Ballard v Multiplex - [2012] NSWSC 426

Supreme Court

New South Wales

Medium Neutral Citation: Ballard v Multiplex [2012] NSWSC 426
Hearing dates: Smart AJ 81 days between 6 September 2011 and 22 September 2011; McDougall J 9/11/2012, 10/11/11, 11/11/11, 14/11/11, 16/11/11,17/11/11, 18/11/11, 21/11/11, 22/11/11, 23/11/11, 24/11/11, 25/11/11
Decision date: 03 May 2012
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Judgment for defendants with costs

Catchwords:
[PROCEDURE] - plaintiff's application to reopen case - whether interests of justice favour reopening for purpose of admitting new material - whether finding by a commissioner as to the credibility of a witness is admissible in other proceedings for the purpose of proving that witness's credibility - whether plaintiff made a tactical decision not to tender an expert's report - whether expert's report, obtained on subpoena, is tendered for the purpose of responding to a submission put by the defendants as to plaintiff's alleged depression.

[EVIDENCE] - proof - standard of proof - civil - approach to assessment of credibility - burden of proof to the Briginshaw v Briginshaw standard - whether onus of proof in civil litigation is any different where the fact involves criminal conduct, fraud or serious misconduct - whether evidence of each witness should be assessed, on its own merits, for credibility - whether court can defer resolution of the question of credibility until all the facts have been found.

[TORTS] - intentional - conspiracy - harm by lawful means - harm by unlawful means - whether there existed a conspiratorial agreement between the first, second, either the third and fourth or both, or the fifth defendant and others to ensure that the plaintiff and his company were removed from the construction industry - whether defendants' intent and purpose of agreement was to injure the plaintiff - whether first and second defendants had an evil intention of the kind contemplated by Evatt J in McKernan v Fraser - whether purpose of the fifth defendant entering into agreement (if it did) was to injure the plaintiff - whether agreement becomes tainted and all participants are liable for harm if one, or all of the defendants had an evil motive and countenanced this purpose by giving assistance - whether any such conspiracy agreement was carried into execution.

[TORTS] - intentional - tort of intimidation - whether third, fourth and fifth defendants coerced the first and second defendants by way of threat and intimidation to terminate the construction contract - whether threats by defendant were unlawful as to induce, procure or engage in unlawful industrial action - whether third and fourth defendants threatened to use unlawful means to compel the first and second defendants to obey the defendant's demands - whether the third and fourth defendants intended that by making the threat, the first and second defendants would be persuaded to accede to the other defendants' will, being to deprive the plaintiff of the opportunity to provide demolition services.

[TORTS] - intentional - wrongful interference - whether tort of unlawful interference exists - whether third, fourth and fifth defendants illegally interfered with the contract between the first and second defendants and the plaintiffs - whether a contractual relationship existed between the first and second defendants - whether the third and fourth defendants knew of that relationship - whether the third and fourth defendants unjustifiably and intentionally interfered with the contract between the first and second defendants and the plaintiffs - whether that interference caused termination of the contract.

[LIMITATION OF ACTIONS] - limitation defence - fraudulent concealment - whether plaintiff's cause of action is statue barred - whether plaintiff proved, on the balance of probabilities, that he discovered fraudulent concealment to enliven the operation of section 55 of the Limitation Act (NSW) - whether defendants fraudulently concealed causes of action from the plaintiff.

[BUILDING AND CONSTRUCTION] - contract - building - performance - whether subcontract was terminated lawfully - whether first and second defendants paid all that was contractually due - whether notice of default and notice of termination was ineffective - whether first and second defendants unlawfully locked out plaintiff from the work site - whether first and second defendants unlawfully and without authority or cause, seized and converted the plaintiff's plant and equipment.
[DAMAGES] - torts - negligence - financial loss - pure economic loss - recoverability - damages for psychological and psychiatric impairment - aggravated and exemplary damages - whether experts report in relation to damages were based on assumptions made good in evidence - whether plaintiff can claim damages for lost earnings that would have been made but for the conspiracy - whether plaintiff can claim damages for the loss of opportunity - whether calculation of damages by expert was calculated with flawed assumptions.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Evidence Act (NSW)
Industrial Relations Act 1996 (NSW)
Limitation Act 1969 (NSW)
Limitation Act 1980 (UK)
Cases Cited: Blatch v Archer (1774) I Cowp 63
Briginshaw v Briginshaw (1938) 60 CLR 336
Cox v Journeaux (No 2) (1935) 52 CLR 713
Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435
Deepcliff Pty Ltd v The Council of the City of Gold Coast [2001] QCA 342
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Helton v Allen (1940) 63 CLR 691
Jack Brabham Engines Ltd v Beare [2010] FCA 872
Johnson v Gore Wood & Co (A Firm) [2000] UKHL 65
Johnson v Perez (1988) 166 CLR 351
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361
McKernan v Fraser (1931) 46 CLR 343
Mogul Steamship Co v McGregor Gow & Co [1892] AC 25
Mundey v Askin [1982] 2 NSWLR 369
Nann v Raimist (1931) 255 NY 307
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246
OBG Ltd v Allan [2007] UKHL 21
Paragon Finance v D B Thakerar & Co [1999] 1 All ER 400
Prudential Assurance Co Ltd v Newman Industries Ltd & Ors (No. 2) [1982] Ch. 204
Qantas Airways v Gama (2008) 167 FCR 537
Qantas Airways Ltd v Transport Workers' Union of Australia [2011] FCA 470
Sanders v Snell (1998) 196 CLR 329
Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1397
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125
Watson v Foxman (1995) 49 NSWLR 315
Williams v Hursey (1959) 103 CLR 30
Category: Principal judgment
Parties: David Ballard (Plaintiff)
Multiplex Limited ACN 008 687 063 (First Defendant)
Multiplex Corporate Agency Pty Ltd ACN 003 070 120 (Second Defendant)
Construction Forestry Mining and Energy Union ABN 17 402 743 835 (Third Defendant)
Construction Forestry Mining and Energy Union (New South Wales Branch) ABN 17 524 350 156 (Fourth Defendant)
Andrew Ferguson (Fifth Defendant)
Representation: A Bannon SC / J Duncan (Plaintiff)
A Bell SC / I Pike SC (1D-2D)
B Oslington QC / J Pearce (3D-5D)
Sagacious Legal (Plaintiff)
Clayton Utz (First and Second Defendant)
Taylor & Scott Lawyers (Third, Fourth and Fifth Defendants)

File Number(s): 2007/266587

Judgment

The plaintiff (Mr Ballard) worked for a number of years up until November 1996 as a demolition contractor. He claims that he was forced out of the demolition industry by the execution of a conspiracy made between the defendants. In these proceedings, he claims damages for what he says is the resultant loss of his livelihood and psychological harm. For the reasons that follow, the claim fails.

The parties

Mr Ballard conducted his demolition business effectively in partnership with Mr Barry Young. They did so through a corporate vehicle known as Stoneglow Pty Ltd. Mr Ballard and Mr Young each held, through a company controlled by him, 50% of the issued shares in Stoneglow.

In his younger days, Mr Ballard had achieved success as a boxer, fighting under the name Charkey Ramon. He was often referred to in the evidence as "Charkey", or some variant thereon. He fought with distinction both as an amateur and as a professional, before injury forced his retirement.

In 1995 and 1996, Stoneglow performed demolition work for one or other of the first and second defendants on a number of sites. It is in general convenient to refer to the first and second defendants together as "Multiplex"; when it is necessary to distinguish between them, I shall refer to the first defendant as "Multiplex Constructions" and to the second defendant as "Multiplex NSW". One such job was pursuant to a subcontract relating to what may be called the Pitt Street Mall project.

The third defendant is a trade union organised under Federal legislation. The fourth defendant is a trade union organised under State legislation. It is in general convenient to refer to the third and fourth defendants together as "the unions"; when it is necessary to distinguish between them, I shall refer to the third defendant as "the Federal union" and to the fourth defendant as "the NSW union".

The fifth defendant (Mr Ferguson) was at relevant times the secretary of the NSW union and the divisional branch secretary of the NSW branch of the Federal union. He was also the divisional secretary of the construction and general division of the NSW union. Mr Stan Sharkey was the secretary of the Federal union. At all relevant times, Mr Peter McLelland was the President of the NSW Union.

Procedural history

These proceedings were set down for a hearing, with an estimate of 3 to 4 weeks, to commence before Smart AJ on 6 September 2010. The estimate of duration was woefully inadequate. The hearing continued, with adjournments from time to time, for some 81 days, up until 22 June 2011. The matter was then adjourned to enable Counsel to prepare written submissions.

For reasons that need not be stated, Smart AJ was unable to continue with the hearing. Bathurst CJ nominated me as the judicial officer before whom the proceedings should be listed for trial: see s 88 of the Civil Procedure Act 2005 (NSW). The parties agreed that the hearing before his Honour should be terminated and that the trial before me should proceed upon the basis that (with an exception to which I shall turn to in a moment) the evidence would be limited to the evidence taken before Smart AJ.

This is a case, the decision in which turns entirely on findings of fact. Those findings of fact turn entirely on judgments as to the credibility of the competing witnesses. Whilst I have been aided very greatly by the written and oral submissions of Counsel, the fact is that I am required to make judgments as to credibility in respect of witnesses whom I have not had any opportunity to observe in the witness box.

The application to reopen

I turn to the exception referred to at [8] above. The written submissions in reply for Mr Ballard flagged an application to reopen his case, to tender two documents. One was an extract from the report of the Royal Commission of Inquiry into the Building and Construction Industry (the Cole Royal Commission), in which the Commissioner (the Honourable TRH Cole AO QC) referred to the evidence of Mr Craig Bates. The other was an unsigned, but apparently authentic, report of Dr Tass James. At the request of the parties, I dealt with that application before the commencement of oral addresses. I rejected the application, as to each document, and said that I would give reasons in this judgment. I now do so.

The tender of the extract from the Cole report (as it is convenient to call the Commissioner's report) was prompted by a submission on behalf of Multiplex that the evidence of Mr Bates to the Cole Royal Commission was "a tissue of lies". The point that was sought to be made was that, although Mr Bates had admitted (in his evidence before Smart AJ) to having lied repeatedly and on oath to the Cole Royal Commission on one particular topic, nonetheless he had made no such admission as to the whole of his evidence to the Cole Royal Commission.

Dr Bell of Senior Counsel (who appeared with Mr Pike of Senior Counsel for Multiplex) accepted that the admissions made by Mr Bates as to lying to the Cole Royal Commission were limited to one particular area of evidence. Dr Bell accepted, further, that in his evidence before Smart AJ, Mr Bates had denied lying throughout the whole of his testimony before the Cole Royal Commission. Thus, Dr Bell accepted that if he were to make good his submission that the whole of Mr Bates' evidence to the Cole Royal Commission was "a tissue of lies", he would need to demonstrate this by reference to other, if not incontrovertible then at least acceptable, facts. Dr Bell accepted that if he could not do so, he would be bound by the answers given in cross-examination.

