Windbox Pty Ltd v Daguragu Aboriginal Land Trust (No 3)
[2020] NTSC 21
•13 May 2020
CITATION:Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21
PARTIES:WINDBOX PTY LTD (ACN 007 419 641)
v
DAGURAGU ABORIGINAL LAND TRUST
and
CENTRAL LAND COUNCIL
and
JACT PASTORAL PTY LTD
and
LESLIE, Zebb Raymond
and
ROWBOTTOM, Kylie Danielle
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:11 of 2018 (21840850)
HEARING DATES: 19 October 2018, 19 November 2018, 21-22 February 2019, 4-8 March 2019,
13-15 March 2019, 4 April 2019, 9 May 2019, 13 June 2019, 22-23 August 2019 and 16 September 2019
JUDGMENT OF: Hiley J
CATCHWORDS:
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – Aboriginal land rights – grazing licence granted by Land Trust pursuant to s 19 Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA) – direction and satisfaction of relevant Land Council when performing its functions under ss 19 and 23 ALRA (Cth) – indefeasibility of title under s 19(6) ALRA.
REAL PROPERTY – indefeasibility of title under s 19(6) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – fraud as an exception.
CORPORATIONS – Statutory duties –Officers and employees – Meaning of “officer” – Duty to act in good faith – Duty not to use position improperly – Duty not to improperly use information – Improper use of former position to obtain advantage in subsequent commercial transactions – Requirement to clearly identify the information said to have been used improperly – ss 9, 181, 182, 183 of the Corporations Act (Cth)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 4, s 5, s 19, s 22, s 23
Corporations Act 2001 (Cth) s 179, s 181, s 182, s 183
Evidence (National Uniform Legislation) Act 2011 (NT), s 140(2)(c)
Transfer of Land Act 1893 (WA)Briginshaw v Briginshaw (1938) 60 CLR 336, Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172, Katsilis v Broken Hill Pty Co Ltd (1977) 52 ALJR 189, applied
Advanced Fuels Technology v Blythe [2018] VSC 286, Australian Securities and Investments Commission (ASIC) v Citigroup Global Markets Australia Pty Ltd (No 4)(2007) 160 FCR 35, Buzzle Operations Pty Ltd (in liq) v Apple Computer Australia Pty Ltd (2010) 238 FLR 384, CellOS Software Ltd v Huber [2018] FCA 2069, Wilson Parking Australia 1992 Pty Ltd v Rush [2008] FCA 1601, distinguished
Hodgson v Amcor Ltd [2012] VSC 94, APT Technology Pty Ltd v Aladesaye [2014] FCA 966, Ashby v Slipper (2014) 219 FCR 322, ASPL Pty Ltd v Rajakaruna [2019] WASC 269, Australian Competition and Consumer Commission v Cement Australia Pty Ltd (2013) 310 ALR 165, Australian Securities and Investments Commission v King [2020] HCA 4, Bahr v Nicolay (No.2) (1988) 164 CLR 604, Bale v Mills (2011) 81 NSWLR 498, Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587, Commissioner for Corporate Affairs v Bracht [1989] VR 821, Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, Courtenay Polymers v Deang [2005] VSC 318, Ellis v Central Land Council [2018] FCA 35, Ellis v Central Land Council [2019] FCAFC 1, Emeco International Pty Ltd v O’Shea [No 2] [2012] WASC 348, Giannarelli v Wraith (No.2) (1991) 171 CLR 592, Gondarra v Minister Families, Housing, Community Services and Indigenous Affairs (2014) 220 FCR 202, Jones v Dunkel (1959) 101 CLR 298, Links Golf Tasmania Pty Ltd v Sattler (2012) 213 FCR 1, Manildra Laboratories v Campbell [2009] NSWSC 987, Nordenfelt v The Maxim Nordenfelt Guns and Ammunition Company Ltd [1894] AC 535, Northern Land Council v Quall [2019] FCAFC 77, R v Toohey; ex parte Meneling Station (1982) 158 CLR 327, Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 201, Smith Kline & French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Secretary, Department of Community Services (1990) 22 FCR 73, Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87, Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272, Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [2019] NTSC 47, Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [No 2] [2019] NTSC 96, referred to
REPRESENTATION:
Counsel:
Plaintiff:A Harris QC, M Barnett and S Heidenreich
1st & 2nd Defendants: C Young
3rd, 4th & 5th Defendants: A Wyvill SC and H Baddeley
Solicitors:
Plaintiff:Gardiner and Associates / Povey Stirk
1st & 2nd Defendants: Central Land Council
3rd, 4th & 5th Defendants: Ward Keller
Judgment category classification: B
Judgment ID Number: Hil2003
Number of pages: 203
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGSWindbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors (No 3)
[2020] NTSC 21
No. 11 of 2018 (21840850)
BETWEEN:
WINDBOX PTY LTD (ACN 007 419 641)
Plaintiff
AND:
DAGURAGU ABORIGINAL LAND TRUST
First Defendant
AND:
CENTRAL LAND COUNCIL
Second Defendant
AND:
JACT PASTORAL PTY LTD
Third Defendant
AND:
ZEBB RAYMOND LESLIE
Fourth Defendant
AND:
KYLIE DANIELLE ROWBOTTOM
Fifth Defendant
CORAM: HILEY J
REASONS FOR DECISION
(13 May 2020)
Contents
Introduction
Facts
Credit
Validity of the JACT grazing licences
Breach of Statutory Duty
Was Mr Leslie an officer?
When did Mr Leslie “plan” to apply for the grazing licences?
Misconduct allegations
Sections 182(1) and 183(1)
Conclusions and Orders
Introduction
The plaintiff, Windbox Pty Ltd (Windbox or the Company), conducted a cattle business on land owned by the Daguragu Aboriginal Land Trust (DALT). Windbox held grazing licences granted by DALT over three areas of land known as McDonald’s Yard, Berta Warta and Northern Paddocks (the Windbox grazing licences). Those licences expired on 7 September 2011, 1 September 2010 and 12 November 2010 respectively. Windbox continued in occupation of that land.
In June 2018, the second defendant (CLC) conducted meetings with people whom it considered to be the relevant traditional aboriginal owners of the relevant land. A fresh grazing licence was issued to Windbox over the Northern Paddocks land and fresh grazing licences were purportedly granted to the third defendant, JACT Pastoral Pty Ltd (JACT PPL), over the McDonald’s Yard and Berta Warta areas (the Land) (the JACT grazing licences). The licences were to commence on 8 October 2018.
On 29 June 2018, CLC wrote to Windbox advising of the outcome of the June meetings and gave Windbox 90 days’ notice to vacate the land. This required Windbox to remove its cattle, approximately 6000 head, by the end of September 2018. Windbox commenced these proceedings on 27 September 2018 and sought urgent relief by way of interlocutory injunction to restrain the CLC from enforcing the notices to vacate. The Court heard that application on 19 October 2018 and following agreement between the parties, made an interlocutory injunction which was to expire on 1 May 2019.[1] The main effect of the interlocutory injunction was to preserve the status quo and allow the plaintiff’s cattle to remain on the land during the wet season. This effectively deprived JACT PPL and its directors and shareholders, the fourth and fifth defendants (collectively referred to as JACT) of their ability to use the land the subject of the JACT grazing licences and to conduct a pastoral business on the Land.
Evidence was adduced mainly by affidavit. Witnesses were called and cross-examined over a period of eight days from 4 – 8 and 13 – 15 March and 4 April 2019. Programming orders were made for the filing and exchange of written submissions. At that stage the main claims on the part of Windbox concerned whether:
(a)the Windbox grazing licences had in fact ended, or had been renewed, and thus whether the notices to vacate were valid[2];
(b)the (new) JACT grazing licences were valid, particularly having regard to the provisions in s 19 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA)[3];
(c)a permanent injunction should be made securing Windbox’s continued rights under the Windbox grazing licences;
(d)CLC made misleading or deceptive representations in trade or commerce;[4]
(e)the fourth defendant, Zebb Leslie, was an officer of Windbox at all relevant times and, in breach of his statutory duty, improperly used Windbox’s information and exploited Windbox’s commercial opportunity to Windbox’s detriment and or to his own advantage;[5]
(f)CLC knowingly assisted Mr Leslie’s breaches of statutory duty;[6] and
(g)the third and fifth defendants are liable as accessories to Mr Leslie’s breaches of statutory duty.
Live issues
On 1 May 2019 JACT purported to terminate the JACT grazing licences on the basis that DALT and CLC had failed to provide and permit JACT access to and possession and use of the land from 8 October 2018. Accordingly, Windbox no longer required the permanent injunctive relief originally sought against the defendants.
Windbox settled its claims against DALT and CLC. Windbox, DALT and CLC purported to have Windbox’s claims against DALT and CLC dismissed by consent orders.[7] However, on 23 August 2019 the Court set aside the consent orders at the request of the JACT parties, mainly because of their desire to obtain a judgment on those issues that might be relevant to their entitlement to damages flowing from the making of the interlocutory injunction.[8]
Accordingly, Windbox’s only live claim is that against JACT based upon its allegations of breach of statutory duty by Mr Leslie. However, JACT seeks determination of the other main issues, primarily the validity and effect of the JACT grazing licences.[9] By summons filed on 16 September 2019, Windbox applied for the proceedings brought by it against DALT and CLC to be dismissed. Senior counsel for Windbox confirmed that Windbox no longer advances any positive case in support of paragraphs [53.6] and [53.7] of the FSOC.
Facts
Parties and their roles
DALT is a land trust established and constituted under s 4 of ALRA. It is the proprietor of an estate in fee simple of land in the Northern Territory.[10] It holds the land for the benefit of the traditional Aboriginal owners of the land (the traditional owners).[11] DALT constituted of five members, who were appointed from 27 March 2018. At least three of those members must provide their written authority for DALT to affix its common seal to a document. Like all Land Trusts established under ALRA, DALT could not exercise its functions in relation to its land unless it had a direction to that effect from the relevant Land Council, here the CLC.
Aboriginal communities at Kalkarindji and Daguragu are within the land owned by DALT. Kalkarindji is located about 500km southwest of Katherine. The grazing licence areas known as Northern Paddocks, McDonald’s Yard and Berta Warta are within the land held by DALT.
The Central Land Council is a body corporate established under s 22 of ALRA. It is empowered under ALRA to negotiate interests in Aboriginal land on behalf of the traditional owners of land held by a Land Trust such as DALT.[12] A Land Trust, including DALT, is not permitted to deal with an interest in such land except at the direction of the CLC.[13] The CLC has various statutory functions in relation to the management of Aboriginal land.[14]
DALT granted the three grazing licences to Windbox, each at the direction of the CLC pursuant to s 19(5) of ALRA:
(a)on 11 October 2006, a licence over Northern Paddocks. [15] The licence was for a fixed 5-year term, expiring on 12 November 2010. Windbox paid an annual licence fee of $58,300.
(b)in October 2006, a licence over McDonald’s Yard.[16] That licence was for a fixed 5-year term, expiring on 7 September 2011. The annual licence fee was $70,000.
(c)on 26 February 2009, a licence over Berta Warta.[17] That licence was for a fixed 18-month term, expiring on 1 September 2010. The annual licence fee was $18,000.
Windbox had been operating a pastoral business grazing, breeding and selling cattle on the land at Northern Paddocks, McDonald’s Yard and Berta Warta. It also operated an abattoir and butcher’s shop in the Kalkarindji township (often referred to as the Kalkarindji Meatworks business).
On 14 May 2009, Mr Raymond Dodd, Mr Robert Vagg and Mr Calvin Chandler purchased Windbox and became directors of Windbox. Mr Chandler retired as a director on 15 December 2009. Thereafter, shareholdings in the Company were held by Mr Dodd (as to 85%) and Mr Vagg (as to 15%). Mr Vagg was purportedly removed as a director on 6 February 2018.[18]
At all material times Mr Dodd was based in Melbourne, Victoria. He did not have first-hand experience in the management of cattle stations. Mr Vagg was based in the Northern Territory until 2016 when he moved to Victoria. Mr Vagg was responsible for the cattle side of Windbox’s business and the running of the Station.
The fourth defendant, Mr Zebb Leslie, grew up on a mixed farming property in western New South Wales. From around 1996 until about 2004 he worked in the Victoria River District. He has been a commercial helicopter pilot since about 2004 and has carried out contract mustering work, mainly on cattle stations in the Northern Territory. He is also a qualified meat inspector. As a result of living and working in the Kalkarindji region since 1996 he established good relationships with Aboriginal people in the area including traditional owners. The fifth defendant, Ms Kylie Rowbottom, grew up in Katherine. She and Mr Leslie have been living together as a couple since around 2000 and have four young children. They have been living and working in the Katherine and Kalkarindji region ever since.
