Nanosecond Corporation Pty Ltd & Anor v Glen Carron Pty Ltd & Anor (No 2) - [2018] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
NANOSECOND CORPORATION PTY LTD & ANOR v GLEN CARRON PTY LTD & ANOR (NO 2)
[2018] SASC 188
Judgment of The Honourable Justice Doyle
14 December 2018
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES
TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS
TORTS - MISCELLANEOUS TORTS - CONSPIRING TO INJURE
DAMAGES - GENERAL PRINCIPLES - DIFFICULTY OF ASSESSING DAMAGES
The second plaintiff is a 69 year old man who, at the time of the events the subject of these proceedings, was providing haulage services through the first plaintiff, a company of which he is the sole director and shareholder.
The defendants are both providers of bulk transport and haulage services in the South Australian grain market. From February 2015 to April 2017, the defendants engaged the plaintiffs’ services. However, the defendants ceased to provide this work to the plaintiffs in late April 2017, in circumstances where there had been a number of allegations about the second plaintiff that reflected poorly on his competence as a professional driver.
The plaintiffs have brought proceedings against the defendants alleging that in withdrawing work from them, the defendants each acted in breach of their contractual arrangements. The plaintiffs also allege that the defendants engaged in other misconduct involving injurious falsehood, defamation, misleading and deceptive conduct, and an unlawful conspiracy to cause harm. The plaintiffs seek damages totalling approximately $54 million for the losses they claim to have suffered as a result of the defendants’ misconduct.
Held (per Doyle J):
1. The plaintiffs’ claims against the defendants are dismissed.
Australian Consumer Law s 18(1); Defamation Act 2005 (SA) s 28, referred to.
Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2018] SASC 116; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; Vroon BV v Foster’s Brewing Group Ltd [1994] 2 VR 32; Kriketos v Livschitz [2009] NSWCA 96; Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388; Cornwall v Rowan (2004) 90 SASR 269; McKeller v Container Terminal Management Services Ltd (1999) 165 ALR 409; McKernan v Fraser (1931) 46 CLR 343; Williams v Hursey (1959) 103 CLR 30; R v Associated Northern Collieries (1911) 14 CLR 387; Latham v Singleton [1981] 2 NSWLR 843; Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768, considered.

NANOSECOND CORPORATION PTY LTD & ANOR v GLEN CARRON PTY LTD & ANOR (NO 2)
[2018] SASC 188
Civil
DOYLE J:
Introduction
Overview of the plaintiffs’ case
Breaches of contract by Glen Carron and Garden Grove
The allegations about Mr Wentworth’s conduct
Injurious falsehood and defamation by Garden Grove
Conspiracy by unlawful means
Misleading conduct by Glen Carron and Garden Grove
Glen Carron’s defence
Garden Grove’s defence
The trial
Conversations recorded by Mr Wentworth
Mr Wentworth and his evidence
The other witnesses
The Glen Carron and Garden Grove representatives
The witnesses from Crystal Brook and Berth 29
The customer and driver witnesses
Factual background
The plaintiffs
Glen Carron
Garden Grove
The plaintiffs’ work for the defendants
Issues with Mr Wentworth’s performance
Customer complaints
Avington Farm
SA Sawdust
Ridley Agriproducts
The Robinvale Farm

Driver complaints
Ms Cholena Jones
Mr Brendan Sawley
Mr Aaron Bevan
Findings

Other issues in relation to Mr Wentworth’s performance
Events of March 2017
The evidence from Crystal Brook
Evidence of Mr Gray
Evidence of Mr Page
Findings

Events of April 2017
Evidence in relation to Berth 29
Evidence in relation to Crystal Brook
Emails from late April 2017
Evidence of Mr Page
Evidence of Mr Gray
Evidence of Mr Mick Harrold
Evidence of Mr Doug Harrold
Findings

Subsequent events
Nanosecond’s claims in contract
The evidence
Glen Carron
Garden Grove
Mr Wentworth
Findings

Principles relevant to the existence and terms of alleged contracts
Alleged variation of contract with Glen Carron
Glen Carron’s alternative response to the contract claim
Nanosecond’s claim for injurious falsehood
Mr Wentworth’s claim for defamation
The conspiracy claim
The misleading conduct claim
The losses claimed by the plaintiffs
Conclusion
Introduction

The second plaintiff (Clayton Wentworth) is a 69 year old man. While currently unemployed, he has spent a number of years as a professional driver of heavy combination vehicles. At the time of the events the subject of these proceedings, he was providing haulage services through the first plaintiff (Nanosecond Corporation Pty Ltd), a company of which he is the sole director and shareholder.
The first defendant (Glen Carron Pty Ltd) and the second defendant (Garden Grove Haulage Pty Ltd) are both providers of bulk transport and haulage services in the South Australian grain market. During the period from February 2015 to April 2017, the defendants used the plaintiffs’ services to assist them to meet their customers’ transport and haulage needs. However, the defendants ceased to provide this work to the plaintiffs from late April 2017. They did so in circumstances where there had been a number of allegations about Mr Wentworth that reflected poorly upon his competence as a professional driver.
In these proceedings, the plaintiffs allege that in withdrawing work from them, the defendants each acted in breach of their contractual arrangements with the plaintiffs. The plaintiffs also allege that the defendants engaged in other misconduct involving injurious falsehood, defamation, misleading and deceptive conduct, and an unlawful conspiracy to cause harm. The plaintiffs seek damages for the losses they claim to have suffered as a result of the defendants’ misconduct.
Overview of the plaintiffs’ case
The plaintiffs have not had the benefit of legal representation in these proceedings. They have been represented by Mr Wentworth. While an intelligent and articulate man, he has struggled to plead and present the plaintiffs’ claims in a legally coherent manner. The following is my attempt to distill the plaintiffs’ case from their third statement of claim.
The plaintiffs claim that the defendants together hold a majority share of the market for bulk transport and haulage services for grain in South Australia, and that they use the services of contractors such as Nanosecond to enable them to meet the needs of the grain storage and export companies who are their customers. In addition to each of the defendants directly servicing their own customers’ needs, from time to time they also provided services to assist the other to meet their customers’ needs. Relevantly for the purposes of these proceedings, that included Glen Carron using its drivers to assist Garden Grove in doing work for its customer, GrainFlow (owned by Cargill Australia[1]). That work involved loading boats at Berth 29 (Port Adelaide) with grain from GrainFlow sites such as Crystal Brook and Mallala.
[1] The parties during trial tended to use GrainFlow and Cargill interchangeably. As nothing in this case turns on the distinction, I shall generally refer to GrainFlow.
Focussing on the period relevant to these proceedings, Mr Wentworth’s dealings with Glen Carron were primarily with Michael (‘Mick’) Harrold (the logistics manager). He also had some dealings with Doug Harrold and Pat Harrold. Mr Wentworth’s relevant dealings with Garden Grove were primarily with Paul Page (the transport general manager) and Andrew (‘Andy’) Gray (the transport coordinator).
From March 2011 until early 2015, Mr Wentworth operated through a business owned by Bill Fischer. In that capacity he regularly provided haulage services for the defendants. Then, in early 2015, Mr Wentworth, on behalf of Nanosecond, contacted the defendants and informed them that he had acquired his own truck and trailer, and that he would in the future be operating independently from Bill Fischer. He spoke separately with Mr Pat Harrold on behalf of Glen Carron, and Mr Page on behalf of Garden Grove. On the plaintiffs’ case, each offered to provide the plaintiffs with work on an ongoing basis.
The plaintiffs thereafter, and until late April 2017, regularly provided haulage services for the defendants. The plaintiffs’ case is that they did so under a contract with each of the defendants that required the defendants to provide work to Nanosecond, and to do so for as long as the defendants continued to carry on business in the South Australian market for grain transport and haulage services. The plaintiffs’ case is also that they provided those services without any issues or complaints about the quality of their work.
Breaches of contract by Glen Carron and Garden Grove
The plaintiffs’ case is that on 26 April 2017, Mr Page of Garden Grove advised Mr Wentworth by telephone that Garden Grove was permanently withholding the supply of work to the plaintiffs. Then, on 27 April 2017, Mr Mick Harrold of Glen Carron advised Mr Wentworth by telephone that Glen Carron was also permanently withholding the supply of work to Nanosecond and Mr Wentworth. The plaintiffs contend that both decisions to cease providing them with work were arbitrary and without any justifiable reason, and in breach of the defendants’ respective contracts with Nanosecond.
The plaintiffs plead that by reason of the defendants’ breaches of contract, they have been excluded from the relevant market and have suffered loss and damage to be measured by reference to the profits they would otherwise have made over the ensuing 15 year period. As against Glen Carron, the plaintiffs plead lost net profits of slightly in excess of $8.5 million, plus consequential loss and damage referrable to the destruction of the plaintiffs’ credit history of almost $1 million. As against Garden Grove, the plaintiffs plead lost net income of slightly less than $2.5 million.
The allegations about Mr Wentworth’s conduct
The plaintiffs go on to plead that various allegations about Mr Wentworth’s conduct – which they contend are all false – were the reason or pretext for the defendants’ decisions to cease providing them with work.
In relation to these allegations, the plaintiffs plead that at some time prior to 17 March 2017, Mr Mick Harrold of Glen Carron reported to Mr Wentworth that Mr Gray of Garden Grove had informed him that Garden Grove was going to stop giving the plaintiffs work as a result of various allegations about Mr Wentworth.
As a result of this report, Mr Wentworth telephoned Mr Gray about the allegations on 17 March 2017. The allegations that the plaintiffs contend were made by Mr Gray, and to some extent repeated during this converstion, were to the effect that Mr Wentworth (i) had been banned from collecting loads from GrainFlow’s site at Crystal Brook; (ii) had been banned from unloading at Berth 29 at Port Adelaide; (iii) had taken out a stobie pole at Crystal Brook; (iv) had been the subject of complaints from GrainFlow at Mallala; (v) took up to an hour to load a truck; and (vi) had tried to run other drivers off the road, requiring them to take evasive action.
The plaintiffs plead that on 21 March 2017, Mr Wentworth telephoned Mr Page from Garden Grove, and that during this conversation Mr Page also made allegations to the effect of (i) and (ii) above.
The plaintiffs plead that on 23 March 2017, Mr Wentworth met with Gregory Arbon, who was the night supervisor at Berth 29, Port Adelaide. During the course of this meeting, Mr Arbon telephoned ‘Justin’ from Garden Grove who (after in turn speaking with Mr Page) repeated allegations (i) and (vi), as well as making a further allegation that Mr Wentworth (vii) had been driving for periods of up to 24 hours straight (which was illegal under heavy vehicle regulations).
