State Rail Authority of NSW v Earthline Constructions

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S34 of 1998

B e t w e e n -
STATE RAIL AUTHORITY OF NEW SOUTH WALES
Appellant
and
EARTHLINE CONSTRUCTIONS PTY LIMITED (IN LIQUIDATION)

First Respondent

NULINE CONSTRUCTIONS PTY LTD
Second Respondent
PHILLIP GEORGE DAVIES
Third Respondent
IAN NEIL DAVIES
Fourth Respondent
GREGORY CHARLES DAVIES
Fifth Respondent
RONALD THOMAS CHILD
Sixth Respondent
DAVID BRIAN BELL
Seventh Respondent
THE OFFICIAL TRUSTEE IN BANKRUPTCY OF THE ESTATES OF PHILLIP GEORGE DAVIES AND IAN NEIL DAVIES
Eighth Respondent

GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 SEPTEMBER 1998, AT 10.21 AM

(Continued from 9/9/98)

__________________

GAUDRON J: Yes, Mr Toner.

MR TONER: Thank you, your Honour. Your Honour, just to return to the proposition as to what the nature of the arrangement was between the State Rail Authority and the various contractors to it in relation to the hire of plant. I think it is conveniently set out as was properly submitted by my friend. There was broadly no dispute as to the theory at least of how plant was hired and Mr Vincent describes the process in his affidavit which is in volume 4 commencing at 586.

KIRBY J: Would you, just before we go further plunging into all these facts, tell us - give us a little hint of the theory of the case? I mean, is it, as I was suggesting yesterday, that you say that despite all of the matching of what appeared to be fraudulent claims that they were not fraudulent or that it was open to the primary judge to find that they were not fraudulent and that, in fact, the equipment was used, it just was not well documented. Is that your theory of the case because it is a pretty hard theory to run?

MR TONER: No, it is not my theory of the case. My theory of the case is that the appellant’s case was founded entirely upon Mrs Page’s evidence being accepted. Without her evidence, they could not demonstrate that what she asserted was true, and if the trial judge was entitled to reject her evidence, the appellant’s case foundered. Fundamental to Mrs Page’s description of the appellant’s case was that there were a number of people who did not exist, or did not operate particular pieces of plant and equipment, whose names were put on plant hire dockets, and she used that as a badge to say that that meant that the plant hire docket itself was fraudulent, in other words, making a claim for work or for hiring that had not been done.

It is our submission that the primary judge was entitled to reject her evidence asserting that, once a significant number of those assertions in that category had been proved to be wrong, and I ‑ ‑ ‑

KIRBY J: He just ignores all the documentation, all the dockets, all the records, all the analysis, just because he does not believe a particular witness.

MR TONER: No, of course he does not ignore that, but what brings the paper to life for the appellant in this case, is Mrs Page. As I have said in my written submissions, the documentation itself is fundamentally neutral. In other words, on its face, it makes a claim for hiring or work done by a particular piece of plant at a particular site.

What makes it fictitious, what makes it fraudulent, is Mrs Page’s evidence in relation to it. Without that evidence, the document itself does not bespeak a fraudulent claim.

KIRBY J: What, you just ignore the other two employees who said that they saw your client’s principals writing out the dockets, making it all up, just ignore that, and the dockets?

MR TONER: But they did not say ‑ ‑ ‑

GAUDRON J: And the employee records?

MR TONER: We do not dispute the proposition that the names that are put on a large number of these documents are of people who do not exist or who did not operate particular pieces of plant or equipment. What we say in relation to it is it was irrelevant and demonstratively irrelevant on the basis if you look at large numbers of the plant hire docket there is no name in the space provided for operator at all and those were paid as well, in the same way that there are a large number of dockets with no plant number on them, they were paid as well.

HAYNE J: Did that falsity, though you say it is irrelevant, raise a case for inquiry or answer?

MR TONER: No, your Honour, because we say that the SRA’s own practices and procedures were in relation to the substance of the document, namely, was the hiring undertaken for the hours and at the places and by the piece of plant and equipment as described on the docket. That was their obligation. It is bit like what is sometimes laughingly called a doctrine of completeness, that is, if you have a docket that requires a space filled in, people tend to fill it in, rather than it necessarily being a requirement of the person for whom the document is being tendered.

KIRBY J: Yes, but maybe there is also a doctrine of completeness which we have to invent for this case, that you go beyond disbelieving a particular witness, that Courts of Appeal have obligations on a rehearing to go through the factual material and not simply to say he did not believe one witness, end of case. That is a really superficial approach to appellate review.

MR TONER: Except for this: if they undertake their own review of the material themselves and come to the same conclusion as the primary judge, it is not incumbent upon the Court of Appeal then to laboriously lay out its process of reasoning in relation to each piece of paper.

KIRBY J: Even though there are other witnesses whose credibility stands against you and even though there are a thousand or several thousand dockets which lend credence to the story which the witness gave which had to be weighed against the fact that the judge did not like the look of a face?

MR TONER: Except for this: the two witnesses of which your Honour speaks are Mrs Meek and Ms Packham. My submission in relation to each of those witnesses was that they do not bespeak the fraud either because their evidence is derivative upon Mrs Page. In other words, they said that they filled out large numbers of work dockets at the Rutherford office of Earthline which included both the legitimate claims and what is alleged to be the illegitimate claims.

In other words, the process of completing the paperwork had been brought to the Hunter Valley to complete rather than having it done around the sites, save and except for some of the Grafton work. So what they were completing was all the dockets for Earthline, both for the real work that was being done by the company for the appellant and for those which are asserted by the appellant now to be fictitious machines. All their evidence describes is the process by which those dockets were completed.

To badge any one of those dockets, or any group of those dockets, as fictitious depends upon the evidence of Mrs Page. In other words, one continues down from her categorisation of fictitious machines through to the machines, through to the dockets that were completed by Ms Packham and Mrs Meek at Rutherford.

KIRBY J: It does not really, Mr Toner, because when you match them up there are some which match with machines which were in repair. There are some, many of them, which match with dockets for the machines for which claims were contemporaneously being made. There are many of them that match with names of alleged employees which were made up in just the way Mrs Page said she made them up, and which are not on the records of your client, and your clients remained silent. They did not come forward to explain this.

MR TONER: Well, there is ‑ ‑ ‑

GAUDRON J: Not only did they not come forward to explain. One can understand why they may have wanted to stay out of the witness box, but they did not, for example, call the subcontractor whose machines they allegedly, or impliedly, hired for the dockets, that ‑ ‑ ‑

MR TONER: No, I understand that proposition. They did not. I cannot advance a case beyond that. But can I say in relation to the proposition that was raised by Justice Kirby, and it is this: my friend yesterday put some propositions to the Court that you could conclude from his Honour’s findings in relation to duplication and mistake that he ought to have applied the same set of logic to the balance of the documentation. When his Honour was dealing with the questions of duplication and mistake, one has to look at it in the context of the totality of the number of day dockets that were submitted to the State Rail Authority by Earthline and Nuline, which is about 18,000 dockets. Now the number of dockets which he found to be mistakenly tendered, either because of duplication or because of plant under repair, were 157. And his Honour’s findings in relation to those dockets were that there was no system, no pattern to those particular dockets, that they were diffuse amongst the 18,000 day dockets. And it is not as if there was a system or a mechanism that one could point to that says that they were consistent with the claims that were being made that they were fiction.

KIRBY J: Does it not ring just a tiny little alarm bell? I mean, just a tiny one. Once you get, as it were, the infection of improper processes, it does put you on your guard and, in a sense, as Justice Hayne raised with you, it calls forth an answer and answer came there not.

MR TONER: But we have not got to that point yet, your Honour, because the point that you first have to get to is the appellant’s obligation to prove its case where they are asserting fraud from first to last. The Briginshaw admonition, the famous words of Justice Dixon that it requires careful proof. Before we have to answer the claim, they have to demonstrate that they have a case asserting fraud where that careful proof and that certainty, and that comfort, is available to the trial judge before we have to answer anything.

KIRBY J: You make the onus of proof in a civil case sound like Atlas carrying the world on his shoulders. It is simply the onus of proof of a civil case with the special caution that Briginshaw refers to.

MR TONER: Of course it is, but as has been said time out of mind, in relation to those famous words, nobody is submitting that the onus is anything other than the balance of probability, but human affairs being as they are, once a serious assertion is made, a serious criminal assertion is being made, one ought be cautious about the exactness of the proof that is being tendered. The proof that was tendered in this case as to the fraudulent nature of these claims, is entirely dependent, entirely dependent upon Mrs Page. Without her the paperwork does not jump up and say to you, “These are fraudulent claims.” Without her there is no case of fraud levelled against anyone of the respondents.

So that once his Honour rejects her evidence - and it is not as if it was done flippantly, it is not as if it was done in a vacuum, it is not as if it was done where her evidence was untested, it was not as if it was done where there simply is of itself that inherent probability weighed against nothing. He assessed here evidence on the basis of the cross-examination of her and what was put to her during the course of that cross-examination.

He does not have to disbelieve every single thing that she says to set her evidence to one side in circumstances where one is looking for exactness of proof. For instance, a key to their case is this: she says, “Joe Bloggs was a false name”, just to give an example. Joe Bloggs was not one of her names but - - -

KIRBY J: She took the name from football players in Kyogle and girlfriends.

MR TONER: It could have been the general staff of the Third Reich. It would not have mattered too much what names you put down there. She says that bespeaks a fictitious day docket and all of the dockets within that category are fraudulent. There was no hiring. It is a fraud. We are trying to steal money from the State Rail Authority. She is then asked about some of those particular machines and says that the work as shown in those day dockets was done.

The plaintiff’s claim is for moneys paid under a mistake of fact induced by fraud. That is what the claim is. The plaintiff’s claim is not that we induced them to pay moneys to them because we put false names on the bottom of day dockets. She says that the work was done. What is his Honour then to do with that particular category of case?

KIRBY J: He is to go back to all of the evidence and to look at the dockets and to look at the analysis of them and to look at all of it and not just to throw up his hands and say she has been caught out in one particular.

MR TONER: But she has not been caught out in just one.

KIRBY J: That is old‑fashioned jury tactics. That is not the job of a judge sitting alone hearing a case of some complexity, most of which was documentary.

MR TONER: But as my friend set out yesterday in a schedule to your Honour, she was not just caught in one. She was caught out in 11 but those 11 cases ‑ ‑ ‑

KIRBY J: 11 dockets, 11 dockets out of 1,000.

MR TONER: No, no, 11 categories.

GAUDRON J: 11 invoices, were they not?