On that basis, the submission can be considered and dealt with on the evidence as it is. If it is not made good on the whole of that evidence, it will not be accepted. If it is, it will be. Either way, the passage from the Cole report goes nowhere.

As this position emerged during argument, the tender of the relevant extract of the report was not pressed. I note however that if the tender had been pressed, I would have rejected it in any event. It does not seem to me that a finding, even by a Commissioner as experienced as Mr Cole, as to the credibility of a particular witness is admissible in other proceedings, for the very purpose of proving that witness's credibility.

The report of Dr James was tendered for the purpose of responding to a submission put by the defendants as to Mr Ballard's complaint of suffering from depression as a result of the execution of the conspiracy. That submission was summarised (see the written submissions in reply for Mr Ballard (PSR) at para 83) as "Mr Ballard never saw a doctor for depression for a decade". However, that summary of the submission was inaccurate. The submission that the defendants did make was carefully framed: that there was no evidence that Mr Ballard had sought medical treatment for depression for a decade or more following the acts that were alleged to constitute the execution of the alleged conspiracy. That submission was factually correct.

Dr James' report has an interesting history. It was obtained, apparently on subpoena, by the unions, and deployed in the cross-examination of Mr Ballard. At one stage Mr Oslington of Queens Counsel (who appeared with Mr Pearce of Counsel for the unions and Mr Ferguson) tendered the report, and Mr Bannon of Senior Counsel (who appeared with Mr Duncan of Counsel for Mr Ballard) opposed the tender. The document was not then admitted into evidence. Dr Bell and Mr Oslington submitted that they then made forensic judgments based upon the fact that the tender of the report had been rejected. Further, Mr Oslington submitted, the plaintiff had made a deliberate tactical decision not to tender the report, and again the defendants had made forensic judgments based on that fact. In particular, Dr Bell and Mr Oslington submitted, if the report had been tendered as part of Mr Ballard's case, it would have been open to them to require that Dr James be called for cross-examination. That opportunity was now lost.

It was always in issue as to whether Mr Ballard had suffered from depression following October / November 1996 (which is when the majority of the acts alleged to constitute the execution of the conspiracy took place). If anything is clear in this case, it is that the defendants have at all times suggested that the complaints of depression were groundless. It is also clear, from the cross-examination of Mr Ballard, that the defendants placed stress on the fact that he had not (so far as the evidence shows) sought treatment for depression for more than a decade after November 1996. Even if Mr Ballard had forgotten that he consulted Dr James on 30 October 2003 in relation to what might have been depression, that must have been apparent to Mr Bannon once the attempt was made to tender Dr James's report. It has to be inferred that, for whatever reason, a tactical decision was made thereafter not to tender the reports, and not to call Dr James. That tactical decision must have been made in full knowledge of the defendants' position as stated above.

In my view, that alone is sufficient to warrant refusing the application for leave to reopen to tender Dr James' report. At one stage, I was attracted to the view that it might be tendered simply to show the fact that Mr Ballard had consulted Dr James on 30 October 2003. However, that would be of no utility unless it were known what was the reason for the consultation to have occurred, and what was Dr James' view of Mr Ballard's state of health. Since that would require the report to be admitted not only as evidence of the fact of consultation, but also as evidence of Dr James' opinion that Mr Ballard "was depressed" and as to the possible reasons for that depression, it would be unfair to permit the report to be tendered without giving the defendants an opportunity to cross-examine Dr James. Since no one suggested that this should happen, the unfairness to the defendants in my view would have justified the rejection of the report in any event, pursuant to s 135 of the Evidence Act 1995 (NSW).

An outline of these reasons

The ultimate issues in these proceedings can be stated quite simply, although at a high level of abstraction, as follows:

(1) did the defendants conspire together for the predominant purpose of forcing Mr Ballard out of the demolition industry by the use of lawful or unlawful means?

(2) did the defendants or any of them perform overt acts in execution of any such conspiracy?

(3) did Mr Ballard suffer loss as a result of the performance of any such overt acts?

(4) how should Mr Ballard be compensated for any such loss? Further, is Mr Ballard entitled to exemplary or aggravated damages in addition to compensatory damages?

It is convenient to record at this point that, at my direction, the parties produced a consolidated statement of what they saw to be the real issues in dispute between them. That statement groups thematically the principal factual disputes in these proceedings, and raises some issues of law. On the view to which I have come, it will not be necessary to deal in any detail with many of those factual disputes. Nonetheless, to enable them to be identified, I attach as an appendix to these reasons the issues as consolidated by the parties (although shorn of the commentary which the parties attached to them).

It may be thought surprising that so many issues of fact arise out of what is, schematically at least, the simple case summarised at [20] above. That there are so many suggested issues of fact seems to reflect the resolve of the parties (or, at least, Mr Ballard) to treat these proceedings as yet another Royal Commission of Inquiry into the Building and Construction Industry. Numerous allegations were raised that went nowhere; or that were suggested to go to credit, but proved to at most marginally relevant to the credibility of any witness.

I do not see the role of the court as being to conduct yet another inquiry, or to write yet another report. Thus, I do not propose to deal with all those issues of fact. I propose to take what seem to me to be the crucial events, and to make findings in relation to those events. The events on which I shall focus principally (in relation to liability) are:

(1) the program broadcast on A Current Affair on 13 September 1995 (the ACA broadcast);

(2) the reaction of the unions and Mr Ferguson to it, including meetings of the executive committee and of organisers;

(3) what is said to have been some reconciliation between Mr Ballard and the unions, and the subsequent lack of industrial disruption on Stoneglow's sites;

(4) the award of the demolition subcontract for the Pitt Street Mall project and the performance of work on site;

(5) the alleged conspiracy meeting and the evidence said to provide some direct corroboration of it; and

(6) the acts alleged to have been performed in execution or in consequence of the conspiracy.

Unfortunately, it is not possible (at least, having regard to the way in which the parties put their submissions) to ignore entirely all those subsidiary issues of fact that I perceive to be irrelevant or, at best, of marginal relevance. Accordingly, I will deal, as briefly as possible, with what I understand to be, in the view of one or other of the parties, the more significant of those subsidiary issues, and with the facts relevant to the limitation defence. Further and in case others should disagree with my conclusion on the liability case, I will briefly deal with the case on damages.

I return to the overt acts. The overt acts are alleged in 2FAS, para 13:

13. Subsequently the following acts were done:

(a) After August or September 1996, Multiplex cut off the income of Stoneglow, and through it the income of the plaintiff, by

i. unlawfully in breach of the Pitt Street Mall Contract refusing to pay progress claims submitted by Stoneglow under and in accordance with the Pitt Street Mall Contract;

ii. unlawfully in breach of the Chatswood Chase and Grace Plaza Contracts refusing to pay money due and owing to Stoneglow by Multiplex in respect of work performed by Stoneglow on the Multiplex projects at Chatswood Chase and Grace Plaza in breach of the Chatswood Chase and Grace Plaza Projects.

Particulars

Stoneglow's invoices in respect of the Pitt Street Mall Contract for the period after August or September 1996 were not paid. Money outstanding and due for payment in respect of the Chatswood Chase and Grace Plaza projects was not paid.

(b) On or about 8 November 1996, Multiplex unlawfully in breach of the Pitt Street Mall Contract purported to terminate the Pitt Street Mall Contract, and thereafter refused to make payments under the Pitt Street Mall Contract.

Particulars

From on or about 8 November 1996, the plaintiff and Stoneglow's employees, contractors and agents were refused entry to the Pitt Street Mall Project site and were informed that Multiplex had terminated the Pitt Street Mall Contract. In fact there had been no termination by the first defendant. There was no notice issued or served by the first defendant. Further, the purported notice of termination of 8 November 1996 was issued, if at all, by the second defendant which was not the contracting party. Further, the notice did not specify adequately or at all any relevant default. Further, to the extent that any alleged default relied on an alleged failure by Stoneglow to perform demolition work or to pay its workers, any such failure was a product of the first defendant's own default in failing to meet its payment obligations and the first defendant was not entitled to take advantage of its own default.

(c) From on or about 8 November 1996, Multiplex unlawfully in breach of the Pitt Street Mall Contract, locked the plaintiff and Stoneglow's employees, contractors and agents out of the site of the Pitt Street Mall Project such that they could not perform any services in connection with the Pitt Street Mall Contract.

Particulars

From on or about 8 November 1996, the plaintiff and Stoneglow's employees, contractors and agents were refused entry to the Pitt Street Mall Project site.

(d) On or about 8 November 1996, Multiplex unlawfully and without authority or cause seized, and thereby took, detailed and/or converted, all of Stoneglow's plant and equipment that was then located on the Pitt Street Mall Project site, including 4 bobcats, 3 excavators, 1 caterpillar bulldozer, 2 trucks, various compressors, jackhammers, chainsaws, hoses and generators (Stoneglow's Property).

(e) Thereafter, Multiplex did not enter into any contracts whereby the plaintiff, whether by himself or in connection with Stoneglow or any associated business, had the opportunity to perform demolition work for Multiplex.

To give context to the issues of fact that I do deal with, I propose to set out, in what I hope is a non-contentious way, a summary in chronological form of relevant matters leading up to the alleged making and execution of the conspiracy, and, so far as necessary, thereafter.

Then, but before I turn to the crucial events, I shall deal with: those issues of law that require resolution; an issue as to the application of s 55 of the Limitation Act 1969 (NSW); some arguments as to the application of the so called "Briginshaw" principle; and (to the extent necessary) the credibility of the witnesses called by the parties.

Factual background

Mr Ballard found his way into the building industry in about the mid-1970s. He worked as a bricklayer, under the name "B & B Bricklayers", from 1977 until 1980. That led him into the demolition business. He and two friends tendered for a job at a landfill depot. The job required that two large chimneys, constructed of brick, be demolished, and that a brick pit be filled in using that rubble and other building waste, so that the site could become a park. Through that, Mr Ballard met many demolition contractors, including Mr Young. He and Mr Young decided to go into business together. They set up Stoneglow.

According to Mr Ballard, whilst Stoneglow was operating, he spent most of his time working on demolition jobs or supervising its subcontractors. Mr Young's primary role was to negotiate contracts and carry out such administrative duties as were required. The accounting records and tax returns of Stoneglow were maintained and prepared by Mr Jack Richards (who has since died).

The first demolition contract performed by Stoneglow was for work in connection with the refurbishment of the former Maritime Services Board building to become the Museum of Contemporary Art. Thereafter, Stoneglow carried out numerous demolition jobs, for various principals and contractors, the value of which ranged (according to Mr Ballard) from about $30,000 to about $2 million. Most of those jobs appear to have been performed in the Sydney metropolitan region.

During 1994, Mr Ballard was diagnosed with major depression. He was admitted to Evesham Hospital and stayed there for some seven days. It will be necessary to return to some of the detail of this.