The plaintiffs further plead that on 26 April 2017, some (unspecified) person from Garden Grove not only repeated allegations (i) and (ii) to Mr Mick Harrold from Glen Carron, but also alleged that Mr Wentworth (viii) had been banned from all GrainFlow sites in Australia for working 24 hours straight, and (ix) had been banned from doing any further work for Garden Grove.
The plaintiffs plead that all of these allegations are false, and in particular that there had never been any determination to ban the plaintiffs from either the Berth 29 or Crystal Brook sites, at least not by the operators of those sites.
Injurious falsehood and defamation by Garden Grove
Based on the above allegations, Nanosecond seeks damages for injurious falsehood from Garden Grove in the sum of $10 million.
The plaintiffs have also pleaded a claim in defamation on behalf of Mr Wentworth against Garden Grove. In particular, they plead that the allegations by Mr Gray to Mr Mick Harrold gave rise to defamatory imputations that Mr Wentworth was both reckless in his driving and had engaged in criminally dangerous driving.[2] They also plead that Mr Wentworth has suffered damage to his personal and professional reputation; and that he is entitled to damages for defamation from Garden Grove in the sum of $250,000 plus almost $1 million for consequential loss and damage resulting from the destruction of the plaintiffs’ credit history and creditworthiness.
[2] Third statement of claim at [48], as explained and refined at T1362.
Conspiracy by unlawful means
The plaintiffs plead that the conduct in making the above allegations involved a conspiracy by unlawful means by Mr Page and Mr Gray of Garden Grove, and Mr Mick Harrold of Glen Carron, “to falsely accuse [Mr Wentworth] of a variety of acts and conduct which at no time had any truth or basis in fact and were maliciously contrived by [these men] for the purpose of withholding supply to [the plaintiffs]”. The conspiracy is said to have been intentional, motivated by malice and designed to cause financial harm to the plaintiffs.
The focus of the allegation of conspiracy is the defendants’ conduct from 17 March 2017, and in particular the conduct of each of the participants in the conspiracy in making or repeating the allegations when they knew they were false. However, the discursive pleadings in support of the alleged conspiracy also include reference to matters dating back to 2016, including various unspecified statements which are said to have been false and fabricated, actuated by malice, and made for the purpose of causing financial harm to the plaintiffs.
The plaintiffs seek damages of $8 million from Glen Carron and $10 million from Garden Grove for the loss and damage suffered by them by reason of the conspiracy. These amounts are said to exclude the consequential loss and damage to the plaintiffs resulting from the withdrawal of the supply of work to them.
Misleading conduct by Glen Carron and Garden Grove
The plaintiffs’ allegations that the defendants engaged in misleading and deceptive conduct contrary to s 18(1) of the Australian Consumer Law are difficult to understand. The plaintiffs plead that in March 2016, Mr Wentworth requested (and, by inference, received) from each of the defendants a letter to support the plaintiffs’ application for finance for a replacement truck to be purchased by Nanosecond. Those letters were in response to a request from the prospective financier to confirm that Nanosecond had contracts providing for an ongoing income stream for the five year term of the prospective loan.
The plaintiffs then refer to the conduct of the defendants, through Mr Page and Mr Gray of Garden Grove, and Mr Mick Harrold of Glen Carron, said to constitute the conspiracy by unlawful means. They plead that this conduct was “entirely inconsistent and at odds with and contrary to the spirit” of the letters of support provided by the defendants, with the result that they engaged in misleading and deceptive conduct. The plaintiffs seek from each of the defendants $4 million in damages, plus a further $2.5 million by way of aggravated damages, on account of the alleged misleading conduct.
Glen Carron’s defence
In its defence, Glen Carron admits various formal matters, including that the plaintiffs provided haulage services for it. However, it pleads that this occurred in a context where it used the services of a number of persons and entities to carry out that work, and where the plaintiffs also provided haulage services to other companies. Glen Carron pleads that, from time to time, and upon being notified of Nanosecond’s availability, it engaged Nanosecond as a subcontractor to provide haulage services. It pleads that it did so on the basis of contracts from time to time to transport particular goods from one specified location to another. It denies that it ever agreed to any guarantee to provide work to the plaintiffs on an ongoing basis.
By reason of the above, Glen Carron pleads that it was entitled to cease providing work to Nanosecond even if there were no problems or complaints about the services it provided. However, it also pleads that it had in fact received numerous complaints and negative comments about Mr Wentworth in his role as driver for Nanosecond. Glen Carron then pleads several examples by way of particulars of these complaints and negative comments. These examples include Mr Mick Harrold being informed by Mr Gray from Garden Grove that Mr Wentworth had been driving erratically, and in particular that he had tried to run some of their trucks off the road; and that there had been an issue with Mr Wentworth at Berth 29 and that he was “banned” from picking up grain at the site in Crystal Brook and/or delivering the grain at Berth 29. They also included allegations from Kylie Lord (via email to Mr Gray) that Mr Wentworth had a lifetime ban from all GrainFlow sites; and allegations from other persons to the effect, inter alia, that Mr Wentworth had been slow, or had otherwise had difficulty, in positioning or unloading his truck. Glen Carron’s defence also pleads various other deficiencies in the haulage services provided by the plaintiffs.
Glen Carron pleads that by reason of the above matters it was not only not able to continue to engage the plaintiffs to transport grain to Berth 29, but also decided to no longer engage them to provide transport services more generally.
Glen Carron otherwise denies the causes of actions alleged against it, and any entitlement on the part of the plaintiffs to the damages claimed.
Garden Grove’s defence
In its defence, Garden Grove admits that the plaintiffs provided haulage services during the period from March 2015 to April 2017, but pleads that they did so through Nanosecond and as a contractor of Glen Carron. Garden Grove denies that it had any contract or agreement with the plaintiffs, or that it made any offer of ongoing work to the plaintiffs.
Garden Grove pleads that it had its own fleet of vehicles, and employed its own drivers to operate its fleet. If and when it required additional vehicles and drivers it engaged contractors on a job-by-job basis. In this respect it had both regular contractors and occasional contractors. Glen Carron was one of its regular contractors; the plaintiffs were occasional contractors. It was in this context that, on various dates between March 2015 and April 2017, it engaged Glen Carron to perform haulage services for it on a job-by-job basis; and that Glen Carron then engaged the plaintiffs to undertake some of these jobs. Hence, when doing work “for” Garden Grove, the plaintiffs were doing so as subcontractors of Glen Carron.
Garden Grove admits that on 26 or 27 April 2017, Mr Page advised Mr Wentworth that he was “banned” from undertaking further work with Garden Grove with respect to “the boats”; that is, the work involved in transporting grain to be loaded on the boats at Berth 29. It pleads that this ban was a consequence of information received by Garden Grove in relation to deficiencies in the plaintiffs’ performance in undertaking jobs for Glen Carron.

In response to the claim for injurious falsehood, Garden Grove admits that Mr Gray informed Glen Carron that he had been contacted by a representative of GrainFlow (which was a client of Garden Grove) about the plaintiffs; and that he had received complaints from other drivers of Garden Grove that Mr Wentworth had run them off the road (or had caused them to take evasive action to avoid his vehicle) and took an excessive amount of time to load his vehicle. However, Garden Grove also pleads that the matters communicated by Mr Gray were true.
As to the claim for defamation, Garden Grove denies that any statements by it gave rise to the pleaded imputation (or at least the part of the imputation that relates to criminally dangerous driving). Garden Grove also pleads that any defamatory statements it made were protected by qualified privilege, or in the alternative were true. Garden Grove also pleaded a defence of fair comment (or honest opinion), but did not press this defence at trial.
The trial
The trial of these proceedings lasted 11 days. Ten of these days were occupied with oral evidence from the various witnesses called by the parties, with the final day devoted to closing addresses. There were only a limited number of documentary exhibits.
Mr Wentworth gave evidence for the plaintiffs, and was cross-examined. In addition to Mr Wentworth, the plaintiffs called the following witness:[3]
[3] Roles described as at the date of relevant events.
·Paul Page (Garden Grove transport manager).
·Andrew Gray (Garden Grove transport co-ordinator).
·Mick Harrold (Glen Carron logistics manager).
·Doug Harrold (Glen Carron transport managing director).
·Pat Harrold (Harrold Services proprietor; former Glen Carron logistics manager).
·Michael Hill (Glen Carron logistics supervisor).
·David Arbon (manager at Crystal Brook site).
·Kylie Lord (night supervisor at the Crystal Brook site).
·Vincenzo Calabro (manager at Berth 29).
·Gregory Arbon (supervisor at Berth 29).
·Elizabeth Martin (weighbridge operator at the Mallala site).
·Mark Franke (site manager at Ridley Agriproducts).
Most of these witnesses, if not all of them, appeared in response to subpoenas issued by the plaintiffs. The plaintiffs issued these subpoenas shortly prior to the commencement of the trial, in response to my rulings on the voir dire (see below). As is apparent from this list, many of the plaintiffs’ witnesses were employees of the defendants, or otherwise in one or other of the defendants’ camps. In part because the plaintiffs did not have the benefit of legal representation, and in part because the evidence of these witnesses was in many respects adverse to the plaintiffs, I afforded Mr Wentworth considerable latitude in terms of permitting him to cross-examine, and indeed, impeach the credit of, his own witnesses.
The first defendant, Glen Carron, called the following witnesses:
·Corey Button (SA Sawdust logistics coordinator and supervisor).
·Nathan Anderson (Avington Farm manager).
·Damien Thornhill (Transit Australia Freight Management).
The second defendant, Garden Grove, called three of its drivers as witnesses:
·Cholena Jones (subcontractor driver).
·Brendan Sawley (employed driver).
·Aaron Bevan (employed driver).
Conversations recorded by Mr Wentworth
Prior to the trial of these proceedings, I conducted a voir dire to address the admissibility of 20 recordings of conversations made covertly by Mr Wentworth.[4] For the reasons published following the conclusion of that voir dire,[5] I ruled that 11 of these recordings had been made unlawfully and were inadmissible for that reason. Of the nine recordings that were not unlawful (essentially because they had been made to protect the lawful interests of the plaintiffs), three were excluded on the alternative basis that they were inadmissible hearsay. I ruled that the remaining six recordings were relevant and admissible.
[4] The voir dire took place 10 days prior to the commencement of evidence in the trial. However, strictly speaking, I commenced the trial at that stage so as to conduct the voir dire.
[5] Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2018] SASC 116.
As explained below, Mr Wentworth had difficulty accepting and obeying this ruling. Throughout the trial he continued to attempt to deploy the recordings that I had ruled were unlawful or otherwise inadmissible. Mr Wentworth’s conviction that the recordings would prove his case, and his determination to deploy them in the manner he wished, added significantly to the length of the trial.
