Windbox Pty Ltd v JACT Pastoral Pty Ltd

[2022] NTCA 2

CITATION:Windbox Pty Ltd v JACT Pastoral Pty Ltd & Ors [2022] NTCA 2

PARTIES:WINDBOX PTY LTD

(ACN 007 419 641)

v

JACT PASTORAL PTY LTD

and

LESLIE, Zebb Raymond

and

ROWBOTTOM, Kylie Danielle

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:AP 5 of 2020 (21840850)

DELIVERED:  1 March 2022

HEARING DATES:  20, 21 and 22 October 2020

JUDGMENT OF:  Grant CJ, Kelly and Barr JJ

CATCHWORDS:

APPEALS – Challenge to findings of fact – Assessment of credibility

Whether the trial judge’s findings “glaringly improbable” and “contrary to compelling inferences – Whether trial judge’s findings on credibility inconsistent with facts “incontrovertibly established by the evidence” – No error in trial judge’s findings of credibility – Appeal dismissed.

Fox v Percy (2003) 214 CLR 118, Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588, referred to.

CORPORATIONS – Directors and officers – Whether “officer”

Whether trial judge erred in finding Station Manager not an “officer” within the meaning of s 9 of the Corporations Act – Station Manager engaged in day-to-day tasks of running the station – Station Manager not involved in the company’s management in the sense of policy formation and significant decision-making – Station Manager not involved in the management of Windbox as a “corporation” and was not a “decision maker” of Windbox – Appeal dismissed.

Corporations Act 2001 (Cth) s 9, s 181

Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd [No 4] (2007) 160 FCR 35, Australian Securities and Investments Commission v King (2020) 376 ALR 1, Australian Securities and Investments Commission v Vines (2005) 55 ACSR 617, Commissioner for Corporate Affairs v Bracht [1989] VR 821, Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296, referred to.

CORPORATIONS – Directors and officers – Director’s duties – Duty not to use position as director or officer improperly

Whether trial judge erred in finding no breach of duty on the basis Station Manager not using powers or discharging duties as a contractor – Trial judge found Station Manager did not make improper use of position to gain an advantage for himself – No duty as Station Manager to assist in appellant’s application for renewal of grazing licences – No evidence of misuse of confidential information – No error disclosed – Appeal dismissed.

Corporations Act 2001 (Cth) s 182, s 183

CIVIL PROCEDURE – Pleadings – Amendment – Late application for amendment

Whether trial judge erred in failing to allow amendment to plead breach of fiduciary duty – No irrelevant consideration taken into account – No basis to question trial judge’s determination that amendment would require fresh factual and legal enquiries – Not shown that in exercise of discretion trial judge acted upon any wrong principle, failed to take into consideration any relevant matter or mistook the facts – No adverse consequence for appellant as breach of fiduciary duty claim would have failed on the same basis as statutory duty claim – Appeal dismissed.

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, House v The King (1936) 55 CLR 499, Ketteman v Hansel Properties Ltd [1987] AC 189, Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, referred to.

REPRESENTATION:

Counsel:

Appellant:A Harris QC with M Barnett and S Heidenreich

Respondents:  A Wyvill SC with H Baddeley

Solicitors:

Appellant:Povey Stirk

Respondents:  Ward Keller

Judgment category classification:    B

Number of pages:  63

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Windbox Pty Ltd v JACT Pastoral Pty Ltd & Ors [2022] NTCA 2

No. AP 5 of 2020 (21840850)

BETWEEN:

WINDBOX PTY LTD

(ACN 007 419 641)

Appellant

AND:

JACT PASTORAL PTY LTD

First Respondent

AND:

ZEBB RAYMOND LESLIE

Second Respondent

AND:

KYLIE DANIELLE ROWBOTTOM

Third Respondent

CORAM:    GRANT CJ, KELLY and BARR JJ

REASONS FOR JUDGMENT

(Delivered 1 March 2022)

THE COURT:

1. This is an appeal against a judgment of the Supreme Court given on 13 May 2020 dismissing the appellant’s action, giving judgment for the first, second and third respondents and giving liberty to the first, second and third respondents to apply to enforce the appellant’s undertaking as to damages – and also the order for costs.

   Background

2. The appellant, Windbox Pty Ltd (“Windbox”), conducted a cattle business on land owned by the Daguragu Aboriginal Land Trust, under grazing licences (“the Grazing Licences”) over three areas of land known as McDonald’s Yard, Berta Warta and Northern Paddocks (collectively called “Kalkarindji Station”).  The Grazing Licences expired on various dates in 2010 and 2011.  However, Windbox continued in occupation of the land under holding over provisions and continued to pay the licence fees.

3. Windbox also operated an abattoir and butcher’s shop in the Kalkarindji township (“the Kalkarindji Meatworks”).

4. At the time relevant to these proceedings, the shareholders of Windbox were Mr Dodd (85%) and Mr Vagg (15%).  Mr Dodd and Mr Vagg were directors.  Mr Vagg was purportedly removed as a director by Mr Dodd (without Mr Vagg's knowledge) on 6 February 2018.[1]

5. The second respondent, Mr Zebb Leslie, was engaged by Windbox to manage Kalkarindji Station and the Kalkarindji Meatworks.  He was also a licensed meat inspector, a position that the Kalkarindji Meatworks was required to have for the business to operate.  In addition to managing Kalkarindji Station, Mr Leslie operated his own helicopter mustering business with the consent of Windbox.

6. The third respondent, Ms Rowbottom, is Mr Leslie’s partner.  They lived together on Kalkarindji Station with their four children.  Ms Rowbottom also worked for Windbox, first as a meat worker and also doing gardening, cooking and liaising with Windbox’s bookkeeper in Melbourne about the station books and other office work.

7. Windbox was in negotiation with the Central Land Council (“CLC”) for the renewal of the Grazing Licences over a number of years.  The directors of Windbox were insisting that they needed a ten year licence with two ten year options.  The traditional owners were only prepared to grant a five year licence with one five year option.  Mr Leslie performed some tasks in relation to those negotiations at the request of Mr Vagg, and to a lesser extent, Mr Dodd.

8. A dispute arose between Mr Dodd and Mr Leslie and Ms Rowbottom.  Mr Leslie wanted to be reimbursed for equipment of his that he had brought onto Kalkarindji Station and which had been used for Windbox’s business, and he and Ms Rowbottom wanted to be allocated some shares in Windbox in return for their efforts.  Mr Leslie said he had been promised a 10% shareholding in the company back in 2015, but in 2017 Mr Dodd was offering him a 2% shareholding “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 contingent upon his achieving a specified weaner rate.  Discussions followed which were not successful, culminating in a meeting in Melbourne on 3 January 2018 at which there was no resolution satisfactory to Mr Leslie and Ms Rowbottom.

9. Mr Dodd and Mr Vagg were also in dispute over dividends and an allegation by Mr Vagg that Mr Dodd had committed tax fraud and had wrongly deprived him, as minority shareholder, of dividends.  Mr Vagg sided with Mr Leslie and Ms Rowbottom in their dispute with Mr Dodd and expressed the view to Mr Dodd that they had been badly treated.

10. Eventually, on 7 January 2018, Mr Leslie emailed Mr Dodd and Mr Vagg, attaching a letter stating that he and Ms Rowbottom intended to resign from their employment with Windbox, taking the 2% share that had been offered to them and saying he would be sending a list of the gear and infrastructure he had provided for which they had offered to reimburse him.  He also offered their future services as contractors and said they would be happy to continue running the meatworks and station at an agreed rate through their ABN for a period of two years unless it was sold earlier.  He said that if this offer was not accepted, they would leave within a month, or sooner if Windbox preferred.

11. Mr Leslie did not receive a response to his offer that he and Ms Rowbottom stay on as contractors, so on 17 January 2018 he sent a further letter tendering their resignations effective from 31 January 2018 and again offering to stay as contractors for two years.

12. On 24 January 2018, Mr Dodd sent Mr Vagg and Mr Leslie a copy of a draft letter of instruction to Windbox’s then solicitor, Graham Cole, concerning the negotiation for the Grazing Licences, and requested their comments.  The draft letter stated that Windbox would accept 5+5 year “leases” on certain conditions.  (Mr Dodd sent himself a similar email on 29 January 2018, cc to Mr Vagg and Mr Leslie.)  Mr Leslie did not respond to either email.

13. On 28 January 2018, Mr Leslie sent another letter to Mr Dodd and Mr Vagg, attached to an email saying:

    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.

14. On 31 January 2018, Mr Leslie and Ms Rowbottom sent another email to Mr Dodd to similar effect.  Mr Dodd did not reply to either.  Ms Rowbottom sent another letter to the same effect on 1 February giving a deadline of midday on 2 February.

15. Shortly after the deadline Mr Dodd spoke to Mr Leslie.  He said that he would find a replacement manager but that in the meantime he would like Mr Leslie to stay on as a contractor for a month – or longer if they could reach an agreement.  Until this time, including in an email sent shortly before the phone conversation, Mr Dodd had been insisting that it would be illegal to employ Mr Leslie as a contractor.  It is common ground that Mr Leslie ceased to be an employee of Windbox on 31 January 2018.

16. In the meantime, Mr Leslie had been making enquiries about other positions managing cattle stations that might be available, or over which he could potentially obtain grazing licences.  He spoke to a friend of his, Mr Rob Cook, and told him 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 Kalkarindji Station soon.  Mr Cook suggested that Mr Leslie consider applying for grazing licences over the Kalkarindji Station properties.  Mr Leslie gave evidence that this was the first time that it had occurred to him that he could apply for grazing licences over the Kalkarindji Station properties.  This was disputed by Windbox at trial.

17. On 31 January 2018, Ms Wilkie, a legal practitioner employed with the CLC, sent an email to Mr Cole referring back to her earlier emails and saying the CLC wished to progress the matters of the Grazing Licences in the next few months.

18. On 2 February 2018, Mr Leslie called Ms Kimberly McIntosh at the CLC to ask whether he and Ms Rowbottom could apply for the Grazing Licences and was advised that he could.  That same day, he lodged an expression of interest for the Grazing Licences advising that he and Ms Rowbottom had recently resigned from Windbox but would like to continue their future at Kalkarindji.

19. On 6 February 2018, Ms Wilkie of the CLC emailed Mr Cole an “updated draft of the Grazing Licence” and said she looked forward to hearing from Mr Cole about his client’s intentions.  Mr Cole replied the same day, “I hope to get back to [sic] in the next few days.  I am instructed by two separate directors and they are coordinating the company’s position at the moment.”

