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625, in respect of the relevant limitation period. I would therefore have extended the time for this claim to be pursued by Cultivaust if it otherwise would have succeeded in the claim. 274 As I noted in the introduction to these reasons for judgment, the claim for damages was not really pursued by Cultivaust in relation to the dealings between the GPWA and the NSWGB. In opening, senior counsel for Cultivaust recognised the claim was unlikely to be pursued. In the course of the hearing, little evidence was led concerning it. No witness was called from the NSWGB. 275 In fact, the evidence shows that on 30 November 1992 Cultivaust proposed to the NSWGB an agreement for the supply of Franklin barley to New South Wales which included a production levy of $1.00 per tonne plus 20 per cent of the 'premium achieved by Franklin over other Malting varieties' marketed by the proposed licensee, namely the Grains Board, to a maximum of $3.00 per tonne. That level of production levy came to be agreed between Cultivaust and the NSWGB: cl 4.1 of the agreement dated 24 February 1993. Whatever effect Mr Wells' facsimile of 11 December 1992 may have had upon the ABB, it clearly did not operate to the detriment of Cultivaust in its dealings with the NSWGB. There was no actual interference with the negotiations between them, even if there was an attempt to do so. Nor was there any actual detriment to Cultivaust. 276 That claim must fail. It is unnecessary to refer to the other issues raised by way of defence. They do, however, arise in relation to the claim as it concerns Cultivaust's dealings with the ABB. 277 The factual background is straightforward. It is referred to in more detail in the chronological findings. From early 1992, Cultivaust was engaged in negotiations with a view to agreeing upon a means of securing a production levy or end point royalty for Franklin barley grown in Victoria and South Australia. By June 1992, those negotiations had progressed to the point where the proposed levy appears to have been accepted in principle, and Cultivaust and the ABB were discussing particular clauses of a proposed agreement. As noted, in response to the GPWA request through Mr Orr, the ABB in June 1992 sent to the GPWA a copy of the then draft agreement (at that time, dealing specifically with the Eyre Peninsula in South Australia). That draft agreement proposed a production levy of $2.50 up to the first 7,500 tonnes of Franklin barley, and $2.00 per tonne for further Franklin barley produced in a season. 278 By November 1992, the horizon of the proposed agreement between Cultivaust and the ABB had expanded. The draft agreement submitted to the ABB on 5 November 1992 encompassed production of Franklin barley in both Victoria and South Australia, and was proposed to run over nine years. It proposed a production levy on each tonne of Franklin barley 'marketed, managed, handled by, delivered to and/or contracted by' the ABB of $3.00 per metric tonne up to 50,000 metric tonnes and of $2.50 per metric tonne for further production of Franklin barley in each growing season, as well as a royalty on sale of seed of $30.00 per metric tonne. 279 The next significant event is the facsimile letter from Mr Wells of the GPWA to the ABB of 14 December 1992. A similar facsimile was sent to the NSWGB on 11 December 1992. Its relevant contents are set out in the chronological findings. 280 As I have indicated elsewhere in these reasons, I find that Mr Wells was thereby endeavouring to have the ABB (and the NSWGB) reject the Cultivaust claim for a production levy of about or up to $3.00 per tonne, and to direct the negotiations of each of the statutory marketing boards to a production levy of not more than $1.00 per tonne. The final paragraph seeks the assistance of the ABB to 'contain the aspirations of Cultivaust', and exhorts the ABB to action 'to ensure that the interests of barley growers are protected'. It is how he sought to achieve that purpose which is the critical issue. The earlier content of that facsimile makes it clear that the GPWA regarded protection of the interests of barley growers as best served by statutory marketing authorities not acceding to a production levy of up to $3.00 per tonne. Mr Wells acknowledged that his letter was an attempt to set a benchmark for the production levy. 281 The ABB through Mr Banbury on 21 December 1992 acknowledged the facsimile without commenting upon it. However, Mr Banbury (who had the carriage of negotiations with Cultivaust on behalf of the ABB) also telephoned Mr Wells in relation to the letter. Mr Banbury perceived the risk that dealing with the GPWA over the level of any production levy may contravene the TP Act. He conveyed that to Mr Wells. On behalf of the ABB, he declined to participate in any form of collective bargaining by the statutory marketing authorities with Cultivaust or to deal with the GPWA in relation to the negotiations between the ABB and Cultivaust. 282 Mr Wells did not seek to take his proposal any further. 283 Cultivaust nevertheless contends that the outcome of its negotiations with the ABB was affected, adversely to Cultivaust's interests, by the communication from the GPWA to the ABB of 14 December 1992. 284 After further discussion between Mr Semmler and Mr Banbury, Mr Banbury on 9 and 26 February 1993 sent memoranda to the General Manager of the ABB, Michael Iwaniw (Mr Iwaniw), reporting on his consideration of the claim by Cultivaust for a production levy for Franklin barley, and his views as to what the plant variety rights of Tasmania extended to. Those memoranda reveal that he believed that the GPWA would support a production levy of no more than $1.00 per tonne, and that its growers through their grower organisations would press for a levy of $0.50 per tonne. Mr Banbury expressed the view that the ABB should ascertain the views of the relevant grower organisations, because the concept of a production levy would have significance longer term in relation to any subsequent grain varieties the subject of plant variety rights. He noted that the Course Grains Committee of the Grains Council of Australia proposed to address such issues at a meeting in April 1993. His memoranda reveal he had access to the draft agreement between Cultivaust and the GPWA (which had no figures as to the amount of any production levy). 