In addition to this, Mr Wentworth’s attitude and conduct in relation to the recordings he had made also provided me with some insight into his personality, and his reliability as a witness. Significantly in this respect, it became apparent during the course of the trial that Mr Wentworth was relying upon versions of the recordings that had been heavily (and in several respects, misleadingly) edited by him. I ultimately received into evidence two versions of each of the six recorded conversations that I ruled were admissible – the edited versions sought to be relied upon by the plaintiffs, and the unedited versions relied upon by the defendants. I have set out relevant extracts from each of these recordings later in these reasons. In so doing I have italicised the portions of the conversations that Mr Wentworth had edited out of the recordings in the versions he sought to rely upon.
The plaintiffs relied upon the edited versions of the relevant recordings both on the voir dire and at trial. They did so without informing me that the recordings had been heavily edited. Indeed, the plaintiffs filed an affidavit of Mr Wentworth (which was relied upon during the voir dire) that contained ‘transcripts’ of the conversations without any indication (by way of ellipses or otherwise) that parts of the conversations had been edited out or deleted. I had listened to, and relied upon, the recordings for the purposes of the voir dire without appreciating that they had been edited. While I had assumed that the start and end of some of the conversations may not have been captured in the recordings, it did not occur to me that they had been edited in the manner in which it is now clear they had been. It was not until counsel for the defendants tendered the unedited versions of the conversations during cross-examination of Mr Wentworth that the nature and extent of the editing became clear. My understanding is that the unedited versions of the recordings were only disclosed to the defendants shortly prior to trial, and after repeated requests.
As will be apparent from the italicised sections of the transcripts of the recordings set out later in my reasons, the editing was not confined to the removal of stand-alone passages that dealt with discrete or irrelevant topics. To the contrary, the editing included numerous instances of the removal of particular passages from relevant exchanges. In several cases parts of sentences had been removed. Importantly, several of the edits made to the recordings altered the meaning of parts of the conversations. I have referred to some examples of this nature later in my reasons.
Further, the editing appears to have been undertaken in a manner designed to disguise what had occurred. In many cases where phrases or passages had been removed, the editing was undertaken in a manner that resulted in what remained appearing to run together in a way that made sense. As I have said, on my first listening to the conversations, I did not realise that there were phrases and passages that had been edited out of what could be heard on the recording.
During cross-examination, Mr Wentworth admitted that he had undertaken the extensive editing that had occurred. Indeed, he acknowledged a careful and painstaking effort on his part in producing the edited recordings, and even suggested that this was a reason why he should not be forced to refer to the unedited versions of the recordings once their existence had been revealed by the defendants.
Mr Wentworth gave various unsatisfactory explanations for the editing he had undertaken. At times he insisted that it was a matter for him which parts of conversations he wished to rely upon as helpful to his case, and that it was for the defendants to do whatever they wanted to with the balance of the conversations. Of course, this overlooked both the misleading nature of the edited recordings that he had sought to rely upon, and the fact that he never volunteered that those recordings had been edited. At times Mr Wentworth did not accept that his editing had affected the meaning conveyed by the relevant passage from the recording, when plainly it did. On other occasions, Mr Wentworth attempted to justify his editing on the basis that he had merely deleted words that the other person in the conversation had said, and that he considered were untruthful and hence irrelevant or unhelpful to my consideration of the issues in the case. This purported justification is not only an inaccurate description of the editing, but also overlooks the obvious considerations that it was for the Court (and not Mr Wentworth) to determine where the truth lies, and that in many instances the words spoken were relevant to the matters in issue regardless of whether or not they were true.
In summary, I am satisfied that Mr Wentworth undertook a careful and detailed process of editing the recordings that he intended to rely upon in presenting the plaintiffs’ case. He did so in a manner intended to remove various passages that were harmful, or at least potentially harmful, to the plaintiffs’ case. In so doing, he intended to mislead the Court, and indeed to disguise the fact that the Court was being misled. I do not accept any of the purported justifications given by Mr Wentworth for his conduct, and am satisfied that he well knew what he was doing and the inappropriateness of it. I consider Mr Wentworth’s conduct in attempting to mislead the Court in this way reflects poorly upon him and his credibility.
Mr Wentworth and his evidence
As I have mentioned, Mr Wentworth is an intelligent and articulate man. In many respects he did a competent job of representing the plaintiffs’ interest in these proceedings.
However, as the trial unfolded it became clear to me that there are aspects of Mr Wentworth’s personality which have not only contributed to the situation in which he finds himself, but which have also led me to conclude that I cannot safely rely upon his evidence. In some respects I have found his evidence to be deliberately untruthful. In other respects, the unreliability of his evidence appears to have arisen more from a lack of perception as to his own shortcomings, the position and views of others, and the impact of his conduct on others. In any event, and whatever the precise reason for its unreliability, I have reached the conclusion that it is generally not appropriate for me to rely upon Mr Wentworth’s evidence where it conflicts with the evidence of others.
By way of further explanation for this conclusion, Mr Wentworth’s position and evidence throughout the trial was that he was a highly competent heavy combination vehicle driver, and that any suggestion to the contrary was “total unadulterated nonsense”, a “complete fabrication”, and essentially a perpetuation of the malicious conspiracy by various people to falsely accuse him of incompetence and to withdraw work from him. He reacted poorly to any challenge by witnesses to his competence. He regularly became frustrated, exasperated and then angry when their evidence was critical of him. A significant proportion of his examination and cross-examination of witnesses involved shouting at them, or over the top of them. On many occasions he did so on a basis that did not accurately or fairly reflect their evidence or other evidence in the case, or was otherwise misconceived or inappropriate. On some occasions he resorted to inappropriately rebuking witnesses for giving evidence that was critical of him, or otherwise scoffing at, or mocking, such evidence.
Mr Wentworth routinely sought to challenge, or simply ignore, rulings that I made that he considered were getting in the way of him attempting to extract the truth from the various witnesses – including those that he called in the plaintiffs’ own case. He repeatedly asked me to bring the trial to an end on the basis of alleged perjury by various of the witnesses. He concluded his case by cataloguing what he alleged were over 150 instances of deliberately untruthful evidence by the various witnesses.
In some respects, Mr Wentworth’s anger and attitude were a product of his emotional investment in the matters in issue. He appears to have genuinely regarded himself as a highly skilled driver, and to have believed that he was on the path to establishing a successful business as a driver. However, he now finds himself unemployed, financially ruined and with little by way of future prospects in the transport industry. In this respect, while remaining inappropriate and unhelpful, his anger and attitude were understandable and did not necessarily affect the reliability of his evidence.
However, as the trial unfolded, and the detail of the evidence emerged, it became clear to me that his anger and attitude also reflected a lack of perception or insight on his part. He presented as someone who was so utterly convinced of his own skill, and the correctness and virtue of his conduct and position more generally, that he simply could not or would not countenance any criticism made of him or his performance.
Despite what ultimately turned out to be a very significant, almost overwhelming, body of evidence to the effect that he had many shortcomings as a driver, and had been the subject of numerous complaints, Mr Wentworth refused to accept any shortcomings on his part. He rejected out of hand virtually the entirety of the evidence against him as complete and unadulterated fabricated nonsense.
It is true that some of these complaints and shortcomings were not communicated to him at the time. Rather, the defendants generally attempted to work around the issues that arose with Mr Wentworth’s performance (for example, by allocating him different work), rather than confront him with them. In part this was as a result of difficulties that had been encountered by them with earlier attempts to address criticisms with him. I thus accept that Mr Wentworth was not aware of the extent of the discontent with his performance as a driver prior to the trial in these proceedings. But by the end of the trial the position had moved well beyond an understandable reaction by Mr Wentworth to being confronted with criticism by others. It became clear that Mr Wentworth has very limited insight into his own shortcomings, the position and views of others, and the impact of his conduct on others.
The defendants contended that I should find that Mr Wentworth is delusional. Insofar as this was intended to suggest that Mr Wentworth’s evidence, and the plaintiffs’ case more generally, were characterised by idiosyncratic beliefs or impressions that are contradicted by reality or rational argument, then there is force in the defendants’ submission. Certainly I have concluded that Mr Wentworth’s evidence, and case more generally, was in many respects contrary to reality and unsupported by rational argument. I have identified numerous illustrations of this throughout the course of these reasons.
However, there is no basis in the evidence for me to find that Mr Wentworth was delusional in the sense that that term is often used, namely as symptomatic of some form of mental disorder. For that reason, I prefer to describe Mr Wentworth as having a lack of perception or insight, and as affected by a blinkered and uncompromising attitude in his conduct and dealings with others.
While the above would have been a sufficient basis to treat Mr Wentworth’s evidence as generally unreliable, I have further concerns. While Mr Wentworth generally appeared to be endeavouring to tell the truth, albeit through the prism of his blinkered and uncompromising view of things, I am satisfied that there were instances where he did not do so. His evidence in relation to the editing of the recorded conversations is the most obvious and significant example. However, I have identified some further examples in the course of these reasons.
I conclude this section of my reasons by observing that a number of the plaintiffs’ submissions in these proceedings were based upon factual assertions that were not the subject of evidence. I endeavoured on various occasions to explain to Mr Wentworth the importance of ensuring that he give evidence about all of the factual matters upon which he wished to rely, and that his questions of (and assertions to) other witnesses were not evidence in the trial. However, despite appearing to understand these explanations, and saying that he understood them, there remain a number of apparent gaps in the plaintiffs’ evidence. That said, to the extent that the plaintiffs’ ‘position’ in relation to various factual matters has been apparent from the questions and submissions advanced by Mr Wentworth, I have endeavoured to take account of this in my consideration of the evidence and in making findings of fact.
The other witnesses
As to the remaining witnesses in the case, I am generally satisfied that their evidence was truthful and reliable. The evidence of these witnesses was in many respects consistent with one another, and in that sense corroborative of each other. Indeed, the existence of this body of largely consistent evidence, and my general satisfaction as to the truthfulness and reliability of that evidence, contributed to my rejection of Mr Wentworth’s evidence in relation to matters where his evidence was in conflict with that of other witnesses.
The Glen Carron and Garden Grove representatives
In the case of Mr Page, Mr Gray, Mr Mick Harrold and Mr Doug Harrold, I accept that they were not independent witnesses. While Mr Mick Harrold has since left Glen Carron, each was strongly aligned to the defendant company with which they worked at the time of the relevant events. As the key players in the decisions to cease giving Mr Wentworth work, they also had an interest in justifying their own conduct.