At some time in 1995, Stoneglow obtained a contract to carry out demolition work for Thiess Constructions Pty Ltd (Thiess) at the "HMAS Waterhen" site: a Naval base on the shores of Sydney Harbour. It was when Stoneglow was performing that work (under the supervision of Mr Ballard) that some conflict occurred with the unions, which led to the recording by ACA, with the co-operation of Mr Ballard, of a confrontation between Mr Ballard and two union organisers. That confrontation featured heavily in the broadcast by ACA on 13 September 1995. Whilst it will be necessary to turn to the detail of that confrontation and the broadcast (because it is said to be the reaction of Mr Ferguson in particular, and the unions more generally, to that broadcast which was the genesis of the conspiracy), it is sufficient to note at present that the broadcast conveyed a very strong anti-union tone. Extracts from that program were rebroadcast by ACA in October and again in December 1995.

The reactions of the unions and Mr Ferguson to the broadcast will need to be examined. It is enough to note at present that there were meetings of the NSW union's committee of management, and of the NSW union's organisers, and that Mr Ferguson signed a number of letters of complaint (and some were written for him by the NSW union's lawyers) to the producers of ACA, the reporter involved (Mr Mike Munro) and others.

At some time in about 1995 or 1995, Stoneglow started to obtain demolition subcontracts from Multiplex. There were three such subcontracts before the Pitt Street Mall (or Sydney Central Plaza) subcontract which is central to these proceedings. They were known (and referred to in these proceedings) as: the Chatswood Chase project; the Colonnades project; and the Grace Hotel project. The Chatswood Chase project related to a shopping centre to be constructed at Chatswood. The Colonnades project related to a home unit development at Milsons Point. The Grace Hotel project related to the refurbishment of an Art Deco commercial building in the Sydney CBD for hotel and associated uses.

There is no doubt that Stoneglow performed (or continued to perform) work on each of the Chatswood Chase and Colonnades projects after the ACA broadcast. There is no doubt that the NSW union was actually aware, through one of its organisers, Mr Jose (Mario) Barrios, that Stoneglow was carrying out work on the Colonnades project. The NSW union must have known that Stoneglow was working on the other project.

At some time early in 1996, Stoneglow was invited to tender for the demolition subcontract for the Pitt Street Mall project. That project involved a site bounded on three sides by George and Market Streets and the Pitt Street Mall. Multiplex had entered into an agreement with the owner of the site, a company in the Coles Myer Group, for the renovation of the existing department store and the redevelopment of the site (which extended well beyond the boundaries of the Myer, formerly Grace Bros and before that Farmers, department store).

Stoneglow submitted its tender for the work on 2 April 1996. After negotiations, that tender was revised on about 17 April 1996. The demolition subcontract was then awarded to Stoneglow. There is some controversy as to the precise date when demolition work started, but it is clear that such work had started by (at the latest) June 1996. Although the formal subcontract (between Multiplex Constructions and Stoneglow) was not signed until 12 August 1996, Mr Young had executed an acknowledgement of the award of the subcontract and of its terms before work started. It has not been suggested that the formal document eventually signed differed in any material way from the terms that had been negotiated, and that had been accepted by Mr Young.

The work required under the demolition subcontract for the Pitt Street Mall project was divided into two stages. It was complicated and difficult work, not least because the Myer department store was to continue to operate whilst the demolition and reconstruction work was carried on around it. To facilitate that, part of the building in which the store was located was to be stripped out and demolished while trading continued in the other part. The cleared part of the building would then be fitted out so that the department store business could be moved into it. Stripping and demolition could then proceed in the other part of the building.

The subcontract required Stoneglow to make progress claims (if it wished to be paid) by the 20th of each month, projecting work to be completed up to the 26th of that month. Multiplex was required to assess the progress claims, and to pay the amount assessed (less retention) by the end of the month following the month in which the progress claim had been made. In fact, for the progress claims that were made, Multiplex paid by instalments and much earlier than it was contractually obliged to do. Mr Ballard says that this happened pursuant to an "agreement" that he reached with Mr Ronald Murphy of Multiplex (who was the construction manager for the Sydney Central Plaza Project ) in the course of negotiations.

Stoneglow made progress claims dated 24 July, 15 August, 10 September and 30 October 1996. The last of those claims was not given to Multiplex until 4 November 1996. By 31 October 1996, the total claimed (as then notified to Multiplex) was $1,801,000.00 and the total assessed and paid, or withheld as retention, was $1,776,000.00. Those amounts do not include the amount claimed by the last progress claim. With some exceptions, payments were made in advance of Multiplex's contractual obligations to do so, and at approximately fortnightly intervals.

There were difficulties in the performance of the stage one demolition works, and Multiplex expressed some dissatisfaction with Stoneglow's performance. Some of those complaints were made before Multiplex and the unions are said to have entered into the alleged conspiracy.

The conspiracy is said to have been made at a "coffee shop" meeting in late August or early September 1996. The only direct evidence that there was such a meeting comes from Mr Bates. He was then the assistant secretary of the NSW union. The other participants in the coffee shop meeting, according to Mr Bates, were Mr Ferguson, and Messrs Ross McDiven and David Higgon of Multiplex.

The relationship between Stoneglow and Multiplex deteriorated in September 1996. One cause of that deterioration appears to have been Stoneglow's belief that Multiplex had consistently under-certified the amount due in respect of progress claims. Correspondence between the parties became more confrontational. Multiplex continued to draw to Stoneglow's attention what Multiplex said was defective, incomplete or negligent work undertaken by Stoneglow.

Stoneglow asserts that, at a meeting held between Multiplex and Stoneglow on 22 October 1996, there was an agreement made for it to be paid, by 1 November 1996, $180,000.00.

On 22 October 1996, direct debit payments to be made from Stoneglow's bank account for hire purchase liabilities were dishonoured.

Stoneglow was unable to pay its workers their wages on 24 October 1996. Multiplex advanced $26,000.00 (in fact $23,400.00, with retention of $2,600.00 withheld) to enable Stoneglow to meet its wages bill.

On 24 October 1996, Multiplex NSW wrote to Stoneglow asserting a number of deficiencies in Stoneglow's performance of its obligations under the subcontract. The letter stated that it was "issued pursuant to cl 6 of your subcontract agreement". It required Stoneglow "to show cause by October 28, 1996 as to why we should not determine your contract".

Stoneglow had not made a progress claim in October by the required date, 20 October. Nonetheless, on 25 October 1996, Stoneglow wrote to Multiplex NSW asserting an entitlement to be paid $900,000.00 for various outstanding claims, and demanding that $600,000.00 be paid within 14 days. On 28 October 1996, there was a meeting between representatives of Stoneglow and representatives of Multiplex at which, among other things being done, it was acknowledged that no progress claim had been lodged by 20 October.

Stoneglow was unable to pay its workers their wages on 31 October 1996. Multiplex caused a cheque to be drawn for an amount sufficient to enable wages to be paid, and (on its evidence) sought to pay that money into Stoneglow's bank account. Mr Ballard wrote to Stoneglow's bank directing it not to execute the "list pay" arrangements for Stoneglow's workers.

Also on 31 October 1996, Stoneglow's workers went on strike, it is said because they had not been paid. There is some dispute as to the precise circumstances in which, and the reasons for which, those workers went on strike.

On 1 November 1996, Multiplex NSW gave Stoneglow notice of default. The notice alleged that Stoneglow had not undertaken work under the subcontract in accordance with the applicable program. Further, it alleged that Stoneglow's failure to pay its workers was a breach of a specified clause of the subcontract.

Stoneglow wrote to Multiplex NSW on 3 November 1996 alleging that Multiplex had breached the subcontract, and purporting to suspend the works "until you desist from such breach". The letter made demand for payment of "an appropriate amount".

On 6 November 1996, Stoneglow sent a fax to Mr John Singleton. Mr Ballard had been acquainted with Mr Singleton, and accepted that he and Mr Singleton were friends. In the fax, which was sent over Mr Ballard's name, the following assertions were made:

Multiplex are withholding cashflow, as they are saying, because I haven't provided proper paperwork. This is mostly true. However there are side agreements to pay every two weeks which they have been doing but have now withdrawn.

I am currently owed $610,000.00 on contract work alone on Sydney Central Plaza and approximately $200,000.00 for additional variations and in excess of $200,000.00 for contractual claims.

Further I am owed approximately $150,000.00 on the other two jobs including retention and variations.

Multiplex have been paying me every two weeks but have now turned off the tap.

I cannot pay suppliers and sub-contractors and am not prepared to risk my personal assets as Multiplex try to send me bankrupt so they can get in front by $1 Million on this job.

Multiplex agreed with my partner Barry Young to pay a cheque on Chatswood Chase in the amount of $132,000.00 last Friday. The cheque was not received.

Raymond Yeo and Bob Downes of Multiplex agreed with Barry to pay $180,000.00 by last Friday if he agreed to move the value of Stage 2 from $1.2 Million to $1.6 Million in return for the payment of $180,000.00. This is extortion and commercial blackmail.

Neither the $132,000.00 nor the $180,000.00 was received.

Multiplex would appear to be getting ready to terminate my contract and unjustly enrich themselves at my expense and sink all my subcontract truck drivers, suppliers and my employees.

In discussions with Ron Murphy of Multiplex he has not said what the real reason for non payment is and I don't trust him because he is not forthright.

The men on site are in support of my position and have stopped work in protest at my not having received payment.

The Unions have been contacted but don't want to get involved on the basis that they say it is essentially a contractual dispute between Multiplex and my company Stoneglow Pty Ltd.

Multiplex brought in a scab contractor to do our work last Thursday night but that has been stopped.

The only reason that the job is not progressing is because I haven't been paid.

Passing over numerous letters, meetings and other events, on 8 November 1996 Multiplex NSW wrote to Stoneglow giving notice that the subcontract was terminated as a result of Stoneglow's (alleged) breaches. On the same date, Multiplex terminated the subcontract for Chatswood Chase. Stoneglow and its workers were locked out of the Pitt Street Mall site. Stoneglow's equipment was impounded within the site. Multiplex asserted that it had a contractual right to do this.

The parties attempted to resolve their disputes. They were not successful. Multiplex made payments on account of Stoneglow's liabilities for its workers' wages and (ultimately) for amounts owing by Stoneglow to some subcontractors and others.

In around late 1996 or early 1997, Multiplex considered funding Mr Ballard to start up a new demolition business. That proposal went nowhere. Mr Ballard relies on this incident also as a manifestation of the execution of the conspiracy.

Stoneglow went into administration on 18 February 1997. A report as to affairs (RATA) signed by Mr Ballard stated that Stoneglow had debts, at that date, in excess of $970,000.00.

On 17 March 1997, Stoneglow's creditors resolved to wind it up. The administrator (Mr John Vouris) was appointed as liquidator.

On 10 August 1998, Stoneglow (by the liquidator) and Multiplex entered into a deed of release. Mr Ballard was not a party to that deed.