In about November 2009, at the request of Mr Dodd, Mr Leslie began providing services for Windbox in relation to “livestock welfare issues”. On about 23 December 2009 Mr Dodd prepared the following document titled “Letter of Appointment”.[19] The letter stated:
We have pleasure in confirming your appointment as Manager of Kalkaringi.
Your remuneration package is $50,000 plus accommodation (ex Fox’s), meat from Kalkaringi, vegetables and groceries supplied excluding alcohol, and cigarettes.
Please have your Management Company invoice Windbox P/L on the first of every month with 1/12 of your annual remuneration ($4166.66). Please add $2000 on invoice for 1/01/10 (for work completed in November).
You are to prepare a development program to help the stakeholders realize their goal of running a low-cost, sustainable cattle breeding enterprise aimed at the live export market. The Development Plan should be designed to allow for wet season spelling of country and to avoid large concentration of cattle numbers at any one watering point, to avoid land degradation.
Our ultimate goal is the maximum distance we expect cows and calves to walk is three kilometres from their water point, to fully utilize the efficiency of the feed into beef production. Within 6 months we want complete a plan including initially cost and budget for the laying of polypipe out from the bores and installing a 5000 litre tank and two troughs every six kilometres along the pipeline to adequately supply the cattle during the Dry.
With your demonstrated expertise in Helicopter Mustering we acknowledge your commitment to contracting in addition to your management responsibilities at Kalkaringi and we welcome your input into the Development Plan to initiatives you can implement to reduce and manage mustering costs by utilizing our paddock use more effectively.
You are in total charge of the Kalkaringi Property reporting only to the stakeholders and we expect you to implement management systems to report efficiently cattle numbers and the building up of the herd and focusing heavily on fertility, and accepted industry practice or culling all empties, fat dry cows and speyed heifers, all sale bulls and forward steers tailed out to be mustered again next year for the live export market.
We would expect your detailed management plan to address these vital areas in the concentration of improving cattle numbers and focusing on our target market, live export cattle.
We have engaged our accountants, Pearson Partners to prepare a tax planning report and structure for the efficient payments to you of after tax dollars and the utilization of this structure to include your Helicopter mustering contracting integrated with your management income at Kalkaringi.
We would ask you to formally sign an acceptance of these conditions of employment under this letter.
There is no evidence that the letter was ever signed and sent by Mr Dodd. Mr Leslie did not recall having seen it before. However, when the contents of the letter were put to Mr Leslie during cross-examination he did not disagree with any particular parts of it. Its contents were consistent with what he understood his duties to be. He said he was never in total control of the business.
Ms Rowbottom was initially engaged by Windbox as a meat worker. She also worked around the Station doing gardening, cooking and liaising with Windbox’s bookkeeper in Melbourne about the Station books and other office work. She worked without pay until around 2011 or 2012, when Mr Vagg and Mr Dodd agreed to pay her $25,000 per year for continuing to do that work. Mr Leslie also obtained qualifications as a meat inspector. This better enabled him and Ms Rowbottom to organise and operate the Kalkarindji Meatworks.
During 2012, the form of Mr Leslie’s engagement was changed from that of contractor to full-time employee. He was then employed as the Station Manager for Windbox. There appear to have been no relevant changes to his duties and responsibilities.
From time to time Mr Leslie and Ms Rowbottom complained about the terms of their employment and the fact that Windbox should reimburse Mr Leslie for equipment of his that he had brought onto the property and that he had been using on the property for Windbox’s business. Mr Leslie had told Mr Dodd and Mr Vagg that he and Ms Rowbottom wanted to be allocated some shares in Windbox in return for their efforts. On 28 September 2015 Mr Dodd said that Windbox would offer them 10% of the Company on certain terms. These included 2% of Windbox “in recognition of past effort and in compensation for those items you have purchased that are used on Kalkarindji” and “a further 8% at 1% per year over eight years for a total of $520,000 provided that” Mr Leslie achieved a specified weaner rate.[20]
Mr Leslie responded in some detail on 30 September 2015. Amongst other things he repeated that he and Ms Rowbottom had taken a huge pay cut to work for Windbox and were “promised a 10% deal two years” earlier, and could not understand why they were only being offered 2% immediately and would have to wait another eight years for the 10%. He also expressed concern about the condition concerning the weaner rates, and asked about Windbox engaging a governess.[21] Mr Dodd replied on 27 October 2015 rejecting Mr Leslie’s concerns and insisting on the 1% per annum over eight years and the condition concerning weaner rates.[22] Then followed discussions between Mr Leslie and Mr Dodd, which were not successful.[23]
2009 to end of 2017
Clause 19 of each of the three Windbox grazing licences provided that:
If the Licensee (with the Land Trust’s consent express or implied) remains in occupation of the licence Area after the expiration of the Term, the Licensee will hold a monthly licence over the licence Area for a fee equivalent to the licence Fee payable for the period immediately before the Term expired and otherwise on the same terms specified in this agreement.
Following the expiration of the terms of the three Windbox grazing licences in 2010 and 2011, Windbox remained in occupation and continued to conduct its pastoral business. It continued to pay licence fees thereafter, six monthly in advance with an annual CPI uplift.
From about 2009 (i.e. prior to the expiration of the Windbox grazing licences), Windbox and the CLC were in negotiations with respect to the renewal of the three licences. The negotiations were largely conducted through emails and discussions between Windbox’s then solicitor, Mr Graham Cole, and the CLC’s in-house solicitor, Ms Sarah Wilkie. An important part of those negotiations concerned the duration of the fresh or renewed grazing licences.
On 17 August 2016 Mr Vagg and Mr Leslie attended two meetings at the CLC office at Kalkarindji, convened for the purpose of Windbox presenting its proposal to the traditional owners for new grazing licences.[24] The first meeting related to McDonald's Yard and included a number of people who were traditional owners for that area.[25] The second meeting related to Berta Warta and included a number of people who were traditional owners for that area.[26]
Prior to and for the purpose of those meetings Windbox prepared and provided to the CLC a document titled “Kalkaringi Central Land Council Proposal August 2016”.[27] Mr Leslie said, and I accept, that he did not prepare that document or give directions about its the contents. He said that if he did have that kind of involvement with the document, it would have been substantially different.[28] Although some earlier drafts were sent to Mr Vagg and Mr Leslie for their comment, it seems that the document was originally drafted by Mr Dodd with the assistance of Windbox’s then-accountant Mr John Pearson of Pearson Partners, largely based on information contained in a letter sent to CLC on 20 October 2014 where Windbox was proposing “a long term pastoral lease”.[29]
At those meetings, Windbox had proposed that it be granted grazing licences for a term of 10 years, with two options for 10-year extensions. Mr Leslie and Mr Vagg were both present at those meetings. Mr Leslie was requested by Mr Vagg to make a presentation to the traditional owners in support of Windbox’s request for the grants of the licences. Mr Leslie was asked to make the presentation because Mr Vagg had significantly impaired hearing and found it difficult to understand everything that was being said by the traditional owners.
Following the August 2016 meetings and consultations by the CLC with the traditional owners, Ms Wilkie sent Mr Cole an email on 19 October 2016. It was headed: “Daguragu Aboriginal Land Trust – Grazing Licences”. It included the following:[30]
I refer to previous communications on this matter. The outcome of consults with traditional owners (TOs) of Daguragu Aboriginal Land Trust (the Land Trust) is that they would be pleased to enter into a grazing licence with Windbox Pty Ltd (Windbox) over the Berta Warta, McDonald’s Yard and Northern Paddocks on the following essential terms:
Berta Warta
· Inclusion of two additional paddocks, see map attached;
· Term: 5 + option for 5 year extension;
· *licence Fee: $10,000 + CPI ($10,168.53 as at June 2016) based on valuation of existing licence Area. For the purpose of determining the licence fee for the two additional paddocks a calculation based on a per kilometre rate using the per kilometre rate from the valuation of the existing southern paddock has been applied as follows: ([$10,000 / 66.5 square kms = $150.38] x 45.7 square kilometres = $6,872.37). Applying CPI as at June 2016 brings the total including that for the existing licence Area to $17,156.73;
· licence fee review at 5 years;
· Special Conditions: None – see further discussion below;
· Maximum Permitted Stock: 600 head (same).
McDonald’s Yard
· Term: 5 + 5 years;
· *License Fee: $81,000 + CPI ($82,365.16 as at June 2016);
· licence fee review at 5 years;
· Special Conditions: None;
· Max Permitted Stock: 4,000 head (same).
Northern Paddocks
· Term: 5 + 5 years;
· *licence Fee: $56,000 + CPI ($56,943.82 as at June 2016);
· licence fee review at 5 years;
· Special Conditions: None;
· Maximum Permitted Stock:
Seale, Springs and River paddocks: 2,000 head (same)
North Seale paddock: 400 head (same)
Neave Ridge paddock: 1,200 head (same)
* Please note that these proposed license fees are based on advice from a valuation of the licence areas undertaken in February 2015. Given the lapse of time I have applied the June 2016 CPT however for the purpose of the grazing licence these will be updated once the September quarter CPI is published.
The email also explained why the traditional owners would not agree to the term of 10 + 10 + 10 years proposed by Windbox. It also referred to difficulties progressing a request by Windbox for a grazing licence over land owned by the Hooker Creek Aboriginal Land Trust. Ms Wilkie attached a mud map that had been prepared by Mr Leslie and Alastair MacDonald for the purposes of that particular request.
Windbox was not prepared to accept licences on those terms, and never communicated any acceptance of such terms to the CLC. Rather Mr Dodd continued to insist on obtaining terms of 10 years with two 10 year options.[31]
Mr Vagg emailed Mr Cole regarding the slow progress of negotiations on 6 December 2016,[32] 25 April 2017,[33] and 26 July 2017.[34] He also emailed Mr Leslie regarding the slow progress of negotiations on 25 July 2017.[35] Ms Wilkie emailed Mr Cole on 14 December 2016 advising that CLC was revising its standard form grazing licence and that would be “the starting point for this matter” and that: “obviously in the meantime the existing grazing licences for each license area will operate on a holding over basis.”[36]
From early 2017 Mr Vagg complained to Mr Leslie that he thought that Mr Dodd was committing tax fraud as a result of which Mr Vagg was not getting dividends from Windbox. Mr Vagg also told Mr Leslie that he thought it unfair that Mr Leslie and Ms Rowbottom had not yet been given shares in Windbox, or been paid for the equipment that Mr Leslie had brought to the Station and used in running the Station. Mr Vagg said that he would have discussions with Mr Dodd to ensure that Mr Leslie was given some shares. Mr Leslie testified that he was not particularly interested in Mr Vagg’s issues with Mr Dodd, but was more concerned with obtaining shares in Windbox and being reimbursed for his equipment. Mr Leslie was happy for Mr Vagg to assist him to get the shares but was a little wary of what Mr Vagg was telling him because he feared that Mr Vagg might be in cahoots with Mr Dodd or might be simply trying to get Mr Leslie onside in relation to his arguments with Mr Dodd.[37] Mr Vagg began to send Mr Leslie and Ms Rowbottom emails about those matters including correspondence Mr Vagg was having with his accountant Mr Peter Murphy and Mr Dodd.[38]
By email on 26 July 2017, Mr Cole requested Ms Wilkie to arrange a further meeting of traditional owners to consider “an initial term of 10 years with two options for two further terms of eight years each.” Mr Cole’s email added that:[39]
My clients would like to stress to the CLC and the traditional owners that they are extremely keen to invest significant capital in a full range of cattle station improvements but need long-term tenure to support the considerable investment. The type of improvements contemplated would include yards, fencing, all types of water improvements and improved pasture.
Mr Dodd accepted during cross-examination that Mr Vagg may have told him at around this time that if he did not reach a suitable arrangement with Mr Leslie, Mr Leslie might go elsewhere and take his influence with him.[40] On 28 July 2017, Mr Vagg forwarded to Mr Leslie an email exchange between Mr Vagg and his brother regarding Mr Leslie’s and Ms Rowbottom’s status as “important partners” for Windbox.[41]
On 4 August 2017, Ms Wilkie responded to Mr Cole’s email of 26 July 2017 as follows:[42]
The CLC consulted traditional owners last year on two separate occasions to discuss their wishes in relation to the renewal of the three grazing licences known as Northern Paddocks, McDonald’s Yards and Berta Warta. On one occasion your client attended the meeting and spoke directly with the landowners about the offer. There was lengthy and frank discussion between your and my clients about the offer.
After much consideration traditional owners instructed me that they wanted to renew the grazing licences but on the conditions, which I set out in full, in my email to you from 19 October 2016 (see attached).
Your clients request for a longer term with two options to extend of ten years each was expressly rejected by traditional owners. As I advised last year traditional owners were concerned that Windbox’ proposal locked them into an arrangement that would outlive them all. Their primary concern centred around relinquishing a significant degree of control over the course of the future of their land as well as their children losing the opportunity to consider their own agreements over their land in the future as well as general concerns around (as yet) unknown factors that may arise.