There were some aspects of the evidence and demeanour of each of these men that initially gave me some concerns, or at least reservations, about their reliability as witnesses. Each came across as fairly confident and self-assured. On occasions each adopted a somewhat off-handed or combative tone in responding to questions asked of them by Mr Wentworth. While their manner in the witness box did cause me to reflect carefully upon their evidence, I was ultimately satisfied that they were honest, and generally reliable, witnesses. Insofar as their evidence was critical of Mr Wentworth, it was not only broadly consistent between these four witnesses, but more importantly was also consistent with and supported by the evidence of the customer and driver witnesses mentioned below. In particular, the evidence from these four men as to the complaints they had received from customers and drivers, while given in relatively general if not vague terms, was ultimately supported by evidence from various customers and drivers as to both the underlying incidents and their reporting of these incidents to Glen Carron or Garden Grove. I am satisfied that those aspects of their demeanour as witnesses that initially caused me some concern were most likely a product of the aggressive tone and approach of Mr Wentworth when asking them questions, rather than a reason for me to doubt their honesty, or general reliability, as witnesses.

There was no reason for me to doubt the honesty and generally reliability of either Mr Pat Harrold or Mr Michael Hill, and so I have generally accepted their evidence.
The witnesses from Crystal Brook and Berth 29
Mr David Arbon and Ms Lord gave evidence about various matters relating to the GrainFlow site at Crystal Brook, and Mr Calabro and Mr Gregory Arbon gave evidence about matters relating to Berth 29. While the plaintiffs called these witnesses, they were each critical of Mr Wentworth, particularly Ms Lord and Mr Calabro.
While Mr Wentworth subjected Ms Lord to lengthy, and often very aggressive, questioning, I found Ms Lord to be an impressive witness. It is true that in her late April 2017 emails (see later) she made the exaggerated, if not false, claim that Mr Wentworth had been banned from all GrainFlow sites. However, when giving evidence on oath, Ms Lord accepted that she did not have a proper basis for this claim. In my view, she was careful and fair in the evidence she gave. I accept that she was an honest and generally reliable witness.
I also accept that Mr Calabro, Mr David Arbon and Mr Gregory Abron were honest and generally reliable witnesses. In the case of the latter two, Mr Wentworth found it difficult to reconcile their criticisms of him in the witness box with their failure to raise matters with him at the time (particularly at the time of his conversations with them in relation to the March and April bans described later in these reasons), and their previously positive disposition towards him. To my mind, there was no necessary incongruity. There may have been various reasons why they chose not to criticise Mr Wentworth to his face at the time, none of which would affect the reliability of their evidence under oath in the trial of these proceedings.
The customer and driver witnesses
The most direct evidence as to the shortcomings of Mr Wentworth as a driver came from three ‘driver’ witnesses called by Garden Grove (Ms Jones, Mr Sawley and Mr Bevan), and two ‘customer’ witnesses (Mr Button and Mr Anderson).
Each of these witnesses was relevantly independent. None had any incentive to give other than truthful evidence, except to the extent that they had previously made complaints about Mr Wentworth, and so might have been inclined to adhere to their earlier version of events, and have had a general desire to remain on good commercial terms with the defendants. While Mr Wentworth mounted sustained attacks upon each of these witnesses in his questioning of them, I was satisfied that each was honest and generally reliable. While Mr Wentworth was plainly frustrated by the lack of specificity in some of their recollections (particularly as to time frames), the relatively general terms of their evidence was understandable given the time that had passed and the nature of the matters about which they gave evidence.
Ms Martin and Mr Franke also gave some very limited evidence from their perspectives as representatives of customers for whom the plaintiffs did work. I accept that they were honest and reliable witnesses.
I also accept that Mr Thornhill was an honest and reliable witness.
Factual background
Before considering each of the plaintiffs’ causes of action, and some of the additional findings of fact relevant to each, I make the following findings as to the relevant factual background or context.
The plaintiffs
After an earlier career as a taxi driver, Mr Wentworth commenced as a driver of heavy combination vehicles in about 2011. He remained in that occupation until the defendants ceased providing him with work in late April 2017. While the evidence reveals that Mr Wentworth did some driving for other customers for a few weeks after this date, he soon ceased doing any driving. He is now unemployed, and has only very limited assets to his name.
From 2011 to 2015, Mr Wentworth drove for a business owned by Mr Fischer. In early 2015 he purchased a prime mover and trailer, and commenced to operate his own business through Nanosecond. The prime mover was a second-hand Scania, and cost him about $350,000. The trailer was a new Lusty EMS that cost him about $145,000.
While driving for Mr Fischer’s business, Mr Wentworth had done some work for both Glen Carron and Garden Grove. In early 2015, he approached each of these companies telling them that he had purchased his own vehicle and was now working for himself. He spoke to Mr Pat Harrold on behalf of Glen Carron and Mr Page on behalf of Garden Grove. Both indicated a preparedness to give him work. The detail of these communications, and in particular, the legal nature of the relationship between the parties thereafter is a matter of controversy to which I shall return later in these reasons.
In early 2016, Mr Wentworth purchased a second Lusty EMS trailer. This one was second-hand and cost him about $75,000. It enabled him to commence driving with a B-double configuration, rather than the single trailer that he had been driving to that point in time. However, as the Scania prime mover was not accredited for use with a B-double configuration, he replaced his Scania with a MAN prime mover. He was not able to arrange finance to purchase it outright, and so acquired it under a lease arrangement involving monthly payments of about $4,000. Not only was this an expensive means of acquiring a prime mover, but Mr Wentworth also experienced several expensive breakdowns.
In about November 2016, Mr Wentworth replaced the MAN prime mover with a Volvo prime mover. His monthly payments on the Volvo were about $6,000.
In late April 2017, Mr Wentworth obtained a permit from the National Heavy Vehicle Regulator allowing him to run a road train from Ardrossan to Adelaide. However, only days later, the defendants ceased providing him with work.
Glen Carron
The evidence as to Glen Carron’s business and operations was limited and general. However, the evidence has enabled me to make the following basic findings.
Glen Carron was established in 1973. Its business is the transport of bulk freight. It carries grain, fertilisers and other organic products. It has yards in Mount Gambier and Portland, and a head office in Beachport. It uses Viterra’s facilities as a base depot in Adelaide. It has generally operated with one maintenance worker, two people in logistics, and four or five casual office staff.
As at 2015, Glen Carron had about 25 trucks of its own. It still has about the same number. Each of these trucks has an employed driver. Glen Carron also uses what were described in the evidence as “tow operators” or “towies”. The tow operators were drivers who had their own prime mover, but used a trailer or trailers supplied by Glen Carron.
Doug, Mick and Pat Harrold are brothers. Their father had been the managing director of Glen Carron until he died in about January 2015.
Following the death of his father, Mr Doug Harrold assumed the role of managing director. By this time, Mr Doug Harrold had had about 25 years experience in the transport industry, including about 12 years driving a truck. He remains in that role.
As at early 2015, Mr Pat Harrold was in charge of logistics, and hence the despatching of work to the various drivers used by Glen Carron. He left the business in September 2015. He did so on poor terms after a bitter breakdown in the relationship between him and his brothers. He subsequently set up his own haulage business, under the name Harrold Services.
While Mr Pat Harrold was logistics manager, Mr Mick Harrold assisted him in that role. When Mr Pat Harrold left in September 2015, Mr Mick Harrold took over the role as logistics manager. He has had about 17 years experience in the transport industry, including about nine years driving a truck. He has relatively recently left Glen Carron, although there is no evidence about the circumstances of his departure.
Until about 2015, the relationship between Glen Carron and Garden Grove was an essentially competitive one. They did not give each other work. They competed for work in respect of various types of freight, but primarily grain and fertilisers. However, after Mr Pat Harrold left Glen Carron, its relationship with Garden Grove began to change. They began working together to support each other, including by sharing work. Relevantly for the purposes of these proceedings, this included Garden Grove using Glen Carron and its drivers (including its subcontractor drivers such as Mr Wentworth) to assist it in its work for its customer, GrainFlow, in loading its grain from sites such as Crystal Brook and Mallala onto the boats at Berth 29, Port Adelaide.
During the period that Mr Mick Harrold was the logistics manager at Glen Carron, he was assisted in that role by Mr Michael Hill. Mr Mick Harrold mainly dealt with the customers, and Mr Hill with the drivers. However, there were some drivers – and Mr Wentworth was one of them – who still had significant dealings with Mr Mick Harrold.
Both Mr Doug Harrold and Mr Mick Harrold gave evidence as to the way in which Glen Carron allocated work between the drivers they used. Based on their evidence, I find that work was allocated on the basis of a ‘pecking order’ that placed Glen Carron’s own employee drivers at the top, followed by the tow operators, and then the subcontractors. The cooperative relationship with Garden Grove meant that it was fairly high within the subcategory of Glen Carron’s subcontractors – essentially because the arrangement was a reciprocal one in that Garden Grove could and did give work back to Glen Carron.
Glen Carron did not engage subcontractors on an ongoing basis. Rather, it did so on a job-by-job basis in accordance with demand. Many of the subcontractors had other sources of work, and so on occasions would ask for, or accept, Glen Carron work, but on other occasions did not do so because they were doing other work.
Subcontractors of Glen Carron did not have written contracts. While Mr Doug Harrold referred to subcontractors receiving “a subcontractor pack”, he said these were not contracts for work. Certainly there was no evidence of any ongoing contractual arrangements, written or otherwise, with Glen Carron’s other subcontractor drivers. And Mr Wentworth did not suggest in his evidence or submissions that there were any such contracts.
The process by which jobs were despatched to subcontractors such as Nanosecond was that per tonne rates were determined for particular jobs, and then the subcontractor sent Glen Carron regularly tax invoices based upon the tonnage rates for each job. Glen Carron preferred weekly invoices, but payment to subcontractors was made 30 days from the end of each month. So, by way of example, if a subcontractor did work in April, he would submit an invoice or invoices during that month, and then be paid on 30 May.
Garden Grove
The evidence in relation to Garden Grove and its business and operations was even more limited and general.
Apart from the matters involving the plaintiffs, about all that the evidence revealed was that Garden Grove provides haulage services in respect of bulk freight, including grain and fertiliser. It is a larger company than Glen Carron, and has a large fleet of about 120 to 130 trucks of its own. Each of those trucks has its own full-time employed driver.
Garden Grove only used subcontractors when it did not have sufficient of its own trucks and employed drivers to do the work. An example of this was when boats were being loaded for GrainFlow at Berth 29 and there was a need to move a large quantity of grain in a short period of time. In those situations, Garden Grove often gave some of that work to Glen Carron for it to allocate to its drivers.
The plaintiffs’ work for the defendants
Throughout the period from early 2015 to late April 2017, Mr Wentworth worked predominantly on jobs despatched to him by Glen Carron and Garden Grove, although he also did some work for Harrold Services and other third parties.