On 26 April 2005, the prominent Sydney identity Mr James W (Jim) Byrnes wrote, purportedly on behalf of Mr Ballard, to a partner of Clayton Utz. That firm was then (and in these proceedings is) acting for Multiplex. That letter (the Byrnes letter) made the interesting observation that Mr Ballard (who was referred to as "Sharkie Raymond") "much like myself, is a person seen by others to be a person capable of bringing about sufficient pressure to resolve ... disputes, and so other people will gravitate to him for assistance, and there are a number of other creditors 'coming out of the woodwork' who are alleging both mistreatment and fraud on the part of Multiplex".

The letter suggested, in no uncertain terms, that Multiplex and its officers had been guilty of fraudulent and criminal conduct in the treatment of Stoneglow. It threatened exposure in the press, "significant embarrassment", "criminal charges" and "major inquiries". It also contained a statement that Mr Byrnes, through companies controlled by him, proposed "to start short-selling the stock [in Multiplex]", and accordingly suggested "that it is appropriate that you prepare the relevant notice to the exchange, properly advising the market" of various things.

Following these less than subtle threats, the letter concluded:

On the off-chance that you would like to reconsider and get very serious about settling with Ballard, Byrnes and Widdup, my mobile phone number is... . The above should not [sic] interpreted as demanding money with menace. I either want to settle things and move on... . But I do not wish to breach any ASIC or ASX regulations, hence my request.

Settle or don't settle. Just let me know the company's intentions.

On 11 September 2007, an article headed "Wrecking Ball" appeared in the Bulletin magazine. That article referred to Mr Ballard's boxing history, and then to his "beef with Multiplex" arising from the claim that "he was never fully paid for the Pitt Street Mall job". The article noted that "a retired Multiplex director and a former senior official of the CFMEU have come forward to blow the whistle on how Ballard's business was destroyed over his refusal to allow union members he employed to take part in a strike on another site." It seems to be clear that the reporter, Mr Adam Walters, based the article at least in part on interviews with Mr Ballard and Mr Ian Widdup (the "retired Multiplex director"), and on an interview given, and affidavit made, by Mr Bates.

These proceedings were commenced by the filing of the summons on 23 November 2007 - about six weeks after the Wrecking Ball article was published.

Elements of the tort of conspiracy

Counsel in their submissions referred to numerous cases. It is not necessary to go to all of those cases. For present purposes, it is sufficient to refer to two decisions of the High Court of Australia:

(1) McKernan v Fraser (1931) 46 CLR 343; and

(2) Williams v Hursey (1959) 103 CLR 30.

From those cases, the following principles may be deduced.

At common law, the parties to an agreement may incur civil liability to a third party if by their agreement they "combine" for the purpose of causing harm to that third party; if they execute their agreement by the performance of overt acts; and if thereby the third party does suffer harm.

An actionable conspiracy may be one to be performed by legal or by illegal acts. In the first category, it must be the sole or predominant purpose of the conspiracy to cause harm to the third party. In the second category, it must be a purpose of the conspiracy to cause harm to the third party. To prove the (or a) purpose of a conspiracy, it must be shown either that the parties agreed on that purpose or that one party, having that purpose, made it known to the other or others, and that the other or others, having that knowledge, joined or continued with or performed the conspiracy.

The purpose of a conspiracy (or combination) is not necessarily to be identified with its immediate result. For example, merchants may combine for the purpose of enhancing their business and profits. The inevitable result of that combination may be that a competitor is ruined. Indeed, the ruin of a competitor may be the means by which they intend to achieve their purpose. But the law seems to recognise that such a combination would not be actionable (leaving aside, of course, any statutory prohibitions), because the purpose was lawful even though both the result and the means to the achievement of that purpose was the ruin of a competitor. See Mogul Steamship Co v McGregor Gow & Co [1892] AC 25.

As Viscount Simon LC put it in Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435 at 445, "the test is not what is the natural result to the plaintiffs of such combined action, or what is the resulting damage which the defendants realise or should realise will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It is not consequence that matters, but purpose...".

Evatt J considered the question of intent, or purpose, at some length in McKernan. At 390, his Honour enquired "[w]hat is the test for ascertaining the "motive" of a combination which inflicts injury upon a plaintiff?". At 397, his Honour referred to the judgment of Cardozo CJ in Nann v Raimist (1931) 255 NY 307 at 319. Evatt J said, of the phrase "disinterested malevolence" used by Cardozo CJ, that it "is valuable as pointing to malice which is irrelevant to any trade, professional or union interest possessed by the defendants".

At 399-400, Evatt J differentiated between the immediate purpose of a combination and the ultimate object or motive of the combiners. His Honour said:

I. Where the agreement to cause damage or loss is made solely with the object or motive of causing such damage. ...

II. Where the agreement to cause damage or loss is made, all the parties seeking to carry out some object or satisfy some motive, beyond the mere infliction of damage. This case assumes the existence of a similar object or motive in all the parties to the agreement.

III. Where the agreement to cause damage or loss is made, each one of the parties seeking to carry out some object or satisfy some motive beyond the mere infliction of damage, but one or more acting solely from on object or motive, others acting solely from a different object or motive, and others still, acting from more than one object or motive.

...

... I am assuming that the defendants have combined to do certain acts which must necessarily cause temporal harm or injury to a plaintiff or a class of which the plaintiff is one. I have also assumed that the harm to the plaintiff is 'intended' by all parties to the agreement. The infliction of such harm may also be called their 'object' or 'purpose.' Each of these two words indicates the conscious pursuit of some end or goal, or the presentation to the actors of such end or goal as a desirable thing. It may be more accurate to call the immediate end or goal the 'purpose' of the combination and the ultimate end or goal sought, the 'object' of the person who enters the combination. If each party has the same ultimate 'object,' that is also the 'object' of the combination. In this sense, the 'object' desired by each and all, is also the 'motive,' both of each individual and of the combination. It may be that the 'intention' or immediate 'purpose' of the persons combined is to inflict harm, but their 'motive' or ultimate 'object' is the furtherance of their trade interests. It may be, on the contrary, that the 'motive' or ultimate 'object' beyond the immediate 'purpose' or 'intention of the combination, is to do harm because the plaintiff is hated for some personal reason and his harm or ruin is desired as an end to be achieved by means of inflicting harm upon him.

At 403, Evatt J referred to the need to ascertain "the predominant motive or object of the defendants" (that is, in his Honour's terms, the ultimate object rather than the immediate purpose). His Honour said:

'You must consider whether the act or acts complained of which caused loss and hurt to the plaintiff were done with the purpose of injuring the plaintiff. Was such a purpose the real·root of the acts that grew from it, or was the true motive of the acts something else, such as, for instance, the furtherance of the defendant's own business?' (per Lord Dunedin in Sarrell v. Smith (1925) AC at p 717).

... the question is approached by asking whether the predominant motive or object of the defendants is to protect or defend their association, trade or professional interests; any proved hostility or dislike to the plaintiff must be further analyzed, in order to ascertain whether it is a motive related to a clash of economic or professional interests and arises from strong opinions as to the plaintiff's own conduct in relation thereto; whether, on the other hand, the hostility or dislike is not a result of the feelings and attachments of the defendants to the economic and professional interests which they allege they are advancing or defending, but has its true source in personal hatred or bitterness.

At 407 - 408, Evatt J made the point that the motives of one of a number of "conspirators" will not necessarily convert the combination into an unlawful conspiracy:

Where two or more persons are proved to have jointly committed a tort, their liability is joint and several, and each is liable for the entire amount of damages sustained. And, if action is brought against several persons in respect of a tort said to be committed jointly, but the facts show that one only is a tortfeasor, a verdict and judgment may be recovered against him alone for the whole damage sustained by the plaintiff. But, in a case of civil conspiracy against A and B for damage caused by the carrying out of an agreement between them, it is not possible (except in the rare instances where evidence admissible against one party only, authorizes a finding to be made against him alone) to adjudge that A conspired with B, but that B did not conspire 'with A. As a general rule, unless both are liable, neither is liable.

...

When, therefore, McCardie J. says that 'the proved malice of one or more may be attributed to the other participants in the combination', the authorities cited do not bear out the general statement, and principle is not consistent with the application of the statement to the tort of conspiracy to injure. The question is always-what has been agreed upon ?-what is the nature of the combination ?-it must be possible to say of the combination as such that it is of a 'malicious' character. I do not see how malice is imputable to all participators in a design merely because it exists in one. The existence of a common purpose gives no authority to every party to it, to act as he thinks best on behalf of the other parties, for the attainment of the common purpose. If an agreement or a common design is proved, each participant is the authorized agent of the others for the purpose of carrying out what is the design or agreement, but not otherwise.

I am of opinion that, if a number of traders or professional men or members of a trade union agree to do acts which must cause harm or damage to A, the fact that the sole motive of one member of the combination is a purely personal hatred of A and a desire for his ruin as an end in itself, does not convert such combination into an unlawful conspiracy. No doubt, overt acts or words indicating such personal malice may be of such frequent occurrence in and about the execution of the common agreement, and so well known to and accepted by all participators in it, as to furnish some evidence of the malicious nature of the whole combination. But acts or words indicating malice in one or two or more, are merely evidentiary, in order to prove the general motive or object. The evil motive proved to exist in one or two or more is not imputable to the other members of the combination. Each party is the agent of the others, only for the purpose of carrying out the agreed plan. If the plan is imbued with personal spite against a plaintiff, the nature or quality of the agreement may be termed 'malicious'. If there is an agreement to perform acts to A's detriment, and the motives of some participators are merely to protect or advance their professional organization or their trading interests or their trade union, the additional fact that one or more other participators are not really pursuing such objects or motives, but merely desire to satisfy their personal hatred, does not give a different quality to the agreement. In short, such hatred or grudge does not, on any principle of law, become a motive imputable to those who are either unaware of it, or who, being aware of it, condemn.

At 409, Evatt J stated the result of the application of the principles to the facts under consideration in that case. His Honour's analysis is important as showing the need for a "bad motive" to be shared:

... there cannot be a finding that McKernan was a party to an executed conspiracy or agreement to injure, even if he himself was actuated by a purely personal grudge. Allen v. Flood (1898) AC 1 shows that his own bad motives cannot affect the lawfulness of what he did, considered merely as personal action. If the bad motives of McKernan in doing certain lawful acts, do not affect the lawfulness of his conduct, the further fact that his conduct was in pursuance of a combination to which others without bad motives were also parties, does not make McKernan liable for the tort of conspiracy to injure, unless the others are equally liable with him. Their good motives make it impossible to predicate of the combination that it was an agreement entered into for the purpose of satisfying personal malice. Assuming an agreement of the parties to induce the shipping companies not to employ Fraser or Stapleton, it was not an agreement characterized by personal malevolence. The greasers did not know of, much less approve or share, such malevolence.

To similar effect, Evatt J stated at 410 that "the proof of personal malice on the part of some members of the association will not show that the ultimate object or motive of the members combining is malicious. Usually it will show that the common object is not malicious" (his Honour's emphasis).