20. On 7 February 2018, Ms McIntosh of the CLC emailed Mr Leslie a pastoral proposal form to complete.

21. In the meantime, Mr Cole and Ms Wilkie continued their discussions.  On 13 February 2018, Mr Cole told Ms Wilkie that he was “largely OK” with the draft licence sent on 6 February 2018 and would seek updated instructions from his client.  There was further email correspondence between Ms Wilkie and Mr Cole on 20 and 28 March 2018, and on 24 and 27 April 2018, regarding conditions to be attached to the Grazing Licences, if granted.

22. In June 2018, the CLC conducted meetings with the 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 granted to the first respondent, JACT Pastoral Pty Ltd (“JACT”), a company owned and operated by Mr Leslie and Ms Rowbottom, over the McDonald’s Yard and Berta Warta areas.  The licences were to commence on 8 October 2018.

23. On 29 June 2018, the CLC wrote to Windbox advising of the outcome of the June meetings and gave Windbox 90 days’ notice to vacate the McDonald’s Yard and Berta Warta areas.  This required Windbox to remove its cattle, approximately 6000 head, by the end of September 2018.  On 27 September 2018, Windbox commenced proceedings against the relevant Aboriginal Land Trust, the CLC, JACT, Mr Leslie and Ms Rowbottom.  At the same time, Windbox 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, issued an interlocutory injunction which was to expire on 1 May 2019.[2]  The main effect of the interlocutory injunction was to preserve the status quo and allow Windbox's cattle to remain on the land during the wet season.  This effectively deprived JACT and its directors and shareholders, Mr Leslie and Ms Rowbottom, of their ability to use the land the subject of the grazing licences that had been granted to JACT and to conduct a pastoral business on the land.

24. Windbox came to an agreed settlement with the Aboriginal Land Trust and the CLC (the first and second defendants).  The proceeding between Windbox and JACT, Mr Leslie and Ms Rowbottom (the third, fourth and fifth defendants) came on for trial in the Supreme Court and on 13 May 2020 the Court delivered its reasons for decision and made the following orders:

    (a)The plaintiff’s action is dismissed.

    (b)There will be judgment for the Third, Fourth and Fifth Defendants.

    (c)The proceedings brought by the Plaintiff against the First and Second Defendants are dismissed.

    (d)The Third, Fourth and Fifth Defendants have liberty to apply to enforce the Plaintiff’s undertaking as to damages.

    (e)The Plaintiff and the First and Second Defendants bear their own costs of and incidental to the proceedings.

25. The trial judge subsequently made a costs order in favour of the third, fourth and fifth defendants (JACT, Mr Leslie and Ms Rowbottom).  The full background, detailed facts and procedural history are all set out in the judgment of the trial judge.[3]

    The appeal

26. The grounds of appeal are lengthy, running to nine pages, and take issue with multiple findings by the trial judge.  They are grouped into five grounds of appeal (Grounds 3 to 7), with detailed particulars under each ground.[4]  For the purposes of submissions, the grounds of appeal were further grouped into the following related topics, taken from the headings in the appellant’s submissions on the appeal.

    ·Grounds 4 to 6 (“the Fox v Percy challenge”) take issue with credit findings in relation to Mr Leslie, Ms Rowbottom and Mr Dodd which led to a rejection of the appellant’s case theory.  This composite ground incorporates Ground 4 (challenges to the trial judge’s findings in relation to when Mr Leslie planned to obtain the Grazing Licences for himself), Ground 5 (challenges to the trial judge’s findings in relation to “the Vagg conspiracy”) and Ground 6 (incidental challenges to the trial judge’s findings on credit in relation to Mr Dodd and Mr Cann, who replaced Mr Leslie as manager of Kalkarindji Station).

    ·Ground 7 challenges the trial judge’s findings that Mr Leslie was not in contravention of ss 181, 182 and 183 of the Corporations Act 2001 (Cth).  This composite ground also encompasses Ground 3 (the challenge to the trial judge’s finding that Mr Leslie was not an officer of Windbox).

    ·Ground 8 challenges the trial judge’s decision, made on the second day of the trial, not to allow an amendment to the further amended statement of claim.

    Grounds 4 to 6: “the Fox v Percy challenge”

27. Grounds 4 to 6 challenge the trial judge’s findings that devolve principally from the assessment of the credit of Mr Leslie and Ms Rowbottom as witnesses. They include Ground 4, which relates to the trial judge’s finding of when Mr Leslie took steps to seek grazing licences over Kalkarindji Station for himself,[5] and Ground 5 concerning the relationship between Mr Leslie and Mr Vagg.[6] 

28. The appellant’s case was that there was a conspiracy between Mr Vagg and Mr Leslie to delay Windbox’s application to renew the Grazing Licences so that Mr Leslie could apply for and obtain them for himself, referred to in submissions as “the Vagg conspiracy”.  The trial judge rejected this contention, and that rejection was based to a significant extent on the trial judge’s findings of credit.  The appellant contends in Ground 5 that the trial judge’s findings in relation to the Vagg conspiracy are “glaringly improbable” and “contrary to compelling inferences”.[7]  There is also a contention in Ground 6 that the trial judge erred in his findings of credit relating to Mr Dodd and Mr Cann.[8]

29. In Fox v Percy[9] the plurality made the following remarks about the function of courts of appeal when hearing appeals involving challenges to findings of fact by the primary judge:

    After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.  Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission.  This trilogy of cases did not constitute a departure from established doctrine.  The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

    The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal.  The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia.  However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament.  Such courts must conduct the appeal by way of rehearing.  If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

    Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint.  From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons.  However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute.  In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

    That this is so is demonstrated in several recent decisions of this Court.  In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.  In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses.  In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.  Finality in litigation is highly desirable.  Litigation beyond a trial is costly and usually upsetting.  But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.  It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. 

    (citations omitted; emphasis added)

1. The Northern Territory Court of Appeal reviewed the authorities and considered the development of this area of the law since Fox v Percy in Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd, in the following terms:

   Reviewing alleged errors of fact

   An appellate court is to conduct a real review of the trial and the reasons for decision to determine whether a trial judge erred in fact (or law) [Robinson Helicopter Co Inc v McDermott [2016] HCA 22; 90 ALJR 679 (Robinson Helicopter) [43] (French CJ, Bell, Keane, Nettle & Gordon JJ) partly quoting Fox v Percy at [25] (Gleeson CJ, Gummow & Kirby JJ). See also Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW) at [32] (Gageler J); Lee v Lee [2019] HCA 28; 93 ALJR 993 at [55] (Bell, Gageler, Nettle & Edelman JJ).].

   However, the appellate court must, of necessity, observe the natural limitations that exist in proceeding wholly or substantially on the record [Fox v Percy [23] (Gleeson CJ, Gummow & Kirby JJ); Dearman v Dearman [1908] HCA 84; 7 CLR 549, 561 (Isaacs J). See also SZVFW at [33] (Gageler J).].  That includes limitations occasioned by the resolution of any conflicts at trial about witness credibility based on demeanour or impression; any advantages the trial judge had that derive from considerations not adequately reflected in the transcript; and matters arising from the trial judge’s advantage in having the opportunity to consider and reflect upon the entirety of the evidence as it was received, and to draw conclusions from that evidence viewed as a whole [Fox v Percy [23] (Gleeson CJ, Gummow & Kirby JJ). See also SZVFW at [33] citing CSR Ltd v Della Maddalena [2006] HCA 1; 80 ALJR 458 at 465 [17]; and Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCAFC 151 at [75] citing Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131; 220 ALR 211 at 220-221 [46]-[47] per Branson, Nicholson and Jacobson JJ.]. The more prominent these limitations, the more difficult it is for an appellate court to be satisfied that the trial judge was in error [SZVFW at [33] (Gageler J) citing S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466, 478 (Gibbs CJ, Mason J agreeing).].

   Until recently it had been held that an appellate court should not interfere with a trial judge’s findings of primary fact unless those findings are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or are ‘glaringly improbable’ or ‘contrary to compelling inferences’ [Robinson Helicopter at [43]; Fox v Percy [28] – [29] (Gleeson CJ, Gummow & Kirby JJ), [48] (McHugh J). See also Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93 at [2] (Allsop CJ); and White v Philips Electronics Australia Ltd t/as Philips Healthcare [2019] NSWCA 115 at [36] (Bell J).]. For example in Robinson Helicopter the High Court (French CJ, Bell, Keane, Nettle & Gordon JJ) said, at [43]:

   … a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.

   However the application of a ‘glaringly improbable’ or ‘contrary to compelling inferences’ test has recently been qualified by the majority of the High Court in Lee v Lee [[2019] HCA 28; 93 ALJR 993 (Lee v Lee).].

   In Lee v Lee, Bell, Gageler, Nettle & Edelman JJ, Kiefel CJ agreeing said, at [55]:

   A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law [Fox v Percy at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter at 686 [43]].  Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" [Fox v Percy at 128 [29] per Gleeson CJ, Gummow and Kirby JJ; Robinson Helicopter [43]] is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.  It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts [Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at 434‑435 [144]; [2013] HCA 25; Thorne v Kennedy (2017) 263 CLR 85 at 104 [42]; [2017] HCA 49.].  Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge" [Warren v Coombes [1979] HCA 9; 142 CLR 531 (Warren v Coombes) at 551 per Gibbs A-CJ, Jacobs and Murphy JJ; see also Fox v Percy at 127 [25].].

   Referring to the disadvantage of an appellate court when reviewing a trial judge’s assessment of a witness’ credibility Bathurst CJ observed, in Szeto v Situ [[2017] NSWCA 135 at [26]]:

   That disadvantage particularly arises in a case such as the present where the judge based his conclusion, to a significant extent, on the credibility of the principal witnesses.  However, if a conclusion based on credit is shown by uncontroversial facts or uncontested testimony to be erroneous, the appellate court is obliged to intervene: Fox v Percy … at [28]. One instance where this may occur is where contemporaneous and apparently reliable documentary evidence is contrary to the credibility based finding of the trial judge: State Rail Authority of NSW v Earthline Constructions Pty Ltd (In liq) (1999) 73 ALJR 306 at [62]-[63], [93].

   That said, these limitations may have less impact on the determination of an appeal from a judgment concluded wholly or substantially by reference to documentary and affidavit evidence.  In such a case, an appellate court may be in as good a position to determine the matter as was the primary judge [SZVFW at [34] (Gageler J); Fox v Percy at [68] (McHugh J).]. Additionally, an appellate court is generally in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the primary judge [SZVFW at [41] (Gageler J); Warren v Coombes at 551 (Gibbs ACJ, Jacobs & Murphy JJ); Fox v Percy at [87] (McHugh J).] [10]

2. In the present case, the trial judge made findings of credibility that were favourable to Mr Leslie and Ms Rowbottom and unfavourable to Mr Dodd.[11]  As the trial judge noted, attacks on the credit of Mr Leslie and Ms Rowbottom were a very important part of Windbox’s case, which ultimately turned on inferences sought to be drawn adverse to Mr Leslie and Ms Rowbottom.[12]  The appellant contends that the trial judge’s favourable findings in relation to the credit of Mr Leslie and Ms Rowbottom were in error because they were inconsistent with facts “incontrovertibly established by the evidence”.

