Back to Breeding Basics? Pure Economic Loss after Mallonland v Advanta Seeds (HCA)

Speaker: Dr Brandon Stewart BA, JD, LLM, JSD (Monash University. Faculty of Law)
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It is generally accepted across the Commonwealth that there is no duty to avoid causing pure economic loss simply because it is a foreseeable consequence of the defendant’s negligence. What continues to vex courts and tort scholars is the identification of one or more appropriate legal justifications for when such a duty ought to arise. Historically, the High Court of Australia has determined pure economic loss duties on a case-by-case basis using the salient features approach and focusing on the plaintiff’s vulnerability. The Court’s approach has received extensive criticism, including, most recently, by Justice Edelman in Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25.

This paper advances an alternative framework for identifying duties to avoid pure economic loss based on the category of loss and rights-based justifications. I address how existing policies and principles, such as assumption of responsibility and vulnerability, fit (or do not fit) within the framework. My central claim is that the proposed framework achieves sufficiently just, certain and coherent outcomes, and is thus normatively preferable to the High Court of Australia’s current approach. While my focus is on Australia, this paper offers important insights regarding the approaches to pure economic loss taken in other Commonwealth jurisdictions.

About the speaker

Dr Brandon D. Stewart is a Lecturer at Monash University, Faculty of Law. His research and teaching focus on the law of torts and access to civil justice issues. His most recent work on recognising noise interferences under the tort of battery was published in the UNSW Law Journal. Brandon completed his JD (Gold Medal) at the University of Ottawa and obtained his LLM (Fulbright Fellow) and JSD from Yale Law School. He has previously held visiting and academic positions at internationally recognised law schools, including the University of Ottawa's Faculty of Law and Sydney Law School. Prior to entering academia, Brandon practiced as a commercial litigator and worked as a research fellow for a community legal clinic in Canada.

Read Dr Stewart's bibliography and publications