MR TONER: No, 11 categories of claim. Does your Honour have the analysis of Mrs Page’s evidence?

KIRBY J: It would not be hard in the thousands of dockets here to make a few mistakes but what she was putting forward ‑ ‑ ‑

MR TONER: I accept that entirely.

KIRBY J: ‑ ‑ ‑ was a systematic technique of defrauding the State Rail Authority by using false names, by making duplicate claims, by claiming when machines were in repair and when you find that there are a lot of false names, that, at least, rings a little bell and you then have to say, “Well, maybe there is something in that.” What does the respondent say? The respondent says nothing.

MR TONER: I would agree with that entirely. We did a rough count this morning of how many dockets these categories represent. They come to about 690 dockets out of a total of 2,895. In other words, just about a quarter.

KIRBY J: So you just ignore the three-quarters.

MR TONER: Well, no. You use it as a basis to determine whether her evidence can be relied upon on the central question, namely her assertion that these documents are false. And of the 2,895‑odd dockets, well, as I say, about a quarter of them are within this category. This Court’s role - and the Court of Appeal’s role - that was almost a wonderful Freudian slip on that occasion - this Court’s role is not to reassess the trial judge’s assessment of whether he is going to accept a witness on credit where there is material that is sensibly available to his Honour to reject her evidence. So it is not as if it was untested evidence, and is not as if she was not cross-examined. She was extensively cross-examined, and large gaps were found in the proof that she asserted, namely, “This is a fraudulent invoice”. When it is tested it is found that it is not a fraudulent invoice.

HAYNE J: May I just take you back to the analysis of Mrs Page’s evidence that you have been taking us to. Do you say that this analysis is complete and accurate, or do you say that there are other holes that were made in Mrs Page’s evidence, or different holes other than those mentioned on this document?

MR TONER: There were additional and different holes made in her evidence. Could I take you to our submissions, on page 4(b). Her evidence was that she received instructions from Mr Davies as to everything she did - I think that is a fair statement - as to everything she did in relation to these dockets, and that what she was writing up was fraudulent dockets. I give in (b) there, a number of examples of minute variations, and the documentation is replete with such variations as to times on the dockets, namely, the standard claim was a 12‑hour day. There are literally hundreds of dockets within the material where the times vary from two hours, four hours, three and a half hours, five hours, inconsistent with the proposition that somehow she was just following a given system of writing up these dockets, 12 hours a day, for machines that did not exist or did not work, or were not hired.

And on each occasion, when she is confronted with this type of material, she simply reverts to the fact that, “Phillip Davies told me to do this”. Similarly, in relation to the location of particular pieces of plant or equipment, within the various pieces of plant, there are variations as to site. Once again, there is nothing in her affidavit about this sort of variation. When she is cross-examined about it, she simply retreats to the proposition, “Well, Phil Davies told me to make those variations”. There are dockets there which ‑ ‑ ‑

KIRBY J: That would be not unlikely, would it, that you would get a variation to add verisimilitude to the deception.

MR TONER: Or it might be the truth.

GAUDRON J: Or to conform with the observations of SRA people who are present on site on the day.

MR TONER: Seeing real machines doing real work, as described in the dockets.

GAUDRON J: Yes. Well, yes, but let us say Mr Churchill had been at the Borderloop and he had noticed a machine not working from 3.00 until 5.00, for example, say he had been there, so, naturally, you would not ‑ ‑ ‑

MR TONER: But there is no suggestion in her affidavit that there was this ruse to alter the docket so as to create that very ‑ ‑ ‑

GAUDRON J: No, but ‑ ‑ ‑

MR TONER: The appearance of truth.

GAUDRON J: Mr Davies, one might assume, is not going to falsify dockets which can be clearly identified as false by people on site.

MR TONER: Well, I suppose it depends on how suspicious one’s mind is. It might also bespeak that they are true, and in the same way that there is a bunch of dockets there which ‑ ‑ ‑

GAUDRON J: But, in any event, these are not matters which the trial judge relied upon for his findings. That is the difficulty you face. You may have any number of what I shall call “jury arguments” for the sake of convenience, but you have really got to focus, do you not, on the methodology employed by the trial judge?

MR TONER: Well, I will just get Ms Stubbs to dig up - he does allude at some stage to the variations that are made on the dockets and her failure to explain that difference in the course of her affidavit that simply “invented evidence” I think his words were, or made it up as she went along to cover every time she was caught out in cross-examination. But, that is also tied with the proposition of certification by non-defendant SRA employees. Now, one would have thought that - I know that at large there is a proposition that we should have called these people but at the end of the day - there is that phrase again - these people were State Rail Authority employees. It was their case. They were saying that documents signed by their own employees, who they did not impeach, were false. Why is it not incumbent upon them to call them when they bear the onus of demonstrating a fraud case?

Now, that was relied upon strongly by his Honour in determining what weight was given, if any was given, to Mrs Page’s evidence and tied to the proposition that no attempt was made at all by the appellant to demonstrate that this work was or was not done. Now, as I say, the case depended upon Mrs Page. Without it, it failed. There was enough material for his Honour to properly reach a conclusion that he did about her credit and he had an overwhelmingly better advantage of observing her for four days in the witness box than this court did or the Court of Appeal did.

Even if you accept the proposition that her evidence should be discarded, that there was another body of evidence which was inherently probable of the fraud that you can point to to say that he should not have taken that course. It is not sensibly submitted, and it cannot be sensibly submitted, that the case could have succeeded without Mrs Page.

KIRBY J: Mr Jackson says he can present the case setting aside Mrs Page.

MR TONER: That is because he has these ‑ ‑ ‑

KIRBY J: Or at least to the point that you were obliged to answer it.

MR TONER: All he has without Mrs Page is an assertion that these people did not work for Earthline or Nuline. He does not have any evidence, if Mrs Page’s evidence is set aside, to prove how their names got to be on these dockets and how that was a badge of fraud.

KIRBY J: That is not quite true. He has evidence of claims made when equipment was under repair; he has evidence of large numbers of false names of employees and large numbers of duplicated claims, claims being made for the same equipment at the time at which another docket was in for the very same equipment, the same place, same operator.

MR TONER: He has 157 duplications or under repair out of 18,000 dockets.

HAYNE J: Does he also have names on dockets that are not to be found in wage records tendered in evidence?

MR TONER: Yes.

HAYNE J: Does he have plant numbers not to be found in records of the defendants that were tendered in evidence?

MR TONER: Leaving aside the subcontractor machines, I think there is one, namely, tipper 59. When one analyses the material, the plant records - I suppose if one can go to a discrete list and say that this is Earthline’s or Nuline’s plant hire list - they have been plucked from various sources including depreciation schedules and workshop lists and the like. There is no discrete list of Earthline’s ‑ ‑ ‑

HAYNE J: I understand that. Does he also have apparent duplication of operator names and plant equipment?

MR TONER: Yes. He has the same numbers being on different sites or the same sites and he has the same name working on two different sites at the same time.

HAYNE J: Does any of that material depend on Mrs Page’s evidence?

MR TONER: No. I qualify that. In part it does because it depends upon the proposition as to whether that was a relevant consideration on the day docket. The SRA’s own procedures did not require it and demonstrably the fact that there are many dockets that have no plant hire number on them or no name of an operator on them which were paid demonstrates that it was not necessary.

HAYNE J: I think I understand the relevance argument that you make but, taking the matters that I have mentioned, are they matters that bear upon whether Mrs Page should be accepted in her evidence and if they are, did the judge deal with them?

MR TONER: Well, in terms of the first question, they are not of themselves dependent upon Mrs Page’s evidence. As to the second question, the proposition becomes whether they of themselves could demonstrate a prima facie case ‑ ‑ ‑

HAYNE J: No, that is not my question. I am obviously not making myself plain. My question was whether the matters I have mentioned are matters that are properly taken to account in assessing whether Mrs Page is a witness of truth. If they are, did the judge deal with them in making that assessment?

MR TONER: No. I am sorry, they are not matters which go to the question of whether Mrs Page is ‑ ‑ ‑

GAUDRON J: Why not? In the ordinary sense of corroborative evidence, they corroborated.

MR TONER: Because it is self-fulfilling.

GAUDRON J: Well, it is not self-fulfilling. They tend to make it inherently more likely that she is telling the truth than otherwise.

MR TONER: Except if you wish to ‑ ‑ ‑

GAUDRON J: And particularly when you take those aspects upon which she was not cross-examined.

MR TONER: You could have said, for instance, that the site shown on the particular day docket might be a badge of fraud and analyse the material that way. It is simply because you categorise the particular docket in a certain way that gives it that badge, not because of something inherent about the document itself. You must necessarily then compare it with what was required of the contractor.

GAUDRON J: That is your relevance argument. If you assume for the moment that the documentary evidence is corroborative of Mrs Page’s account, you then come to the other part of Justice Hayne’s question, “Was it taken into account; why not?”

MR TONER: Well, can I say this, that of itself it is not corroborative of Mrs Page’s account because her assertion was that she would put certain machine numbers on particular dockets and she would put fictitious names on the day docket herself or a person who did not do the work as claimed in the day docket. She gave no evidence at all, sorry, in her affidavit, about deliberately duplicating dockets, or deliberately, either as to machine number or operator’s name. She simply gave evidence of completing the dockets. Now, whether there were duplications or not, does not have the tendency of corroborating what she asserts, namely, that the fictitious name on the docket bespeaks of fictitious invoice - a fraudulent invoice. So, the duplications, of themselves, do not corroborate her, nor did she say anything in her evidence about them.

GAUDRON J: But she spoke of a system upon which she was not cross‑examined which involved dockets being signed in advance, dockets not being checked.

MR TONER: Or dockets being checked quickly.

GAUDRON J: Yes, or in an other than thorough manner. And you take that and then you take the apparent inconsistencies thrown up by the dockets and surely that corroborates, that lends weight to the inference which is sought to be drawn from her evidence - and do not forget this is an inference case - that there was deliberate fraud.

MR TONER: But it is entirely consistent also with her alternative explanation that was adduced during cross‑examination in relation to a number of these machines, namely, that the only thing on the docket that was false was the name.

GAUDRON J: But the question is - well that is one version of the cross‑examination and it may be necessary to come to that. You accept do you, in answer to Justice Hayne, that the trial judge did not take that material into account in determining matters going to her credibility?

MR TONER: Yes.

GAUDRON J: And you say “should not have”?

MR TONER: Should not have, because ‑ ‑ ‑

GAUDRON J: Or “need not have”?

MR TONER: Either of those.

GAUDRON J: Because, why?