I have referred at length to the judgment of Evatt J in McKernan because it contains a detailed analysis of "purpose" or "motive". I note that, in Cox v Journeaux (1935) 52 CLR 713, Dixon J referred to the "full examination" of the civil cause of action for conspiracy in McKernan and, and in particular to the judgment of Evatt J in that case at 399 and following. However, the judgment of Dixon J in McKernan (a judgment with which Rich and McTiernan JJ agreed) also deals with the question of purpose. At 361 - 362, Dixon J referred to the need to find an intention to harm, and to the distinction between consequence and purpose. His Honour said:

... the cause of action in conspiracy was also supported upon the ground that the appellant was party to a combination which had for its object the wilful infliction of damage upon the respondents. This assumes that the end is not in itself unlawful, that the means are not unlawful, and that no threat of an illegality is made in furtherance of the combination. It appears now to be settled that, for a combination or acts done in furtherance of the combination to be actionable in such circumstances, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and that this must have been the sole, the true, or the dominating, or main purpose of their conspiracy. ... To adopt a course which necessarily interferes with the plaintiff in the exercise of his calling, and thus injures him, is not enough. Nor is it enough that this result should be intended if the motive which actuates the defendants is not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests. ... what actuated the meetings of the Branch and the appellant in pursuing the policy which the Branch adopted and he probably advocated, was the desire and the purpose of compelling the promoters of the rival Union to desist from the project by depriving them of employment and making manifest to their followers the unwisdom of adhering to them. ... I think the cause of action in conspiracy was not established.

Of course, in the passages which I have quoted at some length, the courts were talking of the civil action for conspiracy to cause harm by lawful means. Mr Ballard relies also on the tort of conspiracy to cause harm by unlawful means. To make good that case, Mr Ballard must show that the means employed to execute the conspiracy were unlawful. However, he does not need to show that the sole or predominant motive of the conspirators to cause him harm. It is sufficient if he proves that this was one of their motives.

Other causes of action

Wrongful interference with trade or business

Mr Ballard also asserted, against each of Multiplex and the unions, a claim based on the tort of wrongful interference with trade or business. That was one of the causes of action alleged in Sanders v Snell (1998) 196 CLR 329. The majority in that case (Gleeson CJ, Gaudron, Kirby and Hayne JJ) said at [30] that it was not "necessary to decide in this case whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia".

The tort was recognised by the House of Lords in OBG Limited v Allan [2008] 1 AC 1. In that case, Lord Hoffman said at [47] that the essence of the tort of wrongful interference with trade or business was:

(1) wrongful interference with the actions of a third party in which the claimant has an economic interest; coupled with

(2) an intention thereby to cause loss to the claimant.

It is clear that by "wrongful interference", his Lordship was referring to "unlawful acts": see, for example, at [49]. In that paragraph, his Lordship said that with one qualification, acts against a third party would count as unlawful only if they were actionable by that third party. The qualification was that they would also be unlawful if the only reason why they were not actionable was because the third party had suffered no loss.

Lord Walker of Gestingthorpe and Baroness Hale of Richmond agreed with Lord Hoffman. So, too, did Lord Brown of Eaton - under - Heywood. His Lordship said at [320] that the unlawfulness must be vis a vis the third party, the claimant:

...the unlawfulness is that of the defendant towards the third party and the defendant's conduct must be such as would be actionable at the suit of the third party had he suffered loss.

The tort of unlawful interference with trade or business was considered by the Court of Appeal of Queensland in Deepcliff Pty Ltd v The Council of the City of Gold Coast [2001] QCA 342. McMurdo P, after referring to the decision in Sanders, proceeded by "accepting for present purposes that the tort is recognised in Australia". I do not understand her Honour to have decided that it is, or should be. What her Honour said was an introduction to pointing out that the unlawful act must be one that is forbidden by law. It was not sufficient to point to an act that was unauthorised only because it was beyond power and void. In her Honour's view, there was no relevantly unlawful act. On that basis, even if the tort existed, it had not been made out on the facts of that case.

In the same case, Williams JA considered the tort at [72] and following. Having referred to the decision in Sanders, his Honour said that "in the light of the reasoning of the High Court ... it is not for this court, in my view, to hold that such a tort to does exist in Australian law".

The third member of the court, Helman J, agreed with both McMurdo P and Williams JA.

In Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470, Moore J considered the tort of unlawful interference with trade or business at [422] to [430]. Having referred to, among other things, the decision of the High Court in Sanders, the decision of the Queensland Court of Appeal in Deepcliff, and the decision of the House of Lords in OBG, his Honour concluded at [430] that it would be inappropriate for him, as a trial judge, "to take the step of deciding the tort exists". His Honour did so by reference to the principles stated by the High Court in Farah Constructions Pty Ltd v Say - Dee Pty Ltd (2007) 230 CLR 89, in particular at [135].

I propose to adopt the approach taken by Moore J, and to do so notwithstanding the decision in OBG.

Intimidation

Mr Ballard also asserted, against the unions and Mr Ferguson, the tort of intimidation. He pleaded threats by them that if Multiplex did not comply with the alleged requirement of the unions and Mr Ferguson that it turn Stoneglow off the Sydney Central Plaza Project, and not give it or Mr Ballard any further work, the unions "would procure or engage in industrial action on building and construction sites on which Multiplex was engaged as a builder". See para 26 of the contentions set out in the second further amended summons (2 FAS), which paragraph picks up the "Threat" alleged in para 10(a).

There is an immediate problem with the pleading of the "Threat". It is clear that the threat must be such as to constitute "unlawful means". See Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844 at [100]; Jack Brabham Engines Ltd v Beare [2010] FCA 872 at [303], [304]. But not all industrial action is (or in August 1996 was) unlawful. As a matter of pleading, Mr Ballard seeks to circumvent that problem by asserting that the Threat was unlawful because it was one to induce, procure or engage in unlawful industrial action, and for other reasons. That characterisation of the Threat (2FAS para 26), does not sit easily with the way that it is described (and the description is the source of the defined term) in 2FAS para 10(a). However, it is unnecessary to pursue this question.

Be all that as it may, the elements of the tort of intimidation are clear:

(1) the defendant must threaten to use unlawful means to compel the person threatened to obey the defendant's demand;

(2) the person threatened must comply with that demand;

(3) the plaintiff must suffer damage as a consequence of that compliance; and

(4) the defendant must have acted with the intention of harming the plaintiff.

See Jack Brabham at [303].

Fraudulent concealment: s 55 of the Limitation Act

The defendants relied on a limitation defence. On the face of things, that defence would be made good. Mr Ballard's causes of action accrued, at the latest, early in 1997. The proceedings were not commenced until 10 years later.

To answer this, Mr Ballard called in aid s 55(1) of the Limitation Act. That section reads as follows:

55 Fraud and deceit

(1) Subject to subsection (3) where:

(a) there is a cause of action based on fraud or deceit, or

(b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed,

the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment.

Mr Ballard asserted that:

(1) the defendants fraudulently concealed from him the causes of action that he had against them; and

(2) he first discovered that fraudulent concealment in 2007 (or 2006).

The defendants submitted that I should not be satisfied that Mr Ballard had proved, on the balance of probabilities, that he first discovered the fraudulent concealment in 2006 or 2007. It will be necessary to return to that issue of fact. However, Multiplex submitted (and the unions and Mr Ferguson adopted the submission) that Mr Ballard was required to prove when, with reasonable diligence, he might have discovered the fraudulent concealment, and that he had not done so. Mr Bannon submitted, I think, that Mr Ballard was required to prove only when in fact he first discovered the fraudulent concealment; if the defendants wished to submit that he might have discovered it earlier through the exercise of reasonable diligence, that was for them to plead and show.

Section 55(1) applies where, among other things, a cause of action against a person is fraudulently concealed. Where there is such fraudulent concealment, time elapsing (in effect) from accrual of the cause of action does not count, in the reckoning of the limitation period. However, that suspensory effect is not permanent or eternal. Time does not count until "the date on which [the] person having ... the cause of action first discovers, or may with reasonable diligence discover, the ... concealment".

The obvious meaning of s 55(1) is that the suspensory effect for which it provides expires upon the first to happen of one of two things. The first is the time when the person having the cause of action first discovers the fraudulent concealment. The second is the time when that person, acting with reasonable diligence, might have discovered the fraudulent concealment. For convenience, I will refer to the first of those alternatives as "actual discovery", and to the second as "notional discovery".

A plaintiff who wishes to take advantage of s 55(1) must plead and prove the facts that enliven its operation. In my view, simply as a matter of construction and evidentiary onus, that plaintiff must prove the duration of the suspensory period. That requires, in turn, that the plaintiff prove the first to occur of the two possible events that will bring to an end the suspensory period.

Counsel were not able to refer to any decision in Australia that dealt with this question. However, Mr Pike (who dealt with this aspect of the submissions for Multiplex) relied on the decision of the English Court of Appeal in Paragon Finance plc v DB Thakerar and Co [1999] 1 All ER 400. One of the issues in that case was whether a limitation period had been postponed because of fraud, concealment or mistake. That issue arose under s 32 of the Limitation Act 1980 (UK). That section reads, so far is it is relevant:

32 Postponement of limitation period in case of fraud, concealment or mistake.E+W

(1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either-

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or

(c) the action is for relief from the consequences of a mistake;

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.

...

It will be seen that the wording of s 32(1) of the English Act (as I shall call it) is similar, but not identical, to the wording of s 55(1) of the NSW Act.

Each section achieves the effect, in the case of fraudulent concealment of a cause of action, that the time elapsing between accrual of that cause of action and the time when it is actually or notionally discovered is not taken into account for the purposes of any relevant limitation period. However, they do so by different means. Section 55 starts with the proposition that time commences to run, but achieves its effect by providing that the time between accrual of the cause of action and the time of actual or notional discovery does not count in reckoning the limitation period. Perhaps more simply, s 32(1) provides that time does not begin to run until the time of actual or notional discovery.

It does not seem to me that this difference in drafting approach has any relevance to the question of onus.

Further, s 55(1) refers, in the case of notional discovery, to the time when the proposed plaintiff "may with reasonable diligence discover" the fraudulent concealment. Section 32(1) refers to the time when the proposed plaintiff "could with reasonable diligence have discovered" that fraudulent concealment.

Again, I do think that anything of present significance turns on this linguistic distinction.

In each case, I think, the approach is the same. There is either a negation of time that in fact has run, or a postponement of the moment in time from which a limitation period begins to run, until either actual or notional discovery of the fraudulent concealment occurs. In each case, I think, it is clear as a matter of drafting, particularly taking into account both the purposes of limitation statutes in general and the purpose of postponement of the bar in the case of fraudulent concealment in particular, that it is the first of actual or notional discovery that has the effect of causing time to begin to run (s 32) or the equivalent effect under s 55.

Thus, it must be for the plaintiff to prove the first of actual discovery or notional discovery, so as to show that he or she commenced his action within the requisite period after the first to occur of those events.