I also advised that traditional owners are eager to continue their good relationship with the company and in particular with Zebb Lesley. However they wish to maintain some influence over the future course of the relationship which they feel would be lost if they consented to a longer term.
Your client is now proposing a term of ten years with two options for two further terms of eight years each, which, while shorter in total than that the CLC took to traditional owners in 2016, is still sufficiently long such that I am compelled that the reasons given for rejecting the initial offer apply to the second offer.
Where the CLC has conducted meetings and obtained instructions it is not the practice to re-conduct those meetings where the other party does not agree with traditional owners instructions.
On 16 August 2017 Mr Dodd met with Mr Vagg and Mr Vagg’s accountant, Mr Peter Murphy, at Mr Dodd’s hotel in Melbourne.[43] Discussions included:
(a)the need to clear the remaining $500,000 debt;
(b)the need to “secure a longer lease” of 30 years, without which “the most value from the investment cannot be obtained”;[44]
(c)Mr Dodd’s “desire to maximise value and cash in; possibly in 2 to 3 years”;
(d)recognition that “Zeb and Kyle as on site managers were crucial to the ongoing success of the venture and need to be locked into a certain future with the business”; and
(e)a proposal that “they would be given 2% equity (for their past efforts) and a method would be developed to get them a further 8% to give them a maximum share of 10%.”
Mr Murphy provided a summary of the meeting to Mr Vagg. Mr Vagg provided some additional comments and made some small corrections on 21 and 23 August.[45] Mr Vagg forwarded a copy of those emails to Mr Leslie on 23 August.[46] Later that day Mr Murphy emailed the summary to Mr Dodd, copied to Mr Vagg.[47] Mr Dodd responded on 26 August.[48]
Meanwhile, it seems that shortly after the meeting of 16 August 2017, Mr Vagg had communications with Mr Cole. Mr Cole engaged with Ms Wilkie about the possibility of the parties agreeing to the 5 + 5 year terms set out in Ms Wilkie’s email of 19 October 2016[49] but adding a provision “something along the lines of the following”:
The Licensee may, during the term of this Licence and during any renewed term thereof, request that the Land Trust grant to the Licensee a further term of five years.
The Land Trust undertakes to genuinely consider such request or requests and agrees to take into account the Licensee’s performance of the terms and conditions of this Licence but shall not be bound to grant any further term or terms of this Licence save for the Further Term referred to in Condition?[50]
This suggestion was referred to by counsel for Windbox as the “Vagg amendment.” Because no evidence was led from either Mr Vagg or Mr Cole, I do not know any more about the communications between them concerning that suggestion. I infer that one or both of them came up with the idea. There is no evidence that Mr Dodd was consulted about that suggestion. Nor is there any evidence that he ever agreed to it. Rather, I infer that he never considered that suggestion, even when he sent the emails on 24 and 29 January 2018 concerning instructions he contemplated sending to Mr Cole.[51]
On 3 October 2017 Ms Wilkie emailed Mr Cole advising him that the CLC would be holding meetings with the traditional owners on 11 and 12 October to discuss the grant of the grazing licences on the terms set out in her email of 19 October 2016 adding that she would also put to them the Vagg amendment. Ms Wilkie asked Mr Cole to “advise your client’s response to the terms my client instructed they wanted for each licence area at the 2016 meetings.”[52] The evidence does not reveal what steps if any Mr Cole took to speak to either Mr Dodd or Mr Vagg about this. Nor does it reveal any response to Ms Wilkie’s request.
It seems that Mr Cole was overseas until 25 November. Accordingly, Ms Wilkie cancelled the proposed meetings with the traditional owners and suggested further discussions after Mr Cole returned, with a view to progressing the grazing licences.
Meanwhile, Mr Dodd and Mr Vagg had discussions about their relationship and the future of the business. In an email sent to Mr Dodd on 6 October 2017[53] Mr Vagg stated, inter alia:
I was very pleased that we were able to have an in depth discussion of the very serious matters of contention in a calm and dignified manner. However, I was unsuccessful in convincing you that change was necessary if we were to continue as a working partnership.
But there is nothing to be gained in dwelling on that negative outcome. It seems evident to me that you will give no ground on the issue of an independent accountant for Windbox Pty Ltd. That means in affect that our partnership will not survive. If there was some positive to be gained from that meeting it was our agreement that one partner or the other should agree to sell.
That is probably the reality given that we do not have a lease at this time and as things stand our business would be of little interest to an outside buyer. So lets move on to what would be a positive outcome for all parties.
It is fair to say at this time that Zebb and Kylie are in agreement with us on the matters of contention and the way forward. So here is our proposal for your consideration. There are obvious difficulties for us in funding a buy-out of your shareholdings at this time.
But if you were to offer vendor finance that would be a positive development and would offer some important advantages for you as well. I’ll come back to that later.
If you were to agree to a sale of your shares in the Lease, land, stock and business on terms such as:
1 First negotiate with Zebb and Kylie to sell an 8% share for $65,000 per 1%. This is 12% higher (per 1%) than our full purchase price but significantly higher still when judged against your original investment. (A reasonable price given that they have been promised this opportunity for four years or more without any progress.) Total cost Zebb and Kylie would be $520,000.
With say 3% up front ($195,000) and you offering funding for the balance over five years with capital reduction $65,000 plus interest at 5% payable at the end of each 12 month period.
With the 2% already promised Zebb & Kylie would now have a 10% shareholding. However, these are suggestions only but agreement must be the result of negotiations between you, Zebb and Kylie.
2 With the new partners now holding 10% we would join with them to negotiate the purchase of your remaining equity share. Obviously we would have to reach agreement with you on a fair and reasonable purchase price. So as a potential purchaser let me suggest to you that price should be based on the original purchase price plus say 10%. IE $6,380,000. We now know that the best offer we can get from the TO’s will be a Five plus five year terms with the possibility of extension at some later date but no guarantees. However we would argue that price should be discounted by $350,000, in recognition of dividends denied to the Vagg entity over the past five years by JP’s fictitious cost entries and as you put it ‘the massaging of our accounts’.
…
Such an agreement would allow for a smooth transition to the new ownership with benefits to all parties.
You would obtain a significant capital gain at the end of the loan period. $5,042,500 against an original outlay of $2,554,000. Along the way you would be getting 5% return on your loans. Perhaps double what you might get from a bank.
But most importantly you would get the Windbox Pty Ltd accounts off your books and eliminate the risks therein. Please give this proposal serious consideration and I suggest we meet again to discuss next Thursday 12th at 11am if that is suitable to you.
(underling added by me)
Shortly after that, Mr Vagg forwarded a copy of that email to Mr Leslie.[54]
On 25 October 2017 Mr Vagg sent another email to Mr Dodd.[55] That email raised a number of concerns which Mr Vagg had about the company accounts. They included concerns about unexplained differences in lease payments between 2013 and 2017, the fact that they were now being paid by Windbox to the Kalkarindji Pastoral Unit Trust which Mr Vagg knew nothing about, unexplained understating of cattle sales by approximately $475,550 over the previous three years, and “the bogus claim for costs Water, Pumps and Bores.” Mr Vagg sent Mr Leslie a copy of that email on 27 October.
On 1 November 2017, Mr Vagg emailed Mr Leslie a draft of an email he proposed to send to his accountant Mr Murphy. The draft stated:[56]
Hello Peter, I hope this email finds you well.
As expected there has been no contact from Ray since my last email sent on the 25th October.
So I think we have reached the stage when we must accept the reality of our situation in that Ray will not accept change unless forced to do so.
If his position is allowed to stand then there is no future for us in this partnership. It follows that would apply equally to Zeb and Kylie especially if they were to become shareholders. Ray and John would continue with their tax scheme/scam unchallenged and deny any profit and dividend flow to the minority shareholders. We would be obliged to accept an undervalue buyout from Ray after 8 years investment and not one dollar in return. Zeb and Kylie would [be] forced to pack up and leave having wasted six years of their lives working exceptionally long hours developing the herd and property. We cannot allow this to happen. It’s time for us to put directly to Ray the reality of his position. If he does not agree to the changes we seek he will face serious consequences.
And we need to put this reality to him as soon as possible. I’m certain he and John are working urgently to try and cover up or remove damaging evidence from the records of our accounts.
So let’s look at what changes we must seek.
1 If the partnership is to continue it must have an independent accountant who will provide accuracy and transparency to our company accounts. We must have a shareholders agreement that enshrines the rights of minority shareholders on matters such as profit distributions, reserve funds held over and voting rights.
Shareholders who wish to sell must give other shareholders first right of refusal (and any other [relevant] protection).
2 The new accountant would review the past three years accounts and determine what dividends should be paid to the Vagg entity. Dividends denied to us through the dodgy tax avoidance scheme should be paid from Ray’s personal funds.
3 A share purchase agreement be made with Zeb and Kylie for 8% equity to go with the 2% promised for equipment transferred to Windbox Pty Ltd. The 10% transferred to Zeb and Kylie to come from Ray’s 85% shareholding.
Alternatively, it could be put to Ray that it would be in his best interest to sell down his total shareholding in the manner described in our letter of offer. There are very significant advantages for Ray in agreeing for such a sale.
Eg: Ray would achieve a sale price of approx. $5m for his 85% share, double his initial investment and a very good interest (say 5% over the next five years) if he were to offer vendor finance. It would remove Windbox Pty Ltd from his portfolio of companies and the serious dangers from corporate regulators that company holds for him. It is no exaggeration to suggest such a sale would be $10m or more a better deal for Ray than no agreement.
There is one more possibility that Ray may not have considered. Given the high regard that Zeb and Kylie have in the Kalkarindji community and with the traditional owners it is quite possible that without Zeb and Kylie on board the CLC might not renew our lease.
This would leave Windbox Pty Ltd with a herd of cattle that no one wants and nowhere to graze them. A fire sale which would mean selling adult cattle for chopper price might return between $3m and $3.5m.
Zeb and Kylie, I think on reflection I should leave out that last paragraph. Let me know what you think.
(underlining added by me)
Counsel for Windbox relied on this and other emails as evidence of a conspiracy between Mr Leslie and Mr Vagg to frustrate Windbox’s attempts to obtain the grazing licenses and enable Mr Leslie to apply for the grazing licenses and complete with Windbox (the Vagg conspiracy). It is not known whether Mr Vagg sent such an email to Mr Murphy.
On 9 November 2017, Mr Vagg sent Mr Leslie another copy of the two emails of 23 and 26 August 2017 concerning the 16 August meeting.[57] In his email to Mr Leslie[58] Mr Vagg said:
This is a copy of mail between Peter Murphy and me and then Peter Murphy’s mail to Ray re our discussions regarding our meeting. This is where Ray gets the figure that we valued the property at $80,000 per 1%. Peter Murphy may not have had a good understanding of this in his letter to Ray.
That figure was simply a starting price based on what was set out mid-term in Ray’s [ridiculous] sale offer based on weaner rates etc. I was clear in other mail that the price for the additional 8% must be by agreement between Ray, Zeb and Kylie and would come from Ray’s share-holding.
When we made the offer to Ray for a buyout that figure came down to our original purchase price ($5.8m ---- $58,000 per 1% plus 10% = $63,800). We justified this discounted figure for two reason. 1 You had been waiting for a decision on this for four years or more.
And 2 WE now have an offer from the CLC and Traditional Owners of Ten Years only.
On 11 December 2017, Mr Vagg emailed (and also posted a hard copy to) Mr Dodd a “proposal to address the serious matters of contention regarding the management of the Windbox Pty Ltd accounts.”[59] The accompanying proposal stated:
The best case scenario for a continuance of the Windbox Pty Ltd partnership with the inclusion of Zeb and Kylie as partners will come from an agreement such as:
1 Agree to immediately seek and appoint an independent accountant for Windbox Pty Ltd.
2 The new accountant will enter discussions with you and me to prepare a shareholder agreement that will enshrine minority shareholders rights and set in place policies for such items as dividend distributions, a reserve funding account, infrastructure spending and shareholder voting rights. The shareholder agreement would act as a constitution for our company that could only be changed by unanimous agreement. For you to act as if you are the only shareholder is no longer acceptable and does not meet today’s ethical business standards.
3 The new accountant will review the past seven year’s accounts and report to directors any matters that may need attention.
4 Complete a sale agreement with Zeb and Kylie for an additional 8% to go with the 2% earned in return for equipment supplied and services rendered over the past eight years. Given that this sale has been promised for five years or more I suggest it should be a vendor financed sale effective from the day of signing so that Zeb and Kylie can receive immediate benefit as a 10% shareholder. That the 10% transferred to Zeb and Kylie is from your shareholding follows from an earlier commitment that you would be prepared to sell down your shareholding to 50% to any existing partner.