For the work despatched to him by Glen Carron, Mr Wentworth rendered invoices on behalf of Nanosecond in the same manner as other subcontractors. However, at some point in late 2016 he began asking Glen Carron for advances of the payments to be made to him. He requested these advances in order to enable him to meet his financial commitments, including fuel costs. Glen Carron accommodated these requests and made regular advance payments to the plaintiffs.
In relation to the work despatched to him by Garden Grove, Mr Wentworth initially rendered invoices on behalf of Nanosecond to Garden Grove. However, at some point in early 2017 he requested that he be permitted to send the invoices for the Garden Grove work to Glen Carron. It seems that the reason for this request was so that Mr Wentworth could receive advances from Glen Carron in respect of this portion of his work. In any event, the request was accommodated.
Thus, for at least the last few months of the plaintiffs’ work for Glen Carron and Garden Grove, all invoices rendered by Nanosecond were sent to Glen Carron. However, Mr Wentworth continued to deal directly with Mr Page of Garden Grove in relation to the work that the plaintiffs were doing for Garden Grove’s customers, including the work in loading the boats at Berth 29 from GrainFlow’s sites at Crystal Brook and Mallala.
Issues with Mr Wentworth’s performance
According to Mr Wentworth, his work for the defendants from early 2015 through to early 2017 was essentially without incident or complaint. However, in light of the body of evidence that emerged during the trial, I am satisfied that there were a number of incidents and complaints. What follows is a summary of the evidence, and my findings, in relation to several of the incidents or complaints raised during the course of the trial. It is not intended to be a comprehensive treatment of the matters raised concerning Mr Wentworth’s performance.
I have divided my summary into complaints and issues that arose in relation to particular customers, and then complaints and issues raised by other drivers, before also addressing some additional more general matters.
Customer complaints
Avington Farm
Mr Nathan Anderson is the manager of a merino stud known as Avington Farm. He gave evidence about an occasion when Mr Wentworth delivered a load of pellets to his farm. By reference to Nanosecond’s invoices, the delivery occurred in late June 2015.
Mr Anderson’s evidence was that this was the only occasion he ever dealt with Mr Wentworth. The pellets had been booked to arrive at 7.30am, and he had engaged someone to be present on the farm with a tractor to assist in unloading the pellets. Mr Wentworth did not arrive with the pellets until the evening, with the result that the person he had engaged was required to remain on standby for the entire day waiting for the delivery.
Mr Anderson said that Mr Wentworth eventually telephoned him between about 5.00pm and 6.00pm asking for directions. Once he ascertained where Mr Wentworth was, he told him to travel 5.4 kilometres and then turn up the driveway on the right with a big ramp. However, Mr Wentworth travelled about 7.5 kilometres and then turned into a narrow driveway on the left. Mr Anderson said that he knew this because Mr Wentworth telephoned him a second time to say that his truck was stuck in some trees in a driveway, which Mr Anderson worked out was the driveway of one of his neighbours. Mr Anderson had to help Mr Wentworth extract himself from the neighbour’s driveway and find his way back to his farm.
According to Mr Anderson, there were further difficulties once Mr Wentworth made it back to the entry to his farm. While it ought to have been a fairly easy turn into the driveway and up the ramp to the unloading point, Mr Wentworth turned too sharply and managed to get his truck “tangled” in the area near the gate. They had a solar-powered gate, and had to push the button so many times to keep it open while Mr Wentworth tried to negotiate the entry with his truck that the battery on the gate went flat. Mr Wentworth had to go back and forth about a dozen times in order to make it through the gate.
Once through the gate, Mr Anderson said that Mr Wentworth experienced further difficulties getting his truck up the driveway and then reversing up to the silo where unloading was to occur. Further, when it became necessary to move the truck to a different silo, there were further problems with Mr Wentworth’s manoeuvring of his truck.
Mr Anderson said that Mr Wentworth did not ultimately complete the delivery until about 9.30pm or 10.00pm. It thus took him about four hours to do the job, when other trucks doing deliveries to his farm usually took about an hour to an hour and a half.
Mr Anderson added that when he had finished the delivery, Mr Wentworth asked him to supply him with some fuel, which Mr Anderson declined to do. He said that throughout the job, Mr Wentworth seemed to him to be very tired. Indeed, he was informed by someone else on the farm who was assisting with the unloading that at one point Mr Wentworth had fallen asleep sitting on a ride-on mower that was between the silos.
Mr Anderson said that when he next spoke to Mr Mick Harrold to order a load of pellets, he requested that Mr Wentworth not be given that job. He said that in speaking with Mr Harrold on this occasion he said words to the effect that he considered Mr Wentworth to be Australia’s worst truck driver.
Mr Mick Harrold also referred to this incident in his evidence. He said that his contact for Avington Farm, Mr Anderson, had described Mr Wentworth to him as the worst driver he had ever had on site. He said that Mr Anderson told him that Mr Wentworth’s work on the delivery in June 2015 was poor; and that this included allegations by Mr Anderson that Mr Wentworth was late, could not get his vehicle into the site, was inattentive during the process of delivery, and indeed fell asleep on a ride-on mower. Mr Harrold said that Mr Anderson requested that Glen Carron not use Mr Wentworth on any jobs for him in the future. Mr Harrold also said that he discussed this incident with Mr Doug Harrold, but could not recall whether he raised it with Mr Wentworth.
While Mr Wentworth did not accept that there was anything wrong with his performance on this job, and cross-examined Mr Anderson at length to this effect, I am satisfied that Mr Anderson was an honest and reliable witness. I am not in a position to make any finding about whether Mr Wentworth fell asleep on the ride-on mower, as Mr Anderson did not see this himself. However, I otherwise accept that the delivery occurred generally in the terms recounted by Mr Anderson. I also find that Mr Anderson reported the inadequacies in Mr Wentworth’s performance to Mr Mick Harrold, and requested that he not be used on subsequent work for Avington Farm.
SA Sawdust
Mr Corey Button is the depot supervisor for SA Sawdust at Monarto. His role included supervising deliveries to that site, including about four to six loads of sawdust each day. Various Glen Carron drivers made deliveries to his site, including Mr Wentworth. Mr Button estimated that Mr Wentworth made about 12 to 15 such deliveries over an approximately 12 month period. By reference to Nanosecond’s invoices, the last delivery Mr Wentworth did to SA Sawdust was on 10 November 2016.
Mr Button’s evidence was that Mr Wentworth’s ability or skill as a driver making deliveries to his site was not very good. He observed Mr Wentworth having difficulty reversing his truck. It would take him a long time to line up his truck and unload, and certainly longer than other trucks undertaking equivalent jobs. He said that trucks of an equivalent size to Mr Wentworth’s would generally take about half an hour to unload, whereas he took a couple of hours. And because there was limited access to the area where trucks unloaded, this resulted in other drivers and deliveries being held up.

Mr Button also said that Mr Wentworth used to hit the shade cloth roof of the unloading area with his trailer as he tipped out his load. Mr Wentworth cross-examined Mr Button to the effect that the extent to which he lifted his trailer was determined by the hand signals from Mr Button, with the result that it was a matter within Mr Button’s, and not Mr Wentworth’s, control if his trailer did hit the roof. However, Mr Button rejected this, responding to the effect that the problem occurred because Mr Wentworth did not react in a timely way to the hand signals that he provided.
Mr Wentworth also put it to Mr Button during cross-examination that they had such a good relationship that he had on occasions allowed Mr Wentworth to let himself into the site and unload without any supervision. Mr Button denied any knowledge or recollection of this having occurred.
Mr Button’s evidence also included reference to an occasion when he inspected Mr Wentworth’s trailer once it had been emptied and found some contaminant in it.
Mr Button said that he spoke to Mr Mick Harrold about not sending Mr Wentworth back to SA Sawdust. He said that he did so on about the date of what became Mr Wentworth’s last delivery to SA Sawdust (namely, 10 November 2016). He told him about Mr Wentworth’s difficulties with reversing, unloading in a timely way, and hitting the roof with his trailer. He also mentioned the contaminant he had found in Mr Wentworth’s trailer. Mr Wentworth did not return to SA Sawdust after this conversation.
Mr Mick Harrold also gave some evidence in relation to Mr Wentworth’s deliveries to SA Sawdust for Glen Carron. He said that Mr Button reported to him issues that he had had with Mr Wentworth, and in particular that Mr Wentworth took a long time due to his inability to reverse his truck into position, and that this had caused delay and inconvenience. Mr Button also told Mr Harrold that he did not want Mr Wentworth doing the deliveries to SA Sawdust. Mr Harrold discussed the matter with Mr Doug Harrold, but did not recall whether he raised this complaint with Mr Wentworth. As a result of the complaint from Mr Button, Mr Mick Harrold decided that Glen Carron would stop using Mr Wentworth on the SA Sawdust work.
I am satisfied that Mr Button was an honest and reliable witness. I accept his evidence as to his observations of Mr Wentworth, and make findings in the terms of that evidence. I also find that Mr Button informed Mr Mick Harrold of these matters, and requested that Mr Wentworth not be used for future deliveries to SA Sawdust.
Ridley Agriproducts
Mr Mick Harrold said that there came a time when Mr Wentworth was banned from delivering to the Ridley Agriproducts site at Murray Bridge. By reference to the last Nanosecond invoice in relation to a job to this site, he agreed that this occurred on about 19 January 2016.
Mr Harrold said that he received a telephone call from the coordinator of that site, Leanne. She told him that Mr Wentworth had just undertaken a delivery to the site, and had taken a significant time to manoeuvre his truck. Mr Harrold understood that while deliveries to that site did involve some relatively challenging reversing, it was something that other drivers managed without incident a number of times a day. He was told that on this occasion Mr Wentworth was causing a backlog and significant delays. He was told that Ridley Agriproducts did not want Mr Wentworth back at the Murray Bridge site.
Mr Harrold said that he discussed this complaint and request with Mr Doug Harrold. However, he said that he decided not to confront Mr Wentworth with it. Rather, he decided to steer around the problem by allocating future work to this site to other subcontractors. He explained that his reasons for not raising the issue with Mr Wentworth included that when he had told Mr Wentworth about some earlier complaint from a customer, Mr Wentworth had responded by saying that he would sort the issue out directly with the customer – which was the last thing that Glen Carron wanted.
Mr Mark Franke, the site manager from Ridley Agriproducts gave some very brief evidence. He said that he was not aware of any formal evidence of a complaint about Mr Wentworth. However, he explained that whether incidents came across his desk depended upon their nature and significance.
The evidence does not permit me to make any finding as to what happened in relation to this January 2016 delivery to Ridley Agriproducts at Murray Bridge, and in particular whether Mr Wentworth’s performance was in fact inadequate. However, I accept Mr Mick Harrold’s evidence as to the fact and nature of the complaint made to him by the site supervisor.