MR TONER: They were irrelevant, and it was not required by the State Rail Authority in its case. If the State Rail Authority cared to mount its case, predicated on the proposition that you could demonstrate a fraudulent day docket by the fact that there was a fictitious name in the operator’s space, if they chose to do it that way, and when that case collapsed, which it did in significant part, and it collapsed because of what was asked of Mrs Page during the course of her cross‑examination, that is their problem. They made their bed, they must lie in it and continue to lie in it. That is the case they mounted. So that it becomes a bootstraps operation, with respect, to now say that albeit that it can be clearly demonstrated that it was not a relevant consideration for the appellants to have the name, or any name ‑ ‑ ‑

GAUDRON J: It may not be a relevant consideration to liability but is it not a relevant consideration to credit?

GUMMOW J: That is the point.

GAUDRON J: Yes, and that is what we ‑ ‑ ‑

MR TONER: No, I am sorry. It goes as far as this: as I said before, we do not cavil with the proposition that large numbers of these dockets have a fictitious name on them, or at least the name of a person who was not the plant operator. We do not cavil with that proposition. We do not test Mrs Page’s credit on that question. What we test Mrs Page’s credit on, and what the trial judge did, was whether she was telling the truth about whether the work was done or not. This is a claim for repayment of moneys. It is not a claim for some declaration to say that the appellants were trying to trick the State Rail Authority by putting a false name on the docket. It is whether the work was done or not.

KIRBY J: Yes, but the work was done on a contract for hire at an hourly rate. Therefore, indicia of accuracy are important and therefore when you have very large numbers of false names and other factors, you really are called upon to do more than analyse whether you accept a particular witness.

MR TONER: Except the dockets were completed after the hiring or the work had been done and the reality was that what was being certified was the work that was being done by these particular machines, albeit that it was described by a number of hours at a particular site. It is whether that machine was on that site for those particular hours. Mr Vincent tells us that and it jumps out at you from all the documents that it was not as though there was a premeditation, so to speak, in relation to each docket as to what was going to be on it regardless of what happened. Once the work was done, that is what was being certified. In other words, if that machine was on site doing that work for the given period of time as shown on the docket.

CALLINAN J: Where does Mr Vincent say that?

MR TONER: It was about him certifying - excuse me for a moment, your Honour. It is volume 4, page 589, Mr Vincent’s affidavit.

CALLINAN J: Yes.

MR TONER: Around lines 8 to 12, I think it is. I think we were taken to that by my friend. I am sorry, it is a little earlier than that, the bottom of page 588, paragraph 8 starting at about line 28 and at the top of page 589 what was being certified was:

the type of work undertaken, the time of commencement and completion of the hire for the day and the total hours of the hire for the day.

CALLINAN J: I do not read that as saying that the certification was done upon the basis of the quality of work that was done.

MR TONER: Or the hours of work or the hours that a machine was on site.

CALLINAN J: It says a bit more than that, does it not?

GAUDRON J: The hours the machine worked on site.

MR TONER: That is what was being certified.

KIRBY J: That is what the contract provided.

MR TONER: Yes.

HAYNE J: And that, I think, does appear at lines 8 to 10 on 589, does it not:

After the site supervisor or engineer had satisfied himself that the contents of the hire docket were accurate ‑ ‑ ‑

MR TONER: In other words, the hours, the type of machine on the site. I do not know, the rate was inserted separately.

CALLINAN J: I do not read that - let me tell you what my problem is. I do not read that as saying that certification was done because a certain amount of work was done and that the parties, as it were, abandoned the contract and thereafter paid on the basis of the quantity of work done rather than on the basis of actual hours worked on a certain machine by a certain employee at a certain location.

MR TONER: I think the second formulation is in fact what happened, and that is what I think has in fact been certified, whether it be by Greber, Bell or Child or any one of the State Rail Authority employees.

CALLINAN J: But we know that some of the machines could not and were not working on a particular site and that some of the employees were not working on that particular machine.

MR TONER: We know that the ‑ ‑ ‑

CALLINAN J: So the certifications would seem to be defective in that regard.

MR TONER: Well, it depends what they are certifying.

CALLINAN J: They have to certify what the contract says at page 610, do they not?

MR TONER: Yes.

CALLINAN J: I mean certify something to give effect to that. If you look at clause 3.1, there is an “A” rate, which I take it to be the usual rate, an hourly rate. It has nothing to do with the quantity of work. That is the point I think that was being made yesterday and it is the point that concerns me.

MR TONER: Can I just say in relation to that particular document that I think it is the only example of it in the evidence. There are no other contracts like that I can think of in evidence at all. This one is in blank of course because it is attached to the procedure. While we have the procedure before us, at page 607 of volume 4 there is the operative part of the relevant instruction, namely, AP 8501, and I think it is at line 12 or 13, 4.3.3. This reflects broadly the reality of what was going on:

Develop your own system (or use a local standard system if your Field Controlling Officer wants it) for keeping accurate details of hours worked ‑ ‑ ‑

CALLINAN J: But that is the important thing, is it not: “for keeping accurate details of hours worked”?

MR TONER: Quite.

CALLINAN J: But then it goes on, “time machine was off-hired”. It is clearly a reference to the time that an actual machine worked and not to the quantity of work that was done either by that machine or some other machine.

MR TONER: Your Honour, it is my submission that what that requires is certification of the actual work done by that actual machine.

CALLINAN J: You go as far as to submit that the relevant consideration was actually work done?

MR TONER: Yes.

CALLINAN J: But say you had struck rock or something and you did not move some notional quantity that you say the appellant had in mind. You still would have expected to have been paid for the hours worked and not for the actual amount of rock that was or was not shifted.

MR TONER: I think I can say this fairly, your Honour. There were what were called “A” and “B” rates. The “A” rate applied when the machine was actually working and the “B” rate applied when the machine was ‑ ‑ ‑

GUMMOW J: That follows from clause 3 at page 610. As Justice Callinan pointed out to you, 3.1 is the “A” rate and 3.2 is the “B” rate.

MR TONER: Yes, but in fact in this instance the “A” and “B” rate of Earthline and Nuline was the same.

CALLINAN J: No, because 3.2 is not concerned with the sort of situation that I put to you; it is concerned, I think, with down time for wet weather or other circumstances beyond the control of the parties.

MR TONER: It may well be if they hit rock.

CALLINAN J: Surely not. It says “when rendered idle”.

MR TONER: Yes.

CALLINAN J: It is not idle when it is trying to move rock. It just might not be moved. Really, Mr Toner.

MR TONER: But if a particular piece of machinery cannot be worked because of something beyond the contractor’s control then the “B” rate applies and the “B” rate, in this instance, happened to be the same as the “A” rate, so it was impossible to distinguish one with the other.

GUMMOW J: Is there evidence of that?

MR TONER: Yes, your Honour. I think it is in Mrs Page’s evidence. I will dig it up but I do not think it is a matter of controversy.

GUMMOW J: No. I just want to know the evidence, that is all.

MR TONER: Of course, your Honour. So, my submission is that 4.3.3 at 607 being A.P. 8501, the operative part of it, is a more realistic reflection of what in fact went on in relation to the hire of these machines rather than a minute examination of the hiring contract which is annexed to it. In other words, make do as best you can.

CALLINAN J: But, no, no, it does not. Look, it does not say that, it requires the “keeping accurate details of hours worked”, “time machine was off‑hired” ‑ ‑ ‑

KIRBY J: Which is unsurprising, given the nature of the contract.

MR TONER: Of course. Of course, I accept that.

KIRBY J: And the susceptibility of the contract to fraud.

MR TONER: That is like a propensity argument, a tendency in a contract so loosely drawn to induce fraud.

KIRBY J: I am very cautious of propensity arguments.

MR TONER: Yes.

KIRBY J: But, just - I mean, the Auditor-General - these are public funds so that there is a need to expend them accurately and properly.

MR TONER: Quite. And, can I pick that point up this way, that you saw in Mr Vincent’s affidavit that there was a system of approval for particular jobs which went off to head office, then an amount of money was allocated to a task and a document called a “form 1” was created. An example of that is in volume 10 at 1746 and 47. You see, your Honours, on the first page of that document, namely 1746, you see that it relates to a particular site, it is given a charge number, the name of the contractor is nominated, various pieces of plant - well, items of hire are various and an amount of money is allocated to it and a local order number is allocated to this particular private plant hire. Now, over the page, which is the reverse of the document, you can see how the system operated, namely, at the top is the sum of $155,000 which is the sum allocated for the particular site, invoices come in and that sum is in reduction as each item is paid.

Now, some interesting features of this particular page of the document, namely, it is apparent from it that machine numbers were broadly irrelevant because at least four of the items of plant and equipment nominated on it have no machine number at all. So that here you have an allocation of funds, invoices come in in relation to a particular job and, no doubt, it eventually reduces to nought. Now, we are invited to say that this massive fraud was perpetrated in the face of such a system, namely, that you have got a claim being made for some $2.7 million of $8 million which was eight point something or other million dollars which was paid to Earthline and yet even the simplest and most obvious system such as this does not reveal it, nor did the appellant try to demonstrate its case supported by that.

GAUDRON J: Well, that was - again, but that is not the basis on which the trial judge reached his conclusion.

MR TONER: The trial judge made some substantial comment about the failure of the State Rail Authority to prove that the work was not done and he also made some comment about the failure of the appellant to call any of the people who were witnesses in fact to that or who were witnesses to the procedures that were adopted by the State Rail Authority to control their accounts.

KIRBY J: Did you, in your case, ever suggest, by evidence or by cross‑examination or suggestion, or even the raising of an eyebrow, a reason why Mrs Page should tell these vicious lies, and why two other employees should take part in a similar sort of fabrication, cruel, wrong, wicked, against their former employers.

MR TONER: Well, we do not suggest, and nor did we suggest at trial, that Mrs Meek and Ms Packham were telling lies. We just say that their evidence does not go to the direct proposition, namely that these were

fraudulent claims. All it does is give evidence that they were in fact filling out these forms. And as I said to the Court earlier, that their ‑ ‑ ‑

HAYNE J: And in the case of Mrs Page?

MR TONER: No, Mrs Meek and Ms Packham, I am sorry, your Honour.

HAYNE J: I understand that. What is the answer to Justice Kirby’s question about Mrs Page?

MR TONER: Well, a motive was never put to her.

KIRBY J: Well, what could possibly be the motive?

MR TONER: Well, I can speculate, your Honour, but that will not assist.

HAYNE J: You did not invite the judge to speculate or put any question to her about why she should lie.

MR TONER: Other than ‑ ‑ ‑

KIRBY J: Given that she was involving herself in a serious fraud.