The price of the sale to Zeb and Kylie should reflect the fact that at this time we do not have a lease agreement in place and the best offer we have is for five years with one further five year option. Your price/performance table dated September 25, 2015 suggest a unit price of $65,000 for 70% weaner rate. That is probably about where we are now so that may be a fair price, but without the need for an incentive clause. When our employee works from daylight to dark seven days a week and has not taken leave most years in the past eight to talk of the need for an incentive is not realistic.
We believe the vendor funding suggestion is justified in that increase in value of our lease is a result of input from each partner and the hard work of our management couple. But to date there is only one entity that has benefited.
5 Immediately pay withheld dividends from past 7 years to the Vagg Entity ($168,000) Dividends on which tax has already been paid. (See footnote).
So Ray, the choice is there for you to make. Our relationship is not good at the moment but it is not too late to save our partnership and allow all partners to share in a prosperous future. We believe the changes we seek are fair and reasonable and without doubt in your best interest.
Of course we are prepared to discuss details for agreement on this proposal but the fundamentals will remain and we are not prepared to accept further delay.
We therefore extend to you a period of seven days (18/12/17) only for a response to our proposal before taking direct action with the corporate regulators and/or the Tax Office.
(underlining added by me)
Mr Vagg sent a copy of that email to Mr Leslie and Mr Murphy, and stated that he would keep them advised of any developments.
By around the end of 2017 Mr Leslie was becoming increasingly concerned about Mr Dodd and Mr Vagg falling out. This made it hard for Mr Leslie to obtain instructions from them, particularly Mr Vagg, on the running of the Station. Mr Leslie was also concerned that if Mr Dodd and Mr Vagg fell out completely he would never receive the promised shares in Windbox or payment for his equipment. Mr Vagg told Mr Leslie that he would be meeting with Mr Dodd in Melbourne on 3 January and they would try to sit down together and sort everything out. Mr Vagg asked Mr Leslie to attend the meeting and bring with him full details regarding cattle on the Station and also details of the equipment and assets that he owned and had been using on the Station.[60]
January 2018
Mr Leslie and Ms Rowbottom decided that they needed to attend the meeting on 3 January 2018 and that they would drive down to Melbourne after visiting Mr Leslie’s parents in New South Wales over the New Year period. The two of them discussed the forthcoming meeting as they drove to Melbourne. Mr Leslie was still concerned that Mr Dodd and Mr Vagg were not going to give him any shares in Windbox or remunerate him for all his efforts and his equipment. Mr Leslie and Ms Rowbottom agreed that they were not going to leave the meeting without something in writing from Mr Dodd and Mr Vagg agreeing that they were to be given shares in Windbox and “allowed to further buy in on agreed terms.” At that time Mr Leslie still thought that Mr Dodd and Mr Vagg may be in cahoots in relation to stringing him and Ms Rowbottom along. He wanted a solid agreement and commitment from them.[61]
At the meeting, Mr Vagg and Mr Dodd were in open argument, particularly in relation to Mr Vagg’s allegations of fraudulent accounting on the part of Mr Dodd. Mr Leslie recalled the following exchange:
Ray: … None of this matters anyway as I have lined up an overseas buyer. I’m selling and getting out. None of this is my problem anymore.
Me / Kylie: It seems pretty clear that there is little future for us with you. We are going to think about resigning, but we need to be paid out for the shares that have been promised to us and for all of the gear we own that is used in running the station.
Ray: Don’t worry about that, you will get it. I will try and work out some sort of deal for you with the incoming owners.[62]
Following the meeting, Mr Leslie and Ms Rowbottom decided that they were definitely going to resign from their employment with Windbox and that if Messrs Vagg and Dodd wanted them to continue working on the Station it would only be on the basis that they were independent contractors. Mr Leslie said that this would mean that he could be paid at a better rate for supplying contract services and he could also subcontract other people to come and help him on the Station so that he could do a lot more work flying and mustering on other cattle stations.[63]
On 4 January 2018, Mr Leslie telephoned his solicitor, Mr Markus Spazzapan of Ward Keller. A file note made by Mr Spazzapan of that telephone conversation records:[64]
4/1/18 – ZEBB LESLIE – P/SHIP – TA from ZL on leave at present back in NT next week. One of the partners has been doing $1M dodgy on the other two partners of which he is one. ZL 2% should be 10% the other two $17% and 81%. The 81% partner is the one doing the money dodgy.
Assets are a leasehold over aboriginal land 14,000 head of cattle. Value of $6.2M and 1 ha freehold on which is situated residence and meatworks.
He is the man on the ground, runs the cattle and the meatworks. He is the meat inspector also.
81% partner offered ZL $250k. Not enough for ZL he has put $60k of assets in and wants the value back. Assets now not worth much.
He is currently negotiating with the cattle land owners for new agistment lease. They will not lease it to the P/ship if ZL is not part of the deal. He has the upper hand. He wants to negotiate to get out of the P/ship on best $ he can. Get employed to manage the meatworks and the cattle for 5 yr or until sold. He to retain use of house. He can then negotiate for the cattle land lease and restock. There is no option available but for ZL to be employed to run the meatworks as he is the inspector and the place cannot run unless there is one and getting one in will be virtually impossible. (08:48 to 14:38).
On 7 January 2018, Mr Spazzapan emailed Mr Leslie regarding “Partnership Issues”.[65] On the same day Mr Leslie emailed Mr Dodd and Mr Vagg, attaching a letter which stated:[66]
Hi Ray & Bob,
As discussed on Wednesday 3/01/18. We would like to advise that we will be resigning from our positions of station managers taking our 2% share that was offered to us. On top of this 2% share payout you both agreed at the meeting to reimburse us for all our gear and infrastructure that we have put into the place using our own funds. A list for this will be provided once we are back.
We would also like to offer our future services as contractors and would be happy to continue running the meatworks & station at an agreed rate through our ABN for a period of 2 years unless sold prior. If you decide that this is not an option, we will leave within a month, or sooner if you would prefer.
Please advise as to how you would like to proceed with this by Friday 19/01/2018.
(underlining added by me)
On 10 January 2018, Mr Dodd emailed Mr Leslie, copying Mr Vagg, stating that:[67]
As we agreed at our last meeting we will now give you a 2% share of the business & also pay you for the goods that you bought with you & are used in the business. As I explained in my email to you on 8/11/2017, you need to list those items.
We are very keen for you & Kylie to continue to run the business & I will be encouraging any new shareholder to keep you on.
(underlining added by me)
By 12 January 2018, Mr Leslie was in Alice Springs (on his drive back to the Station with Ms Rowbottom). He decided to enquire about various cattle stations that he could potentially run as station manager and over which he could potentially obtain grazing licences. He said he began making these inquiries because, by this time, he thought he may only have limited time left working on the Station and he needed to secure what he was going to do for himself and his family.[68]
Mr Leslie telephoned Mr Steve Ellis (who has a lot of knowledge about Central Australian pastoral lands) and told Mr Ellis that he would probably be leaving the Station soon and wanted to find out what opportunities there were regarding cattle stations in around Alice Springs. Mr Ellis identified three good properties that might be worth investigating: Mount Wedge, Mount Allen and Yuendumu. Mr Leslie then tried, unsuccessfully, to hire a helicopter so he could fly over and inspect some of those properties.[69]
Mr Leslie also had a telephone discussion with a friend of his, Mr Rob Cook. Mr Leslie told him that he had been thinking about trying to obtain a licence over Mount Wedge, Mount Allan or Yuendumu because it looked like he would have to leave the Station soon. Mr Cook suggested that Mr Leslie consider applying for grazing licences over the Station properties. Mr Leslie said that this was the first time that it occurred to him that he could apply for the licences over the Station properties.[70]
On 13 January 2018, Mr Spazzapan emailed Mr Leslie about the Kalkarindji Meatworks[71]. Ms Rowbottom also emailed Mr Spazzapan on the same topic.[72] There is no evidence, or inference that can be drawn, that Mr Leslie spoke to Mr Spazzapan then, or any time before 7 February 2018, about the possibility of applying for the grazing licences.
On 16 January 2018, Ms Rowbottom sent Mr Spazzapan a draft of a letter which she and Mr Leslie proposed to send to Windbox. She also sent him a copy of some earlier correspondence, including the emails in September and October 2015 about Windbox’s promises to give them shares in Windbox, and Mr Dodd’s email of 10 January 2018.[73] Mr Spazzapan suggested some edits to the letter.[74]
On 17 January 2018, Mr Leslie sent the letter to Mr Vagg and Mr Dodd. It was attached to an email sent to each of them bearing the subject “Letter 17/01/18”. The letter stated:[75]
Just to clarify, you understand that we are resigning from our positions with Windbox. This will take place in a fortnight from today’s date 31/01/2018. You have said that you would be happy for us to continue managing the meatworks and station but this will be done with us as contractors through our ABN and we will only be doing it for 2 years unless the business is transferred/sold prior. We would like this to be at a rate of $4230 +GST per fortnight with a governess, accommodation, food, electricity and fuel to be supplied by, and at Windbox’s (as per the current agreement) expense. Our pay periods will coincide with the ADP pay period.
We were also asking you for a payout of the 2% share offered to us. Back on 28th September 2015 in an email sent to us you valued the shares at $65,000 each. The description of the $130,000 payment will need to be discussed so as to minimize any potential taxation liability.
(underlining added by me)
On 22 January 2018, Mr Vagg responded to the letter of 17 January by email to Mr Leslie, copied to Mr Dodd, stating that:[76]
I have read your letter and request re the 2% offered to be paid as an upfront payment rather than a share of the business and payment for the equipment transferred to Windbox Pty Ltd is reasonable and has my support. I also support your proposed remuneration and entitlement for your continued role of the day to day management of the property and meatworks on a contract basis to be paid fortnightly. I am copying this mail to Ray and urge him to respond in a timely manner.
(underlining added by me)
Mr Dodd emailed back to Mr Vagg on the same day, without copying in Mr Leslie, stating that:[77]
We are in agreement with almost everything except I didn’t offer 2% upfront. I offered Zebb a 2% shareholding. How do you value 2% up front, what happens if I sell my share for more or less. Are you prepared to put a valuation on this 2% that you would be happy to accept? The only honest price is the sale price!
On 23 January 2018, Mr Vagg responded to Mr Dodd, without copying in Mr Leslie, stating that:[78]
… Let me make some comment on your reply. I think your response lacks logic.
First sentence you say: We are in agreement with almost everything except I didn’t offer 2% upfront I offered Zebb a 2% shareholding. I think Zebb’s letter makes it clear that they are not interested in buying a share in the business. He is asking for a cash payment upfront as compensation for the 2% equity promised. The $65,000 per 1% is at the lower end of the scale as far as valuation is concerned. Effectively Zebb has put a valuation as $6.5m for 100%. Just half of the target price of your sale document. If you are lucky enough to find a buyer at more than $6.5m for 100% then you are better off.
The payment in cash from the Windbox accounts would have the advantage of not affecting the percentage shareholding of the Dodds or Vaggs.
Your question to me. Are you prepared to put a valuation on this 2% that you would be happy to accept? This question is ambiguous. I have agreed to the valuation that Zeb has put on his request for a cash payments compensation for the 2% equity promised. Does that mean I would be a seller for our 15% at that valuation? No it does not. I could ask you the same question. At what price would you be prepared to sell your shareholding?
Mr Dodd responded to that email later that day, this time copying in Mr Pearson but not Mr Leslie, and still using the subject heading “Re: Letter 17/01/18”. He said:[79]
I will be happy to sell at $130,000 per 1%.
You agree with Zebb’s demands but have you looked at the details – eg 13 items of furniture that could have come from your apartments, can you categorically say that none of these came from there. Did you give him the okay to buy these furniture items?
I have referred Zebb’s demands to John Pearson to check the legality and provide an employment agreement.
(underlining added by me)
Early on 24 January 2018, Mr Vagg forwarded Mr Dodd’s email of 23 January and the rest of the email chain with “Letter 17/01/18” as the subject, to Mr Leslie and Ms Rowbottom, without copying in Mr Dodd.[80] He said:
This is the latest from Ray. I have decided to share it with you considering Ray has shared my private mail with John Pearson. I have not yet responded to Ray’s latest but will do so tomorrow. …
However I have some thoughts. I think his attitude to you is mean, petty and contemptible. I believe he has no intention of granting your request and is simple (sic) continuing with his established plan. Frustrate, delay and deny.
Late on 24 January 2018, Mr Dodd sent an email to Mr Vagg and Mr Leslie, with the subject: “Instructions to Graham Cole re licences.” He requested their comments on a proposed letter to Mr Cole regarding the grazing licences.[81] The draft read as follows:
Given that the year is now 2018 & we haven’t had a grazing licence since 2015 & the CLC have made an offer which is exactly the same as our previous lease (with the additional land at Berta Warta).