The Robinvale Farm
Mr Mick Harrold gave evidence about an occasion when Linx engaged Glen Carron to collect some potatoes from a farmer in Robinvale, Victoria. He despatched this job to Mr Wentworth.
Mr Harrold said that the instruction to Mr Wentworth had been to make sure his vehicle had been cleaned for loading. However, he subsequently received a call from Yasmin Dolman of Linx, who relayed a complaint from the farmer. The farmer had complained that when Mr Wentworth attended there was contaminant in his trailer that they had to remove. The farmer had also complained that Mr Wentworth’s trailer was not ready for loading when he arrived; that the rollover bar was not operational, and that this had required the farmer to help Mr Wentworth make adjustments to the vehicle. The farmer had said that these matters caused delay, which was particularly significant given that the potatoes were perishable products.
Mr Harrold said that as a result of the above, Ms Dolman said that they (Linx) would prefer if Mr Wentworth did not return to that site. He communicated the issues raised by Ms Dolman with Mr Doug Harrold, and with Mr Wentworth. He said that Mr Wentworth chose to refuse the negative feedback, and said he would straighten the issue out with the customer. While Mr Mick Harrold did not know whether Mr Wentworth had in fact taken the issue up with the customer, it was a matter of concern that he had even threatened to do so.
Based on this evidence, I am not in a position to make any finding as to whether or not Mr Wentworth did fail to properly clean his vehicle before attending the location in Robinvale, or otherwise failed to perform this job adequately. Mr Wentworth did not accept any inadequacy in his performance on this job, and at times denied there was even an issue about his performance. However, I am satisfied that the farmer made a complaint about Mr Wentworth’s performance that was then relayed to Mr Mick Harrold in the terms he recounted in his evidence. As it happens, I am also satisfied that Mr Wentworth was well aware that the farmer had taken issue with his performance on that job. This is plain from Mr Wentworth’s reference to this job in the first of his conversations with Mr Doug Harrold on 27 April 2017 (see later). He referred, in a passage that was misleadingly edited out of the recording of that conversation,[6] to this farmer having “carried on” about his rollover bar.
[6] See italicised words in paragraph 8 of the transcript of this conversation.
Driver complaints
In addition to the above complaints emanating from various clients, there was evidence of complaints emanating from other drivers.
Ms Cholena Jones
Ms Jones works as a subcontractor driver, including for Garden Grove. She did work for Garden Grove loading the boats at Berth 29, which involved bringing loads from Maitland, Mallala and Crystal Brook. She worked mainly at nights. In the course of that work she came across Mr Wentworth. She gave evidence in relation to two incidents involving Mr Wentworth’s driving.
Ms Jones was not able to be clear about the date of the first incident. She estimated that it might have been about 18 months to two years prior to her giving evidence. She said that the incident occurred when they were heading north from Port Wakefield, on the Port Wakefield Road, and heading towards Crystal Brook. She was travelling in the left lane, with Mr Wentworth in the right lane. She said that Mr Wentworth was driving a road train and that his prime mover had some fancy scroll on its side. She was going a bit slower than most, at about 85 to 90 kph, and so he was overtaking her. As he did so, she noticed that he was slowly coming across into her lane, across the white line between the lanes. She had to move over to give him room. Her left wheels were forced over the solid white fog line on the left side of the road, and then off the road into the dirt, although not quite into the white marker posts. She said that Mr Wentworth was half in her lane. If she had not moved to the left in the way she did, their trailers would have touched. Ms Jones’ evidence was that she rang and reported this incident to Mr Gray.
When it was put to Ms Jones in cross-examination by Mr Wentworth that she was describing his Scania prime mover that he had sold in January 2015 and which was not accredited to tow a B-double or road train, she acknowledged that she must have been mistaken about her description of truck; she knew that he had acquired a different truck at some point. However, she did not recant from her evidence about the driving that she observed, or that it was Mr Wentworth’s truck.
Ms Jones said the second incident was maybe three or four months after the first. It occurred while she was heading to Port Adelaide and was approaching Globe Derby. The road had about three or four lanes at that point. She was in the middle or “middle-ish” lane. Mr Wentworth was in front of her and in the lane to the right of her. She was gaining on him, but he was moving backwards and forwards between the two lanes (that is, between her lane and the one to the right of that lane). She slowed to work out what was happening. During cross-examination Mr Jones acknowledged that at some point Mr Wentworth indicated and moved left in front of her so as to take the left fork in the road. But she said that her evidence was directed to his criss-crossing between the lanes prior to this.
Ms Jones said that on this second occasion she tried to contact Mr Wentworth on the UHF radio but he did not answer. She did not immediately report this incident. But when she arrived at Port Adelaide, another Garden Grove truck (driven by a man she knew as Aaron or Noodle) said he had just encountered, or had an incident with, Mr Wentworth, and she told him that the same thing had happened to her too. She added that, later in time, Mr Gray had asked her about any encounter when a Garden Grove truck was run off the road, and she told him then about this second incident.
Ms Jones also gave evidence to the effect that there had been occasions when she drove past Mr Wentworth and he had the curtain in his truck cabin (which was meant to assist the driver when sleeping in the truck) pulled forward so that she could not see him in the truck. She considered that with the curtain in this position, Mr Wentworth would not have been able to see his right hand rear vision mirror.
Ms Jones said she was also aware of Mr Wentworth having a very bright light bar across the front of his truck. While she had not personally had an issue with his lights, she had heard other drivers speak of him having it continuously blaring. She said that Mr Wentworth had a reputation for being reckless, and that it was common knowledge that you needed to be careful if he was on the road.
Mr Brendan Sawley
Mr Sawley was employed by Garden Grove as a driver for four or five years. His employment had recently come to an end, and according to Mr Gray the relationship between Mr Sawley and Garden Grove was now “a little bit strained.”
Mr Sawley used to drive loads of grain to Berth 29 from Mallala (as well as Crystal Brook and Pinnaroo). He encountered Mr Wentworth while doing this work. He said that he observed a number of issues with his driving.
Mr Sawley’s evidence was that he was once run off the road by Mr Wentworth. He said that he was coming from Berth 29 onto Port Wakefield Road. One lane turns into three at that point. He was behind Mr Wentworth, but gaining on him. Mr Wentworth took the left lane, so Mr Sawley merged into the middle lane and then across to the right lane. He said that as he did so, Mr Wentworth went in one move from the left lane all the way across to the right lane. As a result, Mr Sawley was forced off the right side of the road. His left tyres were still on the road on the fog line on the edge of the road, but his right wheels were off the road and in the grass.
Mr Sawley added that when he caught up with Mr Wentworth again he saw that he had his driver-side curtain three quarters pulled forward. He said that while Mr Wentworth might have been able to see his side mirror, he would not have been able to see sideways or his blind spot.
While he could not give a date, Mr Sawley said that this incident occurred at about 2.00am. He reported it to Mr Gray early the next morning. He added that he had observed Mr Wentworth wandering between lanes on other occasions.
Mr Sawley also gave evidence that Mr Wentworth had multiple bright lights on the front of his truck. He said they would blind oncoming traffic. He recalled experiencing this himself two or three times on the same night on one occasion. These incidents occurred on the road near Mallala, and the road heading into Berth 29. He was not able to be precise about the timing, but said that it was within a few weeks prior to Mr Wentworth stopping work. He reported these incidents to Mr Gray.
During cross-examination in relation to Mr Wentworth’s use of his lights, Mr Sawley maintained that on the occasions about which he gave evidence he had flashed his lights in an attempt to have Mr Wentworth turn his lights down, but that Mr Wentworth did not do so. He rejected the suggestion that on his evidence he would have been so blinded by Mr Wentworth’s lights that he could not have identified Mr Wentworth’s truck. He said he knew to look at the lines on the road as he approached bright lights, but that as he went past he could tell it was Mr Wentworth’s truck – including by reference to the light configuration.
Finally, Mr Sawley also gave evidence that at Berth 29 he had seen Mr Wentworth run his truck up against the guide rail alongside the hopper on multiple occasions. He had seen him get stuck on the hopper. He had also seen Mr Wentworth spill grain on the hopper.
Mr Aaron Bevan
Mr Bevan (known by his nickname ‘Noodle’) had been employed by Garden Grove as a driver for three years. He did work loading the boats at Berth 29, which involved transporting loads of grain from Crystal Brook, Mallala, Maitland and Pinnaroo. His evidence was that he encountered Mr Wentworth in that context a number of times. He recalled Mr Wentworth having a Scania, and then later a Volvo. He did not recall him having a MAN prime mover between these two.
Mr Bevan gave evidence about an incident on the Port Wakefield highway. He thought it occurred shortly after Mr Wentworth purchased the Volvo (although he accepted in cross-examination that it might have been while he had the MAN truck). He said he was travelling south on the Port Wakefield Highway, between Globe Derby and the nearby cameras. He was in the middle lane, and Mr Wentworth was in the right lane. He commenced to “undertake” Mr Wentworth, when Mr Wentworth moved into his lane. He was forced to move his truck left, into the lane of another car. That car sounded its horn at him, and Mr Bevan did the same to Mr Wentworth. Mr Wentworth then swerved to the right, with his trailer experiencing a sleighing effect and momentarily being to the right of the right hand fog line.
Mr Bevan said that he did not report the incident as such, but that he did mention it to Mr Gray. He also discussed it with Ms Jones once he arrived at Berth 29. She was in front of him in the line. He could not say how many trucks in front of him she was; it might have been two or five trucks in front of him. He explained to her what had happened, and she said something to the effect that it was ironic because the same thing had happened to her.
While Mr Wentworth sought to impugn the evidence of Mr Bevan (and Ms Jones) on the basis that they both purport to have described incidents on the same night, in about the same place, despite them being a few trucks apart by the time they arrived at Berth 29. I reject this challenge to their evidence. I do not think there was any necessary inconsistency between their accounts. And given the general terms of Mr Bevan’s recollection as to the relative positions of their trucks once they arrived at Berth 29, it may well be that they were very close to one another as they drove through Globe Derby.
Mr Bevan gave evidence that he regularly encountered Mr Wentworth driving with his high beam lights on. He had an LED light bar across the front of his truck. He quite often found Mr Wentworth driving behind him with his high beams on, particularly as they were coming into or out of sites. He said that Mr Wentworth’s inappropriate use of high beams was something discussed by drivers over the radio.
Mr Bevan also recalled seeing Mr Wentworth having his cabin curtains pulled forward as he overtook or drove alongside him. Mr Bevan said that even if Mr Wentworth could see through his rear view mirrors on the side, his view (particularly of his blind spot) would have been limited.
According to Mr Bevan, Mr Wentworth had a reputation as a poor and incompetent driver.