3. In written submissions made during the course of the trial, the appellant made the following submission to the effect that the Court should make unfavourable findings concerning the credit of Mr Leslie and Ms Rowbottom:

   Specifically, [Mr Leslie’s] evidence as to how and when he first came to seriously consider making application himself for the grazing licences defies credulity and cannot be reconciled with contemporaneous documents.  His explanations were unconvincing to say the least given that he attempted to push all serious consideration by he and his partner of applying for the grazing licences beyond midnight on 31 January 2018 when he was being “backgrounded” through January by Mr Vagg and had approached Mr Spazzapan by 4 January 2018.  The 31 January 2018 date does not, in any event, have the legal or factual significance which Mr Leslie seeks to ascribe to it, however his contortions around that date give the lie to the truthfulness of his evidence generally.  The move to “contractor” from “employee” was plainly an attempt by Mr Leslie to free himself of the statutory and fiduciary obligations which he owed to Windbox and his persistent refusal to admit this while holding on to the unbelievable story of when he first seriously considered applying for the licences himself is telling against his credit.  So, too, is his selective evidence about which emails he received or had brought to his attention in January and February 2018.  In his affidavit Mr Leslie claimed not to have recalled seeing a number of emails prior to the preparation of his affidavit.  He went as far as saying that he doubted that they had been brought to his attention by Ms Rowbottom.  Relevantly and importantly the emails to which this excuse was proffered were all damaging to Mr Leslie and called for an explanation.  This necessitated a lengthy cross-examination in relation to these “excuse” emails and their contextual placement with other emails which Mr Leslie either authored, co-authored or admitted having received.  That process resulted in Ms Rowbottom conceding that most of the “excuse” emails were most likely brought to Mr Leslie’s attention and Mr Leslie being forced to admit that some of them most probably were as well.  To the extent that Mr Leslie attempted to cling on to the “excuse” emails being unfamiliar to him that evidence should be rejected.  Most importantly, Mr Leslie was advised by Mr Vagg by email of 1 February 2018 that he (Vagg) had effectively stalled Windbox from finalising the grazing licences in conformity with Mr Dodd’s instructions of 24 and 29 January 2018.  It was only shortly after this that Mr Leslie made contact with Ms McIntosh knowing that the documentation of the grazing licences had not been finalised by Windbox and would not be finalised while Vagg’s stalling tactic was operating.[13]

4. The trial judge rejected that submission in the following terms, by reference to his reasoning in relation to each discrete issue:

   Despite the colourful language used by counsel in the submissions quoted in [160] above, I also reject those submissions, for the reasons stated elsewhere. See my discussion and conclusions on the important issue as to when it was that Mr Leslie planned to apply for the grazing licences [See [265]-[311] below], the “Vagg conspiracy” [See [307]-[311] below], Mr Leslie’s discussions with Mr Spazzapan on 4 January 2018 [See [275]-[292] below], the frustrations experienced by Mr Leslie and Ms Rowbottom until early February brought about by Mr Dodd’s stonewalling, and Mr Leslie’s reasons for not taking any notice of Mr Dodd’s emails of 24 and 28 January [See [68]-[70] above and [294]-[302] below].[14]

5. The appellant contends that its submission concerning credit ought to have been accepted.  We turn then to consider each of the discrete issues to which the trial judge made reference.

   Ground 4: When did Mr Leslie “plan” to apply for the grazing licences?

6. The trial judge considered the question of when Mr Leslie “planned” to apply for the grazing licences as part of his determination of the plaintiff’s claims under ss 182(1) and 183(1) of the Corporations Act that Mr Leslie:

   (a)improperly used his position as an employee – s 182(1); and

   (b)improperly used information which he obtained because he was an employee of Windbox – s 183(1),

   to gain an advantage for himself or to cause detriment to Windbox.[15]

7. Following an exhaustive consideration of the evidence and the submissions of both parties, the trial judge concluded that the plaintiff had not satisfied the onus of showing that Mr Leslie or Ms Rowbottom had decided to explore the possibility of applying for grazing licences over Kalkarindji Station before 1 February 2018 (when Mr Leslie ceased to be an employee of Windbox).[16]  In doing so, his Honour accepted Mr Leslie’s evidence that he did not read the emails sent to him on 24 January and 29 January 2018.[17]  His Honour also rejected a submission by Windbox that a file note by solicitor Marcus Spazzapan proved that Mr Leslie was contemplating applying for those grazing licences as early as 4 January 2018.

8. The appellant contends that these findings are in error as they are inconsistent with facts “incontrovertibly established by the evidence”.  The appellant contends that the inferences properly drawn from contemporary documents compel the conclusion that Mr Leslie considered applying for the grazing licences over Kalkarindji Station for himself and took steps to do so before 31 January 2018, in the knowledge, gained from his position with Windbox and from Mr Vagg’s secret communications “leaking” confidential information, that Windbox was imminently to conclude its negotiations with the CLC for the renewal of the Grazing Licences.

9. As is apparent from the trial judge’s conclusions, the contemporaneous documents relied on by the appellant are two emails from Mr Dodd dated 24 January and 29 January 2018 which were copied to Mr Leslie, and a file note written by a solicitor, Mr Spazzapan, following a telephone conversation between Mr Leslie and Mr Spazzapan on 4 January 2018.

10. The email of 24 January 2018 was from Mr Dodd to Mr Vagg and Mr Leslie, with the subject line: “Instructions to Graham Cole re licences”.  The email requested their comments on a proposed letter to Mr Cole regarding the renewal of the Grazing Licences.  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 from the traditional owners. If clause 4 is going to hold up the process we are prepared to negotiate later.

11. The email of 29 January 2018 was from Mr Dodd to himself with the subject line: “FW: Instructions to Graham Cole re CLC Licenses”.  He copied the email to Mr Vagg and Mr Leslie, but not Mr Cole.  As the trial judge noted, the email did not contain any message to explain, for example, why it was being sent to Messrs Vagg and Leslie.  It was a copy of the draft contained in the email of 24 January, but with the words “Hi Graham” at the start and the following additional text at the end:

    7.    Graham could you please see if we can finalise this matter in a timely manner

    Regards
    Ray Dodd
    Managing Director
    Windbox P/L

12. There was no evidence of any email or other document having been sent to Mr Cole giving instructions along the lines set out in the draft letter.

13. Ms Rowbottom gave evidence that she did not show the email of 24 January 2018 to Mr Leslie.  She was the one who managed Mr Leslie’s email communications, and who opened and read emails sent to him.  Depending on the circumstances and the nature of the communications, she did not always pass them or their contents on to Mr Leslie.  She did not pass this email on to him 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 with Windbox’s affairs.  Ms Rowbottom said she would also, and for the same reasons, not have brought Mr Dodd’s later email of 29 January 2018 to Mr Leslie’s attention.[18]

14. Mr Leslie deposed that he did not recall seeing the email of 24 January 2018, or Mr Dodd’s later email of 29 January, until they were shown to him in the course of preparing his affidavit for the trial.  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 was 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 Kalkarindji Station or leaving.[19]

15. The trial judge accepted the evidence of Ms Rowbottom and Mr Leslie that it was unlikely that Mr Leslie saw those two emails, or took any notice of them if he did.[20]

16. The appellant contends that the evidence pointed decisively to the conclusion that Mr Leslie did receive the emails of 24 January 2018 and 29 January 2018, and that his denial of that fact should have been rejected.  The appellant contends that it is highly improbable that Mr Leslie did not read these two emails only in light of the fact that he received numerous emails from Mr Dodd and Mr Vagg both before and after the two “critical” ones of 24 and 29 January 2018.  The appellant contends that the more plausible finding that Mr Leslie did receive those emails is fatal to the consequential finding by the trial judge that Mr Leslie did not think seriously about applying for grazing licenses over Kalkarindji Station until 1 February 2018.

17. The appellant contends that the email of 24 January 2018 showed a radical change of position on the part of Mr Dodd: having previously insisted he wanted ten year licences with two ten year options, he was now prepared to accept the offer of five year licences with a five year option.  This change of position was restated in the email of 29 January 2018.  The appellant’s case is that knowing of this change of position from reading the email of 24 January 2018 spurred Mr Leslie to act quickly to apply for grazing licences over Kalkarindji Station for himself before Windbox could close the deal.  On the appellant’s case, Mr Leslie had been planning to apply for grazing licenses over Kalkarindji Station himself at least since he had spoken to Mr Spazzapan on 4 January 2018, and the email of 24 January 2018 drew to his attention that the window of opportunity in which he could do that was closing rapidly.

18. The file note made by Mr Spazzapan of the conversation which took place with Mr Leslie on 4 January 2018 reads as follows:

    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). 

    (Emphasis added)

1. The appellant contends that the underlined sentence in the file note indicates that Mr Leslie had discussed with his solicitor on 4 January 2018 the prospect of securing grazing licences over Kalkarindji Station for himself at some time in the future, and therefore proved that Mr Leslie was contemplating doing so well before his employment with Windbox terminated on 31 January 2018. The trial judge accepted the evidence of both Mr Leslie and Mr Spazzapan in relation to the discussions between them on 4 January 2018. His Honour set out the evidence and the submissions of both parties exhaustively,[21] and rejected the appellant’s submissions concerning the telephone conversation on 4 January 2018.[22]  In doing so, his Honour said:

   If Mr Leslie had said anything to Mr Spazzapan about him applying for the grazing licences on his own behalf, Mr Spazzapan would have noted that then. I have no reason to doubt Mr Spazzapan’s sworn evidence that the first time he heard about any such intention was on 7 February.

   It is unlikely that Mr Spazzapan’s notes were accurate, at least word by word, as Windbox’s contentions assume and require, particularly those noted in [280] above. The likelihood of inaccuracy follows not only from Mr Spazzapan’s evidence that it is quite possible that he misinterpreted his handwritten note and/or misunderstood some of what Mr Leslie told him, but also from the many and obvious errors contained in the note itself. ^[23]

2. There can be no doubt that the trial judge’s findings in relation to the emails of 24 and 29 January 2018 and the telephone conversation of 4 January 2018 depended to a significant degree on his Honour’s findings in relation to Mr Leslie and Ms Rowbottom’s credit.  The appellant contends that these findings were erroneous, because the trial judge allowed the very good impression that Mr Leslie and Ms Rowbottom made on him from his observations of them in the witness box[24] to distract him from the evaluation of the contemporaneous and objective documentary evidence (the emails of 24 and 29 January 2018 and the file note of 4 January 2018), and the inferences properly and necessarily to be drawn from those documents.  The appellant submitted further that to the extent that Mr Leslie and Ms Rowbottom’s apparent lack of sophistication and their trust in others[25] informed the trial judge’s assessment of their credibility, his Honour engaged in circular reasoning and allowed notions of the fairness of their treatment by Mr Dodd[26] to intrude impermissibly into his assessment of their credit. 