There seems little hope of certainty so the only certainty for us is 5+5 year leases.
We wish to accept their offer with a few small amendments
1 The existing licence for Berta Warta is 66.5 Sq kms & maximum stock levels are set at 600, the previous licence set levels at 600 for us & 100 on behalf of the traditional owners making a maximum of 700.
2 The new area of Berta is 45.7 sq kms but there has been no allowance for maximum stock numbers, as we don’t wish to overgraze this area we would be happy for max numbers to be on the same basis as the original licence which would be 473.
3 We accept the offer made by the Yurtji Aboriginal Corporation to improve infrastructure at approximately $60,000.
4 From time to time we have had to purchase large quantities of hay for Cattle feed, we would like an in principle agreement to allow us to grow our own hay limited to 0.05% of the lease, sited in agreement with the traditional owners.
5 We also request that the CLC expedite a licence on Hooker Creek, we believe that a fair & reasonable time to achieve this would be 6 to 8 months.
6 We request that the licence period commence on 1/03/2018 as there has been agreement for from the traditional owners. If clause 4 is going to hold up the process we are prepared to negotiate later.
Ms Rowbottom said that she did not show that email to Mr Leslie. Although emails were usually addressed to and sent from the email address of Mr Leslie, it was Ms Rowbottom who accessed and read the emails. She did not always pass them or their contents on to Mr Leslie. She did not pass this email on to Mr Leslie because they had already told Mr Dodd that they were going to be ceasing their employment with Windbox and so did not need to respond to the letter. They did not want to have any further involvement. Ms Rowbottom also said she would not have brought Mr Dodd’s later email of 29 January to Mr Leslie’s attention.
Mr Leslie deposed that he does not recall seeing the email of 24 January, or Mr Dodd’s later email of 29 January, until they were shown to him in the course of preparing his affidavit of 9 February 2019. He said that at that time he and Ms Rowbottom were in a state of limbo, not knowing whether they would be leaving the Station after 31 January, and, at the same time, keeping the Station running and in good condition without being able to receive clear instructions from the directors. He said there is a good chance that Ms Rowbottom did not bring the emails to his attention, and even if she did, he would not have responded as he had more pressing things on his mind, namely whether he was staying on the Station or leaving.[82] I accept the evidence of Ms Rowbottom and Mr Leslie about those two emails.
Mr Dodd agreed that his email of 24 January suggesting that Windbox accept terms of 5 + 5 years was a radical change in his position. He said it was caused by his frustration both with his partner and his manager, and he wanted to shore up his position [83]
On Sunday 28 January 2018, Mr Leslie sent another letter to Mr Dodd and Mr Vagg, attached to an email with the subject heading: “Letter 28/01/18”. The letter said:[84]
We have noted that we have not had any response to our letter dated 17/01/18. Given there has been no response or negotiation we are assuming that you have organised a replacement for us. Please note that we advised in the letter that 31/01/18 will be our last day of employment.
As we have not yet had any response we wish to advise that we have drafted letters to both the CLC and to the NT Chief Meat Inspector of our resignation. As the meatworks runs under the obligation of needing a certified meat inspector, it will need to cease operation as the current licence has Zebb listed as the certified meat inspector. You will need to advise as to whom you have replacing us, so we can sign the NT117 processing stamp over as well as the NTLIS and Levies contact person.
If you could please advise as to the vacation date that you would like us out of the house and if you will be purchasing items listed in the letter 17/01/18.
(underlining added by me)
At 8.58 am on Monday, 29 January 2018, Mr Dodd sent an email to Mr Leslie, copied to Mr Vagg and Mr Pearson, using the subject "Letter 28/02/18”.[85] Mr Dodd said:
I was not able to respond to your offer as I was awaiting legal advice as to whether I could accept it.
You have received John Pearson’s advice that it is not legal to employ you and Kylie as subcontractors therefore you have to be employed as employees on salary. I am prepared to increase your gross salary by …. Obviously this offer only applies until there are changes to the current ownership.
Please let me know if you wish to accept this offer.
Presumably Mr Dodd’s reference to Mr Leslie having received Mr Pearson’s advice is a reference to a letter dated 24 January 2018, purportedly sent by email to Messrs Dodd, Vagg and Leslie at 4.59 pm that day.[86] The subject heading of that email was “Accountant Letter re Kalkarindji Meat Supply”. It said:
Dear Zebb
I am writing to you as accountant for Kalkarindji Meat Supply. I am concerned as to the financial arrangements as to your payment as a salary and your request to be paid as an independent contractor. The statutory requirements as to whether you are employed 80% of your time at Kalkarindji Meat Supply and to your other arrangements as a helicopter pilot are not associated as an employee.
Your income as a helicopter pilot is a separate issue but your employment as a manager of Kalkarindji Meat Supply is simply Employer / Employee.
…
Mr Leslie said he had not seen Mr Pearson’s letter before 29 January when Mr Pearson sent it to him again under cover of an email sent to him (but not copied to Mr Dodd and Mr Vagg) at 10.56 am that day.[87] It seems it had been sent to an incorrect email address.
I infer from Mr Dodd’s 8.58 am email of 29 January, that he had received Mr Pearson’s letter on 24 January. I do not understand Mr Dodd’s reference to him “awaiting legal advice as to whether [he] could accept [Mr Leslie’s] offer” to continue to work at the Meatworks and property as a contractor following the cessation of his employment on 31 January. This offer had been made on 7 January and again on 17 January. There has been no evidence of Mr Dodd having sought or obtained “legal advice” about Mr Leslie’s offer. Even if he did seek or obtain legal advice, it was never provided to Mr Leslie or his advisors. I can only infer that Mr Dodd’s reference to “legal advice” was at best a mistaken, at worst a deliberately misleading, reference to advice he received from his accountant Mr Pearson, on or before Mr Pearson’s letter of 24 January. If that is so, it was somewhat ingenuous for Mr Dodd to use this as an excuse for not responding earlier given the urgency of the matter, and for not addressing the other issues raised in Mr Leslie’s and Ms Rowbottom’s letter of 7 January and their follow-up letter of 17 January.
Mr Leslie and Ms Rowbottom responded to Mr Dodd’s 8.58 am email later that day, saying amongst other things:[88]
H Ray and Bob,
We have received your email of offer and have also finally received the email John said he sent on the 24/01/18. Note this email was not received by us until today as he had listed an incorrect email address.
We do not accept the offer you have made, and you have not addressed the other issues outlined in our letter dated 17/01/18. This is starting to show similar signs to the past eight years of promises that were continually pushed to the side, an issue that has brought us to this current situation. Just to reiterate the other items needing to be addressed are the purchase of goods and infrastructure we have put into the place as well as the 2% payout.
As nothing that we have put forward has been addressed, we are still set to finish on Wednesday 31/01/18. As we have stated we are only wishing to continue on as contractors. If you would like us to stay on until you find our replacement or until we can come to an agreement this will only be done through our ABN as a renegotiated rate.
Also on Monday 29 January, Mr Dodd sent himself an email with the subject heading: “FW: Instructions to Graham Cole re CLC Licenses”.[89] He copied Mr Vagg and Mr Leslie, but not Mr Cole. The email did not contain any message to anyone, for example, to explain why it was being sent to Messrs Vagg and Leslie. It appears to be copy of the draft contained in his email of 24 January[90] but added the words “Hi Graham” at the start, and additional text at the end, namely:
7. Graham could you please see if we can finalise this matter in a timely manner
Regards
Ray Dodd
Managing Director
Windbox P/L
On 30 January, using the same subject heading “Instructions to Graham Cole re Licenses” Mr Vagg sent an email back to Mr Dodd, copying in Mr Leslie.[91] Amongst other things he said that he had not agreed to Windbox accepting the CLC’s offer, and that there remain a number of issues that need to be settled “before we can go on to the next phase”. These included:
·“the promises made to Zebb and Kylie which you appear to have forgotten” and that “their position is clear and requires your urgent attention”; and
·difficulties that need to be resolved “given your plan to accept the five year + five year option lease offer and sell”.
He also said:
·Regarding your sale plans and as a measure of good faith, please send me the contact details of the agent you are dealing with and a copy of an agency agreement – if there is one.
It would have been clear to Mr Vagg, Mr Leslie and Ms Rowbottom that Mr Dodd wanted to sell Windbox, or at least his 85% share.[92] It would also have been clear to Mr Leslie and Ms Rowbottom that Mr Dodd was going to continue to string them along without addressing their concerns and despite the deadlines they had imposed for the termination of their employment.
In an email to Mr Leslie and Mr Vagg sent at 3.38 pm on 30 January Mr Dodd continued to insist that it was not legal for Windbox to employ Mr Leslie as a contractor.[93] He said that Mr Leslie had two options: “accept my offer of a substantial pay rise or resign.” He also said that:
Any Company correspondence is to be sent via me not direct from you.
Mr Leslie and Ms Rowbottom then sought assistance from Mr Spazzapan and provided him with a copy of Mr Pearson’s letter of 24 January 2018. At 1.31 pm on 31 January they emailed to Mr Dodd, and copied to Mr Vagg, a letter to Mr Dodd that had been settled for them by Mr Spazzapan.[94] The letter stated that they had obtained advice from an accountant and a taxation lawyer to the effect that the advice of Pearson Partners was incorrect and that they could be engaged as contractors.[95] The letter set out the reasoning behind that advice and dealt with Pearson Partners’ concerns about the “80/20 rule”. The letter also repeated that they did not wish to be engaged as employees and that they were “prepared to supply [their] services pursuant to an ABN.” They also complained that their concerns about being recompensed for the 2% share and for Mr Leslie’s equipment had still not been addressed, and that Mr Dodd had suddenly suggested they had additional obligations. They proposed a compromise which included three conditions, one of which was that Mr Leslie and Ms Rowbottom would “provide services pursuant to an ABN.” They ended their letter by saying:
You need to understand that I do not longer wish to be strung along and require our relationship to be placed on a commercial footing.
In the event the proposed compromise position set out is not accepted by COB today, I will move on as I have previously informed you of.
Mr Dodd did not respond to that ultimatum.
On 31 January Ms Wilkie of CLC sent an email to Mr Cole.[96] Ms Wilkie referred back to her emails of 4 August 2017 and 3 October 2017[97] and informed him that CLC wished to progress the matters in the next few months. She requested they discuss the matters sometime over the next few days.
1 February to 27 April 2018
Mr Leslie and Ms Rowbottom remained on the Station waiting for confirmation from Mr Dodd and Mr Vagg about whether they were to leave the Station or stay on as contractors.[98]
It seems that Mr Dodd had some communication with Mr Cole on or before 1 February. At 12.57 pm on 1 February 2018, Mr Cole sent an email to Mr Dodd, also copied to Mr Vagg, with the subject heading: “Windbox Pty Ltd – grazing licenses – Daguragu Aboriginal Land Trust”.[99] That email included Mr Cole’s email to Ms Wilkie of 26 July 2017 requesting an initial term of 10 years with two options for two further terms of eight years each, Ms Wilkie’s reply of 4 August 2017, and Ms Wilkie’s subsequent emails to Mr Cole on 3 October and 6 October 2017. Mr Cole’s email had a number of attachments, namely: “D17-94129 Additional paddock – Hooker Creek ALT.PDF”; “Daguragu Aboriginal Land Trust – Grazing Licenses”; and “DRAFT Grazing Licence.doc”. The first attachment was a map, apparently relating to some land held by the Hooker Creek Aboriginal Land Trust. The second attachment was Ms Wilkie’s email to Mr Cole dated 19 October 2016 referred to in [28] above. The third was a pro forma CLC Grazing Licence containing the date 2015.
At 1.38 pm on 1 February, Mr Cole sent another email to Mr Dodd, copied to Mr Vagg, with the subject heading: “Re Windbox Pty Ltd – pastoral licenses at Kalkarindji”.[100] The email said: “Ray as requested”. Mr Cole’s email included Mr Cole’s email to Ms Wilkie of 26 July 2017, and Ms Wilkie’s reply email to Mr Cole of 4 August 2017. Shortly after that, Mr Dodd replied to Mr Cole, copying in Mr Vagg. Windbox has deleted all the text from that reply email.[101] The email appears to contain four paragraphs. I do not know what was said in the email. I note however that it bore the same subject heading “Re Windbox Pty Ltd – pastoral licenses at Kalkarindji” as Mr Cole’s email sent at 1.38 pm that day.
Later that day, at about 5 pm, Mr Dodd emailed Mr Vagg, responding to his email of 30 January concerning the subject: “Re: Instructions to Graham Cole re Licenses” (referred to in [78] above).[102] Amongst other things he said:
“Graham Cole” I hope you agree that 5 + 5 years is better than 0 years, don’t you think it is better to negotiate for changes after we have 10 years.