Paragon Finance was a case of fraud, brought by a lender against solicitors who had acted for it in a lending transaction, and who were alleged to have acted fraudulently in a manner which was not known to the plaintiff. The plaintiff was confronted by a limitation defence. It relied on s 32(1) of the English Act. The primary judge concluded that the plaintiff had not actually discovered the fraud at any material time. Further, the plaintiff submitted and the primary judge accepted, it had acted reasonably at all relevant times in pursuing recovery actions against the debtors rather than a claim against its former solicitors.

Millet LJ (with whom May LJ agreed and with whom, on this point, Pill LJ also agreed) said at 418 that the plaintiffs' submission was "misconceived". His Lordship said:

The question is not whether the plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take. In this context the length of the applicable period of limitation is irrelevant. In the course of argument May LJ observed that reasonable diligence must be measured against some standard... he suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and were motored by a reasonable but not excessive sense of urgency. I respectfully agree. (His Lordship's emphasis.)

In my view, his Lordship's reasons show, at least for the purposes of s 32(1), that the plaintiff must not only prove actual discovery but must also negative the possibility of earlier notional discovery (or at least, earlier notional discovery at a time that would be too early to rebut the limitation defence). To discharge the latter requirement, the plaintiff must show that, without taking unreasonable or exceptional measures, it could not have discovered the fraud earlier than it did.

In my view, that is the approach to be taken to s 55(1). Of course, there will be cases where it is only actual discovery that is in issue. But where there are facts raising the issue of earlier notional discovery, the plaintiff bears the onus of proving that there was no earlier (or relevantly earlier) notional discovery. In other words, the plaintiff bears the onus of proving that it could not reasonably have discovered the fraudulent concealment of the cause of action earlier than in fact it did.

Approach to assessment of the evidence; the "Briginshaw standard"

Approach to assessment of credibility

Each side (for present purposes, regarding all the defendants as one "side") launched a sustained and fierce attack, both in cross-examination and in submissions, on the witnesses called by the other. That is hardly surprising, since resolution of the contested issues of fact depends on an analysis of the conflicting testimony (informed, where possible, by reference to contemporaneous documents and considerations of objective probability). That exercise in turn requires some analysis to be made of the credibility of the witnesses whose testimony is in conflict.

I start by saying that, to the extent that counsel made reference to the appearance presented in the witness box by particular witnesses (no doubt, at a time when it was thought that the written submissions would be considered by Smart AJ), those submissions must be put to one side.

Nonetheless, the court is required to look at the evidence (in affidavit and, either in chief or cross-examination, in oral form) and to attempt to make some assessment of the credibility of, at least, the principal witnesses.

For the defendants, Dr Bell and Mr Oslington made detailed submissions on the credibility of virtually every witness called for Mr Ballard (including, of course, Mr Ballard himself). The approach taken was to analyse the evidence of each witness in detail, looking for inconsistencies, conceded mistakes (or in some cases false statements) and all the other matters generally, and properly, taken to be indicia of credibility. Mr Bannon submitted that this was not the appropriate way to approach the assessment of credibility (although, perhaps inconsistently with that submission, he undertook precisely the same exercise in his own submissions on the credibility of the defendants' witnesses).

Mr Bannon submitted that the credibility of witnesses was to be assessed in the context of the evidence overall. He said (PSR paras 44 to 46):

In their submissions, the defendants seek to deal with the issue of the credibility of the witnesses of the plaintiff in a similar manner to that in which the defendants have sought to analyse the elements of the direct and circumstantial case put forward by the plaintiff. The defendants have separately examined the credit of each of the witnesses of the plaintiff, invariably leading to the same asserted conclusion in respect of each witness - that is, to the asserted conclusion that each witness of the plaintiff is not credible and that the evidence of each such witness must be rejected, effectively ad seriatim.

In a matter such as this, where there are numerous pieces of direct and indirect evidence touching upon the primary issue (the existence of the alleged conspiracy), the credibility of any one witness does not stand alone as a discrete consideration. The credibility of any witness who gave evidence going to the primary issue, at least to some extent, is interdependent upon the evidence of the other witnesses who gave evidence on the issue, and also upon the other circumstantial evidence relevant to the issue.

The credibility of the evidence going to the primary issue of any witness in this matter must be assessed against the full matrix of the evidence going to the primary issue. Because of this, the credibility of the witnesses in this matter is not amenable to discrete, witness-by-witness analysis, with the drawing of conclusions as to the acceptability of the evidence of each witness at the end of analysis of the evidence of each witness. As with the principled examination of circumstantial evidence, no final conclusion about the credibility of any of the witnesses can properly be made until the end of the process of examination of all the evidence. Of course, this is not to say that no regard should be given to particular credit issues in relation to particular witnesses.

I accept, of course, that an assessment of the credibility of any particular witness must take into account the extent to which the testimony of that witness is, or is not, conformable to other evidence in the case: particularly where that evidence comprises contemporaneous documents unlikely to have been prepared in an atmosphere that might lead to some partisan or partial statement of the relevant facts, or where that evidence appears, for a variety of reasons, to be credible. To take an example from this case: the evidence of Mr Bates (which, as I shall show, must be regarded as untrustworthy, having regard to admissions as to dishonest, discreditable and corrupt conduct in which he engaged and to admissions of serial perjury) may, nonetheless, find corroboration in other parts of the evidence, such as that of Mr Len Anthony.

However, that does not mean that the evidence of each witness should not be assessed, on its own merits, for credibility. It means, at most, that in assessing the credibility of any particular part of the evidence, due regard must be paid to the extent to which it is conformable to, or corroborated by, other parts of the evidence.

Further, I think, Mr Bannon's reliance on the principles relating to the assessment of a case based on circumstantial evidence is misplaced. Those principles were considered by the Court of Appeal of the Supreme Court of Victoria in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125. In that case, the plaintiff (respondent in the Court of Appeal) suffered loss when his house was severely damaged by fire. He claimed against a policy issued by the defendant (appellant in the Court of Appeal). The defendant asserted that the plaintiff had deliberately lit the fire. There was, as the headnote correctly recites, "a large body of circumstantial evidence" that he had done so. Nonetheless, the trial judge found for the plaintiff.

The ultimate fact to be found (of course, on the balance of probabilities) was whether the plaintiff had deliberately started the fire. The trial judge considered each part of the circumstantial case relied upon by the defendant, and concluded that it did not satisfy him that the plaintiff had deliberately started the fire. As Winneke P explained at 128 and following, that approach was erroneous because the trial judge "denied himself... the full benefit of the evidentiary impact of the combined weight of all the intermediary facts when considered as a united force".

Further, as Winneke P explained at 129, the task of the court is:

... to consider the weight of the combination of facts proved... and then to determine whether the combined weight of those facts and circumstances supported the inference, as a matter of probability, that the respondent lit the fire. The onus of proof is only to be applied at the final stage of the reasoning process. It is, erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. ...

In the present case, even though the ultimate fact to be proved involved the commission of a criminal offence, the standard of proof which the learned judge was bound to apply "at the final stage of the process" [a reference to the judgment of the Court of Criminal Appeal of South Australia in R v Van Beelen (1973) 46 SASR 353 at 374] was the civil standard. The application of that standard required him, at the end of the day, to determine whether the various facts and circumstances which he had found, or accepted, raised the inference, on the balance of probabilities, that the respondent had lit the fire.

If the facts which are found to have been proved, when viewed in combination, are capable of raising the inference on the appropriate standard then, in considering whether to find accordingly, the court may take into account, among other things, the failure of the party against whom the inference may be drawn to call evidence on the point which it was within the power of that party to call: Jones v Dunkel (1959) 101 CLR 298. Winneke P made this point at 131, and Tadgell JA made the same point at 138 - 141. That seems to me to be a particular application of the general principle stated by Lord Mansfield CJ in Blatch v Archer (1744) 1 Cowp 63 at 64; 98 ER 969 at 970, that evidence is to be weighed "according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted".

Q. But you gave it a go for a number of months?

A. I gave it a go yeah, but I wasn't good at it.

Q. That was the physical skills, correct?

A. Well, it wasn't physical. You had to know what you're doing, putting that up on the front of buildings. You have to be precise and some of them are cut in angles and I'm not that sort of a person. I've never had any experience at it and I couldn't do it on my own. If I was on my own nobody would employ me.

Q. So it was the lack of carpentry skills really that put you out of that business?

A. Yes, I think so.

Q. Lack of carpentry skills and the person in the company having the carpentry skills was on the bottle too much?

A. Yes, that was it, yes.

There is no suggestion in any of this evidence that Mr Ballard was incapacitated, or even inhibited, from working in this business because of depression. On the contrary, he appears to have been sufficiently on top of things to recognise the danger of working with an alcoholic carpenter.

Another, and striking, feature of the evidence for Mr Ballard, on the question of depression, is that although the depression is said to have set in after the events of November 1996 and following, and to have persisted thereafter (apparently with some intervals when Mr Ballard felt able to think about returning to work), there was no evidence called from any member of Mr Ballard's family who could speak to his condition after he and Mrs Janice Ballard separated, which appears to have been in about 1997.

Mr Ballard's relationship with his current wife, Mrs Sharon Ballard, appears to have commenced in 1997. One would expect that she would have been able to give evidence of his condition, based on her observations of him over the intervening years. But she was not called to give evidence, and no explanation was given as to this. I repeat that Mrs Sharon Ballard had sworn an affidavit, which was filed and served, and that, apparently, she was present for most if not all of the hearing before Smart AJ.

In my view, the proper inference to draw from the unexplained failure to call Mrs Sharon Ballard, given that she must have had the capacity to give evidence of her observations of Mr Ballard over many years, whilst he was said to have been incapacitated by depression, is that her evidence would not have assisted this aspect of his case.

Further, Mr Ballard had two sons by his first marriage. One at least of those sons (and maybe both) worked with him in Stoneglow. It might be thought that his sons, too, would have had an opportunity of observing their father over the years, and of giving evidence about his condition. They were not called.

I regard the unexplained failure to call witnesses, who one would think were capable of giving relevant and possibly persuasive evidence, as damaging to this aspect of Mr Ballard's case.

Another matter to consider, although it does not relate so much to the question of depression as to the question of Mr Ballard's evidence of unemployability generally, is the failure to call anyone from the building and construction industry to support this aspect of his case. Mr Ballard had given a lengthy list of former contractors for whom Stoneglow had performed demolition work over the years 1992 to 1996. No one was called, from that formidable list of industry participants, to say that they wished to give Mr Ballard work after 1996, but were prevented from doing so either because he was regarded as a pariah in the industry, by reason of his notorious (according to Mr Ballard) falling out with the unions; or because his mental state was such as to render him a danger rather than an asset in the performance of any demolition work.

Reliance was placed on a short passage in the evidence of Mr Gary Windred (PS 752-756). Mr Windred was called to explain how it was that Mr Ballard had been put in touch with Mr Bates in 2007. That meeting had been facilitated by Mr Windred.

Mr Windred gave evidence in his affidavit, of a "grapevine" in the construction industry "through which gossip, rumours and information freely circulate" (affidavit sworn 22 October 2009, para 11).