MR TONER: Well, I suspect that she thought she was indemnified.

KIRBY J: Yes, but that explains why she would be courageous with her lies, but it does not explain why she would tell them in the first place.

MR TONER: Oh well, all I can say is she was dismissed, but once again, that was not put to her as a motive.

CALLINAN J: I thought his Honour did impute a motive to her.

MR TONER: Well, I think that is as high as it gets, I think, that his Honour suggested that he ‑ ‑ ‑

CALLINAN J: And it was - it related to the indemnity, I think, I just cannot find it at the moment.

HAYNE J: And that is a motive you did not put. The judge imputes one.

MR TONER: No. Yes, I ‑ ‑ ‑

KIRBY J: And it cannot be a motive for telling the stories in the first place, because the stories have to be told before you negotiate an indemnity. So the question is anterior, why would she tell these false stories.

MR TONER: Well, I suppose, as it has been suggested, to attract the full benefit of the indemnity that she had been given.

KIRBY J: No, no, that is posterior. Anterior to an indemnity is somebody coming along and saying, “Look here, I have this on my conscience, these were wrong actions”.

MR TONER: Well, “I am prepared to tell all, if you indemnify me against my liability”. In other words, “I see myself as potentially liable, for whatever reason. You indemnify me, and I will tell you a story.”

KIRBY J: But that is on an assumption she has a liability.

MR TONER: I suppose. But ‑ ‑ ‑

KIRBY J: I mean, people do tell false stories, and therefore the fact is that you cannot assume, just because somebody tells a story, that it is true, and so ‑ ‑ ‑

MR TONER: Well, indeed, indeed.

KIRBY J: But when you get a measure of corroboration from dockets and systems, when you get a measure of corroboration from other witness, and when some of the dockets tend to add to the credence of the credibility of the witness, and that is not really weighed, and when you get nothing at all from your camp, then really it calls for something more than just the demolition of a particular witness’s credibility on a particular set of dockets.

MR TONER: Well, except, if her evidence in its totality produces an uneasiness in the trial judge, regardless of what available corroboration there might be, and in this instance, the corroboration is, in large part, a boot-straps proposition, and, namely, what is asserted as being corroborative, namely, for instance, the evidence of Meek and Packham, is derivative upon Mrs Page’s evidence by itself, and further, what is also said to be corroborative of it, namely, this question of the false name or the machine number being on the docket, is, of course, at the essence of her evidence. She is the one that asserts it as being a relevant proposition.

So that there is, once again, a circularity about the corroboration which depends entirely upon Mrs Page. Each time you look for corroboration, the corroboration itself springs from Mrs Page’s evidence. That is not corroboration, with respect, your Honour. That is just an aspect of Mrs Page’s evidence. So that I go back to my basic point, if there was material upon which his Honour could reasonably reject Mrs Page’s evidence, he does not have to test every piece of her evidence before he comes to a conclusion that he is going to reject her evidence. All the cases that are cited by my friend include a qualification such as that or inherent in the assertions are such a qualification. And that must be so. This is not a Holman v Holman Case where the trial judge, the primary judge, found it inherently unlikely that a marriage would not be consummated on the wedding night.

HAYNE J: Did you, in final addresses, contend that Mrs Page should not be believed because she was mistaken or because she was telling deliberate untruths?

MR TONER: Well, it does not matter very much, your Honour, because - I am sorry, I do not recall what I put in the course of final addresses, but it does not matter much.

GUMMOW J: It makes a big difference to Mrs Page.

MR TONER: Well, maybe to her, but she is not a party to the litigation. It is about the reliability of her evidence. Now, whether she is telling lies, or whether she is mistaken, or whether she is confused, does not make much difference to the reliability of the evidence that she gives.

CALLINAN J: She is just a civilian casualty.

MR TONER: Well, that is a familiar entity in civil litigation and criminal litigation, unfortunately.

GUMMOW J: Now, page 1746, what is the significance of that document which was exhibit 3, which was tendered at page 256? There is oral evidence about it through Mr Vincent at 256.

MR TONER: This is one of the documents that was created in the train of approval from the State Rail Authority which evidenced an approval for particular works as described on the docket. On the reverse side, there was a calculation as to how those moneys were expended in reduction.

GUMMOW J: So 1747 is the reverse of ‑ ‑ ‑

MR TONER: Yes, your Honour.

GAUDRON J: This document was prepared in head office?

MR TONER: Either head office or one of the central offices. It might have been at Newcastle ‑ ‑ ‑

GAUDRON J: Prepared from the certified dockets that had been attached to invoices and submitted?

MR TONER: No. This document springs from the approval itself.

GAUDRON J: Of the invoice?

MR TONER: No, of the approval of moneys to be expended in relation to a particular piece of work.

GUMMOW J: Well, one had better look at bottom of 256, I think, in volume 1, line 30.

MR TONER: Page 256, your Honour?

GUMMOW J: Yes, volume 1, 256. I am sorry, volume 2, I misled you. Then going over to 257 line 10:

It is a mechanism whereby the invoices from contractors are reconciled against -

something called a local purchase order.

CALLINAN J: Decentralisation arrangement, I think, which was instituted about halfway through the contract.

MR TONER: I think that this docket, as your Honour rightly observes, is tendered at 256 line 31, I think.

GUMMOW J: Yes.

MR TONER: Well, I think his explanation for it is at 256 line 33, or thereabouts, over the page to 257 line 3.

GUMMOW J: It goes on, does it not?

MR TONER:

It is a document that is used either by the plant clerk of somebody in the finance area when the dockets come in and are ultimately certified with the invoice. This is retained on the file.

GUMMOW J: Yes, line 10, keep going:

It is a mechanism whereby the invoices from contractors are reconciled ‑ ‑ ‑

MR TONER: Yes.

GUMMOW J: What is the significance of it now?

MR TONER: It is the way in which they tracked expenditure of moneys that were approved for a particular task. In other words, in this instance, the sum of - you will see at 1746, that the sum of $155,000 is a proposed expenditure on this particular company’s work at a particular site, and over the page the expenditure is recorded.

As Mr Vincent points out in his affidavit, the procedure was that the engineers would go and look at a site and make an estimate as to the works that were required. This always has to be borne in mind, it was not Earthline’s idea to - Earthline did not initiate the hiring to the State Rail Authority. The State Rail Authority instigated the hiring from Earthline.

KIRBY J: Yes, but on an honours contract for a set fee for particular equipment identified and certified at the particular time.

MR TONER: But all of these claims, every one of claims which is said to be fictitious specify, with precision, work done on a particular date at a particular site, undertaking particular tasks and being a particular type of plant and equipment. Where the SRA had, prior to the job commencing, no doubt done an estimate as to what was required to fulfil the job. It was the SRA that hired the equipment. It was not Earthline who was pressing the equipment upon them.

KIRBY J: Well, I suppose in the end, we do not have to, as it were, retry the facts and it is your argument that we should not even attempt to do so, but if we feel at the end of the argument that the Court of Appeal has not approached its function and that the trial judge has not approached his function in the correct way, then that obligation will fall to somebody down the line. Now, I interrupted you when you were going to plunge into the facts and we showed saintly patience yesterday with Mr Jackson as he did so, and I do not want to take you from, as it were, your detailed answer to what he said. But, at some stage, I think you are going to have to concentrate on what the Court of Appeal did, because they are the ones under our review, and demonstrate whether or not what they did is acceptable by appellate review standards according to law.

MR TONER: Well, I think I dealt with it, to some extent, in my written submissions and it would be otiose just to simply stand up and read it out to you. But can I say this about them, albeit that they dealt with it in a fairly shorthand way - I think I might have said this earlier today - when they come to the same conclusion as the trial judge after having undertaken their own analysis of the evidence, it is not incumbent upon them to then go through the process of setting out what is, in essence, the trial judge’s logic in coming to a conclusion. If they accept his conclusions or, alternatively, if they accept that those were conclusions to which he could reasonably come and properly come, it is not incumbent upon the Court of Appeal then to undertake a separate analysis as to how the trial judge came to that conclusion, albeit that their task under section 75A is to look at the evidence and come to their own conclusions about it at ‑ ‑ ‑

KIRBY J: On a rehearing.

MR TONER: On a rehearing.

KIRBY J: The section talks of a rehearing, does it not?

MR TONER: Yes, that is right.

KIRBY J: So it is a rehearing with a disadvantage but it still a rehearing; an appeal by way of rehearing.

MR TONER: And they did that, and they have said that they had done that. They have said that they have undertaken their own analysis of the evidence and they have said that they have come to ‑ ‑ ‑

KIRBY J: One gets a bit of an impression that they saw the words “credibility” and then the drawbridge went up.

MR TONER: But, no doubt - - -

KIRBY J: If am wrong on that, you had better take us and show us that they did not take that approach, because that is the impression I have from their Honours.

MR TONER: They certainly said that they agreed with the proposition that the trial judge - or broadly agreed with the proposition that the trial judge was in an immeasurably better position than they were to judge the credit of Mrs Page. However - - -

KIRBY J: I really interrupted you to ask you your theory of the case so it may be more efficient if, having expounded your theory, you went back to your own course of presenting the case.

MR TONER: I think I came around to what I was going to say in any event.

KIRBY J: I hope I did not disturb the presentation of the matter too much.

MR TONER: My submissions in relation to the approach taken by the Court of Appeal commence at page 14 and in volume 1 page 195 line 13, for instance, the President said there that he came to the same conclusion about Mrs Page’s evidence as had the trial judge and this had been done where on pages 193, 194 he had undertaken an independent examination of her evidence. How else is he to express his opinion if it coincides with that of the primary judge, other than that?

KIRBY J: The suggestion is that he should have responded to the submissions that were put that paid no account or no sufficient account to the objective documentary evidence and that really is not done. Now, it is true that a judge does not have to go through every submission and every docket. That would be horrendous to impose that obligation, but the suggestion is that the broad parameters of the submissions which were made to this Court yesterday were the same as those made to the Court of Appeal and yet they were not really dealt with. The documentary side of the case which was additional to, different from, and testing of, the evidence of Mrs Page was not really dealt with.

MR TONER: They had apparently read the evidence of Mrs Page, both in its affidavit form and her oral evidence and come to the same conclusion about it as the trial judge. My learned friends may well have expressed it in a few more pages but, nonetheless, it comes to that same conclusion. To an extent it is asking the Court to tediously repeat a ‑ ‑ ‑

KIRBY J: But do you agree that the same submissions were put to the Court of Appeal as were put to us yesterday, that the broad parameters of the outline of the SRA’s case before that court was the same as was presented to this Court?

MR TONER: I do not think they have ever changed. Submissions have been the same.

