The spraying of herbicides and pesticides is an important part of a farmer’s crop management regime. Getting it wrong can have devastating consequences as Caroline Callegari explains.

Case study

What happens when something goes wrong and you find your crop damaged due to the negligent spraying of such chemicals by a neighbouring farm?

This is exactly what happened in the cases of Riverman Orchards Pty Ltd v Hayden [2017] VSC 379 (Riverman Case) and Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768 (Butler Case).

In both of these cases the Court found that the neighbouring farmer had been negligent when they undertook their spraying activities and, as such, the farmer whose crop had been negatively impacted was entitled to a significant amount of damages to compensate them for the loss of the crop. The neighbours were also found to have caused a nuisance.

In the Riverman Case, damages of $7,248,213.76 (inclusive of interest), were awarded for the loss of the grapes, as well as for the loss of income from the vineyard over the next 10 year period until it was back to the same level of production and for the costs to re-establish the damaged vineyard. This represents one of the larger awards of damages for a spray drift event. In the Butler Case, damages of $1,346,570.00 were awarded, representing the loss of sales of the spring onions during the six week period from late July to early September when supplies were low and prices were high.

Determing factors

What was key in establishing an entitlement to damages in these cases was proof of the following:

A. that the spraying had been the cause of the damage to the crop; and

B. that the neighbour has been negligent in undertaking their spraying activities

What to do if you suspect spray drift has occured

The findings in these cases provide some useful guidance on what to do to if you suspect your crop has been impacted by spray drift to ensure you can prove your case.

In particular, what the farmers whose crops had been impacted did correctly in these cases was to:

monitor their crop regularly;
take note of spraying activities on neighbouring farms;
take photos of the damage as soon as it became apparent and in the following days and weeks;
promptly have their crop inspected by the experts; and
get samples taken and tested for chemical residue as a matter of priority.

Further, they had kept their own spray records (which is required by the relevant regulatory regime in any event) and crop management records, which assisted in negating a claim that it had been their own spraying and/or other activities that had caused the loss.

How Sharrock Pitman Legal can help?

Our lawyers have experience in acting for Plaintiffs whose farms have been impacted by chemical spraying, so if you ever find yourself the victim of spray drift or other chemical damage, please do not hesitate to contact member of our Litigation Team.

If we can assist you please contact us by email litigation@sharrockpitman.com.au or call 1300 205 506.

‍

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liabilityl imited by a scheme approved under Professional Standards Legislation.‍

Written by a member of our Legal Team

Caroline Callegari

For further information contact

Caroline Callegari

Caroline Callegari is an Associate Principal and leads our Disputes & Litigation team. She has an advisory and advocacy practice in the following areas: Commercial Litigation, corporate and personal disputes, debt recovery and, insolvency and bankruptcy matters. Caroline can be contacted on (03) 8561 3324.

Debt Collection

To spray or not to spray?

The spraying of herbicides and pesticides is an important part of a farmer’s crop management regime. Getting it wrong can have devastating consequences as Caroline Callegari explains.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

Free Property Law webinar -

Land Development and Joint Ventures

My farm has been hit by 'spray drift' - what can I do?

The spraying of herbicides and pesticides is an important part of a farmer’s crop management regime. Getting it wrong can have devastating consequences as Caroline Callegari explains.

Case study

Determing factors

What to do if you suspect spray drift has occured