When Mr Windred was called to give evidence, he (by leave) supplemented what he had said in his affidavit. To understand this, it is necessary to understand that although Mr Windred had been a union organiser, he later became employed by the substantial building and construction company then known as Baulderstone Hornibrook Pty Limited. He gave the following evidence (T676.14-.39):

Q. Did you have any role with Baulderstone Hornibrook on the question as to whether new contractors should or should not be taken on by the company?

A. If we were looking for outside our normal contract market, if any new contractors came in I would have questioned, yes.

Q. If Mr Ballard or a company associated with him had sought to undertake--

HIS HONOUR

Q. Do I take it from that that if one of the usual demolition contractors were used you wouldn't consult?

A. If we knew them and they had worked for us before, no, not normally.

BANNON

Q. If Mr Ballard or a company associated with him had sought to undertake work with Baulderstone Hornibrook after what you heard about the Multiplex Central Plaza project, what view would you have taken as to whether or not he should be taken on or his company should be taken on by Baulderstone Hornibrook?

A. We would normally do some research on the company. Knowing they were in dispute at the time from HMAS Waterhen and the Sydney plaza project, we probably wouldn't have engaged him.

Q. Why is that?

A. You wouldn't want to inherit a problem on your own project.

That was the full extent, so far as the submissions suggest, of the evidence as to Mr Ballard's unemployability (by reason of his being a pariah) following the events of 1975 and 1976.

I do not regard Mr Windred's evidence on this point as having any probative weight. He accepted, in the course of cross-examination, that decisions about which subcontractors to use on a particular project were based on research and appropriate checks, not on grapevine rumours. He agreed that price was often an important determinant (T709.9-.47):

Q. You gave some evidence about the practice if Baulderstone were taking on a new contractor.

A. Yep.

Q. There would be a variety of factors which you would look at in the ordinary course?

A. Normal checks, yes.

Q. One past history?

A. Correct.

Q. One price?

A. Of course.

Q. That's a very important variable, isn't it?

A. To a building company, yeah.

Q. Because the less the head contractor has to pay in subbies, the more the profit for the contract?

A. The more for the builder, yeah.

Q. And if a decent price was being offered to Baulderstone Hornibrook by a particular contractor, you wouldn't say no to that contractor on the basis of rumour and grapevine, would you?

A. They would probably look at the price and then they would check him out.

Q. Price is most important, you agree?

A. I wouldn't say, particularly Baulderstone's case, that that was always the case. I think that, you know, if it was under their budget they would have a look, but if they were on budget without a reputation who worked before we would probable go with the contractor we knew, rather than a new one. If the budget was way under price we would have to have a look at it.

Q. And important decisions about who was taken on a particular project aren't based on grapevine rumours, they are based on a level of research and due diligence, aren't they?

A. Yes, that's true. As I said before, if you have got someone close and we narrowed it down to two or three and were going to engage a new contractor, we would engage David Hicks & Associates for our audits.

That evidence seems to me first to have the ring of truth to it, and secondly to undercut the evidence in chief on which Mr Bannon relied.

It is also apparent that Mr Windred's understanding was that Mr Ballard had not been "kicked off" the Pitt Street Mall project, but off the Waterhen project (T703.29-.47). In fairness to Mr Windred, he said it was "probably right" that it was the Waterhen site that Mr Ballard "was kicked off"; but it is clear that, whatever the weight to be attributed to grapevine rumours, the position in this case is either that the grapevine rumour was hopelessly confused or that Mr Windred's recollection of it was defective.

It is, to put it mildly, passing strange that the only evidence that could be obtained, as to Mr Ballard's unemployability, was that adduced in the way that I have just indicated from Mr Windred, rather than from people with a proper level of decision-making authority in the numerous other organisations for which Stoneglow had worked.

The claim for economic loss

The calculation of loss of earnings was undertaking by Mr AB (Tony) Samuel. Mr Samuel provided several reports. One, in chief, dated 13 November 2009, set out his methodology and calculations. Another, dated 4 May 2011, was updated to reflect, so far as possible, the input of accurate information.

It appears that Mr Samuel prepared other reports. Further, the defendants retained an expert, Mr Dicks of PPB. Mr Samuel and Mr Dicks prepared a joint report. Since Mr Dicks was not called, the joint report was not tendered.

Mr Samuel's methodology, on his preferred "scenario", involved the following elements:

(1) he calculated what he called "the estimated earnings of Stoneglow, Wingrove [Mr Ballard's service company] and David Ballard for the year ended 30 June 1997";

(2) he projected those earnings forward year by year until 30 June 2015, by using what he thought was an appropriate indicator to measure growth in the demolition industry;

(3) he made calculations of the tax payable on that income, and of superannuation contributions that would have been made had Mr Ballard organised his affairs in the most efficient way, and calculated a net income figure for Mr Ballard accordingly;

(4) for each year of notional income so calculated up to the present time, he added interest from year end until the date of calculation;

(5) for each year after the present time, he discounted the figure back to the date of calculation;

(6) he added what he regarded as Mr Ballard's share of the lost earnings of Stoneglow for the year ended 30 June 1997; and

(7) he produced, accordingly, a figure for damages as at the date of calculation.

Mr Samuel's methodology was based on a number of assumptions which were expressed in his first report and teased out, and challenged, in the course of cross-examination. Some of those assumptions in my view were not made good on the evidence. It follows that, to the extent that the assumptions were not made good, there is a major difficulty in accepting Mr Samuel's conclusions.

There is however a fundamental problem with Mr Samuel's methodology, which I should deal with before moving, briefly, to the issues as to the assumptions on which his opinions were based.

What Mr Ballard is suing for is characterised as the lost earnings that he would have made but for the conspiracy, its execution and the consequences. He is seeking damages for loss of the opportunity to make earnings that otherwise he would, or might, have derived.

Damages are generally assessed at the date of breach: Johnson v Perez (1988) 166 CLR 351. In that case, a solicitor failed to prosecute his client's action appropriately. It was dismissed for want of prosecution. The court held that damages crystallised at the date the action was so dismissed, and that the damages were the loss of the opportunity to succeed in that action had it been prosecuted with appropriate despatch. Thus, among other things, damages were to be assessed by reference to what might have been awarded at the time the action should have been heard, and not by reference to the range of damages applicable to such actions at the time the case against the solicitor was heard.

In this case, orthodox principle insists that Mr Ballard's loss should be calculated at the date of the (hypothetical) wrong. It is not necessary to be too precise. Damages could be assessed, in deference to that principle, as at (say) 30 June 1997, on the basis that, by then, Stoneglow had gone into liquidation and Mr Ballard was out of the industry.

What Mr Ballard is entitled to be compensated for is loss of the opportunity to make earnings thereafter. It may be appropriate to calculate what earnings could have been made from year to year. But the appropriate measure of damages is the value of those earnings, discounted back to the date of assessment and, thereafter, augmented by the award of interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). The discount rate should reflect, among other things, the uncertainties attendant upon earning a living in the demolition industry, and, more generally, the vicissitudes of life (including, for example, the prospect that Mr Ballard might not have been able to work until 30 June 2015 by reason of some supervening event for which none of the defendants were liable).

In my view, to calculate, as damages, earnings year on year, and then to add interest to bring them forward to a conclusion assessed in effect at the present time, is inconsistent with principle. Thus, I conclude, the methodology employed by Mr Samuel is fundamentally flawed. It follows, in my view, that if one were to come to the question of damages, his reports and conclusions provide no basis for making any assessment: let alone, for an award calculated in accordance with any of his scenarios.

In theory, perhaps, if Mr Samuel's calculations of lost earnings were regarded as accurate, they could be discounted back, and interest could then be calculated. But there is no guidance in the evidence as to what might be an appropriate discount rate. For example, there is nothing to suggest what were the probabilities that a "Stoneglow II" would survive and prosper from 1997 until 2015.

There is perhaps another problem, although of a more minor nature, in the calculation. One of the elements that Mr Samuel includes (see at [789(6)] above) is an allowance for Mr Ballard's "share" of the earnings that Stoneglow might have made had the Sydney Central Plaza project proceeded to completion, and had it been paid all that was due under that and the other projects. On orthodox principle, it seems to me, those losses are losses of Stoneglow and are not recoverable at the suit of Mr Ballard. See Prudential Assurance Co Limited v Newman Industries Limited (No.2) [1982] Ch 204; Johnson v Gore Wood and Co (A Firm) [2002] 2 AC 1.

Lord Bingham of Cornhill said in the latter case, at 35-36, that a shareholder may recover for a loss that is separate and distinct from that suffered by the company caused by breach of a duty independently owed to the shareholder, but not for a loss which is merely consequential upon or derivative from loss suffered by the company. Lord Millet made a similar point at 62.

In this case, if there were a breach of contract on the part of Multiplex that resulted in loss to Stoneglow, that loss would have been recoverable by Stoneglow alone. But even if Stoneglow were now to be revived and sue for it, nothing could be recovered because - leaving aside the obvious limitation problem - Multiplex and Stoneglow have entered into a deed of release, by which Stoneglow is bound.

Mr Ballard has no independent claim for that breach of contract. The "share" of the profits of which, on Mr Samuel's analysis, Stoneglow was deprived is derivative upon what would have been Stoneglow's claim.

I turn to some of the asserted flaws in the assumptions on which Mr Samuel based his report. One of those assumptions was that Stoneglow would have finished all work under the Pitt Street Mall project by the end of January 1997, and would have continued to undertake profitable work thereafter up until 30 June 1997. That assumption was fundamental to Mr Samuel's "calculation" of Stoneglow's earnings for the year ended 30 June 1997, which was the basis for the "calculation" of lost earnings by Mr Ballard then and thereafter.

However, the evidence is otherwise. As I have already noted, there was to be a substantial gap between stages one and two of the demolition work. That gap was necessary so that the trading business of the Myer department store could be relocated into the area where the stage 1 demolition work had been carried out. It would take some time for the necessary fitout and other works to be completed. It is likely that stage two works would not have been commenced until about March 1997. That was not, as Mr Bannon appeared to submit, merely some programming problem for which Multiplex or the principal was responsible. It was a necessary incident of the subcontract, bearing in mind that the department store was always to continue operating whilst the works were being carried out. Thus, there was to be a substantial gap during which Stoneglow would have earned no income from the Pitt Street Mall project. There was no evidence that Mr Ballard (or Mr Young) had arranged for other work to be undertaken to fill that gap. Nor is there evidence that, even if the Pitt Street Mall project demolition work had been completed before 30 June 1997, any steps had been taken to move immediately to another contract.

Thus, in my view, a fundamental assumption underpinning the calculation of base revenue is inherently flawed.

It was also inherent in Mr Samuel's methodology that Stoneglow had the financial capacity to complete the project, that it would remain a going concern, and that it would make a profit on the Pitt Street Mall project. In my view, none of those assumptions is made good on the facts. I have already dealt with the financial position of Stoneglow, as it can be derived from the RATA. Stoneglow was hopelessly insolvent, and would have been insolvent even if Multiplex, in an unlikely fit of corporate philanthropy, had paid Stoneglow the entire amount of its ambit claim.