3. The trial judge’s discussion of issues of credit relating to Mr Leslie, Ms Rowbottom and Mr Dodd appear at [130]-[148] and [159]-[165] of the reasons for decision at first instance.  The appellant’s complaint of circular reasoning by the trial judge and the intrusion of notions of fairness is based largely on the following findings in the reasons for decision:

   I formed the impression that Mr Dodd was an experienced, astute and dominating business operator, particularly in his main area of interest, the hotel industry. Over the years while Mr Leslie and Ms Rowbottom dutifully and faithfully worked for Windbox, he strung them along with empty promises, even after they made their difficult decision on 3 January 2018 to walk away from this important part of their life. His treatment of them, particularly after they had told him of their concerns on 3 January 2018 was arrogant, presumptuous[27] and disrespectful of their genuine attempts to continue to do the right thing by Windbox and the Station, even after their resignation.

   …

   My observations of Mr Leslie and Ms Rowbottom in the witness box, and during the case generally, left me with a very good impression of their credibility. They were both conscientious and hard workers, trustworthy and honest. They were not particularly sophisticated people. They trusted others, sometimes to their detriment, such as continuing to work with Mr Dodd despite his poor treatment of them.[28]

4. So far as the trial judge’s assessment of the credit of Mr Dodd is concerned, his Honour was entitled to take into account Mr Dodd’s treatment of his employees, in particular when that treatment involved being evasive, telling them lies and making promises he failed to keep.  The trial judge gave examples of this kind of behaviour on the part of Mr Dodd, including his misleading emails to Mr Leslie about not being able to engage Mr Leslie as a contractor, and his falsely telling Mr Leslie that “the new owners” must have placed the advertisements for a new station manager.[29]  There was ample evidence to support the trial judge’s finding that Mr Dodd had strung Mr Leslie and Ms Rowbottom along with empty promises.

5. The trial judge's finding that the evidence of Mr Leslie and Ms Rowbottom was to be preferred to that of Mr Dodd was based on more than just Mr Dodd’s treatment of Mr Leslie and Ms Rowbottom.  Those reasons included the judge’s assessment of Mr Dodd in the witness box as “discursive and reluctant to answer questions directly”;[30] “significant differences between the Windbox accounts Mr Dodd verified for the purposes of the security for costs application on 19 November 2018[31] and the different accounts he verified for the purposes of the trial itself”; a suggestion in the accounts of Windbox of inappropriate accounting of capital to remove wealth from the company otherwise than by the payment of a dividend through an unexplained $1.7 million reduction of a “general reserve”;[32] his removal of Mr Vagg as a director without telling Mr Vagg or anyone else;[33] and Mr Dodd's instructions to make serious and unfounded attacks upon the credibility of most of the other people and bodies involved in the granting of the grazing licences to JACT, including officers of the CLC and the traditional owners.[34]

6. So far as the trial judge’s assessment of the credibility of Mr Leslie and Ms Rowbottom is concerned, his Honour did not base that assessment on the unfairness of Mr Dodd’s treatment of them, but on their own behaviour in the circumstances and in the face of that treatment, and his assessment of their character based in part on that behaviour.  His Honour noted that the evidence of Ms Rowbottom supported that of Mr Leslie.[35]

7. There was ample evidence to support the trial judge’s findings on credit, and the findings are not inconsistent with facts “incontrovertibly established by the evidence”.  Nor are they “glaringly improbable” or “contrary to compelling inferences” as contended by the appellant.  With respect, it is the appellant who is engaged in circular reasoning.  The appellant contends that the favourable findings of credit in relation to Mr Leslie and Ms Rowbottom are inconsistent with the documentary evidence – namely Mr Spazzapan’s file note of 4 January 2018 and Mr Dodd’s two emails which he copied to Mr Leslie on 24 January 2018 and 29 January 2018.  However, that contention depends upon an assumption that Mr Leslie’s and Mr Spazzanpan’s evidence about what was and was not discussed in the telephone conversation on 4 January will be rejected – the file note itself being ambiguous.  It also depends on the assumption that Mr Leslie’s evidence that he did not see the emails of 24 and 29 January will be rejected.  The trial judge gave detailed reasons (in addition to his favourable assessment of the credibility of Mr Leslie and Ms Rowbottom) for accepting their evidence in relation to those emails.[36]  Those reasons disclose no error.

8. For these reasons, we are unable to accept the submission that the trial judge engaged in circular reasoning or that he allowed notions of the fairness of Mr Dodd’s treatment of Mr Leslie and Ms Rowbottom to impermissibly intrude into his assessment of the credibility of either Mr Leslie, Ms Rowbottom or Mr Dodd.

   Ground 5: The “Vagg conspiracy”

9. At paragraphs [307]-[311] of his reasons for decision, the trial judge gave reasons for rejecting the appellant’s contention that Mr Leslie conspired with Mr Vagg to cause detriment to Windbox and confer a benefit on Mr Leslie.  The appellant had contended that Mr Vagg secretly passed on information to Mr Leslie to the effect that he had temporarily stalled Mr Dodd’s instructions to Mr Cole to conclude negotiations with the CLC for the renewal of the Grazing Licences so that Mr Leslie could apply for grazing licences in his own right.[37] 

10. The trial judge’s reasons for rejecting that contention disclose no error.  The reasons include that there is no evidence to suggest that Mr Vagg knew of any intention on Mr Leslie’s part to apply for grazing licences over Kalkarindji Station, and no evidence that Mr Vagg passed on to Mr Leslie or Ms Rowbottom Mr Dodd’s critical (redacted and presumably privileged) email to Mr Cole of 1 February 2018, or any other document referring to instructions given (or not given) to Mr Cole at about that time.  The appellant directs particular criticism to this portion of the trial judge’s reasons:

    Nor is there any evidence to suggest that Mr Vagg had anything to gain by conspiring with Mr Leslie, for example by providing him with the information, or by stalling Windbox’s negotiations, or by enabling Mr Leslie to “jump the gun” on Windbox’s application. Rather, it was still in his interests that Windbox, not Leslie, get the licences.[38]

11. The appellant contends that it may have been in Mr Vagg’s financial interest for Windbox to lose the Grazing Licences because in that case the company might be wound up, the cattle sold, and the proceeds distributed to the shareholders after payment of creditors.  That may have been more advantageous for Mr Vagg than being locked into an investment in which Mr Dodd owned 85% and was refusing to pay out Mr Vagg’s 15% shareholding.  This is pure speculation.  Moreover, the contemporaneous correspondence from Mr Vagg to Mr Dodd contains proposals to maintain the “partnership”, but to include Mr Leslie as a “partner”.  There is no error demonstrated in the trial judge’s reasoning in this respect.

    Ground 6: findings as to credit concerning Mr Dodd and Mr Cann

12. This ground of appeal comprises several incidental complaints about the trial judge’s findings in relation to the credit of Mr Dodd and Mr Cann, who was the station manager employed by Windbox to replace Mr Leslie.

13. The appellant contends that the trial judge’s finding that Mr Dodd may have intentionally misled Mr Leslie in relation to the advice he was seeking regarding Mr Leslie’s status as a contractor was not open on the evidence.[39] In making that submission, the appellant refers to paragraph [75] of the trial judge’s reasons for decision.  What his Honour actually said in that paragraph was:

    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 disingenuous[40] 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.[41]

    (Emphasis added)

14. The evidentiary basis for this (possible) inference is stated in the paragraph complained of: no such advice was adduced in evidence.  Also, none was discovered.  Further, the evidence was that Mr Leslie and Ms Rowbottom had sent a number of emails to Mr Dodd at first advising, and then confirming, that their last day of employment with Windbox would be 31 January 2018.  The last such letter gave a deadline of midday on 2 February 2018, after which Mr Leslie and Ms Rowbottom would leave.  Mr Dodd kept insisting, including in an email sent on 2 February 2018, that he had been advised that it would be illegal to employ Mr Leslie as a contractor.  Yet shortly after the deadline imposed by Mr Leslie and Ms Rowbottom expired, Mr Dodd told Mr Leslie that he would like Mr Leslie to stay on as a contractor.  That chain of events supplements the evidentiary basis on which it might be inferred that Mr Dodd was not telling the truth when he claimed to have legal advice to the effect that it would be illegal to hire Mr Leslie as a contractor.

15. The appellant also asserted in written submissions that the trial judge made other adverse credit findings in relation to Mr Dodd that were unnecessary for his findings of fact.[42]  However, none have been identified; and it has not been explained how this might have led to appellable error.  Similarly, the appellant asserts that the trial judge made certain findings in relation to the reliability of the evidence of the new station manager, Mr Cann, including that his evidence was “tainted” by the “powerful influence of Mr Dodd”.[43] The appellant submits that those findings were not open to the trial judge in the absence of a finding that Mr Cann had given deliberately false evidence – which his Honour carefully did not make.[44]  There are many reasons apart from the telling of deliberate lies why a witness’s evidence may be found to be unreliable.  The appellant has not shown any reason for overturning the judge’s findings in relation to Mr Cann.  In any event, as the respondent pointed out, there were no contemporaneous documents which supported the serious misconduct allegations belatedly levelled against Mr Leslie by Mr Cann.[45]

    Conclusions in relation to the Fox v Percy challenge

16. No error has been shown in the trial judge’s findings of credibility that were favourable to Mr Leslie and Ms Rowbottom and unfavourable to Mr Dodd,[46] or in relation to the credit findings generally.

    Grounds 3 and 7: Whether Mr Leslie was an “officer” of Windbox and whether he contravened ss 181, 182 and 183 of the Corporations Act

17. Sections 181, 182 and 183 of the Corporations Act provide, relevantly, as follows:

    Section 181:

    (1)     A director or other officer of a corporation must exercise their powers and discharge their duties:

    (a)in good faith in the best interests of the corporation; and

    (b)for a proper purpose.

    Section 182:

    (1)   A director, secretary, other officer or employee of a corporation must not improperly use their position

    (a)gain an advantage for themselves or someone else; or

    (b)cause detriment to the corporation.

    Section 183:

    (1)   A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:

    (a)gain an advantage for themselves or someone else; or

    (b)cause detriment to the corporation.

    Note 1:  This duty continues after the person stops being an officer or employee of the corporation.

