To spray or not to spray? A wrong decision can have serious economic consequences, as Caroline Callegari explains.

There have been a number of Court cases in recent years regarding the consequences of something going wrong when undertaking chemical spraying as part of a farmer’s crop management regime.

What these cases demonstrate is that a failure to take reasonable precautions and/or a failure to follow the chemical labels can have serious economic consequences for both the contractor undertaking the spraying and the farmer on whose behalf the spraying was undertaken.

By way of example:

In the case of Riverman Orchards Pty Ltd v Hayden [2017] VSC 379, the neighbouring famer, Heydon was ordered to pay damages of $7,248,213.76 (inclusive of interest) to Riverman Orchards for the loss of their grape crop, 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 case of Butler Market Gardens Pty Ltd v GG & PM Burrell Pty Ltd [2018] VSC 768 damages of $1,346,570.00 were awarded to Butler Market Gardens, representing the loss of sales of their spring onion crop during the six week period from late July to early September when supplies were low and prices were high.

Both these cases, as well as many others, serve as a reminder and a warning that a farmer must be vigilant when undertaking spraying activities to ensure that their actions do not cause damage to a neighbouring farm because of spray drift. If you don’t, then you may find yourself the subject of a civil claim for negligence and/or nuisance by your neighbour, which can lead to you being required to pay a significant amount of damages. Furthermore, you may be prosecuted for breaching the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 (Vic) or the other state equivalents, which require a farmer not to cause damage by spray drift.

The findings in the cases mentioned above provide some useful guidance on the do’s and don’ts when it comes to your spraying activities. In both cases the chemicals that were sprayed were sprayed:

in wind conditions that were in excess of those recommended on the chemical labels and which were therefore conducive to spray drift;
on a day when the wind was blowing in the direction of the neighbouring farm;
using booms at an inappropriate height; and
in high concentrations and in concentrations in excess of the label rate.

It is, therefore, critically important to carefully consider when to spray and to ensure that you are carrying out any spraying activities: in the right conditions; using the appropriate equipment; and in accordance with the warnings and instructions on the chemical labels themselves. It is also important to keep detailed spray diaries, including recording the concentrations of chemicals sprayed and the wind conditions at the time of spraying.

How Can Sharrock Pitman Legal Help?

Things can go wrong, despite careful preparation and taking all precautions. If you find yourself in dispute with neighbours regarding your farming practices, it is prudent to address the issue sooner than later. Doing so, could avoid the issue escalating to litigation.

If you would like to discuss any concerns you have, please do not hesitate to contact a member of our Litigation Team by email litigation@sharrockpitman.com.au or call 1300 205 506.

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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.

Liability limited 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

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

To spray or not to spray? A wrong decision can have serious economic 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

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To spray or not to spray?

To spray or not to spray? A wrong decision can have serious economic consequences, as Caroline Callegari explains.