The very fact that Stoneglow was in such a parlous financial position at the time of the termination of the subcontract suggests one of at least two things. One is that the subcontract had not been, to that time, profitable. The (or an) other is that cash had been siphoned out of the business in such a way as to impair its performance radically.

Mr Bannon submitted that the subcontract was profitable. He relied on evidence give by Mr Stagg (which I accept) that the subcontract price was negotiated with the intent that there would be a profit in it for the successful tenderer. But it does not follow that, because Multiplex intended this to happen, it would be achieved. In particular, achieving the profit would depend on prompt and efficient performance of the work. The material to which I have referred, and other material in evidence, suggests that Stoneglow's performance could not be so described.

Thus, as I have said, this group of assumptions is also fundamentally flawed.

Mr Samuel assumed, also, that the Stoneglow business would continue ("Stoneglow II") with Mr Ballard and Mr Young in de facto partnership. On the evidence, that was unlikely to have happened. It is clear that each had become somewhat disenchanted with the other. There is no need to go into detail. The likelihood is that (as indeed happened) they would have gone their separate ways. Mr Young returned to the demolition business, not with Mr Ballard, shortly after Stoneglow was put into liquidation.

However, whilst this assumption might be factually inaccurate, its impact on the assessment of loss carried out by Samuel is more problematic. The loss of Mr Young would have been significant, because it is clear that much of the business expertise and management skill (to the extent that there was any) came from him. It is open to doubt whether Mr Ballard had the necessary skills to manage a similar business on his own. If he were required to employ, or contract, assistance in managing Stoneglow II, then of course the profitability would be affected accordingly. Mr Samuel's calculations did not make any allowance for that possibility. Further, because he did not apply any discount rate to his calculated earnings figures, there is no other way in which this (and other matters) could be said to have been taken into account indirectly.

Mr Samuel assumed, further, that Stoneglow II would have been able to compete in the market for demolition business after 30 June 1997, and that it would have obtained sufficient business to derive the earnings that, he projected (based on the year ended 30 June 1997) could have been derived. There was no factual basis shown for that assumption, except such as could be drawn from the fact that Stoneglow had successfully carried on business for some four or so years up to 30 June 1996. It should be noted, however, that the Pitt Street Mall project was fundamentally more substantial, as to size and complexity, than others undertaken by Stoneglow. That is no doubt why, as Mr Ballard conceded, Stoneglow had allowed its tender price to be negotiated down substantially, so that it could be seen as a competitor to the major players in the demolition industry (see, generally, T 632-633). In addition, there is Mr Stagg's unchallenged evidence that he did not think that Stoneglow had the ability to do the demolition work for the Finger Wharf project.

There are other difficulties in Mr Samuel's calculation. One of them, harking back to what I said about the assumption as to profitability, is of an 18% profit margin. That was based on a reworking of the figures for the four years leading up to 30 June 1996. Stoneglow's actual profitability for those years (according to its financial statements) was adversely affected because Mr Young and Mr Ballard, through their respective companies, had taken out "management fees". Those management fees were brought to account in striking the profit or loss for each year. Mr Samuel added those management fees back, but made no other allowance for management time and skill. In my view, that is conceptually incorrect. The net profit of a business must necessarily bring to account the cost of all inputs. Those inputs include management time and skill. To add the management fees back, but not to make any other allowance for the cost of management, is artificial. Mr Samuel suggested that he had no information which would enable him to determine what would be an appropriate allowance for the cost of management. That may be so; but it does not justify making no allowance.

For those reasons, as I have said, I do not accept that Mr Samuel's report provides any guidance on which the court could rely in attempting to calculate damages for loss of the opportunity to earn income, even if, contrary to my findings on liability, it was necessary to perform that assessment.

Conclusion and orders

The claim fails. I make the following orders:

(1) Order that the proceedings be dismissed.

(2) Direct entry of judgment in favour of each defendant on the plaintiff's claim.

(3) Subject to order (4), order the plaintiff to pay each defendant's costs of the action.

(4) Reserve liberty to any party to apply for a different or special order as to costs.

(5) Any application pursuant to the liberty reserved by order (4) is to be made by notice of motion, supported by affidavit, filed and served

no later than 25 May 2012. There is to be filed and served with any such notice of motion and affidavit a brief summary of the reasons why the different or special order as to costs is sought.

(6) Direct that the exhibits be returned.

**********

Decision last updated: 07 May 2012

Medium Neutral Citation:	Ballard v Multiplex [2012] NSWSC 426
Hearing dates:	Smart AJ 81 days between 6 September 2011 and 22 September 2011; McDougall J 9/11/2012, 10/11/11, 11/11/11, 14/11/11, 16/11/11,17/11/11, 18/11/11, 21/11/11, 22/11/11, 23/11/11, 24/11/11, 25/11/11
Decision date:	03 May 2012
Jurisdiction:	Equity Division - Commercial List
Before:	McDougall J
Decision:	Judgment for defendants with costs
Catchwords:	[PROCEDURE] - plaintiff's application to reopen case - whether interests of justice favour reopening for purpose of admitting new material - whether finding by a commissioner as to the credibility of a witness is admissible in other proceedings for the purpose of proving that witness's credibility - whether plaintiff made a tactical decision not to tender an expert's report - whether expert's report, obtained on subpoena, is tendered for the purpose of responding to a submission put by the defendants as to plaintiff's alleged depression. [EVIDENCE] - proof - standard of proof - civil - approach to assessment of credibility - burden of proof to the Briginshaw v Briginshaw standard - whether onus of proof in civil litigation is any different where the fact involves criminal conduct, fraud or serious misconduct - whether evidence of each witness should be assessed, on its own merits, for credibility - whether court can defer resolution of the question of credibility until all the facts have been found. [TORTS] - intentional - conspiracy - harm by lawful means - harm by unlawful means - whether there existed a conspiratorial agreement between the first, second, either the third and fourth or both, or the fifth defendant and others to ensure that the plaintiff and his company were removed from the construction industry - whether defendants' intent and purpose of agreement was to injure the plaintiff - whether first and second defendants had an evil intention of the kind contemplated by Evatt J in McKernan v Fraser - whether purpose of the fifth defendant entering into agreement (if it did) was to injure the plaintiff - whether agreement becomes tainted and all participants are liable for harm if one, or all of the defendants had an evil motive and countenanced this purpose by giving assistance - whether any such conspiracy agreement was carried into execution. [TORTS] - intentional - tort of intimidation - whether third, fourth and fifth defendants coerced the first and second defendants by way of threat and intimidation to terminate the construction contract - whether threats by defendant were unlawful as to induce, procure or engage in unlawful industrial action - whether third and fourth defendants threatened to use unlawful means to compel the first and second defendants to obey the defendant's demands - whether the third and fourth defendants intended that by making the threat, the first and second defendants would be persuaded to accede to the other defendants' will, being to deprive the plaintiff of the opportunity to provide demolition services. [TORTS] - intentional - wrongful interference - whether tort of unlawful interference exists - whether third, fourth and fifth defendants illegally interfered with the contract between the first and second defendants and the plaintiffs - whether a contractual relationship existed between the first and second defendants - whether the third and fourth defendants knew of that relationship - whether the third and fourth defendants unjustifiably and intentionally interfered with the contract between the first and second defendants and the plaintiffs - whether that interference caused termination of the contract. [LIMITATION OF ACTIONS] - limitation defence - fraudulent concealment - whether plaintiff's cause of action is statue barred - whether plaintiff proved, on the balance of probabilities, that he discovered fraudulent concealment to enliven the operation of section 55 of the Limitation Act (NSW) - whether defendants fraudulently concealed causes of action from the plaintiff. [BUILDING AND CONSTRUCTION] - contract - building - performance - whether subcontract was terminated lawfully - whether first and second defendants paid all that was contractually due - whether notice of default and notice of termination was ineffective - whether first and second defendants unlawfully locked out plaintiff from the work site - whether first and second defendants unlawfully and without authority or cause, seized and converted the plaintiff's plant and equipment. [DAMAGES] - torts - negligence - financial loss - pure economic loss - recoverability - damages for psychological and psychiatric impairment - aggravated and exemplary damages - whether experts report in relation to damages were based on assumptions made good in evidence - whether plaintiff can claim damages for lost earnings that would have been made but for the conspiracy - whether plaintiff can claim damages for the loss of opportunity - whether calculation of damages by expert was calculated with flawed assumptions.
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act (NSW) Industrial Relations Act 1996 (NSW) Limitation Act 1969 (NSW) Limitation Act 1980 (UK)
Cases Cited:	Blatch v Archer (1774) I Cowp 63 Briginshaw v Briginshaw (1938) 60 CLR 336 Cox v Journeaux (No 2) (1935) 52 CLR 713 Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435 Deepcliff Pty Ltd v The Council of the City of Gold Coast [2001] QCA 342 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Helton v Allen (1940) 63 CLR 691 Jack Brabham Engines Ltd v Beare [2010] FCA 872 Johnson v Gore Wood & Co (A Firm) [2000] UKHL 65 Johnson v Perez (1988) 166 CLR 351 Jones v Dunkel (1959) 101 CLR 298 Kuhl v Zurich Financial Services Australia (2011) 243 CLR 361 McKernan v Fraser (1931) 46 CLR 343 Mogul Steamship Co v McGregor Gow & Co [1892] AC 25 Mundey v Askin [1982] 2 NSWLR 369 Nann v Raimist (1931) 255 NY 307 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 OBG Ltd v Allan [2007] UKHL 21 Paragon Finance v D B Thakerar & Co [1999] 1 All ER 400 Prudential Assurance Co Ltd v Newman Industries Ltd & Ors (No. 2) [1982] Ch. 204 Qantas Airways v Gama (2008) 167 FCR 537 Qantas Airways Ltd v Transport Workers' Union of Australia [2011] FCA 470 Sanders v Snell (1998) 196 CLR 329 Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1397 Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 Watson v Foxman (1995) 49 NSWLR 315 Williams v Hursey (1959) 103 CLR 30
Category:	Principal judgment
Parties:	David Ballard (Plaintiff) Multiplex Limited ACN 008 687 063 (First Defendant) Multiplex Corporate Agency Pty Ltd ACN 003 070 120 (Second Defendant) Construction Forestry Mining and Energy Union ABN 17 402 743 835 (Third Defendant) Construction Forestry Mining and Energy Union (New South Wales Branch) ABN 17 524 350 156 (Fourth Defendant) Andrew Ferguson (Fifth Defendant)
Representation:	A Bannon SC / J Duncan (Plaintiff) A Bell SC / I Pike SC (1D-2D) B Oslington QC / J Pearce (3D-5D) Sagacious Legal (Plaintiff) Clayton Utz (First and Second Defendant) Taylor & Scott Lawyers (Third, Fourth and Fifth Defendants)
File Number(s):	2007/266587