…
“Zebb Kylie” I will not enter into an illegal contract with Zebb, you have seen the emails, we now have to wait for a Legal Opinion.
“Zebb’s sale items” some items don’t look right to me therefore I asked you a question which you have not answered. Is Zebb honest or are you covering for him by not saying?
100% Sale. I am selling the 85% that I own. I am not including your 15% as you said you did not want to sell, the new owners don’t have to own 100% to make the decisions, including if they will pay dividends.
(underlining added by me)
At 8.40 pm on 1 February, Mr Vagg forwarded Mr Cole’s email of 12.57 pm (including the attachments) to Mr Leslie.[103] At 8.42 pm Mr Vagg emailed Mr Leslie a copy of his email with Mr Dodd headed “Re: Instructions to Graham Cole re Licenses” (referred to in [87] above). Mr Leslie deposed that prior to making his affidavit he could not recall Mr Vagg’s emails regarding Windbox’s negotiations to obtain grazing licenses, and that if he had seen them he would have ignored them for the same reasons that he gave for ignoring the previous emails (of 24 and 29 January) about the same topic.[104]
At 10.57 pm on 1 February, Ms Rowbottom sent an email to Mr Dodd. It said:[105]
As per our email 31.01.18 we are needing to know where you stand with our employment and other matters. We will need to know by midday 2/02/18 as you will need to advise customers such as the Kalkarindji store and Lajamanu store as to whether you can supply them with meat next week as we are due to kill on Saturday morning. Myself and Zebb have developed a professional relationship with both lot of managers and do not wish to let them down.
If there is no response we will continue packing and cease all work. We have supplied sufficient notice, as this has been going on since we met in Melbourne and a letter was sent over a fortnight ago advising you that the 31/01/18 would be our last day if nothing was agreed upon. We have been more than lenient given we are still operating.
Shortly after the deadline of midday 2 February, Mr Dodd emailed back to Mr Leslie at 12.20 pm, reiterating his advice that it was not legal to employ Mr Leslie as a contractor.[106] He said nothing in response to Mr Leslie’s detailed email of 30 January where he had set out the basis of the legal and accounting advice that he had received.
Following that email, Mr Leslie had a telephone conversation with Mr Dodd during which Mr Dodd said that he would find a replacement station manager but, in the meantime, he wished Mr Leslie to stay on as a contractor for a month, or longer if they could reach an agreement.[107]
Mr Leslie then emailed Mr Dodd, copying Mr Vagg, stating that:[108]
As discussed on the phone earlier today our employer/employee status has ceased as of 31/01/18. We have both agreed, that you are now happy for us to continue on as contractors until 2/03/18. We will hopefully by then have come to an agreement as to whether we can continue on as contractors based on the final advice on the 80/20 rule.
Mr Dodd responded by email, also copied to Mr Vagg, at 4.24 pm:[109]
Thanks for your offer to work as contractors from 31/02/2018 to 2/03/2018 or longer if possible.
I accept your offer. Please send Accounts an Invoice for $4230 + GST each fortnight.
Mr Leslie said that during that couple of days until his discussion and emails with Mr Dodd on 2 February, he started to think seriously about applying for the grazing licences over the Station properties.[110] He decided that the best way to make tentative first steps toward applying for the grazing licences would be to send an expression of interest to the CLC.[111]
On 2 February Mr Leslie called Ms Kimberly McIntosh at the CLC to enquire whether he and Ms Rowbottom could apply for the grazing licences.[112] Ms McIntosh then checked internally at the CLC and called Mr Leslie back a short time later telling him that he and Ms Rowbottom could apply.[113]
At 1.49pm on 2 February, Mr Leslie lodged Expressions of Interest for the three grazing licences, by email to Ms McIntosh as follows:[114]
We write to you in relation to the grazing licences for Daguragu Land Trust. I, Zebb Leslie and Kylie Rowbottom wish to express our interest in applying for the grazing licences. Please note that we do this as our own separate entity away from Windbox Pty Ltd. The grazing licences we wish to apply our interest in are:
Ø McDonald’s Yard
Ø Berta Warta
Ø Seale, Spring & River Paddocks and North Seale & Neave Ridge Paddocks (North Paddocks)
As you are aware we have been the managers for this area of the past 8 years and feel we have developed a great relationship with the community and surrounding businesses and would like to continue this relationship in the future. We have recently resigned from Windbox Pty Ltd, but would like to continue our future here in Kalkarindji.
On 6 February 2018, Ms Wilkie of the CLC emailed Mr Cole an “updated draft of the Grazing Licence in this matter”, which “replaces all previous drafts forwarded in this matter”. Ms Wilkie said: “I look forward to hearing further from you about your client’s intentions.”[115] Mr Cole responded the same day: “I hope to get back to you in the next few days. I am instructed by two separate directors and they are coordinating the company’s position at the moment.”[116] The “updated draft” was not put into evidence.
Also on 6 February 2018, according to a “Change to company details” form signed by Mr Dodd on 26 February 2018 and lodged with the Australian Securities and Investments Commission, Mr Vagg ceased to be a director of Windbox.[117] It seems that this change was made without the knowledge or consent of Mr Vagg. Mr Leslie and Ms Rowbottom remained under the impression that Mr Vagg was still a director until they left the Station late in April. This was the case despite Mr Leslie attempting to contact both Mr Dodd and Mr Vagg for instructions during that period. Mr Vagg informed Ms Wilkie of this change in an email 13 May. Amongst other things he expressed his “serious disagreement Ray Dodd’s outrageous treatment of our former property management couple, Zebb Leslie and Kylie Rowbottom, who were our most loyal and hard-working employees. Zebb and Kylie have been sacked and denied promised reward for past works and their undeniable contribution to the development of our lease and cattle herd.”[118]
On 7 February 2018, Ms McIntosh emailed Mr Leslie, attaching a pastoral proposal form and stating that:[119]
When filling it out please add in your business proposal (you know how this works if not call me).
Be very clear on whether you will be seeking to contract in your personal capacity or through a corporate structure.
We will also need the name of your legal representative.
On 13 February Ms Wilkie and Mr Cole had a telephone conversation during which they discussed the draft grazing licence which Ms Wilkie had sent to Mr Cole on 6 February. There is no evidence as to whether or not the Vagg amendment was included in the draft.[120] Ms Wilkie’s diary note of that meeting concluded with a note to the effect that Mr Cole was “largely OK” with the draft and he would “seek updated instructions from [his] client and revert.”[121]
On 16 February 2018, Mr Leslie emailed Mr Dodd and Mr Vagg, stating that:[122]
If next week is dry, I will need to start pulling weaners off spayed and cull cows at Burta Wurta to keep condition on sale cows. What we need to know is, as we have been made aware Windbox is for sale. Do we need to leave cows as long tails for a bangtail muster later on if a sale comes along? Also, we would like to know if you want us to make any cattle sales or do you want the numbers on the property for the sale. Please let us know because if it doesn’t rain we will need to start destocking as we are currently short 18 inches of our average rainfall.
By that time Mr Leslie was very much preoccupied with the uncertainties of the next few days and weeks, and in particular when he would need to uproute his family and move elsewhere. Mr Dodd was fully aware that Mr Leslie’s employment was about to come to an end. Had he considered that it was information that Mr Leslie should not have, two days before his employment was to end, he would have said so at the time. Indeed, by that time Mr Dodd already had trust issues with Mr Leslie, in relation to his request for payment for his equipment.
[428]The plaintiff has not made out the allegations in [46] of the FSOC. I dismiss the claim of breach of s 183(1) of the Corporations Act.
Conclusions and Orders
[429]The plaintiff has not proven its case. The plaintiff’s action is dismissed.
[430]There will be judgment for the Third, Fourth and Fifth Defendants.
[431]The proceedings brought by the Plaintiff against the First and Second Defendants are dismissed.
[432]The Third, Fourth and Fifth Defendants have liberty to apply to enforce the Plaintiff’s undertaking as to damages.
[433]The Plaintiff and the First and Second Defendants bear their own costs of and incidental to the proceedings.
---------------------------------
[1] This was later varied and extended.
[2] These were referred to as the contract and estoppel claims. See Fourth Statement of Claim filed 6 March 2019 (FSOC) [28] and [28A].
[3] FSOC at [51] – [52].
[4] FSOC at [50] – [50A].
[5] FSOC at [29] – [46].
[6] FSOC at [47].
[7]Orders made 17 July 2019.
[8] See Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [No 2] [2019] NTSC 96.
[9] See FSOC at [53.6] and [53.7].
[10] Northern Territory Portions 1318 and 2395 shown on Plan S83/205, being all of the land described in Certificate of Title Register Book Volume 815 Folio 431.
[11] ALRA, s 4(1).
[12] ALRA, s 23(1)(e)(i).
[13] ALRA, s 5(2).
[14] See for example ALRA, s 23.
[15] Affidavit of Luke Timothy Gardiner sworn 21 September 2018 (Exhibit P11) at p 23.
[16] Exhibit P11 at p 39.
[17] Exhibit P11 at p 56.
[18] ASIC Extract in respect of Windbox (Exhibit P15). See [98] below.
[19]Affidavit of Mr Zebb Leslie affirmed 9 February 2019 (Exhibit J3) at p 2.
[20] Exhibit J3 at [28.1] and pp 54-55.
[21] Exhibit J3 [28.1] and pp 53-54.
[22] Exhibit J3 at [28.2] and pp 57-58.
[23] Exhibit J3 at [28.3] and [29].
[24]Affidavit of Ms Sarah Catherine Wilkie sworn 23 February 2019 (Exhibit C1) at [32] – [33] and pp 78-81.
[25]Exhibit C1 at pp 80-81.
[26] Exhibit C1 at pp 78-79.
[27] Exhibit J3 at pp 108-124.
[28] For example, when Mr Leslie was directed to section 2 of the document where it was proposed that Windbox would pursue potential alternative agricultural activities to diversify risk, he laughed and explained that it was not possible to change the licence from grazing to agricultural/pastoral.
[29] Exhibit J3 at pp 60-71, 75-83, 91-103 and 105-106.
[30] Exhibit P11 at p 93. This email was one of the emails that Mr Cole sent to Mr Dodd and Mr Vagg on 1 February 2018 and which Mr Vagg then sent on to Mr Leslie the same day. See Exhibit J3 at p 224.
[31] See for example emails of 23 November 2016, Exhibit P10 at p 43.
[32] Exhibit J3 at p 139.
[33] Exhibit J3 at p 144.
[34] Exhibit J3 at p 153.
[35] Exhibit J3 at p 149.
[36] Exhibit C1 at p 85.
[37] Exhibit J3 at [31] – [33] and Transcript at pp 624-627.
[38] Exhibit J3 at [34].
[39] Exhibit P11 at p 97.
[40] Transcript at p 235.
[41] Exhibit J3 at p 163.
[42] Exhibit P11 at pp 101-102. Mr Cole forwarded this email to Mr Dodd and Mr Vagg on 1 February 2018.
[43] Exhibit J3 at pp 166-167.
[44] The summary also stated: “The 5 + 5 doesn't seem satisfactory.”
[45] Exhibit J3 at pp 166-168.
[46] Exhibit J3 at pp 166-168.
[47] Affidavit of Mr Zebb Leslie affirmed 19 October 2018 (Exhibit J2) at p 7.
[48] Exhibit J2 at p 7.
[49] See [28] above.
[50] Exhibit P13.
[51] Those emails, and the subsequent dealings between Mr Cole and the CLC make no reference to that suggestion.
[52] Exhibit P11 at p 105.
[53] Exhibit J3 at p 171.
[54] Exhibit J3 at p 171.
[55] Exhibit J3 at p 177.
[56] Exhibit J3 at p 179.
[57] See [37] above.
[58] Exhibit J3 at p 181.
[59] Exhibit J2 at pp 2-4.
[60] Exhibit J3 at [37] – [39].
[61] Exhibit J3 at [39] – [40].
[62] Exhibit J3 at [41].
[63] Exhibit J3 at [42] and Transcript at p 657. See too Affidavit of Kylie Rowbottom dated 9 February 2019 (Exhibit J4) at [10] – [11].
[64] Document that is entitled ‘PRIV 1.3’ which purports to be a diary note of Markus Spazzapan of 4 January 2018 (Exhibit P20).
[65] Affidavit of Marcus Spazzapan dated 20 March 2019 (Exhibit J9) at p 23.
[66] Affidavit of Mr Dodd dated 21 September 2018 (Exhibit P3) at p 16.
[67] Exhibit J3 at p 188.
[68] Exhibit J3 at [45].
[69]Exhibit J3 at [45] – [46].