18. Ground 7 contends that the trial judge erred in his findings[47] and his conclusion that Mr Leslie did not contravene the obligations imposed by ss 181, 182 and 183 of the Corporations Act. The appellant’s contention at trial that Mr Leslie was in breach of the obligations imposed by s 181 of the Corporations Act was contingent on his characterisation as an “officer” of Windbox.  Ground 3 contends that the trial judge was in error in finding that Mr Leslie was not an “officer” of Windbox at the relevant times (ie in the period to 31 January 2018 when he was an employee of Windbox, and in the period after 31 January 2018 when he was a contractor). 

    Ground 3: was Mr Leslie an “officer” of Windbox?

19. The appellant contends that Mr Leslie was an “officer” of Windbox as defined by s 9 of the Corporations Act, which provides that an officer of a corporation includes “a person (i) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or (ii) who has the capacity to affect significantly the corporation’s financial standing.”

20. This definition of “officer” was inserted by the Corporate Law Economic Reform Program Act 1999 (Cth) in response to the recommendation by the HIH Royal Commission that the relevant duties imposed by the Corporations Act should be imposed on a wider class of personnel defined by reference to the function they performed rather than by classification of the legal relationship to the corporation.  The new definition drew heavily on the decision in Commissioner for Corporate Affairs v Bracht[48] concerning the meaning of the “management” of a corporation.In that case, the concept of “management” was described by Ormiston J in the following terms:

    … As a word of the English language its meaning appears to have expanded, at least in its connotations, over the last hundred years or so.  None of the meanings given in the Murray Edition of the Oxford English Dictionary, the shorter Oxford English Dictionary, or the Macquarie Dictionary truly reflect the usage adopted in the section.  Each gives a primary meaning of an “act(ion) or manner of managing”, which in turn requires a consideration of the meanings given to the word “manage”.  The closest in meaning of the latter word are perhaps meanings 4 and 5 in the Oxford English Dictionary, “to control and direct the affairs of …” and “to administer, regulate the use or expenditure of …”.  In the second volume of the Supplement to the Oxford English Dictionary, however, a critical meaning of the word “management” is added as a new meaning 1(e): “the administration of a commercial enterprise”: p. 182.  One of the examples of this meaning given is taken from a work by H. I. Ansoff in 1968 called Corporate Strategy, as follows: “Management of a business firm is a very large complex of activities which consists of analysis, decisions, communication, leadership, motivation, measurement and control.”

    …

    It may be difficult to draw the line in particular cases, but in my opinion the concept of “management” for present purposes comprehends activities which involve policy and decision-making, related to the business affairs of a corporation, affecting the corporation as a whole or a substantial part of that corporation, to the extent that the consequences of the formation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs.[49]

21. Following the insertion of the new definition of “officer”, a review of the relevant authorities dealing with involvement in the management of a corporation was conducted in Australian Securities and Investments Commission v Vines.[50]  In that case, Austin J approved what had been said in Bracht, and noted that certain responsibilities would not constitute management in the relevant sense.  These included: (a) “the execution of instructions by an agent whilst obeying orders”; (b) “merely administrative work of the kind performed by a company secretary or accountant (though a full examination of the facts may show that such a person … makes management decisions)”; or (c) “otherwise, the carrying out of day-to-day routine functions in accordance with predetermined policies”.[51]  While it may be accepted that the decision in Vines contemplated that advice given to management, participation in its decision-making processes, and execution of its decisions going beyond the mere carrying out of directions as an employee would suffice, that was a reference back to the decision in Bracht rather than an extension of the principles expressed in that case.[52]  The essence of the question is whether the person involved “is given some measure of responsibility or some area of discretion, or… his opinion is given some weight in the decision-making processes of management”.[53]

1. In the application of those principles, the trial judge found that Mr Leslie was not an officer of Windbox either before or after 31 January 2018, which was the date he ceased to be an employee of the company.  The trial judge found[54] that Mr Leslie’s duties as station manager comprised a wide range of ‘hands on’ tasks running the station from day to day involving:

   (a)monitoring stock levels and stock welfare (ie monitoring the condition of the cattle and taking appropriate steps to ensure the cattle’s welfare including protection against wild dogs,[55] ensuring access to water, and inoculation);[56]

   (b)overseeing and performing station maintenance (eg fixing fences);[57]

   (c)ordering station supplies;[58]

   (d)managing the stock (eg mustering, drafting, watering and managing the breeding of the stock);[59]

   (e)maintaining water points and machinery (eg bore runs and mechanical maintenance work);[60]

   (f)“facilitating” the sale of cattle and the acquisition of stud bulls;[61]

   (g)contracting casual station hands to assist as and when needed;[62] and

   (h)performing further tasks as requested by Messrs Vagg and Dodd from time to time.[63]

2. The trial judge noted[64] that Mr Leslie performed these tasks under the general supervision and instruction of Mr Vagg who, as between the directors, was responsible for the ‘cattle side’ of Windbox’s affairs,[65] and found[66] that there were important limits on Mr Leslie’s role and authority.  They were limited to undertaking the tasks set out in the preceding paragraph[69] – that is, physically managing the station and implementing the directors’ decisions.

3. The trial judge also found[67] that Mr Leslie was not involved in the company’s management in the sense of policy formation and significant decision-making.  He managed himself and some casual staff and engaged in the day-to-day tasks of running the station.  That involved making decisions about fixing fences, moving cattle, conducting bore runs and so on.  During the time Mr Leslie was employed by Windbox, he was also tasked (in accordance with the directors’ instructions) with facilitating cattle sales and purchasing stud bulls, and with assisting in negotiations with the CLC and traditional owners.  However, the trial judge found that Mr Leslie was not involved in the management of Windbox as a “corporation” and was not a “decision maker” of Windbox in the sense contemplated by the authorities.[68] The reasons for that finding were:

   (a)Mr Leslie had no real involvement in Windbox’s financial affairs;[69] was never made aware of Windbox’s financial position;[70] had nothing to do with the bookkeeping and the preparation of Windbox’s accounts or financial reports;[71] and was not a signatory to any Windbox bank accounts, which were controlled by the directors and Windbox’s accounts team in Melbourne.[72]

   (b)Mr Leslie did not have the authority to hire staff or make large scale spending decisions on behalf of the company.  He was only authorised to purchase “common station supplies” on a Windbox credit card, initially with a limit of $1,000 which was later increased to $5,000.[73]

   (c)Mr Leslie did not participate in any significant decisions of the company regarding Windbox’s business: for example, whether to apply for a renewal of the Grazing Licences and, if so, on what terms; whether to expand, contract, or sell the business; whether to expend capital on new equipment and infrastructure; whether to refinance or raise capital; or whether to purchase or rent more land.  He did not attend any directors’ meetings or other meetings where Windbox’s affairs were discussed and where such decisions would have been made.[74]  He was simply kept informed of decisions that related to his functions as station manager after they were made, and then expected to assist in their implementation as and when instructed.  In so finding, the trial judge referred to evidence that Mr Vagg would often remind Mr Leslie of his limited role by saying to him words to the effect of: “Zebb, you have to check with Ray and me to get instructions.  We are the decision makers and run the company, not you”.[75]

   (d)Mr Leslie was not authorised to make decisions in relation to the sale of Windbox’s cattle.  He was required to obtain Mr Vagg’s approval in relation to proposed sales and sale prices before proceeding.[76]

   (e)Mr Leslie was not permitted to make any significant decisions regarding motor vehicles, accommodation for workers, and other infrastructure and equipment on the station without approval from the directors, and his requests were often refused.[77]

4. The trial judge acknowledged that, when instructed to do so by Mr Vagg or Mr Dodd, Mr Leslie played an important role in discussions and negotiations with the CLC and the traditional owners in relation to what his Honour referred to as “Windbox’s various, sometimes half-hearted, attempts to apply for or renew its Grazing Licences with the CLC”.[78]  This was because of his friendship with the traditional owners and the trust they had developed in him.[79]  However, his Honour found that Mr Leslie was not authorised to make any substantive decisions regarding the renewal of the Grazing Licences, or to communicate with the CLC except on instructions from the directors, and that Mr Vagg was quick to reprimand Mr Leslie when he thought that Mr Leslie had taken it upon himself to do so.[80]

5. For all of these reasons, the trial judge found that Mr Leslie was not an officer within the meaning of s 9 of the Corporations Act at any time during his employment with Windbox.[81]

6. In relation to the period after 31 January 2018, when Mr Leslie ceased to be an employee of Windbox, his Honour found that although Mr Leslie was still the station manager, and his day-to-day activities remained much the same, his functions and responsibilities were reduced from the moment his employment ceased.[82]  It therefore followed from the trial judge’s conclusion that Mr Leslie was not an officer of Windbox during his employment, that he was not an officer after that time.[83]

7. The trial judge held that, because Mr Leslie was not an “officer” at any relevant time, Windbox’s claims based on s 181(1) of the Corporations Act must fail.

8. The appellant contends that these findings were in error because:

   The “policy” for Windbox’s cattle business was “running a low-cost, sustainable cattle breeding enterprise aimed at the live export market [with a] Development Plan … 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.”[84]

   Mr Leslie was employed specifically to personally formulate and implement such a policy.[85]

9. This contention cannot be accepted.  The trial judge made specific findings that Mr Leslie was not involved in the company’s management in the sense of policy formation and significant decision making.  His Honour gave detailed reasons for this finding and detailed references to the evidence on which the finding was based.  The appellant has identified no reason for suggesting that this finding was erroneous.  Mr Leslie was employed to implement the cattle-breeding policy, but was not involved in formulating policy on behalf of the company.

10. The appellant also contends that the trial judge was wrong to find that Mr Leslie was not involved in “significant” decisions made in Windbox’s business.  “Significant” decisions in the business were when to muster and sell cattle, and at what price.  These transactions involved hundreds of thousands of dollars and had the capacity to affect Windbox’s financial standing.  The appellant contends that even if the ultimate decisions on these matters were made by the directors, they were “in effect Mr Leslie’s decision[s] because the directors invariably followed his recommendations on these matters, which lay at the core of Windbox’s business”.