KIRBY J: On that basis, was it not incumbent on the Court of Appeal to, at least, respond to the argument that the documentary evidence add credence to Mrs Page, was additional to what she said and provided an alternative and corroborative basis of supporting her evidence which had no apparent explanation for falsity. It would seem to me that it would, at least, have to be dealt with and to some extent Justice Handley does deal with it.

MR TONER: He does.

KIRBY J: But Justice Mahoney does not.

MR TONER: Except for this: albeit that his reasons are not prolix, he does say at page 197, line 5 and following - he describes that he has undertaken an analysis of the documentary case himself. That analysis goes from page 197, line 5 to page 198, line 7. At page 198 commencing at about line 4:

There are enough matters of substance supporting the judges analysis of the documents and the use of them in the exhibits to warrant the conclusion that they should not satisfy the court of the falsity of the claims impugned.

That is a conclusion that he reaches after his own analysis of the documentary case. In other words, what is asserted and has always been asserted has been corroborative of Mrs Page’s evidence. So that task has been done by the Court of Appeal concordant with its obligations. Albeit that it did not deal with it in 50 pages, it is not necessarily to say that they did not do it.

KIRBY J: It is not 50 pages; it is not dealt with at all. His Honour, as it were, excuses himself from doing it because, without disrespect to the industry of counsel, he is in general agreement but does not say where he is not in agreement and he just, as it were - it is a very broad brush. I am not asking for prolixity but I think a party is entitled to ask that its arguments be sufficiently dealt with that indicates that the Court of Appeal on its rehearing has turned its attention to the submissions that are made to it.

MR TONER: But the adequacy or inadequacy of reasons is not the basis of the appeal here. The basis of the appeal here is in essence whether the primary judge was entitled to reject Mrs Page’s evidence.

KIRBY J: Yes, but what is in issue here is whether the appellate court performed its function correctly.

MR TONER: Quite, and it is my submission that within that ‑ ‑ ‑

KIRBY J: That is what attracted special leave to what was otherwise a rather unpromising case full of facts.

MR TONER: Yes. In my submission, if one is analysing the Court of Appeal’s judgment in that context, then they have given both sufficient reasons and, further, demonstrated sufficient cause as to why they ought not disturb the trial judge’s findings in relation to Mrs Page, and they have fulfilled that task.

HAYNE J: Might I come back to what may perhaps underpin some at least of the reasons of their Honours in the Court of Appeal and put it to you for your comment. It seems to me that an argument that was of significance to their Honours was as follows: certain physical works were to be done and were done. Estimates were made of how much equipment hire would be needed for that work and the amount estimated was not exceeded; therefore, it is unlikely that false hire claims were made. Firstly, is that a chain of reasoning that you would say underlies the Court of Appeal’s judgment?

MR TONER: I would not have pitched it up quite as high as that. It is an aspect of the evidence to be taken into account.

HAYNE J: But no more than that?

MR TONER: No more than that.

KIRBY J: I think you have advanced a similar argument by saying if it had been such a big fraud, you would have thought somebody on the ground would have noticed it. I think you opened with something of that kind.

MR TONER: I did. But, that went to the point about it was or was not called by the State Rail Authority, particularly given the way that they chose to prove their case, namely, indirectly, rather than by direct evidence as to whether this work was or was not done.

HAYNE J: If the matter that we have just identified was one matter to be taken into account, assumedly it was a matter to be taken into account in assessing the credibility of Mrs Page’s story, is that right?

MR TONER: Well, it goes to the question of was there material available to corroborate Mrs Page.

HAYNE J: I do not understand that, I am sorry.

MR TONER: Well, I do not submit to this Court or agree with the proposition that there was a necessary nexus between the two things, namely, whether Mrs Page’s evidence is believable or not or whether the work has been done. It was available to the State Rail Authority, had they the evidence to show it but to corroborate Mrs Page we could demonstrate that a lot of this work simply was not done but it does not go to the question of whether Mrs Page is believed, per se.

HAYNE J: Yes, thank you.

GUMMOW J: Well, Justice Handley starts off at page 201, line 6, talking about work not being done. At line 14 on 201 he talks about “work dockets” then over at 210, line 29, he talks about “disputed work”. Then he says:

However, the authority had paid for that work.

Etcetera, etcetera. That seems to suggest - and if one goes over, also, to 211, line 14:

paid by mistake for work that had not been done.

That seems to suggest an approach that Justice Hayne was indicating to you.

MR TONER: It is an approach to be taken to it but ‑ ‑ ‑

HAYNE J: The knife in the napkin, so that you see it and deal with it is this, that if that was the approach which the Court of Appeal took and if your submission is that it is but one matter that might be taken into account it might be said to follow that their Honours have not taken into account all matters that bore upon the question.

MR TONER: Except that it is a way of testing Mrs Page’s evidence. In other words, looking at the size of the claims and the size of the alleged fraud and making the calculations that were done - I think particularly by Justice Handley - is a way of testing Mrs Page’s evidence. My friends say that the documentary case is corroborative of Mrs Page’s assertion. Now, it is sauce for the goose and gander and it is also our position that the documentary case is in fact contrary to Mrs Page’s assertions - Mrs Page’s evidence in-chief. And, one of the ways of looking at it is the way that Justice Handley has in an analysis of the claim and what he has said between pages 210 to 211 and that is in the context, of course, of that example of the evidence that I took the Court to yesterday where she has turned 180 degrees on her assertion in her affidavit. The references to her other turnings are contained both in my submissions and I think in the lists that was generated by my friend.

But when one is looking for support for the primary judge’s conclusions in relation to her evidence a way of testing that is what Mr Justice Handley has done and outlined in pages 210, and 211.

Additionally to the primary judge’s analysis of how he reached his conclusions about Mrs Page’s evidence, he undertook an alternative analysis, namely, a machine by machine analysis and reached a conclusion in relation to each one of the machines under which claims were made, andalbeit that interlinked with that analysis was Mrs Page’s evidence, he demonstrated an alternative basis as to why he ought reject the claims he rejected. Now I have alluded to that in the submissions, so that by itself was a proper basis for his Honour to reject the SRA’s claim in any event. Albeit, as I say ‑ ‑ ‑

KIRBY J: You have not dealt with the evidence of Ms Packham and Mrs Meek.

MR TONER: I am sorry. Could I just say this, in my written submissions at pages ‑ ‑ ‑

KIRBY J: No questions were asked of them to suggest that they were telling lies?

MR TONER: No, and nor were any needed. I am sorry, that is too easy. It was not suggested that they were telling lies, your Honour. What is suggested, one has to look at the evidence that they gave. Could I take you to the affidavits of each of them. I think the first is Mrs Meek at volume 4, page 725. In paragraph 3 of her affidavit which is at 726, commencing at line 4, she says what her original duties were.

GUMMOW J: Her occupation was tax consultant.

MR TONER: As at the time of giving evidence, her occupation was tax consultant. I do not know whether one can draw an inference from that, favourable or unfavourable, your Honour. I think something was put to it ‑ ‑ ‑

KIRBY J: If they are tax agents, they can be delicensed if they do bad things.

MR TONER: Her fame and character was not brought into account in this case. Can I say in relation to her evidence, it was the tenor of her evidence that her functions were entirely clerical at the head office of Earthline in the Hunter Valley. She never visited a site. She was producing both day dockets and invoices from lists that were - or the day dockets from lists that were provided to her, and she was producing invoices by batching the day dockets. That was her job. It is not the appellant’s case that you distinguish the tasks that she performed between those which are asserted to be legitimate claims, or illegitimate claims. The reason why her evidence does not, of itself, bespeak fraud is because she does not assert it.

CALLINAN J: What about page 728, paragraph 11?

MR TONER: I suppose my submission in relation to that is that it is consistent entirely with our principal submission, namely that the names were irrelevant. Any old name was put on it. Who cared. It was not relevant for payment so any name could be put on it. Mrs Page, for instance, in her evidence, said that when she was driving a dump truck she did not fill out the dockets for the work that she did when she was driving a dump truck. This was all done down at head office and, once again, what was being put on the dockets was the work or the hiring that was claimed for. So that whether a person has writer’s cramp or not filling out the large numbers of dockets, it is true that large numbers of dockets were completed but overwhelmingly, they represented a claim for which there was no question a legitimate claim was being made.

When one goes through Mrs Meek’s affidavit she simply describes a clerical system whereby she completed dockets and batched them and completed invoices which were submitted to the State Rail Authority for payment.

CALLINAN J: What about paragraph 10? She says that she observed Ms Packham completing docket books for a couple of hours almost every day:

I recall.....Ms Packham signing the plant hire dockets in the space for the operator’s signature.

MR TONER: Quite.

CALLINAN J: Well, that is false, is it not?

MR TONER: It is false in terms of the operator’s signature but as has been ‑ ‑ ‑

CALLINAN J: How could you have any confidence in the records at all if they were false to that extent at least.?

MR TONER: It depends on what is required. It depends on what is being certified. If Mickey Mouse’s name was put on there it would make no difference one way or other to a legitimate claim for plant hire. If a particular machine was hired between given hours at a particular site on a particular day and that was what was contained on the docket and that was what what was submitted to the State Rail Authority, and in the space provided for the plant operator was the name “Mickey Mouse” and it is unlikely that Mr Mouse was driving the plant, it does not make the claim false and that is, at the end of the day, what Mrs Page’s evidence devolves into the confusion of. All that Mrs Meek and Ms Packham were doing was the clerical function of filling out dockets for work that was done on distant sites from lists that they were given because, (a) it was more convenient and, (b) no doubt a calmer way of going about it. Bearing in mind that Ms Packham only worked there, I think, for a period of about six weeks in 1991, well after Mrs Page had departed the scene.

CALLINAN J: If the operator’s signature was not relevant, why have provision for it on the docket and why trouble to fill it in? Why trouble to put a signature there?

MR TONER: My thesis is that because there is a space there is a tendency to complete it, but it clearly was not relevant because there are numerous examples of dockets with no operator’s name on them being paid and contained within the digestions of - I think exhibit CC and AA both have large numbers of examples of those.

Your Honour Justice Callinan asked a question earlier on about the “A” and “B” rates being the same. The reference for that is at volume 2, page 364, line 15. Does your Honour have that?

CALLINAN J: Yes, thank you.

MR TONER: Can I just conclude my remarks in relation to Ms Packham and Mrs Meek by saying that their evidence is derivative, of itself it does not prove fraud. I am mindful, of course, of the evidence in ‑ ‑ ‑

KIRBY J: It proves at least one fraud and that is in paragraph 14, I think, where it talks about the scheme your client had devised for the avoidance of tax by employees drawing only certain parts of their pay and having that recorded in the books, the suggestion being that they were the kind of people who would not pay too much attention to legal obligations.