285 In April 1993, Mr Iwaniw instructed Mr Banbury to agree to a production royalty of no more than $1.00 per tonne. Mr Banbury conveyed that to Mr Semmler. It was, from Mr Banbury's position, a point from which he could not move, at least upwards. Mr Banbury also in April 1993 secured the application of the proposed production levy to malting grade Franklin barley only. Those features were included in a draft agreement provided to Cultivaust on 2 April 1993. Subsequent drafts of the agreement between the ABB and Cultivaust incorporated that figure as the production levy, as well as a royalty for each tonne of Franklin barley seed sold by the ABB. The figure was included in all subsequent drafts. There was extensive negotiation about other terms of the proposed agreement. As noted, it was finally executed on 13 January 1995. 286 The agreement was extended on 28 January 1999, relevantly in the same terms. It was substituted by a new agreement on 7 December 2000, between Cultivaust and ABB Grain Ltd (the successor of the ABB), again relevantly in the same terms. 287 By April 1993, I find that the ABB had available to it a copy of the agreement struck between the Grains Board of New South Wales and Cultivaust of 24 February 1993. It provided for a production levy of $1.00 per metric tonne on all Franklin barley delivered to that statutory marketing authority plus a potential premium as described earlier in these reasons. That information was included in a paper prepared for the Grains Council of Australia for its April 1993 conference, but was available to the ABB and others earlier. It also had a knowledge of the attitude of the GPWA to Cultivaust's claim for a production royalty on Franklin barley. 288 The decision about pricing, that is what the ABB would be prepared to pay Cultivaust as a production levy for Franklin barley, was made by Mr Iwaniw. He did not give evidence. The reason he did not do so was explained, and I do not draw any inference that his evidence may not have been helpful to Cultivaust's claim by reason of the fact that he did not give evidence. 289 However, I do not find on the balance of probabilities that Mr Iwaniw's decision was influenced by Mr Wells' communication to the ABB (Mr Banbury) of 14 December 1992 either directly or indirectly. 290 The evidence does not suggest Mr Iwaniw was ever aware of the existence of that letter or was informed of its detailed contents. He was informed by Mr Banbury's memorandum of 9 February 1993 of the attitudes of the Grain Council of Australia and of the GPWA to a production levy. As to the GPWA's attitude, that memorandum reported that its chief executive, Mr Swan, had informed Mr Banbury that he supported some form of production levy. The memorandum then says that the GPWA's view is that any production end levy should be less than $1.00 per tonne and that Western Australian growers were likely to press for a levy of less than $0.50 per tonne. The source of that information is not explicitly identified. A reader of the document would, I think, infer that it was Mr Swan. Mr Banbury's memorandum also observed that the GPWA 'have sought our support for that proposal' of a levy of less than $1.00 per tonne. It made the point to Mr Iwaniw that the ABB was in a strong bargaining position in relation to Cultivaust, which would otherwise have to deal with individual growers. 291 Mr Banbury's memorandum of 26 February 1993 contained an analysis of the matters of significance from the differences in the draft licences to the ABB and to the GPWA. It did not remark at all upon the level of any production levy. 292 The next step in Mr Iwaniw's knowledge is, as I have found, the terms of the agreement between Cultivaust and the NSWGB, some time during March 1993. 293 On the evidence, I find that Mr Iwaniw's judgment was formed on the basis of the information about the agreement between Cultivaust and the NSWGB, and upon such commercial considerations as he considered relevant, and upon such unidentified further background material as he himself possessed. His commercial judgment would be directed to securing for barley growers in Victoria and South Australia supplies of Franklin barley on the best possible terms. Given the timing of his decision in relation to his knowledge of the agreement between Cultivaust and the NSWGB, and what I think must have been his perception of the relative bargaining positions of the ABB and of Cultivaust, in my view he would have assessed the agreement with the NSWGB as the upper limit of what he should negotiate. That agreement was in place. Any 'better deal' would involve a cutback from the production levy fixed in that agreement. The severing of the premium component of that production levy formula is an obvious step to endeavour to secure the most favourable agreement possible for growers in Victoria and South Australia. I infer that his line of thinking proceeded in that way. More accurately, in legal terms, I do not find on the balance of probabilities that Mr Iwaniw's decision was influenced by the letter from Mr Wells of the GPWA of 14 December 1992 or its contents. 294 It is also consistent with the view I have reached on that matter that the agreement between the ABB and Cultivaust proceeded through a series of negotiations and drafts extending then over a further two years. The production levy of $1.00 per tonne did not alter. Cultivaust was free at any time to revisit the issue of the amount of the production levy. No attempt to do so emerges from the evidence (except at the time of the 1999 renewal of the agreement). When executed, the agreement was expressed to have operated from April 1993. It is inherently unlikely that the communication from Mr Wells of 14 December 1992, which was immediately and forcefully responded to by Mr Banbury in the manner I have described, should have played any part in Mr Iwaniw's direction in early April 1993 when it is seen in context, or should have played any part in the agreement eventually struck between Cultivaust and the ABB. 295 As I have found that Mr Wells' conduct on behalf of the GPWA did not, on the balance of probabilities, contribute to the decision of the ABB as to the level at which it was prepared to agree any production levy, it is not necessary to address the other elements of the putative cause of action. That finding means that Mr Wells' conduct did not deprive Cultivaust of the opportunity to negotiate a higher level of production levy for Franklin barley grown in Victoria and South Australia over the period from April 1993.