Mr Bevan said that he recalled an incident at Inghams at Mile End. Mr Wentworth was ahead of him in the line. When it came to his turn to tip off into the grid, Mr Wentworth could not be found for about 20 minutes. People thought he might have been asleep in his truck, but when they banged on his truck he was not there. Mr Bevan understood that Mr Wentworth had fallen asleep in the toilets, although he did not personally know or observe this. In any event, there was an approximately half hour delay until they eventually located Mr Wentworth.
Mr Bevan said that he saw Mr Wentworth spill grain from his truck at Berth 29. While he agreed in cross-examination that this had not occurred “many” times, he maintained that it occurred “plenty” of times. He thought that Mr Wentworth must have had trouble seeing because he did not seem to lower his tipper or stop when instructed to do so. He regularly saw Mr Wentworth make mistakes that made a lot of mess by overflowing the grid. When it was put to Mr Bevan in cross-examination by Mr Wentworth that these spills could not have occurred (or at least were not within his control given that he emptied his trailer though his grain door rather than his tailgate), Mr Bevan did not agree. He said that spills were still possible if instructions in relation to the tipper were not obeyed. He added that Mr Wentworth would not have needed an extra spotter if indeed he had not been spilling grain.
Findings
I accept the evidence of each of Ms Jones, Mr Sawley and Mr Bevan. I reject Mr Wentworth’s contention that the matters they described never occurred.
In particular, I accept that each had encounters with Mr Wentworth’s truck generally in the terms they described. In the case of the first incident described by Ms Jones, and the incident described by Mr Sawley, they were forced to leave the road. In the case of all of the incidents, the drivers were forced to take evasive action, or at least to adjust their driving.
I find that each of these drivers reported the incidents to Mr Gray. While none of the drivers, nor Mr Gray, were able to date the incidents by the time they came to give oral evidence, I am satisfied (by reference to the transcript of Mr Gray’s conversation with Mr Wentworth on 17 March 2017[7]) that at least two of them occurred in the days immediately preceding Mr Wentworth’s 17 March 2017 conversation with Mr Gray. It is likely that they all occurred in early 2017.
[7] See paragraph [38] of the transcript of this conversation below.
Other issues in relation to Mr Wentworth’s performance

The above is sufficient to dispose of the conspiracy claim. It fails at the threshold on the basis that the plaintiffs have not established the alleged agreement between the conspirators. However, for the reasons that follow, I am also not satisfied that the plaintiffs have established the requisite intention on the part of the alleged conspirators.
The conspiracy was pleaded as a conspiracy by unlawful means. Presumably this was on the basis of the plaintiffs’ contention that one or more of the alleged conspirators committed the injurious falsehood by making or prompting the allegations. But in circumstances where I have rejected the plaintiffs’ other contentions of wrongdoing (including the claim for injurious falsehood), the conspiracy could only have been one to cause harm by lawful means.
As explained earlier, proof of a conspiracy by lawful means requires proof that the predominant intention or purpose of the conspirators was to injure the plaintiffs. I do not accept that any of the alleged conspirators had such an intention.
I accept that each of Mr Page, Mr Gray and Mr Mick Harrold found Mr Wentworth difficult and frustrating to deal with at times. Certainly Mr Harrold described him as the most difficult of Glen Carron’s drivers.
There was some evidence of these difficulties and frustrations resulting in rudeness on the part of Mr Mick Harrold. For example, both Mr Wentworth and Mr Mick Harrold gave evidence about an occasion in about August 2016 when Mr Harrold abused Mr Wentworth over the telephone, calling him an idiot and a fool. Mr Harrold maintained that he was justified in speaking the way he did because Mr Wentworth had let him down badly by attending at a site before Mr Harrold had given him the instructions and detail necessary for the site. While I accept that Mr Harrold had some cause to feel annoyed or frustrated by what had occurred, the terms and tone of his response went beyond what was necessary or appropriate.
There was also some evidence from Mr Wentworth to the effect that there were occasions when he was despatched work by Mr Mick Harrold, and had embarked upon the driving required by that work, only to be told that his services were no longer required. While the evidence was not sufficient to enable me to make findings about any particular incident of this nature, I am prepared to accept that at times the plaintiffs were inconvenienced by the manner in which Glen Carron allocated, and at times re-allocated, its work.
During the course of the trial, Mr Wentworth also sought to make something of the retention rates claimed by Glen Carron; that is, the margins it claimed on the work it allocated to the plaintiffs. However, once again the plaintiffs simply did not adduce evidence of sufficient quality, detail or precision to enable me to make any findings of significance on this topic. To the extent that some of the apparently anomalous invoices or amounts were addressed in the evidence, explanations were proffered by the Glen Carron witnesses. The evidence does not provide any basis for me to doubt those explanations.
Finally, I mention also in this context that I accept that Mr Wentworth’s preparedness to do some occasional work for Pat Harrold after he had fallen out with his brothers, and had left Glen Carron, was likely also an occasional source of annoyance to Mr Mick Harrold (and Mr Doug Harrold).
However, the evidence fell well short of establishing that Mr Mick Harrold bore any general or ongoing feeling of ill-will towards Mr Wentworth, or otherwise wished to cause him harm. Such a conclusion does not follow from the evidence which established, at most, a few isolated episodes of annoyance, rudeness and harsh treatment. That is particularly so in circumstances where the evidence also revealed that Glen Carron (through Mr Mick Harrold and Mr Doug Harrold) had been prepared to try and assist the plaintiffs, for example, by accommodating Mr Wentworth’s request for regular advance payments of the monies to be paid to him, and by providing him with some business advice from time to time.
In the case of Mr Page and Mr Gray, there was no evidence at all of any background ill-will towards, or dislike of, Mr Wentworth.
In the circumstances, there is no basis for me to find that any of the alleged conspirators were motivated by an intention to injure the plaintiffs when they made their decisions in March and April 2017 to cease allocating them work. While they understood that these decisions would likely have adverse financial implications for the plaintiffs, I do not accept that any of them were motivated by a desire to inflict such harm upon the plaintiffs. Rather, I am satisfied that in acting the way they did, and in making the decisions they did, each of them was motivated solely by the legitimate interests of their respective businesses. Mr Page and Mr Gray were motivated by a desire, on behalf of Garden Grove, to address genuine concerns about Mr Wentworth’s driving and performance to keep its customer (Cargill/GrainFlow) happy. Mr Mick Harrold was similarly motivated by a desire, on behalf of Glen Carron, to address genuine concerns about Mr Wentworth’s driving and performance and to keep its customer (Garden Grove, and thus indirectly also Cargill/GrainFlow) happy. For these reasons, the plaintiffs’ claim in conspiracy must fail.
The misleading conduct claim
I have earlier outlined the plaintiffs’ case alleging misleading and deceptive conduct contrary to s 18(1) of the Australian Consumer Law, and my difficulty in understanding it.
The plaintiffs rely upon letters provided by each of the defendants in March 2016 for use by the plaintiffs in support of their application for finance for a replacement truck to be purchased by Nanosecond.
The 8 March 2016 letter from Mr Doug Harrold of Glen Carron, headed “To whom it may concern”, was in the following terms:
Nanosecond Corporation Pty Ltd is one of our preferred sub-contractors and has been since February 2015.
Current financial year to date figures 1/7/2015 to 29/02/2016 show that purchases to Nanosecond Corporation Pty Ltd total to the amount of $87,200.13.[28]
Work in this industry varies according to demand.
This letter does not constitute a contract or a guarantee of work.
[28] There was a second copy of this letter in evidence with a different figure of $29,170.66.
The 16 March 2016 letter (by email) from Mr Page of Garden Grove, also headed “To whom it may concern”, was in these terms:
Nanosecond Corporation Pty Ltd operated by Mr Clayton Wentworth has been one of our regular sub-contractors since February 2015.
Rates for sub-contractors are not fixed and vary from job to job. Total earnings for the sub-contractor are directly related to pay load size, for example a single set up’s payload is approx. 28t and a bdouble set up can be as high as 45t.
From April 2015 to the end of January 2016 Nanosecond has completed work for us to the value of just over $28,600.
The plaintiffs go on to plead that the defendants’ subsequent conduct was “entirely inconsistent with and at odds with and contrary to the spirit” of these letters. The conduct referred to in this respect is not clearly identified, but it appears to be a reference to the (alleged) conduct of Mr Gray, Mr Page and Mr Mick Harrold that is relied upon in support of the allegations of injurious falsehood and conspiracy.
I remain at a loss to understand the plaintiffs’ claim for misleading and deceptive conduct. Insofar as the plaintiffs’ claim is that the terms of the pleaded letters were misleading in some way, the claim goes nowhere. While there was some evidence which suggested a difficulty in identifying whether the income figures in those letters were correct, that was not a matter of complaint by the plaintiffs. Nor was it a matter that was alleged or proven to have had any adverse consequence for the plaintiffs. Having been provided with this support by the defendants, they were able to obtain the finance necessary to obtain the replacement equipment. Similarly, insofar as the plaintiffs’ pleaded claim is that the letters presented an artificially optimistic assessment of Nanosecond’s business (at least relative to what the plaintiffs’ now know was the view of the defendants), this was again not a matter pursued by the plaintiffs, or otherwise alleged or proven to have had any adverse consequence for the plaintiffs.
It may be that the plaintiffs intended to pursue a case in which the letters were intended to be relied as evidence of the true position, and hence as probative of an allegation that the defendants’ subsequent conduct (that is, in making allegations about Mr Wentworth’s poor performance) was misleading. While this is not what the plaintiffs’ statement of claim pleads, it is more consistent with Mr Wentworth’s attempts to explain this aspect the plaintiffs’ case. In my view, the plaintiffs have not adequately pleaded any case to this effect. But I would add that, in any event, any intended case along these lines would not have been made out on the evidence. For the reasons explained earlier in the context of the plaintiffs’ case for injurious falsehood, I am not satisfied that the plaintiffs have established any false (or, I would add, misleading) statements made by Garden Grove representatives to Glen Carron. Nor have I been able to identify any other misleading statement or conduct by either of the defendants, let alone any such statement or conduct that was potentially productive of loss on the part of the plaintiffs.
The losses claimed by the plaintiffs
Given that the plaintiffs have failed to make out any cause of action, it is not strictly necessary for me to consider the issue of what losses the plaintiffs might have suffered had any of their claims been made out. However, I consider it appropriate to make the following observations.
Earlier in these reasons, when summarising the plaintiffs’ causes of action, I mentioned the amounts claimed by the plaintiffs. They seek approximately $24 million from Glen Carron, and approximately $30 million from Garden Grove, giving a total of approximately $54 million. The amounts sought are completely unrealistic, and are illustrative of the lack of objectivity and reality brought to these proceedings by Mr Wentworth.