11. The first thing to be said about this contention is that it is factually inaccurate.  The directors did not “invariably” accept Mr Leslie’s recommendations.  The trial judge made a finding, based on the evidence, that if Mr Vagg did not agree to a proposed sale, he would decline it.[86]

12. Secondly, the trial judge rightly rejected a submission along those lines.  His Honour noted that Mr Leslie’s involvement in transactions such as sales and purchases of cattle and other expenditure in relation to the station would have had an effect upon Windbox’s financial standing, but held that it did not necessarily follow that he was an officer of the company.  As the trial judge correctly pointed out, “decisions of this kind are the kind of decisions that are frequently left to employees at all levels of a business or service as part of their normal duties.”[87]  His Honour gave the following examples:

    Examples would include the manager of a restaurant or hotel, a skilled mechanic who effectively runs a busy motor vehicle service shop, a foreman on a building site, a construction manager employed to manage the construction of a large building or civil works project, and an operations manager. Most of these would have extensive duties and responsibilities, a high degree of autonomy and decision-making responsibility with respect to day-to-day operational matters, financial delegation, and expertise upon which the employer would be heavily reliant. Most would also establish strong and sometimes longstanding relationships – for example with customers, suppliers, public servants (for example, who had authority to grant licences or approvals) and other employees – to enable more efficient operation of the business. In many cases the way in which that person performs his or her duties will have the ability to affect the employer’s financial standing. Whilst each case must depend on its own factual circumstances, I doubt that many people performing those kinds of functions would fall within the definition of “officer” as identified in the authorities. ^[88]

13. The appellant takes issue with the trial judge’s reliance on Mr Leslie’s lack of awareness of Windbox’s financial position, and lack of involvement in the preparation of its accounts.  The appellant contends that this introduces “a hitherto non-existent requirement that prospective officers have this particular knowledge if they are to be held capable of affecting a corporation’s financial standing.”[89]

14. This contention misstates the trial judge’s finding.  First, the question under consideration was not whether Mr Leslie was capable of affecting the financial standing of Windbox; it was whether Mr Leslie was an “officer” of Windbox.  Having the capacity to affect the financial standing of the company is simply one indicium.  Second, the trial judge did not apply a requirement that a person have some particular knowledge of a company’s financial affairs in order to be an officer of the company.  His Honour simply, and quite properly, took into account Mr Leslie’s lack of involvement in the financial affairs of the company as one relevant factor in his determination of whether or not Mr Leslie was an “officer” of Windbox at the relevant times.

15. The appellant placed reliance on Australian Securities and Investments Commission v King,[90] in which the High Court held that, in the case of a small company, being “involved” in “management” extends to “all members such that it operates much like an incorporated partnership”.[91] A number of matters should be understood about that decision. The central question of law before the High Court was whether paragraph (b)(ii) of the definition in s 9 of the Corporations Act was limited in its scope to a person acting in an “office” within the meaning of the company.  The High Court found that while paragraph (a) of the definition captures those in a named office, paragraph (b) defines “officers” “by reference to the facts of the relationship between an individual and a corporation in relation to the affairs of a corporation”.[92]  The persons under (b)(i) and (ii) do not need to be in the same position as directors and officers under (a), while those falling under (b)(iii) can be described as “shadow officers”.[93] 

16. The individual whose characterisation as an “officer” was under consideration in Australian Securities and Investments Commission v King had previously been the CEO and executive director of the corporation. Although he had resigned from those offices, the Deputy CEO and continuing executive director continued to report directly and frequently to the individual in question, and customarily acted in accordance with that individual’s directions. In that context, the High Court emphasised that paragraph (b) of the definition of “officer” is functional in character in the sense that it is concerned with the “person’s actions or capacity and their effects”,[94] and identifies “persons who are involved in management of the corporation”, being persons “involved in policy making and decisions that affect the whole or a substantial part of the business of the corporation”.[95]

17. Having regard to that context and the High Court’s observations concerning the significance of the relationship between the individual and the corporation, and Mr Leslie’s functional character in the operations of Windbox, the appellant’s reliance on Australian Securities and Investments Commission v King is misplaced.  Although Windbox was no doubt a small company in relative terms, the evidence before the Court was not such as could give rise to a conclusion that Windbox operated like an incorporated partnership in which Mr Leslie was one of the partners.  The “partners” were the directors, Mr Dodd and Mr Vagg.  Mr Leslie was an employee who had the day-to-day management of the cattle station under their direction, and that involvement did not include policy-making or fixing the company’s strategic direction.

18. The appellant also made the following written submission on this issue:

    A further significant decision in Windbox’s business was the renewal of the Grazing Licences.  Indeed Windbox’s continued operation as a business was dependent upon this decision.  Mr Leslie was an essential integer in Windbox’s proposal to the Traditional Owners and the CLC and his role was akin to that of a key executive in a larger corporation.[96]

19. The appellant does not explain what is meant by “an essential integer”,[97] but this contention cannot be accepted in light of the findings of fact made by the trial judge, the correctness of which have not been challenged.  Assuming “this decision” means the decision by Windbox to apply for renewal of the Grazing Licences, the finding, supported by the evidence, was that this decision was made by the directors.  Mr Leslie’s role was limited to assisting in specific aspects of the negotiations at the direction of the directors; and he had no authority to negotiate with or contact the CLC on behalf of Windbox except at the direction of the directors.  The mere fact that Mr Leslie’s relationship with the traditional owners would have been an asset to Windbox in any application for the renewal of the Grazing Licences, and that Windbox’s prospects of success in any such application would be reduced without Mr Leslie’s involvement, did not operate by itself to make him an “officer” of the company.  At most, it made him a valuable asset – which is quite a different thing. 

20. The appellant contends that the trial judge’s finding that, following the cessation of his employment, Mr Leslie ceased having any involvement in Windbox’s affairs was in error because he continued to be involved in decisions about when to muster and sell cattle and at what price.[98]  That submission takes the remark by the trial judge at paragraph [258] of the reasons for decision out of context.  His Honour had already acknowledged that Mr Leslie continued to be the contract station manager following the cessation of his employment with Windbox, and that his day-to-day activities remained much the same.[99]  In saying that Mr Leslie ceased having any involvement in Windbox’s affairs, his Honour was referring to matters of company management such as plans for the station, improvements or infrastructure, negotiations to renew the Grazing Licences, and the selection of a replacement station manager.[100]  Although Mr Leslie did not at any time have authority to make decisions about such matters, the trial judge found that, as an employee, he was consulted and/or kept informed about these things and, as a contractor, he was not.  The trial judge was not in error in making this finding.

21. The trial judge made no error in determining that Mr Leslie was not an officer of Windbox during the relevant times (both before and after 31 January 2018) and that, accordingly, Windbox’s claims based on s 181(1) of the Corporations Act must fail.  Ground 3 of the appeal is dismissed. 

    Ground 7: Sections 182(1) and 183(1)

22. Sections 182 and 183 of the Corporations Act also apply to “employees” as well as “officers”, and it is not contested that Mr Leslie was an employee of Windbox until 31 January 2018. At paragraphs [352] to [364] of the Reasons for Decision, the trial judge considered the authorities on ss 182(1) and 183(1); at paragraphs [365] to [371] his Honour considered and rejected the appellant’s pleaded contentions in relation to s 182(1); and at paragraphs [372] to [428] his Honour considered and rejected the appellant’s pleaded contentions in relation to s 183(1).

23. The appellant contends that the trial judge made a number of errors in his consideration of the appellant’s claims based on ss 182(1) and 183(1). First, the appellant submitted:

    The learned trial judge found that when Mr Leslie decided to apply for the Grazing Licences on 2 February 2018 at the earliest, he “was not ‘using’ any of the ‘powers’ he had at the time as a contractor of Windbox, [nor was he] ‘discharging’ any of his ‘duties’ as a contractor of Windbox”. On this basis, his Honour found that Mr Leslie had not breached s 182 of the Corporations Act. Windbox contends that His Honour erred in so holding because:

    64.1 The test for whether a person has breached their statutory duty under s 182 is not predicated upon any such breach occurring in the performance of the person’s duties. Only s 181 of the Corporations Act contemplates the relevant breach occurring in the course of a person discharging their duties.

    64.2 In the case of s 182, what is required is that the breach occur as a consequence of the person improperly using their position to gain an advantage for themselves (or someone else), or to cause detriment to the corporation, at any stage during their tenure in the said position (similarly, in the case of s 183 what is required is that the breach occur as a consequence of the person improperly using information they acquired by reason of their position, whether during or after their tenure).

    64.3 In applying the test of whether Mr Leslie was “discharging his duties” with respect to s 182, His Honour incorporated an element of s 181 into the relevant test for s 182. In Windbox’s submission, this unnecessarily constrained the application of s 182 such that breach may only be established when a person is performing their assigned duties, which has the effect of excluding anything else done by that person outside of those duties but which nonetheless involves them “using” their position for either of the reasons specified in s 182(1)(a) or (b).[101]

24. The simple answer to this submission is that the trial judge did not apply the test which the appellant contends he did.  The appellant has taken the quoted statements by the trial judge out of context.  His Honour said that Mr Leslie was not using any of the powers he had as a contractor of Windbox, or discharging any of his duties as a contractor, when he decided to apply for grazing licences over the land in question.  The trial judge did not say that it was necessary for a person to be discharging their duties as an employee when doing the impugned act in order for that person to be in contravention of the duty imposed by s 182(1) of the Corporations Act. 

1. Throughout this part of the reasons for decision, his Honour focused on the right question and applied the correct test. That is, when applying for grazing licences over Kalkirindji Station did Mr Leslie make improper use of his position as an employee of Windbox to gain an advantage for himself? The trial judge referred to the appellant’s pleaded claim, found that the appellant had not proved any of the misconduct pleaded as the basis for its claim under s 182(1), and gave detailed reasons for his conclusion that Mr Leslie did not make improper use of his position as an employee of Windbox in applying for those grazing licences. No error is disclosed in that reasoning process.

2. The appellant’s second submission involved a criticism of the trial judge’s findings in relation to a claim of conflict of interest.[102] In connection with his consideration of Windbox’s claim under s 183(1), the trial judge said:

   I reject the second contention. This was to the effect that Mr Leslie was in a position of conflict of interest until late April 2018 because he still had duties, as station manager, which included assisting in Windbox’s application for renewal of its grazing licences, but he proceeded to make the competing application without making any disclosure to Windbox or seeking Windbox’s consent. As I have already found, he had no such duties at least from 1 February 2018. Further, Windbox’s pleadings do not assert a positive obligation upon Mr Leslie to make such a disclosure to Windbox or to seek its consent.[103]

3. In relation to this paragraph, Windbox contends:

   The learned trial judge found that Mr Leslie was not in a position of conflict of interest vis a vis Windbox on the basis that Mr Leslie did not owe statutory duties to Windbox on and from 1 February 2018.  Windbox contends that his Honour erred in so holding because his Honour’s reasoning treats the obligation to meet statutory duties and the possibility of conflict of interest as concomitants of one another, when it is not necessary for such duties to exist before a conflict can arise.[104]

4. This submission also involves a misconception of the trial judge’s reasons.  Windbox contended that “in planning for, taking steps to make and making the competing application for” grazing licences over Kalkarindji Station, Mr Leslie’s personal interest in obtaining the licences was in conflict with his duties to Windbox, as station manager, to assist in Windbox’s application for renewal of its Grazing Licences.  The trial judge found, as a matter of fact, that after he ceased employment and became a contractor, Mr Leslie had no such duties.  The finding was not that Mr Leslie did not have continuing statutory duties, but that he had no duties at all in connection with Windbox’s application to renew the Grazing Licences because he had not been given any such duties by Windbox.[105]  It is difficult for the appellant to criticise that finding in circumstances where its contention was that the conflict of interest derived from the fact that Mr Leslie still had duties, as station manager, to assist in Windbox’s application for renewal of the Grazing Licences; and where it made no positive assertion that Mr Leslie was otherwise under a duty to refrain from making his own application or to advise Windbox of his intention to do so.