MR TONER: That is true, they are in the heavy earthmoving business, your Honour. I suspect that it may well be endemic in contracting work such as that, but I concede that. There is, of course, the question of ‑ ‑ ‑

KIRBY J: That does not touch the particular fraud that is relevant to the claim by SRA against ‑ ‑ ‑

MR TONER: No. But the relevant parts of Mrs Meek and Ms Packham’s evidence - and I will deal with it globally - bearing in mind, of course, that one of them only worked there for six weeks, well after Mrs Page had left the organisation. One is a docket book or docket books being filled out in blank. His Honour dealt with that in the course of his reasons and said that, “Well, it’s sloth, carelessness or ‑ ‑ ‑”,, but did not bespeak fraud. There is no evidence to suggest that those docket books were completed with fictitious machines. Secondly, the speed at which these things were certified was a matter of other concern which is raised in the affidavits of at least one of them.

Well, my submission in relation to that is that these men were - the principal business was in and about earthworks. If there was one book per machine and they were certifying that particular machine on a particular site doing particular work over a period of time, it may well be that they were slothful in not minutely checking each docket, but what they were doing ‑ ‑ ‑

GUMMOW J: Not minutely checking it.

MR TONER: Sorry?

GUMMOW J: You said they were not checking them minutely.

MR TONER: Yes, that is certainly true.

GUMMOW J: It seems to me as if they were fabricating them.

MR TONER: That is what the appellant keeps on asserting. That is how we got here.

KIRBY J: You did not deal with Mrs Meek’s second affidavit.

MR TONER: I am sorry, your Honour - is that in relation to the conversation with Davies?

KIRBY J: Yes, that and other things. It starts at page 372.

HAYNE J: A conversation that in the hands of an uninformed third party might be thought to wear a sinister aspect.

MR TONER: No, your Honour, it is consistent with her doing her job of completing the dockets for legitimate work. On page 732 she is asked:

“Each machine has a specific number. These are the docket books.”

That is a conversation with Mrs Davies, not one of the Davies brothers.

HAYNE J: I had more in mind the conversations at pages 736 and 737.

MR TONER: There is not much I can say about it. It was said and it is of significance. But the only way I can qualify the sting of the words is to submit to this Court that where it was said to particular potential witnesses, it related to the ICAC proceedings rather than the litigation before his Honour. That is the only way I can temper that.

Could I just say one final thing in relation to the subcontractor machines. Mrs Page’s evidence was that the work on the particular sites at which these machines were said to be was done. I will just find the ‑ ‑ ‑

GAUDRON J: That is pregnant with ambiguity, is it not?

MR TONER: Except it goes to this proposition, that Mr Vincent in his evidence told us that the State Rail Authority had attempted an audit of this work to see whether it had or had not been done, which we say is one of the ways in which they could have comfortably corroborated or tended to corroborate Mrs Page’s evidence.

GUMMOW J: It is not a question of whether the work was done, the question is how much was charged for it.

MR TONER: All I can say is that it is within the context of Mr Vincent’s evidence as to what the system was and as to how it came that moneys were allocated to a particular site and how those sums were debited against within the systems of the State Rail Authority. In the context which has pervaded the reasons of both the primary judge and the judges on appeal, you are talking about a fraud which is said to be an enormous percentage of the total amount of work - about a quarter of it. So that Mrs Page’s evidence in relation to the subcontractor machines was that the work was done. She says that those particular invoices are fictitious but the work itself was done. I will just find a reference for that.

CALLINAN J: Mr Toner, could I draw your attention to page 776, Ms Packham’s affidavit, about line 9. Mr Child had signed dockets which had yet to be written out in any respect. It is a little hard to characterise that as other than prima facie fraud, is it not?

MR TONER: Or sloth. Here is a person whose job takes him around earthworks in various parts of the northern line in New South Wales. He is not going to be back for a week so, so he lazily signs a book in advance.

CALLINAN J: But somebody must have made the books available to him in order for him to do that. These were documents that were ultimately going to be submitted by your clients.

MR TONER: Quite, and I think that the evidence was that, at times, Mr Child attended at the office of Earthline in the Hunter Valley to certify the dockets which had been written out there.

CALLINAN J: But your client must have known that Mr Child was countersigning documents before they were in any way filled in.

MR TONER: Yes.

CALLINAN J: Well, why is that not fraud?

MR TONER: Well, because the reason he advances is that he is going to be away for a while, “and here are some dockets that you can complete in my absence”.

CALLINAN J: But that makes your client party, does it not, to a misrepresentation to the person who ultimately is going to be responsible for making payment on behalf of the SRA?

MR TONER: Yes, but it does not make him fraudulent. It means ‑ ‑ ‑

HAYNE J: “Sign the cheque in blank. Don’t worry, I will fill it up accurately”?

MR TONER: And it is. Even Judges of the High Court might have done that, your Honour, given somebody a cheque. They might have given it to their spouse, for instance, or their partner. They might have signed a cheque in blank and said, “I don’t how much this is for, you complete it later on”, or, “I don’t know the proper entity ‑ ‑ ‑

GAUDRON J: Presumably, though, when dealing with their own moneys, and not those of the State.

HAYNE J: Not public moneys.

GAUDRON J: Not public moneys.

CALLINAN J: No Audit Act, Mr Toner, to worry about.

KIRBY J: And with people fully trusted and who are trustworthy and not in multiple, multiple occasions and as a regular course, so that is not a good analogy.

MR TONER: Except for the proposition that there is nothing in the evidence to suggest that these dockets were used for making fraudulent claims. These particular dockets that were signed in advance were made for making fraudulent claims. There is no suggestion that, at the time, for instance, that Mrs Meek or Ms Packham were told, “These documents that you’re filling out are for dummy machines, for fraudulent machines. These dockets that you’re filling out represent work or hiring that never took place”.

GAUDRON J: But we know that there was some fraud, do not we?

MR TONER: Sorry?

GAUDRON J: You see, this is one point, too, that has been overlooked. We know that there was some fraud.

MR TONER: No, your Honour.

GAUDRON J: Yes we do, because the trial judge found it.

MR TONER: Well, no, he did not, your Honour. He found mistake and duplication - he found mistake but not mistake induced by fraud. The areas in which the plaintiff succeeded were mistakes of fact, payments made under a mistake of fact, and there was no suggestion in those findings that those mistakes were induced by a fraud. They were mistakes of fact and payments made under a mistake of fact and the SRA was entitled to recover those moneys. There has been no finding of fraud at all.

GAUDRON J: Well, it seems to me it is a misrepresentation of fact.

MR TONER: But an innocent one.

GAUDRON J: Well, it seems to me hard to categorise as innocent a claim for the same equipment on different sites on the same day.

MR TONER: Well, except for this ‑ ‑ ‑

GAUDRON J: And once you reach that conclusion, you then find it difficult to accept the bona fides of a claim for different equipment but operated by the same person at different sites.

KIRBY J: Justice Gaudron’s question is highlighted by Ms Packham’s evidence at 774, line 25, where she drew this to Mr Davies’ attention:

“I was just writing out this docket and I noticed that I had written out a docket for the same machine for the same hours at a different site for the same day. I must have made a mistake”.
Davies: “No, its right don’t worry about it”.

And this is the claim for daily rates being put in for a contract with the State Authority for the payment of State money. It is a licence to print money, if that is permissible.

MR TONER: Well, it may well be, but it does not ‑ ‑ ‑

HAYNE J: How is that evidence consistent with innocent mistake?

MR TONER: Well, all we submit in relation to that is that his Honour found for the plaintiff on 157 dockets out of 18,000 and that there was no system in relation to those particular matters, that they were diffuse across the range of documentation and that they were not in the same category of what had been asserted by the appellant in this case, namely of a systemic, deliberate, calculated fraud on the part of each of the respondents. They fell differently and his analysis within his judgment is properly founded on the evidence. My learned junior eagerly presses forward a case of Akerhielm v De Mare (1959) AC 789. I do not think it is on our list. I apologise for not putting it on our list, your Honour. On 797 about point 5 on the page this was said - and I think this is a Privy Council case:

There is, in fact, no concurrent finding as to whether or not the representation was true or false. The trial judge found it was false, the Court of Appeal did not decide it because, in any event, they thought it was honestly made.

I am sorry, your Honours, although that was an interesting part of the judgment, at 797 at about point 5 their Honours said:

The onus of proof remains on the plaintiff throughout: the plaintiffs fail if the matter is left in doubt. To prove that the defendants were fraudulent is something more than proving that the statement was false.

Now, that is at the essence of this case.

GAUDRON J: Well, was it not sufficient to prove that it was false?

MR TONER: But what was false?

GAUDRON J: That the hours worked were false.

MR TONER: Well, they did not do that, though.

CALLINAN J: No, that the contents of the dockets were false?

MR TONER: Part of the contents of the docket was false or fictitious rather than false.

KIRBY J: Lots of them, just written out and “Don’t you worry about that”.

MR TONER: Thousands of them had fictitious statements on them but was it relevantly false? Apparently not, according to Mrs Page, in many instances.

GAUDRON J: Before you sit down, Mr Toner, do you have anything to say about costs in the event that you are unsuccessful?

MR TONER: We would ask for a Suitor’s Fund certificate in relation to it, your Honour, if that is ‑ ‑ ‑

GAUDRON J: Well, can we do that?

MR TONER: I do not know if you can.

GAUDRON J: What I was thinking is this: in the event that you were unsuccessful, presumably the costs of the first trial should abide the outcome of any new trial.

MR TONER: Yes.

GAUDRON J: Yes.

KIRBY J: The costs in this Court you would have to pay and the costs in the Court of Appeal, you might have rights there under the Suitor’s Fund Act but we cannot order that, I think.

MR TONER: No, I think that is right, your Honour.

CALLINAN J: Particularly when you made no submission apparently that Mrs Page was - if this were a relevant matter here, you made no submission that Mrs Page was influenced by the availability of an indemnity.

MR TONER: Well, I do make that submission, your Honour, that ‑ ‑ ‑

CALLINAN J: You do?

MR TONER: Yes.

CALLINAN J: And did you make ‑ ‑ ‑

MR TONER: I am sorry, I might have been somewhat convoluted about it. I ought to take your Honour to the evidence in relation to that.

CALLINAN J: I have read the evidence. The other members of the Court may want it; I have seen the evidence.

GAUDRON J: I suppose the relevant question is: what submission was made it the trial, rather than what submission is made here.