[70]Exhibit J3 at [47] – 48]. See too Exhibit J4 at [12] – [13] and Transcript at p 568-570; Exhibit J8 at [3] and Transcript at pp 322 and 450.
[71] Exhibit J9 at p 29.
[72] Exhibit J9 at p 30.
[73] Exhibit J9 at pp 32-40.
[74] Exhibit J9 at pp 43-44.
[75] Exhibit P3 at p 18; Exhibit J3 at p 190. The email continued with a list of items and infrastructure to be reimbursed, which is not reproduced here.
[76] Affidavit of Mr Raymond Dodd made on 6 March 2019 (Exhibit P10) at p 49; Exhibit J3 at pp 194 and 197.
[77] Exhibit J3 at p 197.
[78] Exhibit J3 at p 194.
[79] Exhibit J3 at p 196.
[80] Exhibit J3 at p 196.
[81] Exhibit J3 at p 199.
[82] Exhibit J3 at [52].
[83] Transcript at p 240.1.
[84] Exhibit J3 at p 202.
[85] Exhibit J3 at p 204.
[86] Exhibit J3 at p 207.
[87] Exhibit J3 at [54] and p 265.
[88] Exhibit J3 at p 212.
[89] Exhibit J3 at p 209.
[90] See [67] above.
[91]Exhibit J3 at p 214.
[92] See [42], [44], [51] and [72] above.
[93] Exhibit J3 at p 217.
[94] Exhibit J9 at pp 48, 51, 52 and 57.
[95] Exhibit J3 at p 220.
[96] Exhibit C1 at [48] and p 94.
[97] In her email of Ms Wilkie had offered to put the Vagg amendment to the traditional owners.
[98] Exhibit J3 at [61].
[99] Exhibit J3 at pp 224-256.
[100] Exhibit P11 at pp 101-103.
[101] Exhibit P11 at p 101.
[102] Exhibit J3 at p 258.
[103] Exhibit J3 at [62] and pp 224-256.
[104] Exhibit J3 at [62].
[105] Exhibit J3 at p 263.
[106] Exhibit J3 at p 265.
[107]Exhibit J3 at [64].
[108] Exhibit J3 at p 267.
[109] Exhibit J3 at p 267.
[110] Exhibit J3 at [68].
[111]Exhibit J3 at [69].
[112] Exhibit J3 at [70].
[113] Exhibit J3 at [70].
[114] Exhibit J3 at p 271.
[115] Exhibit P11 at p 110.
[116] Exhibit P11 at p 110.
[117] Exhibit P15.
[118] Exhibit C1 at p 105.
[119] Exhibit J3 at p 274.
[120] Transcript at pp 324-334.
[121] Exhibit C1 at [50] and p 96.
[122] Exhibit P3 at p 25.
[123] Exhibit J3 at p 333.
[124] Exhibit J3 at [72] and p 288.
[125] Exhibit J4 at [16].
[126] Exhibit J4 at [17] – [19].
[127]Exhibit J4 at [20] – [21].
[128] Eight Affidavit of Luke Timothy Gardiner sworn 5 March 2019 (Exhibit P12) at pp 86-87.
[129] Exhibit J3 at p 310.
[130] Exhibit C1 at p 98.
[131] Exhibit C1 at p 99.
[132] Exhibit J3 at p 357.
[133] Exhibit J3 at p 357.
[134] Exhibit J3 at p 359. In addition to copying Mr Vagg into that email, Mr Dodd said nothing about the fact that Mr Vagg was no longer a director.
[135] Exhibit J3 at [84].
[136] Exhibit P12 at p 86.
[137] Exhibit J3 at p 335.
[138] Exhibit J3 at p 335.
[139] Exhibit P3 at p 26.
[140] Exhibit J3 at p.361.
[141] Exhibit J3 at p 361.
[142] Exhibit C1 at p 100.
[143] Exhibit J3 at p 32.
[144] Exhibit P3 at p 27.
[145] Exhibit C1 at p 101.
[146] Transcript at pp 193.7 and 251.
[147] Transcript at p 194.4.
[148]Transcript at p 251.9.
[149] Affidavit of Michael Cann dated 5 March 2019 (Exhibit P2) at [3].
[150] Mr Cann accepted in cross examination that Mr Leslie had told him that he had been “doing a bore run” on the day that he arrived at the Station at Kalkarindji and on the basis that Mr Leslie’s last bore run was on 27 April 2018, it was possibly “somewhere around” that date that they arrived: Transcript at p 122. See also Exhibit P2 at [2]. Ms Cann accepted in cross-examination that they had arrived on the evening of 27 April 2018 and that the reference in her affidavit to 18 April was a mistake: Transcript at p 151.
[151] Exhibit C1 at p 105.
[152] Exhibit C1 at pp 105-6.
[153] Exhibit P12 at p 89.
[154] Exhibit C1 at [69]-[71].
[155] Exhibit C1 at p 116.
[156] Exhibit C1 at p 118.
[157]FSOC at [30A].
[158] Exhibit C1 at pp 120, 127 and 132.
[159] Exhibit C1 at pp 125 and 132.
[160]Exhibit C1 at p 14.
[161]Exhibit C1 at p 14.
[162] See my Reasons for Decision in Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [2019] NTSC 47 (Windbox [No 1]), particularly [3], [19], [21], and [28] – [32].
[163] See Orders made on 22 February 2019 and my Reasons for Decision in Windbox [No 1].
[164] FSOC at [46.1.2].
[165]See [98], [106] – [107], [110] – [112] and [120] above.
[166] Affidavit of Mr Dodd dated 4 March 2019 (Exhibit P5) at [44] – [48].
[167] Presumably this a reference to the unsuccessful negotiations in 2015 referred to in [19] to [21] above.
[168] Plaintiff’s Written Closing Submissions dated 26 April 2019 (Windbox Submissions 26 April 2019) at [127].
[169] Third, Fourth and Fifth Defendants’ Written Closing Submissions dated 27 May 2019 (JACT Submissions 27 May 2019) at [10.3] and [10.5].
[170] Transcript at pp 195.5 and 252.8-253.4.
[171] JACT Submissions dated 27 May 2019 at [10.6].
[172] Exhibit P11 at p 101. See [86] above.
[173] Affidavit of Mr Dodd dated 16 November 2018 (Exhibit P4) at pp 6-30.
[174] Exhibit P5 at pp 13-37.
[175] Exhibit P5 at [14].
[176]Giannarelli v Wraith (No.2) (1991) 171 CLR 592 per McHugh J at 606.
[177]Standard Chartered Bank of Australia Ltd v Antico (1993) 36 NSWLR 87 per Hodgson J at 94.
[178] See [65] and [87] above.
[179] See [75] above.
[180]See [108] above.
[181] See for example [44] above.
[182] As will appear later in these reasons, I reject these allegations. See for example in [307] – [309] below.
[183] Windbox Submissions 26 April 2019 at [97.3].
[184] Windbox Submissions 26 April 2019 at [155.7] (quoted in [406] below).
[185] Windbox Submissions 26 April 2019 at [98].
[186] Windbox Submissions 26 April 2019 at [155.7] (quoted in [406] below).
[187] Windbox Submissions 26 April 2019 at [97.4], [98] and [155.6] (quoted in [406] below).
[188] JACT Submissions 27 May 2019 at [9].
[189] (2013) 310 ALR 165 at [2954] and [2959].
[190] His Honour referred to other cases including Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel) at 308.
[191] (2011) 81 NSWLR 498 at [66] and [79].
[192] (2014) 219 FCR 322 (Ashby v Slipper) at [141], [142] and [157]. See too Lawrie v Lawler [2016] NTCA 3 per Heenan AJ at [455] – [456].
[193] See [307] – [311] below.
[194]See my observations at [142] about inferences that can or cannot be drawn where a party asserts legal professional privilege.
[195] Windbox Submissions 26 April 2019 at [98].
[196] See [265] – [311] below.
[197] See [307] – [311] below.
[198] See [275] – [292] below.
[199] See [68] – [70] above and [294] – [302] below.
[200] Windbox Submissions 26 April 2019 at [157].
[201] Transcript at p 363.9.
[202] The Affidavit of Michael John Cann made 17 January 2019 (Exhibit P1) at [7].
[203] Transcript at p 139.
[204] Affidavit of Mr Rhett Donald Mobbs made 29 January 2019 (Exhibit P7).
[205] Transcript at p 163.5.
[206] (1977) 52 ALJR 189 at 197.
[207] See too letter dated 10 September 2019 annexed to Affidavit of Geoffrey John Stirk made on 12 September 2019.
[208] See [119], [127] and [127] above.
[209] R v Toohey; ex parte Meneling Station (1982) 158 CLR 327 at 355-9 (Brennan J). See too Northern Land Council v Quall [2019] FCAFC 77.
[210] As to the “satisfaction” requirement in s 19(5) ALRA see Ellis v Central Land Council (2018) 355 ALR 93 and Ellis v Central Land Council [2019] FCAFC 1.
[211] (2014) 220 FCR 202.
[212] (1988) 164 CLR 604.
[213] See Windbox [No 1].
[214] Gurindji land claim to Daguragu Station: report by the Aboriginal Land Commissioner, Mr Justice Toohey, to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory (1982) Office of the Aboriginal Land Commissioner; Gurindji land claim to Daguragu Station: Further report to the Minister for Aboriginal Affairs and to the Administrator of the Northern Territory by the Aboriginal Land Commissioner, Mr Justice Maurice (1985) Office of the Aboriginal Land Commissioner.
[215] FSOC at [40].
[216] FSOC at [41].
[217] FSOC at [45].
[218] See [312] – [350] below.
[219] FSOC at [46.1].
[220] Windbox Submissions 26 April 2019 at [95].
[221] Windbox Submissions 26 April 2019 at [96].
[222] Windbox Submissions 26 April 2019 at [97].
[223] Noting that s 182 extends to an employee.
[224] JACT Submissions 27 May 2019 at [41].
[225] JACT Submissions 27 May 2019 at [42].
[226] JACT Submissions 27 May 2019 at [42].
[227] JACT Submissions 27 May 2019 at [42].
[228] JACT Defendants further submissions following hearing on 23/8/19 filed 6 September 2019 (JACT Further Submissions 6 September 2019) at [3].
[229] Plaintiff’s Further Written Submissions in Reply dated 27 September 2019 (Windbox Response Submissions 27 September 2019).
[230] Also, in footnote 18 to paragraph [16] of their written opening submissions of 1 March 2019, counsel for the JACT defendants stated that the Court only needed to find that Mr Leslie had been an employee.
[231] See for example FSOC at [1.8], [5.2], [40], [41], [45], [46] and [53.1].
[232] Hodgson v Amcor Ltd [2012] VSC 94 (Amcor) at [1313].
[233] [1989] VR 821 (Bracht).
[234] The codification of Ormiston J’s principles were also referred to in Australian Securities and Investments Commission v King [2020] HCA 4 (ASIC v King) at 17-18.
[235] ASIC v King at 16 (per Kiefel CJ, Gageler and Keane JJ).
[236] See Bracht at pp 829-830.
[237] Bracht at p 830.
[238](2007) 160 FCR 35 (ASIC v Citigroup (No 4)).
[239](2010) 238 FLR 384.
[240] See ASIC v Citigroup (No 4) at [499] and Buzzle v Apple at [93] – [109].
[241] Noted in Amcor at [1309].
[242] Windbox Submissions 27 April 2019 at [89].
[243] Windbox Submissions 26 April 2019 at [91].
[244] Exhibit P3 at [8.1].
[245] Exhibit P3 at [8.2].
[246] Exhibit P3 at [8.3].
[247] Exhibit P3 at [8.4].
[248] Exhibit P3 at [8.5].
[249] Exhibit P3 at [8.6].
[250] Exhibit P3 at [8.7].
[251] Exhibit P3 at [8.8].
[252] Adopting the expression used by Vickery J in Amcor.
[253] Exhibit J2. See too [16] – [19] above.
[254] Transcript at p 593.3.
[255] Exhibit J2 at [11.1]; Exhibit J3 at [16.1].
[256] Exhibit J2 at [11.2]; Exhibit J3 at [16.2].
[257] Exhibit J2 at [11.3]; Exhibit J3 at [16.3].
[258] Exhibit J2 at [11.4]; Exhibit J3 at [16.4].
[259] Exhibit J2 at [11.5]; Exhibit J3 at [16.5].
[260] Exhibit J2 at [11.6]; Exhibit J3 at [16.6].
[261] Exhibit J2 at [11.7]; Exhibit J3 at [16.7].
[262] Exhibit J2 at [11.8]; Exhibit J3 at [16.8].
[263] Transcript at p 203.4; Exhibit J3 at [18] – [22].
[264] Exhibit J3 at [18] – [21].