conclusion 296 I have not found it necessary to determine the further contentions of the GPWA that all causes of action against it should fail because Cultivaust and Tasmania failed to comply with s 47A of the Limitation Act 1935 (WA). If s 47A does not apply, it is accepted that all causes of action other than that of unlawful interference with contractual relations are within time, as prescribed either by s 35 of the SA LA Act or s 38 of the Limitation Act 1935 (WA). 297 However, as I have reached a firm view that s 47A of the Limitation Act 1935 (WA) does not apply, it is appropriate to refer briefly to my reasons for that conclusion. It relevantly provides that an action shall not be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act or of any public duty or authority except in certain circumstances. The prescribed circumstances do not exist. 298 Section 47A can only apply to the present proceedings if it is picked up and applied by ss 79 and/or 80 of the Judiciary Act: British American Tobacco Ltd v The State of Western Australia [2003] HCA 47 (BAT case) at [3], [44] - [46] and [63]. This action involves the exercise of federal jurisdiction, being based primarily upon alleged infringements of the PVR Act and the PBR Act. The BAT case did not directly decide whether, in such circumstances, s 47A would apply to the principal and other causes of action. However, as Gleeson CJ commented at [4] and [25], the application of s 47A would result in the GPWA being treated as being in a special position different from, and more favourable than, that of an ordinary citizen. The GPWA is not an instrumentality of the State: s 7, GM Act. Section 64 of the Judiciary Act (because Western Australia is a party) would then apply so as to exclude the application of s 47A to the present proceedings. Section 79 also would not pick up s 47A because s 47A prohibits the commencement of proceedings except in certain circumstances, but s 79 applies only when the proceedings involving the exercise of federal jurisdiction have been commenced: see the BAT case at [66]; The Commonwealth of Australia v Mewett (1997) 191 CLR 471 at 492, 556. Furthermore, s 47A in substance imposes preconditions upon the institution of proceedings under s 54 of the PBR Act which the PBR Act does not impose. It is in my view an imposition upon the exercise of federal jurisdiction uncountenanced by the source of that jurisdiction, and so in terms of s 79 of the Judiciary Act would not be applicable: cf Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 75 ALJR 363 at [59]. 299 I also consider, as counsel for Cultivaust contended, that s 47A does not apply in its terms to the particular conduct of the GPWA which (at least in part) is said to give rise to the causes of action. That is self-evident in respect of the alleged unlawful interference with contractual relations. An attempt to contravene s 45 of the TP Act is not conduct which the GPWA was entitled to undertake. More generally, the conduct alleged to contravene Tasmania's PBR does not involve the GPWA acting precisely in accordance with the GM Act. Its commercial role as a statutory marketing authority gave it power to act as it did, but did not in accordance with its duty oblige it to act as it did: see Board of Fire Commissioners of New South Wales v Ardouin (1961) 109 CLR 105 at 119; Australian National Airlines Commission v Newman (1987) 162 CLR 466 at 471; Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575. 300 For the reasons given, I do not consider that Cultivaust or Tasmania has succeeded in any of the causes of action pleaded. 301 Accordingly, the application should be dismissed. I will give the parties the opportunity to make such submissions as to costs as they may be advised. I certify that the preceding three hundred and one (301) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 21 May 2004 Counsel for the Applicants: DF Jackson QC, CJ Kourakis QC with AL Tokley, MA Perry & AA Jones

Solicitor for the Applicants: Corsers

Counsel for the First Respondent: KJ Martin QC with JA Thomson

Solicitor for the First Respondent: Mallesons Stephen Jacques

Counsel for the Second Respondent: RM Mitchell with JS O'Sullivan

Solicitor for the Second Respondent: Crown Solicitor for the State of Western Australia

Counsel for the intervener for the Attorney-General for the State of South Australia: MD Walter with C Bleby

Solicitor for the intervener for the Attorney-General for the State of South Australia Crown Solicitor for the State of South Australia

Dates of Hearing: 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 29, 30 April 1, 2, 3, 8, 27, 28, 29, 30 May 2002

Date of Last Written Submissions: 28 October 2003

Date of Judgment: 21 May 2004