For the most part, the amounts sought in respect of the individual claims are completely unparticularised, and so there is little I can say other than that the plaintiffs have not established a basis for the amounts claimed, or indeed any amount at all. In respect of the claims against Garden Grove for injurious falsehood and defamation, I have explained why, even if the causes of action had been established, there would be difficulties from a causation point of view in ascertaining what, if any, would be recoverable by way of damages. For that reason, there is nothing I can usefully add in relation to the damages sought by the plaintiffs in respect of those claims. In relation to the claim alleging misleading conduct, my difficulties in understanding the claim also make it impossible for me to add anything in relation to the damages sought by the plaintiff. The damages claimed in respect of the conspiracy alleged against the defendants are unparticularised, and despite the significant amounts claimed ($8 million from Glen Carron, and $10 million from Garden Grove), are said to relate to loss and damage suffered by the plaintiffs in addition to the loss and damage alleged to have been suffered by reason of the withdrawal of the supply of work to the plaintiffs. No such loss and damage has been identified, let alone proved.
The only part of the claimed losses that have been particularised at all are the losses claimed to have been suffered as a result of the alleged breaches of contract and the consequential withdrawal of the supply of work from the plaintiffs. In this respect, the plaintiffs seek amounts of approximately $8.5 million from Glen Carron and $2.5 million from Garden Grove on account of lost net income. Against Glen Carron, the plaintiffs claim an additional amount of slightly in excess of $800,000 for consequential loss and damages for destruction of the plaintiffs’ credit history.
The hypothesis underpinning the plaintiffs’ claim for lost net income is that had the defendants not breached their contracts by ceasing to provide the plaintiffs with work, Mr Wentworth would have continued driving and earning income from the defendants for six days a week, 12 months a year, for 15 years; that is, until the end of April 2032.
As against Glen Carron, the formulated claim assumes that the plaintiffs would have spent nine months of each year driving for it. During this nine months, the six days per week would have been spent making two return trips from Adelaide to Sydney each week, with a B-double load of 43 tonnes, at $110 per tonne, giving a total of $20,812 in income per week. Extrapolated out at the rate of 39 weeks a year, for 15 years, this provides a total income of $12.175 million. The plaintiffs then reduced these forecast gross earnings by 30 per cent for “expenses not incurred of fuel, tyres, servicing, registration, insurance and other”, giving a claimed lost net income of approximately $8.5 million.
As against Garden Grove, the formulated claim assumes that the plaintiffs would have spent the remaining three months of each year driving for it. It assumes the plaintiffs would have spent six days a week during this period making two return trips between Crystal Brook and Berth 29 each day, using a road train to transport 61.2 tonnes at the rate of $22 per tonne, giving $17,772 per week. After extrapolating this amount over 13 weeks a year for 15 years, the gross income claimed to have been lost is approximately $3.5 million. After reducing this by 30 per cent for expenses not incurred, the amount claimed is slightly less than $2.5 million.
There are a number of difficulties with this formulation of the plaintiffs’ claim for damages in contract. It assumes that the respective contracts would have continued for 15 years. I consider it entirely unrealistic to assume that Mr Wentworth would have continued driving on a full time basis, or even at all, until he was 82 years of age. This formulation also ignores, or makes no allowance for, the potential for the contracts being terminated or brought to a conclusion earlier than this time period for reasons other than Mr Wentworth’s age. The formulation also involves a ‘straight line’ calculation, without any discount to take account of the time value of money – which would ordinarily warrant a significant reduction over a 15 year period.
However, and more fundamentally, there was simply no basis in the evidence for the amounts claimed, or most of the components thereof.
Using the figures set out in Glen Carron’s closing submissions (which appear to accurately summarise the documentary evidence adduced at trial, and were not challenged by the plaintiffs), over the period of slightly in excess of two years from when the plaintiffs commenced operating through Nanosecond until they ceased earning income, the plaintiffs earned gross income of approximately $238,000 from Glen Carron, $47,000 from Garden Grove and $69,000[29] from third parties. This reflects an annual gross income of approximately $177,000,[30] being only about 15 per cent of the net annual income of approximately $1,042,000[31] inherent in the plaintiffs’ formulation. The percentage would be even smaller again if the historical earnings were confined to gross income from the two defendants (and hence excluding the income from third parties). It is immediately obvious from this that the plaintiffs’ forecast earnings are entirely unrealistic.
[29] Approximately $31,000 of which was earned in May 2017, being the month after the plaintiffs ceased receiving work from the defendants.
[30] Being the total of $238,000 plus $47,000 plus $69,000, giving a total of $354,000 over slightly in excess of two years, or about $177,000 per annum.
[31] Being 13 weeks at $17,772 plus 39 weeks at $20,812.
The plaintiffs contend that there was likely to be an increase in their income as a result of having obtained a permit to operate a road train only shortly prior to the defendants ceasing to provide them with work. I accept that this meant that the plaintiffs had some increased capacity. However, it would be pure speculation on my part to attempt to put some value on this increased potential. The plaintiffs did not adduce any evidence that would permit any meaningful assessment of the additional work that might have been available to them.
For the nine month period which the plaintiffs claimed they would be working for Glen Carron each year, the assumption of a constant stream of return runs from Adelaide to Sydney bore no resemblance to work historically done by the plaintiffs. The plaintiffs had only ever done a few trips to Sydney, and had never done two in the same week. Indeed, the plaintiffs had only ever done a handful of jobs for Glen Carron in which they earned more than $50 per tonne, let alone the $110 per tonne assumed in the plaintiffs’ formulation. The plaintiffs did not have a history of any sustained period of working six days a week. Even assuming Mr Wentworth was physically capable of sustaining this rate of work for any significant period of time, the evidence does not support a finding that this volume of work was even available to Glen Carron and Garden Grove, let alone likely to have been allocated to the plaintiffs given seasonal nature of the industry and the hierarchy pursuant to which the defendants allocated the available work.
Turning to the expenses side of things, any attempt to meaningful assess the plaintiffs’ asserted losses would be rendered speculative by the paucity of evidence adduced by the plaintiffs as to their expenses. The plaintiffs did not adduce any evidence in the form of accounts, BAS statements or taxation returns for the relevant period. It would appear they do not exist. Nor did the plaintiffs adduce any expert evidence.
The evidence adduced by the plaintiffs in relation to expenses was confined to a schedule of expenses prepared by Mr Wentworth to assist him in giving evidence, together with the oral evidence of Mr Wentworth. The difficulty with this evidence was that it tended to negate the losses claimed by the plaintiffs. I say this because it showed expenses which exceeded the gross income being generated by the plaintiffs. As Mr Wentworth accepted in his oral evidence, the business being operated through Nanosecond was at best marginal. It was dependent upon advance payments from Glen Carron in order to meet its operating expenses. The financial performance of the business was sufficiently marginal that it raises doubts in my mind as to its continued viability. Certainly it was not generating any material profits, let alone anything like the extraordinary profits inherent in the plaintiffs’ formulated claim.
A significant proportion of the expenses being incurred by Nanosecond were its costs of financing its truck and trailers. These cannot be ignored in an assessment of the plaintiffs’ losses. They are expenses that would have been incurred on an ongoing basis if the plaintiffs had continued to do work for the defendants. While they would at some point have paid off the cost of the equipment, there would also no doubt be future capital expenditure required in order to continue to operate the business.
It is true that the plaintiffs continued to incur some of these financing costs even after they ceased doing any work, and to that extent they would not need to be reflected in any assessment of the plaintiffs’ losses. However, that would only be so for a limited period of time. There was only limited evidence as to what has come of the plaintiffs’ equipment now that they are no longer working in the transport industry. But regardless of what has in fact happened to that equipment, an assessment of the plaintiffs’ losses would need to proceed on the basis that they were required to mitigate their losses by selling or leasing the truck and trailers if they are to recover losses on the basis of an assumption that they are no longer able to engage in such work. As such, an assessment of the plaintiffs’ losses could not ignore the financing costs, except for a relatively short period of time following the cessation of the plaintiffs’ work.

As mentioned, the plaintiffs’ formulation assumed expenses confined to 30 per cent of gross earnings. This formulation was not supported by the evidence as to the historical experience of Nanosecond. While Mr Wentworth asserted that this was a reliable benchmark for expenses, he did not adduce any evidence capable of supporting this benchmark. And the evidence of Mr Doug Harrold was that, based on his experience in the industry, the suggestion of any such benchmark was absurd.
It is trite that the plaintiffs bore the onus of proving not only that they suffered loss as a result of the defendants’ alleged breaches of contract, but also the amount of the loss they suffered. They had to prove these matters on the balance of probabilities, and with as much precision as the subject matter reasonably permitted.[32]
[32] Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [37].
For all of the above reasons, I do not consider that the plaintiffs have established that they suffered any loss at all by reason of the defendants ceasing to provide them with work, let alone the amount of any such loss.
In so concluding, I am conscious of the general principle that the Court must do its best to assess a plaintiff’s loss based on the evidence available to it; and that that is so, even if there are difficulties inherent in the process that result in a significant degree of uncertainty and estimation in the assessment. However, this principle operates primarily in those cases where a plaintiff cannot adduce precise evidence of what has been lost. It does not operate, or does not operate with the same force, in those cases where, although apparently able to do so, the plaintiff simply has not adduced such evidence.[33]
[33] Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38].
The present case is in the latter category of cases. In such cases, the principle that the Court must generally do the best it can does not extend as far as requiring the Court to arrive at a figure regardless of the quality of the evidence adduced. It does not require the Court to engage in speculation. To the contrary, the Court must still have regard to the quality and sufficiency of the evidence adduced, having regard inter alia to the evidence available to be adduced. If the evidence is insufficient to permit more than speculation or guesswork, then the Court is not required to determine a figure. It may reach the conclusion that the plaintiff has simply failed to prove any particular loss. In my view this is such a case.
Further, and in any event, such evidence as there was in this case tended to indicate that the plaintiffs were operating a business that was barely viable. I do not consider that the plaintiffs have established a likelihood of making profits in the future even if the defendants had continued to provide them with work. In my view it is just as likely, and probably more likely, that they would have continued to break even or incur losses. As such, the plaintiffs’ difficulty is not just that they have not led sufficient evidence to enable the Court to put a dollar figure on the profits lost. Rather, it is that they have not established that they suffered any loss at all.
For completeness, I add that the plaintiffs also failed to establish the claimed consequential loss and damage for destruction of their credit history. While Mr Wentworth gave some evidence as to a deterioration in his credit record, the evidence was not sufficient to enable the quantification of any such loss, let alone causally link it to any particular misconduct on the part of one or other of the defendants.
Conclusion
For the reasons given, I dismiss all of the plaintiffs’ claims against the defendants. There will be judgment in favour of the defendants.
I will hear the parties in relation the issue of costs.