MR TONER: I do not remember that. It is a long time ago, your Honour. I will rely on the witness’s defence. It was a long time ago.

GUMMOW J: I thought you had accepted that at the trial you had not urged on his Honour the particular finding he made as to lack of credit with Mrs Page.

MR TONER: Just because counsel through indolence or sloth or oversight does not make a submission does not mean it was not available on the evidence, and it clearly was in relation to Mrs Page’s evidence in relation to what her belief was as to the effect of the indemnity that she has got. She was patently confused in relation to it.

GUMMOW J: Well, for myself, I will proceed on the basis that such a submission was not made to the trial judge.

MR TONER: Was not?

GUMMOW J: Yes.

MR TONER: Well, I cannot answer that question in any other way. Those are my submissions, your Honours.

GAUDRON J: Thank you, Mr Toner.

MR JACKSON: Your Honours, may I deal first with the question of the 64 per cent figure. It appears at page 98 in the primary judge’s reasons in volume 1 and may I take your Honours to it. It is about line 25 and how he arrives at it is by taking the total amount paid of $7.036 million, which is about line 21, deducting the value of the claim in the action which was $2.7 million, then arrives at the figure of 4.271. And then if one takes the 2.7 and compares it with the 4.2, that gives the figure of 64 per cent. Now, of course, in fact 7.036 was a figure which was incorrect. The figure should have been 8.1 million, in fact. Perhaps if I can just give your Honours the figure and I will tell you where your Honours will find it. It is $8,103,559.25.

It can be seen in two places in the Court of Appeal in Justice Mahoney, page 187 line 24 and Justice Handley, page 200 line 32.

KIRBY J: Is this the sum that was sent back to the division to substitute for the judgment or the basis of that sum?

MR JACKSON: No, your Honour, no.

KIRBY J: Has that order been made? In other words, was the judgment corrected or has it all been held pending the appeal to this Court? You will remember that there was a formal setting aside of the order, apparently by agreement, to correct a mathematical mistake in Justice ‑ ‑ ‑

MR JACKSON: I do not think that had anything to do with this, your Honour, with this aspect of it. That was in relation to the aspect on which we succeeded.

KIRBY J: The aspect of?

MR JACKSON: On which we succeeded.

KIRBY J: Yes.

MR JACKSON: All I am saying, your Honour, is that where the primary judge had said the total amount paid to Earthline/Nuline had been seven point something million. That was an error. It should have been the figure of 8.1 million which is at page 187. That has the result that the figures change, of course, and if one takes the 2.7 million from the 8.1 million, the figure one arrives at then is $5,348,597 as being the amount in respect of which we made no claim and if one does similar calculations to those arrived at by the primary judge, the result is that instead of the figure of 64 per cent the figure should be 51.7 per cent.

GAUDRON J: In rough figures, the claim was that one-third of all of the dockets were fraudulent.

MR JACKSON: Yes, your Honour, in fact it is 34.12 per cent. Justice Handley refers to 34 per cent on page 201. Your Honours, what we could say about it, however, of course, is that in a sense there were many dockets, and good things come in small parcels, as it were, and if one just takes, for example, the seven or eight books of 50 dockets that were signed in advance by Mr Bell, as your Honours would have seen at page 704, and if I could just take two of the higher rates that were charged for, one $45 an hour - these figures appear in exhibit CC in volume 7 - if one just takes two of them, $45 an hour, let us say 12 hours a day, amounts to $540 for the day, multiply that by 50, gives you $27,000 for one book on that basis.

If one takes another rate that was there, and not the highest rate, but $115 per hour, multiplies that by 12, one gets $1,380; you multiply that again by 50, you get $69,000. And, your Honours, if one takes either of those figures and multiplies it by eight for the books, the lower figure, the number of books, the lower figure would be $216,000, the higher figure $552,000. Now, the rates, your Honours, go up to $150 an hour for some of the machines and there is one, perhaps wild card, machine referred to there for which the rate was $300, but it appears once or twice. So that, your Honours, one can see that if one assumes, for example, in respect of one machine that in a particular book some of the dockets reflect work done in the sense that the machine was actually there and working, some of them do not, one can easily see how incrementally items which are relatively small individually add up to significant sums. Little fish, as a disgraced police commissioner once said, can be sweet.

Your Honours, if I could go then to a second matter and that is visits by State Rail Authority officers, your Honours, the evidence in relation to that we have put in a document which, perhaps, I could give to your Honours. Your Honours, that is a summary of the evidence and I do not propose to go to the detail of it. Your Honours will see it is a ‑ ‑ ‑

KIRBY J: Can you give a hint as to why you did not call those members of the State Rail Authority staff who could have, as it were, said, “Yes, this was all a terrible mistake”. I suppose they would not want to be acknowledging that they were in default and that they had not conformed, but is that the sort of explanation why you would not have called those witnesses. Mr Toner, you remember, attacked you for that.

MR JACKSON: Your Honour, I cannot give a particular explanation for why they were not called, but to put it in that way does involve some acceptance of the underlying proposition that there was a reason why they should have been. May I say in relation to that that, of course, one did have a situation where one might think that, prima facie, many of the matters in question were ones that would speak for themselves. That is in the case of duplication of persons or duplication of machines at the same time.

In addition to that there was evidence, direct evidence, from Mrs Page and two other people, of various irregularities of a most serious kind. In relation, your Honours, to the case also, one had a situation where one might expect it to be very difficult if one said to a particular officer who had certified documents that were shown to be wrong, “Can you remember what happened in relation to this or that or the other?” because there were very many of them.

If what one was seeking to do, if one looks at it from the other side’s point of view, was to establish a pattern which was unlikely to be detected, then one might think that a way to do it was to have a situation where there were a number of relatively compliant certifiers on the one hand, and on the other hand, where a number of dockets could be slipped through other people who might not be so compliant. Your Honour, if one is looking for explanation I do not know that I can take it beyond that, but that is the situation.

GAUDRON J: Part of your case must have been that those who certified, apart from those who were defendants, were at least deficient in their duties.

MR JACKSON: Yes, your Honour, indeed. Your Honours, the next matter to which I wish to refer is this. In relation to the submissions that were made in the Court of Appeal, I indicated yesterday I would show your Honours where one might find submissions, particularly concerning paragraph 28 of the affidavit of Mrs Page. That is the one in which she deposes that she was told to make up the things for the subcontractors, and then that goes from there to exhibit O which was the document containing exhibits 1 to 10 to her affidavit, I took your Honours to documents yesterday, showing the false invoices.

Now, the document your Honours should have is an extract from the written submissions in the Court of Appeal on our side. Your Honours will see paragraph 36 extracted and then your Honours will see at the bottom of the page numbered 45, a reference to her evidence being corroborated by the completed documents there set out. You will see, also, a reference to exhibit O at the bottom of the last couple of lines of the preceding paragraph at the top of page 45. Also, your Honours, paragraph 37, the last three lines of paragraph 37 and then, your Honours, paragraph 38 refers also to a slightly different matter but takes one again to DMP 1-10.

KIRBY J: These are the written submissions in the Court of Appeal?

MR JACKSON: Yes, your Honour.

KIRBY J: The transcript pages - we do not have the transcript but you assert ‑ ‑ ‑

MR JACKSON: No, I am about to come to that next, your Honour. What I was going to say was that, your Honours, the Court does not have, of course, the transcript of proceedings in the Court of Appeal. I am not certain that every part of the transcript in the Court of Appeal - I am sorry, I am not certain, your Honour, that every part of the argument in the Court of Appeal was actually recorded because there is a note at one point of the time at which the reporters arrived. But what we can do, your Honours, is to leave with the Court a copy of the transcript that we have of the proceedings, and what we have sought to do is to indicate, your Honours, in the document that the Court has, the pages at which discussion will be seen in the argument of matters relating to paragraph 28 of Mrs Page’s affidavit and the fact that there were documents supporting it.

Now, your Honours, I do not wish to say for a moment that on every occasion in the page references we have given one sees the issue put specifically in relation to paragraph 28 but what one sees is sometimes specifically, sometimes globally, the proposition being put by Mr Gyles, no shrinking violet in these matters, with great respect, that the court could see that what she had - if one looked at the documents, that what she had said she did, she did.

KIRBY J: I do not think we could promise to read the transcript in the Court of Appeal. It is pleasure enough to read the transcript in this Court but if you assert that, I suppose for Mr Toner if he wishes to, to seek leave to send in a note disputing it and an issue is refined.

MR JACKSON: Yes, of course, your Honour.

KIRBY J: But it is an horrendous thought that we have got to go and read, not only our own transcripts but those of the Court of Appeal.

MR JACKSON: But, your Honours, if I could just say this, the Court of Appeal had before it, and before the case started, the written submissions in which - and this is a very important issue - in which these submissions are made in the clearest form and, your Honours, this is not some sort of throwaway argument in relation to which the court is not likely to be directed. It was an important thing where the judge in the first place got it wrong and where the Court of Appeal did not refer to it.

Your Honours, may I move then to our learned friend’s submission that it was irrelevant to have the name on the docket. Irrelevant to payment in one sense, perhaps, but why put it on if not to give verisimilitude to the docket. Your Honours, our learned friends also relied upon the observations of Sir Owen Dixon in Briginshaw, in effect, their reference to inexact proofs and so on.

The court has relatively recently dealt with that issue in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 and, your Honours, in the reasons of four members of the Court, at page 171, in the left column, paragraph A:

On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

Then there is a reference, your Honours, to authoritative statements:

often been made to the effect that clear or cogent or strict proof is necessary -

and so on. Then, your Honours, went on to say:

Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception -

and your Honours will then see that proposition referred to. And also, your Honours, one sees at page 172 in the left column, the same proposition put in different words, the second line on the page, and going through to the remainder of that paragraph. Now, your Honours, that is a modern, if I can put it that way, statement of the application of the Briginshaw principle to particular circumstances.

Your Honours, the contention by our learned friends, advanced more than once, that the evidence of Mrs Meek and Ms Packham were derivative on Mrs Page is, in our submission, just not correct. Their evidence was evidence which did not depend on Mrs Page at all, and your Honours have been taken to the relevant passages this morning. May I simply indicate what I am seeking to say about that. One sees Ms Packham’s evidence, for example, or that part of Ms Packham’s evidence, which is at volume 4, page 774, paragraph 9, and also here oral evidence in volume 5 at pages 542 to 543, and page 776, paragraph 12, all of which is her own evidence of matters which involve no reliance at all upon Mrs Page.