[265]Affidavit of Mr Zebb Leslie affirmed 6 March 2019 (Exhibit J7).
[266] Exhibit J7 at [7].
[267] Exhibit J7 at [7].
[268] Transcript at p 212 – Mr Dodd (who was responsible for the financial side of things) never provided Leslie with a copy of Windbox’s accounts.
[269] Exhibit J7 at [8] – to which Dodd agreed with at Transcript at p 218.
[270] Exhibit J7 at [5] – [6].
[271] Exhibit J3 at [24].
[272] Exhibit J7 at [9].
[273] Exhibit J7 at [9].
[274] Exhibit J7 at [9.1]; Mr Dodd accepted this – Transcript at p 219.2.
[275] Exhibit J7 at [9.2].
[276] Transcript at p 219.3.
[277] Exhibit J7 at [9.3].
[278] Transcript at p 219.5.
[279] Exhibit J7 at [9.4].
[280] Exhibit J7 at [10].
[281] Exhibit J7 at [12].
[282] Exhibit J7 at [11].
[283] Exhibit J7 at [10].
[284] Exhibit J7 at [13].
[285] Transcript at pp 220.6-221.2.
[286] Exhibit J7 at [14] which Mr Dodd agreed with at Transcript at p 221.5.
[287] Transcript at pp 603-607. In summary, the exporters would put out sale prices and the agent would then call Mr Leslie notifying of the sale prices. Mr Leslie would then discuss the sale prices and proposed sales with Mr Vagg. If Mr Vagg did not agree to proposed sales, he would decline the sales.
[288] Transcript at pp 599.5 and 674.
[289] See Exhibit J7 at [15] accepted by Mr Dodd at Transcript at p 221.5.
[290] Exhibit J7 at [11], [15], [17] – [18].
[291] Exhibit J3 at [27].
[292] Exhibit J3 at [30].
[293] Transcript at p 566.3.
[294] Exhibit J3 at [27.7].
[295] Transcript at p 227.7.
[296] Windbox Submissions 26 April 2019 at [90].
[297] See Mr Leslie’s letters of 7 and 17 January and subsequent communications discussed earlier in these reasons.
[298] Exhibit J3 at [64].
[299] Exhibit J3 at [65] and Tab 59.
[300] Transcript at pp 244.8-245.5.
[301] Exhibit J3 at [85], Tab 71.
[302] Exhibit J7 at [20].
[303] Transcript at p 245.8.
[304] Exhibit J7 at [25] – Mr Dodd accepted this paragraph at Transcript at p 259.4.
[305] Exhibit J7 at [22]; Transcript at p 250.6.
[306] Exhibit J7 at Tab 52.
[307] Exhibit J7 at [23].
[308] Exhibit J7 at [22].
[309] Exhibit J7 at [21].
[310] Transcript at p 256.4.
[311] Exhibit J3 at Tab 67.
[312]See [106] – [107] above.
[313] Exhibit J3 at [78] and [81].
[314] Transcript at p 256.8.
[315] FSOC at [41].
[316] FSOC at [45].
[317] FSOC at [41].
[318] See [105] above.
[319] Windbox Submissions 26 April 2019 at [163] – [166].
[320] Exhibit J4 at [46]-48]; Exhibit.J5 at [12].
[321] Affidavit of Robert Thomas Cook dated 5 March 2019 (Exhibit J8) at [3].
[322] JACT Submissions 27 May 2019 at [23].
[323] I discuss the “Vagg conspiracy” elsewhere in these reasons. See [307] - [311].
[324] See [49] – [55] above.
[325] Exhibit P20. See [53] above.
[326] Windbox Reply Submissions 10 June 2019 at [18.4].
[327] JACT Submissions 27 May 2019 at [24].
[328] JACT Submissions 27 May 2019 at [25].
[329] Exhibit C1 at p 91; and see the licences granted here.
[330] He clearly cannot assume he would be, or would want to be, employed by a purchaser. The specification of 5 years is otiose unless it represents a maximum.
[331] The correspondence passing between Mr Spazzapan and Mr Leslie following Mr Spazzapan’s file note is at ‘MS-3’ to Mr Spazzapan’s affidavit sworn 20 March 2019.
[332] Windbox Reply Submissions 10 June 2019 at [18.4].
[333] Windbox Reply Submissions 10 June 2019 at [18.5].
[334] Production of that file note was resisted on the grounds of legal professional privilege, but that claim was dismissed on the basis that Mr Leslie had waived the privilege.
[335] Affidavit of Markus Spazzapan affirmed 20 March 2019.
[336] Transcript at pp 684–700.
[337] Exhibit J9 at [5].
[338] Exhibit J9 at [3].
[339] Exhibit J9 at [6.2].
[340] Transcript at p 688.9.
[341] Transcript at p 687.5.
[342] Exhibit J9 at [7].
[343] Exhibit J9 at [8].
[344] Exhibit J9 at [9].
[345] Transcript at p 689.3.
[346] Transcript at p 689.7.
[347] Transcript at p 690.7.
[348] Transcript at p 692.7.
[349] Transcript at p 693.2.
[350] Transcript at p 693.10.
[351] Transcript at p 694.9.
[352] Transcript at p 695.4.
[353] Exhibit J9 at [11].
[354] Exhibit J9 at [12].
[355] See for example Mr Vagg’s emails of 1 November and 11 December 2017 quoted in [44] and [47] above.
[356] Cf Transcript at p 201.4.
[357] Exhibit J3 at [48].
[358] He had agreed it was a radical change in his position.
[359] Ms Wilkie was still under the impression that Windbox was still requiring the addition of the Vagg amendment.
[360] See [68] and [69] above.
[361] Transcript at pp 631-633.
[362] Transcript at p 637.2.
[363] Exhibit P11 at p 101.
[364] Exhibit P5 at [37].
[365] Mr Dodd repeated his query about Mr Leslie’s honesty in his further email to Mr Vagg on 1 February. Mr Vagg sent that email on to Mr Leslie at 8.42 pm that day. See Exhibit J3 at p 258.
[366] See [95] – [96] above.
[367] See [105] above.
[368] FSOC at [45.1].
[369] Exhibit P1 at [19] etc.
[370] Transcript at p 216.
[371] Exhibit J3 at pp 66-67; Transcript at p 228.
[372] Transcript at p 236.7.
[373] Exhibit J2 at p.8; see Transcript at p 236 where Mr Dodd agreed.
[374] Exhibit P11 at p 102; Transcript at p 228.
[375] Transcript at pp 359-360.
[376] Affidavit of Kimberly Ann McIntosh affirmed 25 February 2019 (Exhibit C2) at [9], Transcript at p 362.
[377] Transcript at pp 365.8-366.2.
[378] Transcript at p 363.4.
[379] Exhibit .J2 at pp 2-4; see also Exhibit J2 at p 5.
[380] Exhibit J2 at pp 15-16; Transcript at pp 232-234.
[381] Transcript at p 235.
[382]See [65] and [87] above.
[383] Transcript at p 245.
[384] Exhibit P4 at pp 37–51.
[385] Exhibit P4 at pp 40–45.
[386] Exhibit P4 at pp 46–50.
[387] Exhibit P4 at p 51.
[388] Transcript at p 134.7.
[389] Exhibit P4 at [4].
[390] Mr Newsome’s report concluded that such an assertion is not well supported.
[391] Exhibit J3 at [128] – [138].
[392] Transcript at p 251.
[393] Transcript at pp 215.5 and 216.5.
[394] Exhibit J3 at [148].
[395] Exhibit J3 at [151] – [154].
[396] Exhibit J7 at [29] and Transcript at pp 663-664 – Mr Leslie explained that the same practice takes place for Heytesbury. This is because the cattle are exported by ship and live exporters will not accept cattle with a lump on their neck.
[397] Transcript at p 530.
[398] Transcript at p 531.
[399] Exhibit J3 at [139] – [142], [159.5] – [159.8]; Exhibit J7 at [32] – [35].
[400]Exhibit P1 at [19].
[401] Exhibit P1 at [23].
[402] Exhibit J3 at [118].
[403] Report of Thomas Newsome dated 7 February 2019 (Exhibit P17A) at [5.3].
[404] Exhibit J3 at [114] – [120] and [128] – [138].
[405] Exhibit J3 at [173].
[406] Exhibit J3 at [175] – [177] and [182].
[407] Exhibit J3 at [179] and [182].
[408] Exhibit J3 at [102].
[409] Exhibit J3 at [103] – [112].
[410] Exhibit J3 at [109].
[411] See [205] and [209] – [213] above.
[412] See Nordenfelt v The Maxim Nordenfelt Guns and Ammunition Company Ltd [1894] AC 535 at 565; Emeco International Pty Ltd v O’Shea [No 2] [2012] WASC 348; ASPL Pty Ltd v Rajakaruna [2019] WASC 269 at [74] – [76] and discussions below concerning s 183(1).
[413] (2012) 213 FCR 1 (Links Golf)
[414] Ibid [700].
[415] [2007] NSWCA 172 (2007); 73 IPR 326 (Del Casale).
[416][2009] NSWSC 987 (Manildra Laboratories).
[417] Manildra Laboratories at [1336].
[418] Manildra Laboratories at [77] citing Weldon & Co Services Pty Ltd v Harbinson [2000] NSWSC 272.
[419] Manildra Laboratories at [77] referring to Del Casale.
[420] See [347] – [350] above.
[421] Transcript at p 250.8.
[422] See above at [208] – [211].
[423] There could have been no certainty that Windbox would have been granted the grazing licenses in the circumstances of Mr Leslie no longer being the Station Manager. Accordingly, the only “detriment” was the loss of a chance.
[424] JACT Further Submissions 6 September 2019 at [14] – [15].
[425] FSOC at [46].
[426] See above at [202].
[427] Windbox Submissions 26 April 2019 at [95.17].
[428] See Windbox Submissions 26 April 2019 at [95.16] and [95.18].
[429] See Windbox Submissions 26 April 2019 at [94] and [102].
[430] Windbox Submissions 26 April 2019 at [104].
[431] [2018] FCA 2069.
[432] Windbox Submissions 26 April 2019 at [95.16] and [95.18].
[433] [2014] FCA 966 (Aladesaye) at [83].
[434] [2008] FCA 1601 (Wilson Parking).
[435] [2018] VSC 286 (Advanced Fuels).
[436] See [397] below.
[437] Advanced Fuels at [136].
[438] [2005] VSC 318.
[439] See [21].
[440] Del Casale per Hodgson JA at [58], [62], [70], McColl and Campbell JA agreeing.
[441] Campbell JA added additional reasons to those given by Hodgson JA for reaching that conclusion, and McColl JA agreed with both of their Honours’ reasons for disposing of the appeal.
[442] See [30] – [50].
[443] (1968) 1A IPR 587 at 590; [1969] RPC 41 at 47.
[444] (1987) 14 FCR 434 at 443.
[445] (1990) 22 FCR 73 at 86-7.
[446] Quoting Lord Greene MR in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 201 at 215.
[447] Del Casale at [50].
[448] See [379] and [380] above.
[449] Windbox Submissions 26 April 2019 at [155.1] – [155.5].
[450]See my discussion at [300].
[451] Ms Wilkie’s evidence at Transcript at p 282.2.
[452] See Transcript at pp 280-282.
[453] Exhibit J3 at pp 49 and 209.
[454] Exhibit J3 at pp 46 and 199.
[455] Exhibit C1 at [48] and p 94.
[456] Exhibit C1 at p 96.
[457] Exhibit J3 at pp 51 and 214.
[458] Exhibit P11 at p 101.
[459] Windbox Reply Submissions 10 June 2019 at [24.2].
[460] Cf Windbox Submissions 26 April 2019 at [155.6] quoted in [406] above.
[461] JACT Further Submissions 6 September 2019.
[462] Windbox Response Submissions 27 September 2019.
[463] Ibid at [3.2].
[464] There were three references to “Windbox’s imminent signing of the Grazing Licences”, at pp 9, 21 and 25, and a reference to “Windbox’s planned execution of the Grazing Licences” at p 7, of the Windbox Further Submissions in Reply.
[465] JACT Further Submissions 6 September 2019 at [21].
[466] Windbox Response Submissions 27 September 2019 at p 18.1. Counsel repeated this contention at p 25.9.
[467] If Mr Leslie could have made his application after disclosing his intention to Windbox without breaching s 183, there is no reason why Windbox could assume that the traditional owners would consider and determine Windbox’s application in Windbox’s favour, particularly if they were aware of a competing application from Mr Leslie. Indeed, one would expect them to act as they ultimately did, and consider both applications at the same time.
[468] See [393](d) and Item 12 on the list set out in [397] above.
[469] See [393](d) and Item 12 on the list set out in [397] above.
[470] Cf Del Casale per Campbell JA at [150].
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