5. Apart from the assertion that Mr Leslie had duties to assist in Windbox's application for renewal, the appellant asserts that Mr Leslie misused company information in the prosecution of his own application.  The information which the appellant contended Mr Leslie had as an employee of Windbox was information about the state of negotiations between Windbox and the CLC in relation to the Grazing Licences, and in particular information that:

   (a)the parties had not yet formalised the terms of their ongoing legal relationship regarding the Grazing Licences;[106] and

   (b)Windbox had, by email dated 31 January 2018 instructed solicitors to formalise the licences with the CLC on the terms set out in the CLC’s emails.[107]

6. As the respondents have submitted:[108]

   (a)there was no evidence that Mr Leslie actually had the information relied on in the appellant’s pleadings;

   (b)there was no evidence that Windbox had ever sent an email on 31 January instructing solicitors to formalise the licences on those terms;[109]

   (c)even if such an email was sent, there was no evidence that Mr Leslie knew that or was aware of its contents;[110] and

   (d)even if Mr Leslie had that information, he did not use it in applying for the Grazing Licences.[111] 

7. The appellant contended that the way in which Mr Leslie used the information was that he knew from the draft letter of instructions in the emails of 24 and 29 January 2018 that Windbox was about to accept the CLC’s offer of licences for five years with a five year option, and he used that information by acting quickly to make his own application for grazing licences before Windbox could finalise its negotiations with the CLC.  As we have already found, there was no error in the findings by the trial judge that Mr Leslie was not aware of the contents of the emails of 24 and 29 January 2018, and would have taken no notice of those contents even if he had been aware of them.  Further, the evidence is that Mr Leslie did not act quickly to make his own application for grazing licences.  He made enquiries on 2 February 2018 as to whether he could apply and put in an expression of interest on the same day.  On 7 February 2018, the CLC emailed him an application form but Mr Leslie did not actually put in an application until 5 March 2018.  That timeline does not suggest that Mr Leslie acted with urgency in anticipation of an imminent application by Windbox.

8. The appellant complains that the trial judge found that the information in Mr Dodd’s emails had “no obligation of confidentiality attaching to it”, and that this amounted to taking into account an irrelevant consideration, as the information contemplated by s 183 does not need to be confidential information.[112] On proper characterisation, the trial judge was not saying that information had to be confidential in order to fall within s 183(1). This remark by the trial judge was made in the context of considering whether the use of the information would have been improper, and whether or not the information was imparted in confidence would have been a relevant matter to take into account in an assessment of the propriety of its use.

9. For these reasons, the appeal in relation to the trial judge’s determination of the appellant’s claims based on ss 182(1) and 183(1) of the Corporations Act must fail.

   Ground 8: Windbox’s unsuccessful amendment application

10. The appellant contends that the trial judge erred in refusing Windbox leave to amend its statement of claim to include a claim for breach of fiduciary duty.

11. The trial of this proceeding was scheduled to commence, and did commence, on Monday, 4 March 2019.  On Friday, 1 March 2019, the plaintiff attempted to file an unsigned application seeking, inter alia, leave to amend the statement of claim to include a claim against Mr Leslie for breach of fiduciary duty.  That application was heard on the first morning of the trial and a decision refusing the application was delivered the following day giving brief oral reasons.  In the course of those reasons, the trial judge said:

    On Friday, 22 February this year I rejected an application made by summons dated 11 February to amend the statement of claim by adding allegations of fraud and allegations of misleading or deceptive conduct on the part of the Central Land Council.  I provided reasons for that decision last Wednesday, 26 February.

    My reasons for that decision included the lateness of the application, particularly in light of the fact that programing orders had previously been made by consent requiring any amendments to the statement of claim to be made by 2 November 2018, and the risk that the hearing of this urgent matter could not be concluded within the 5 days commencing yesterday, 4 March.  The matter was given a specific listing for this week in light of the interlocutory injunction which is due to expire on 1 May 2019.

    Similar reasons apply to the present application, indeed all the more so because of the lateness of this application which effectively took about three and a half hours of valuable time yesterday to argue.  No reason has been given by the plaintiff for its failure to plead this cause of action previously, either when it commenced these proceedings or by 2 November 2018 when it was at liberty to make any amendments it wished to make.

    It seems that this late pleading, like the late pleading of fraud that I rejected on 22 February, is very much an afterthought designed to circumvent the indefeasibility provisions contained at s 19(6) of the Aboriginal Land Rights Act.  The plaintiff has been aware, or should have been aware since bringing this application in September 2018, and obtaining the interlocutory injunction in October of 2018, that a successful challenge to the validity of the grazing licences would be likely to require the plaintiff to overcome those indefeasibility provisions.  The claim for breach of fiduciary duty could and should have been brought by 2 November last year.

    I accept the submissions of Mr Wyvill SC to the effect that if the amendments are allowed, he and those representing the JACT defendants would require further time during which to seek and obtain further and better particulars of the new claim; seek and engage in further discovery, including, for example, disclosure of Mr Cole’s file, which, I am told, contains some 549 documents, some of which may be privileged, and to obtain further instructions.  This would have to be done before counsel [could] properly cross-examine the plaintiff’s witnesses, particularly Mr Dodd, whose evidence was to commence yesterday.  Mr Wyvill also raised the possibility of JACT trying to contact and perhaps call, Mr Vagg.

    In my view it would be unfair to expect counsel for the defendants to be in a position to cross-examine Mr Dodd in relation to these allegations today, or in sufficient time to enable the evidence to be completed this week.  The effect of allowing these amendments at this late stage would likely mean that the evidence of the plaintiffs could not be concluded this week and the hearing would have to be adjourned, presumably part heard, for many months, perhaps 6 months.

    Although Mr Harris QC announced yesterday morning that the plaintiff was not pursuing the allegation of residual liability against the CLC, such a delay, particularly if the injunction is to be extended beyond 1 May 2019, would cause much of the prejudice that I referred to in rejecting the previous application.  The CLC and the traditional owners are entitled to certainty sooner rather than later, particularly in relation to the status and validity of the grazing licences.

    Further, although the plaintiff has now abandoned its challenge as to who and who are not traditional owners, I would expect that the previous challenges, particularly those alleging fraudulent conduct on behalf of one particular Aboriginal man, have left residual concerns about those questions which may well remain until the challenge to the validity of the grazing licences and the role of the various people in the process leading up to the granting of the licences has been resolved.

    I also have some doubts about the merits of this new claim, both in terms of the particularity and pleading of the proposed plan and also in light of the limited evidence in Mr Dodd’s affidavits that could support the allegations, particularly as to the content of the fiduciary relationship and as to the breaches alleged.  I also have some doubts about the utility of the fiduciary breach claim, except in relation to the form of equitable relief sought, namely a constructive trust over the grazing licences.

    Senior counsel for the plaintiff contended that the factual basis of the new claim is the same as already particularised in para 45.1 and 46.1 in relation to the statutory claims. Those claims and the new claim rely upon Mr Leslie’s status as an officer, presumably as an officer as defined in s 9AC if the Corporations Law.  The duties of such a person are set out in the Corporations Law.  It would seem that by pleading an equitable claim and breach of fiduciary duty the plaintiff is attempting to allege duties and breaches different, and perhaps wider, than those that the statute has already stipulated for officers.

    I refuse the application for leave to amend the statement of claim to add the allegations of breach of fiduciary duty.

12. The appellant contends that in referring to the residual concerns in respect of who are and who are not the traditional owners, “apparently arising from Windbox’s earlier challenge to the validity of the Grazing Licences”, the trial judge took into account an irrelevant consideration.  That submission cannot be accepted.  At that stage, the Daguragu Aboriginal Land Trust and the CLC were still parties to the proceeding, and the plaintiff had made serious allegations of fraud against the CLC and questioned the legitimacy of the traditional owners’ title.  While it is true that the appellant had not been permitted to amend the statement of claim to include those allegations, the validity of the grant of grazing licences to JACT was nevertheless still in issue and the claims of fraud and legitimacy were “in the air”.  The effects of litigation on litigants (especially on defendants, who do not choose to be litigants) are not limited to the financial effects visited upon them by awards of damages and costs.  It is well known that litigation can and does have emotional effects on parties and those emotional effects, and the possible exacerbation of those effects by any delay in the progress of the action, are relevant considerations to be taken into account on an application of this kind.  As Lord Griffiths said in Ketteman v Hansel:

[J]ustice cannot always be measured in terms of money and in my view a judge is entitled to weigh in the balance the strain the litigation imposes on litigants, particularly if they are personal litigants rather than business corporations, the anxieties occasioned by facing new issues, the raising of false hopes ... ^[113]

1. In any event, this was not the only reason, or even the main reason, given by the trial judge for refusing leave to amend the statement of claim.

2. The appellant made the following further submission in relation to this ground of appeal:

   To the extent that the proposed amendment to plead breach of fiduciary duty was disallowed because it raised significant new factual and legal enquiries that could not reasonably be supported by the evidence, His Honour erred.  All of the relevant evidence to support and oppose the breach of fiduciary duty case was available.  The case was not untenable, and the learned trial judge’s “doubts about the merits of this new claim [and the] utility of the breach of fiduciary duty claim” were not sufficient reasons to deny Windbox the opportunity.[114]

3. A number of things may be said about that submission.  First, the submission is not supported by detailed reference to the pleadings and the state of the evidence.  Second, counsel for the defendants asserted at the time that in order to respond to the proposed amended statement of claim the defendants would need further discovery, time to take further instructions, and possibly further evidence.  Unless those claims have been shown to be utterly spurious (and they have not), the trial judge was bound to take those matters into account.  Third, in saying that the judge’s doubts about the merits of the plaintiff’s fresh claim were “not sufficient reasons” to deny the plaintiff the opportunity to amend, the appellant has once again misstated the trial judge’s reasons.  His Honour did not say those doubts were a sufficient reason in and of themselves for not allowing the amendment.  There were a number of other matters set out in the reasons for decision for not allowing this last minute application to amend the statement of claim.  Finally, and importantly, this submission invites the Court of Appeal to exercise the trial judge’s discretion afresh. which implicates the following well-known principles:

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[115]

4. The appellant has not shown that the trial judge acted upon any wrong principle; took into consideration any irrelevant matter or failed to take into consideration any relevant matter; or mistook the facts.  Nor has the appellant shown that the decision not to allow the amendment to the statement of claim was unreasonable or plainly unjust so as to give rise to an inference that there has been a failure properly to exercise the discretion reposed in the judge.  In the reasons quoted above, the trial judge appropriately referred to and applied the kinds of considerations set out in Aon Risk Services Australia Limited v Australian National University.[116]  The appeal on this ground must fail.