Similarly, in the case of Mrs Meek, and may I refer to her evidence, volume 4 page 777 paragraphs 8, 10 and 11 and page 734 paragraphs 7, 8 and 9, and also, your Honours ‑ ‑ ‑

HAYNE J: Sorry, that first reference I fear may be wrong. What was the first one you gave?

MR JACKSON: I think I said 777, perhaps I meant 727. Yes, I am sorry, your Honour, it should have been 727 paragraphs 8, 10 and 11. Also, page 734 paragraphs 7, 8 and 9. May I mention one thing in passing in relation to Mrs Meek’s evidence and it concerns what is at page 737, which was the second threat that was made to her? That, your Honours, occurred in 1993 after the action started. This action started in 1992, and your Honours will see what was said:

If you go to court they will get stuck into you. It will be very hard for you.

KIRBY J: But that could apply in layman’s language to the Independent Commission Against Corruption as well as to a court of civil claim.

MR JACKSON: It could, your Honour, but all I am saying is that in relation to the temporal sequence, there were two threats made by different Davies. In relation to the first one, one may assume, perhaps, that was at a time when only the Independent Commission Against Corruption was involved, but that certainly was not the case at the time - this action had started at the time when the second one was made and whilst it is true to say the word “court” is a term capable of a number of meanings, there was, in fact, a court action in being at that time. Your Honours, could I move then to say that our learned friends said that if one looked at the holes that they made in the evidence of Mrs Page, what it meant was that 690 dockets had been invalidated out of something of the order of 2000 and so.

Of course, the figure - let me say a couple of things about it. The first is that it is not 2,000 or so, the figure actually was 4,215. That appears in volume 7, page 1123. That is the first thing.

GAUDRON J: They are the dockets that were contested?

MR JACKSON: Yes. We claimed on 4,215.

GUMMOW J: 4,215, yes.

MR JACKSON: Yes.

GUMMOW J: While we are on exhibit - this is all part of exhibit CC, is it?

MR JACKSON: Yes.

GUMMOW J: Does this hiring rate appear - you mention $42.

MR JACKSON: Yes, I did, your Honour. I mentioned $45 and $115 and $150, also, I think.

GUMMOW J: Is that in CC?

MR JACKSON: Yes, your Honour, they are. They are in really the first - if one is looking for the 115 you can see it, for example, on page 1167 where the two rates there used - it is about the fourth column from the right, or the fifth column from the right - you see 115 being the dollar rate used with Mr Casildine as the operator. Above that there is a figure of 75. You can see 115, also, on the preceding page, and, your Honour 45 ‑ ‑ ‑

GUMMOW J: Whereabouts on the preceding page?

MR JACKSON: I am sorry, your Honour. On the preceding page which is 1166 you will see about two-thirds of the way down the column two instances of 115.

GUMMOW J: Yes, thank you.

MR JACKSON: Preceded by $70 and $75 and followed by $80 and 75.

GUMMOW J: Yes, thank you.

MR JACKSON: And, your Honours, $45 I think appears - you can see, for example, at the top of page 1161.

GUMMOW J: Yes, thank you.

MR JACKSON: And the $150, which I think I also mentioned, you can see it at page 1185, the bottom third of the page.

GUMMOW J: Thank you.

MR JACKSON: It is the highest apart from a spot, I think, of $300. Your Honours, what I was going to say, if I could just return for a moment to the quantity of dockets that were said to have been invalidated by the attack made on the evidence of Mrs Page, your Honours, that 690 figure is arrived at, of course, only by treating each of the instances in the docket which we handed up as one in which her evidence is treated as being of no effect.

Your Honours will recall that when dealing with that document we submitted that the only instances in which one could treat the evidence that she gave as supporting clearly - I am sorry, your Honours, I am putting that badly. What we submit is that only if one looks at the instances which we have numbered 2, 9, 10 and 11 on that document that there are cases where she has assented to the proposition which was being advanced to her. The others are ones that are, in our submission, equivocal and from which the inference could not properly be drawn.

HAYNE J: How many are involved in 2, 9, 10, 11?

MR JACKSON: Your Honour, I do not have a figure at the moment. May we give your Honours a note indicating what the numbers are and, of course, our learned friends.

HAYNE J: Thank you.

MR JACKSON: Your Honours, our learned friends also in this same area said in addition to that there are the minute variations to which they have referred in paragraph 8(b) of their submissions. Your Honours, those instances are, in our submissions, instances of, with respect, compelling triviality. May I take your Honours to what I think are the first and the last of them referred to there.

If one goes to, first of all, their submissions and to what is said about them in paragraph 8(b) on page 4 of those submissions, where it said:

There were minute variations in the day dockets -

And your Honours will see a number of instances listed. Could I take your Honours to the first and last of them. The first is at volume 2, page 347. It commences in about line 20 and it goes through to about line 16 on the next page. What your Honours will see is that there was a docket that had some change made on it in her handwriting, a different figure. It had had two start times, two finish times. Then there was a reference to another docket which showed 14 hours, then at the top of the next page 13 and a half, then there is a steady routine of 12 hours. Your Honours will see the point of all that appears to be the question and answer commencing about line 13. The other instance to which we would take your Honours is in volume 3 at page 454. The passage is one which goes from line 7 to line 20.

She is asked to look at a docket, which was working 13 hours, she looked at the docket the next day, the next docket - 13 hours were shown. She was asked:

Q.       Who told you to put 13 hours?
A.       Phil Davies
Q.       When was it he told you that?
A.       I don’t know, probably after the weekend, I do not know.
Q.       You filled these dockets in the same day, didn’t you?
A.       Well, I filled them in the same day.
Q.       That is the same day on which the work was done?

And then the next step was withdrawn.

Q. You filled them in the same day as the docket is dated, is that right?
A. Yes, except for Saturday and Sunday, which I’d do on either the Friday or the Monday.

And his Honour asked the question then. Well, your Honours, if one derives from that, that that and similar instances somehow supports the idea that her evidence was significantly shaken by that aspect of cross‑examination, we would submit that view is incapable of being taken.

Your Honours, if I could move then to another matter, and your Honours, I am nearly at the end of these submissions. In relation to motive, so far as Mrs Page was concerned, there are two references to that issue in the primary judge’s reasons. Your Honours will see them: the first one is at page 57 about line 28, where the judge said:

Although it was not put to her in cross-examination I could not help but feel that she had some animus towards the Davies. However I do not base my assessment of her on this nor on the fact that her services with Earthline were terminated by Earthline.

So he does not appear to have based anything on that, or so his Honour said.

GUMMOW J: Well why mention it?

MR JACKSON: Well indeed, your Honour. And then it is mentioned again at page 64 lines 9-19, where discussing the indemnity, and particularly about line 14, he says:

However in her mind by giving evidence she was, in my opinion, protecting herself from any claims or prosecution to which she might have been subject. Whilst that may not explain in whole her evidence it is in my opinion an additional factor to be taken into account in assessing her evidence and the weight to be given to it.

Well, your Honours, one would really think the opposite conclusion might have followed, with respect, from that if she was protecting herself from claims or prosecution by giving this evidence. Presumably, she would be doing it by telling the truth, the whole truth.

KIRBY J: Or by remaining silent. If she had remained completely silent and said not a word, that is the best way to protect herself from any risks whatever or it might have been unless somebody else had spilled the beans.

MR JACKSON: Your Honours, the last matter with which I would wish to deal, apart from any document I may have to give your Honours, concerns the Court of Appeal and the question was asked by your Honours of our learned friends to what extent did the members of the Court of Appeal engage in their own analysis of the evidence.

In the reasons for judgment of Justice Mahoney, one sees the issue referred to at page 195 about line 25 where he says:

Having regard to his Honour’s detailed examination of what had been said -

et cetera, and your Honours will see the remainder of that paragraph. At page 196, the paragraph commencing line 6 he refers to there being:

no disrespect to the detailed submissions -

et cetera and then your Honours, at line 18 on the same page his Honour says he will:

not repeat the detailed analyses.....It is sufficient that I record that, in general, I agree that in at least a number of respects the analyses which -

the primary judge made and then your Honours, if one goes over to page 198 one gets to the closest of the judge doing his own examination of it where, about line 19, he said:

Having attempted my own analysis of the exhibits and checked again the portions of them to which the judge referred, I am not convinced that I should draw the inferences -

et cetera.

KIRBY J: It was said on the special leave application by Mr Toner, seeking to rebut this application, that we would make a rod for our own backs if we opened the drawbridge to more claims of a factual kind.

MR JACKSON: Your Honour, the ‑ ‑ ‑

GUMMOW J: One hopes intermediate courts of appeal will apply themselves to their tasks.

MR JACKSON: Indeed, your Honour, but, of course ‑ ‑ ‑

GUMMOW J: So matters will not come here.

MR JACKSON: But, of course, the filter of special leave is there to enable the Court to decide when it is appropriate to take the, admittedly, unusual case of this nature.

KIRBY J: This question is directed back to the issue that I raised yesterday, and that is to say whether there is any need for any elaboration because it seems pretty clear to me that the Court of Appeal has read into Abalos, Jones v Hyde, Devries, and there were many others, a sort of embargo against examination where credibility findings are made.

MR JACKSON: Your Honour, without taking your Honours to it, but can I just say two things? The first is that what, perhaps, has been done has been to look at the part of the Supreme Court Act in section 75A which deals with appeals and says they are by way of rehearing, and to treat that as giving pre-eminence, as it were, to the prescriptive, as it were, part of Abalos and Devries. Apart from that, not taking into account what follows in the immediately succeeding subsections of the section, and that is that the

court has the powers of the judge below, is to do whatever might have been done by the judge below. That is an aspect, your Honour, that can be overlooked sometimes.

Your Honour also asked what was the position in relation to overseas jurisdictions, were there any recent discussions of the issue. The answer in relation to the United Kingdom, Canada and New Zealand appears to be no.

KIRBY J: There is a book by a Canadian judge who sent it to me called “Standards of Appellate Review”, and I will be having a look at that. If there is anything in it that is particularly novel I will draw it to the notice of the parties.

MR JACKSON: Yes. Your Honour, we were not able to find anything that indicated that the issue was one in relation to which there has been any change in those jurisdictions.

Your Honour Justice Kirby also asked where the dockets were written up. We said we would give a piece of paper showing that, and that is a document which we have got called “Places Where Dockets Were Written Up”, together with the references in the evidence dealing with that topic. Your Honours, those are our submissions.

GAUDRON J: Yes, thank you, Mr Jackson. The court will consider its decision in this matter and adjoun until 9.30 am tomorrow morning in both Sydney and Melbourne

AT 12.31 PM THE MATTER WAS ADJOURNED

[1998] HCATrans 394

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Breach

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