5. Further, or by way of an aside, if the appellant’s contention that “all of the relevant evidence to support and oppose the breach of fiduciary duty claim was available” were correct, and if the plaintiff’s contention that “the factual basis of the new claim is the same as already particularised in para 45.1 and 46.1 in relation to the statutory claims” were also correct (about which there must be considerable doubt), then the appellant’s claim based on breach of fiduciary duty must necessarily have failed for the same reasons that the claims for breach of statutory duty failed; that is, for lack of a substantiated factual basis. The only additional benefit of the claim for breach of fiduciary duty would have been the availability of the remedy of the declaration of a constructive trust over the grazing licences granted to the respondents, which would have overcome the indefeasibility provisions in s 19(6) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). While that would have afforded a substantial benefit if the claim had succeeded, if the claim was doomed to failure on the same grounds as the existing claims (as would certainly have been the case), the plaintiff would have gained no benefit from the amendment sought and the trial judge’s refusal had no adverse consequence.

   Order

6. The appeal is dismissed and we will hear the parties in relation to costs if need be.

_________________________

[1]      Australian Securities and Investments Commission extract in respect of Windbox (Exhibit P15). 

[2]      The interlocutory injunction was later varied and extended.

[3]      Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21.

[4]There are no Grounds 1 and 2.  The numbering of the Grounds are taken from the paragraph numbers in the Notice of Appeal and paragraphs 1 and 2 are introductory paragraphs.

[5]      Appellant’s Outline of Submissions, paras 35 to 43.

[6]Appellant’s Outline of Submissions, paras 46 to 50.

[7]      Appellant’s Outline of Submissions, para 47.

[8]      Appellant’s Outline of Submissions, paras 51 to 58

[9]      Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ, [26]-[29].

[10]Halikos Hospitality Pty Ltd & Ors v INPEX Operations Australia Pty Ltd [2020] NTCA 4, [48]-[54].

[11]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [164].

[12]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [159].

[13]    Plaintiff's Written Submissions, 26 April 2019, [98].

[14]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [162]. The reference to Mr Dodd’s email of 28 January should read 29 January.

[15]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [265]-[311].

[16]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [303].

[17]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [302] The trial judge referred in that paragraph to an email of 28 January, but it is clear from the context that was a reference to the email of 29 January on which Windbox was relying.

[18]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [68].

[19]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [69].

[20]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [69], [295].

[21]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [275]-[292].

[22]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [287].

[23]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [288], [289].

[24]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [164].

[25]    In the Reasons for Decision, the trial judge described these characteristics as being, “sometimes to their detriment, such as continuing to work with Mr Dodd despite his poor treatment of them”.  See Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [164].

[26]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [147] (AB 3187).

[27]    The published judgment has the word “presumptive” which is, presumably, a typographical error.

[28]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [147], [164].

[29]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [145].

[30]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [146].

[31]    Affidavit of Mr Dodd dated 16 November 2018 (Exhibit P4), pp 6-30.

[32]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [140].

[33]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [135].

[34]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [136].

[35]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [164].

[36]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [68]-[70] and [294]-[302].

[37]    Appellant’s Outline of Submissions, para 50.

[38]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [310].

[39]    Appellant’s Outline of Submissions, para 53.

[40]    The reasons for decision as published incorporate the term "ingenuous", which the parties accept in context as a typographical error.  The trial judge clearly intended to use the word "disingenuous".

[41]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [75].

[42]    Appellant’s Outline of Submissions, para 54.

[43]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [170]; Appellant’s Outline of Submissions, para 56.

[44]In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; 160 ALR 588 at [93] Kirby J described a number of circumstances in which credibility findings may not be conclusive. He noted (at subparagraph 6) that “the fact that a judge may not feel justified in condemning a witness as untruthful is not necessarily equivalent to an affirmative opinion by the judge that the witness has endeavoured to give truthful testimony.”

[45]    Respondent’s Outline of Submissions, paras 40 and 41.

[46]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [164].

[47]    The appellant refers to paras [368], [370], [378], [418], [421], [423], [425] and [426] of the Reasons for Decision at first instance: see Appellant’s Outline of Submissions, para 60.

[48]Commissioner for Corporate Affairs v Bracht [1989] VR 821.

[49]Commissioner for Corporate Affairs v Bracht [1989] VR 821, 829-830.

[50]Australian Securities and Investments Commission v Vines [2005] NSWSC 738; (2005) 55 ACSR 617.

[51]Australian Securities and Investments Commission v Vines [2005] NSWSC 738, [1038].

[52]Australian Securities and Investments Commission v Vines [2005] NSWSC 738, [1054].

[53]Commissioner for Corporate Affairs v Bracht [1989] VR 821, 829-830. This approach receives support in Forge v Australian Securities and Investments Commission (2004) 52 ACSR 1, [200] and Australian Securities and Investments Commissionv Vines [2005] NSWSC 738, [1054].

[54]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [233].

[55]    Transcript at p 593.3.

[56]    Exhibit J2 at [11.1]; Exhibit J3 at [16.1].

[57]    Exhibit J2 at [11.2]; Exhibit J3 at [16.2].

[58]    Exhibit J2 at [11.3]; Exhibit J3 at [16.3].

[59]    Exhibit J2 at [11.4]; Exhibit J3 at [16.4].

[60]    Exhibit J2 at [11.5]; Exhibit J3 at [16.5].

[61]    Exhibit J2 at [11.6]; Exhibit J3 at [16.6].

[62]    Exhibit J2 at [11.7]; Exhibit J3 at [16.7].

[63]    Exhibit J2 at [11.8]; Exhibit J3 at [16.8].

[64]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [234].

[65]    Transcript at p 203.4; Exhibit J3 at [18] – [22].

[66]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [235].

[67]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [237]-[238].

[68]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [238].

[69] Exhibit J7 at [7].

[70] Exhibit J7 at [7].

[71]    Transcript at p 212.  – Mr Dodd (who was responsible for the financial side of things company's financial management) never provided Mr Leslie with a copy of Windbox’s accounts.

[72]    Exhibit J7 at [8] – to which Mr Dodd agreed with at Transcript at p 218.

[73]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [240]-[241].

[74]    Exhibit J7 at [5]-[6].

[75]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [239]; Exhibit J3 at [24].

[76]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [244].

[77]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [245].

[78]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [248].

[79]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [247].

[80]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [249], [262].

[81]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [250].

[82]Mr Leslie ceased having any role or discussions with the directors regarding the plans for the Station, improvements or infrastructure; he ceased having any involvement in Windbox’s negotiations to apply for or renew the Grazing Licences; he was not consulted about the selection of a replacement station manager; and he was no longer authorised to send correspondence on behalf of the company: Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [258]-[259].

[83]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [252].

[84]Appellant’s Outline of Submissions, para 24.1. 

[85]Appellant’s Outline of Submissions, para 24.2.

[86]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [244]; 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.

[87]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [244].

[88]    Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [232].

[89]Appellant’s Outline of Submissions, para 25.3.

[90]    Australian Securities and Investments Commission v King [2020] HCA 4; (2020) 376 ALR 1.

[91]    Appellant’s Outline of Submissions, paras 25.2 and 28.

[92]    Australian Securities and Investments Commission v King (2020) 376 ALR 1, [24].

[93]    Australian Securities and Investments Commission v King (2020) 376 ALR 1, [87].

[94]    Australian Securities and Investments Commission v King (2020) 376 ALR 1, [88]; Grimaldi v Chameleon Mining NL [No 2] (2012) 200 FCR 296 at 318 [45].

[95]    Australian Securities and Investments Commission v King (2020) 376 ALR 1, [88]; Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd [No 4] (2007) 160 FCR 35, [483], [490].

[96]Appellant’s Outline of Submissions, para 24.4.

[97]In oral argument, counsel for the appellant explicitly disclaimed any case based on an allegation that Mr Leslie had gained the trust and good will of the traditional owners by virtue of his position as the manager of the station, and that he then somehow took advantage of that for his own gain: see Transcript of Proceedings, 20 October 2020, p 17.

[98]    Appellant’s Outline of Submissions, paras 24.3, 26.1, 27.

[99]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [252].

[100]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [258].

[101]     Appellant’s Outline of Submissions, para 64.

[102]     Appellant’s Outline of Submissions, para 66.

[103]     Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [378].

[104]     Appellant’s Outline of Submissions, para 66.

[105]Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [378]. The Reasons for Decision had earlier referred at paragraph [139] to evidence by Mr Dodd that after Mr Leslie ceased to be an employee, he immediately “completely cut Mr Leslie out of the picture in relation to his dealings with the CLC” and also no longer involved Mr Leslie in any of his email correspondence, particularly the redacted email to Mr Cole of 1 February 2018 presumably referring to the Grazing Licences.

[106]Further Amended Statement of Claim, para 46.1.1.

[107]Further Amended Statement of Claim, para 46.1.2.

[108]     Respondent’s Outline of Submissions, paras 50 to 53.

[109]     No such email was produced in discovery or adduced in evidence.

[110]     Mr Dodd gave evidence in cross-examination that he had given verbal instructions to Mr Cole in terms of the draft letter emailed to Mr Vagg and Mr Leslie on 29 January 2018, but there was no suggestion that Mr Leslie had been told about this.

[111]     Windbox Pty Ltdv Daguragu Aboriginal Land Trust & Ors (No 3) [2020] NTSC 21, [409], [423]. Mr Leslie called the CLC on 2 February 2018 to find out if he was able to apply for the Grazing Licences and was told that he was. The information Mr Leslie used in later applying for the Grazing Licences was that information supplied by the CLC and the information Mr Leslie and Ms Rowbottom compiled in preparing the application.

[112]Appellant’s Outline of Submissions, para 69. 

[113]Ketteman v Hansel Properties Ltd [1987] AC 189, 220; as quoted in Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, 155 per Dawson, Gaudron and McHugh JJ.

[114]     Appellant’s Outline of Submissions, para 73.

[115]House v The King [1936] HCA 40; (1936) 55 CLR 499.

[116]     Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175.