The detail of this information is to be found in para 21 above.
86 For my part, the lack of evidence of the kind referred to by the Referee is explicable once the findings are accepted that Abigroup proceeded with the tender and contract with responsibility for latent conditions, and with knowledge and understanding of these warnings and qualifications. In such circumstances, if it was ever the fact that those involved had attached any relevant significance to the representation, it is difficult to imagine why evidence to prove it was not led. When assessing the effect of the whole of the evidence on this issue the Referee was entitled to give great weight to the lack of evidence referred to, and obviously he did so.
87 Thus in circumstances where the risks to which the warnings and qualifications referred to were accepted it was reasonable to have expected clear evidence in proof of any operative or influential effect of the statements and representation. Reinforcement for such expectation lies also in the circumstances of the making of the statements, the contexts of which do not readily suggest that they were calculated to operate upon the minds of tenderers so as to induce them to proceed to tender and enter the contract.
88 It seems to me that Abigroup's submissions, taken as a whole, are directed to considerations in support of the proposition that it was reasonable in all the circumstances to rely upon the totality of the Concept Design Documents in proceeding with the tender and contract. However, the crucial issue for the Referee was one less wide and general, namely reliance upon the representation in sub-para (vii) conveyed by the particular statements in the Detailed Specification and Concept Design Report.
89 The finding that Abigroup failed to prove its reliance upon this representation was not unreasonable with regard to the evidence identified in the submissions, and there is no basis for a suggestion that he failed to take that evidence into account.
90 I am entirely satisfied that the finding that Abigroup failed to prove its reliance upon the representation was reasonable, open and proper in the circumstances. I am also so satisfied that this finding was not attributable to any lack of understanding of the evidence, perversity or manifest unreasonableness on the part of the Referee (Foxman Holdings Pty Ltd v NMBE Pty Ltd (supra) p 620).
91 In addition to the above, in my view it is appropriate in the exercise of the Court's discretion under Pt 72 r 13 that the orders sought by Abigroup on this issue be rejected. Consideration of the wide range of matters raised in its submissions on this issue necessarily requires the sort of review and reassessment which is inappropriate for the Court to undertake in a case such as this in which the critical decisions are ones of fact made after assessment of witnesses (Abigroup Contractors Pty Ltd v Peninsula Balmain Pty Ltd (supra) paras 20-21).
Error 5: Passing on information "for what it is worth"
92 Under this head, Abigroup calls for rejection of the Report on the ground that the Referee's findings that SCA did not adopt the Concept Design Documents prepared by DPWS, and merely passed the information therein on for what it was worth, were contrary to the weight of the evidence, and perverse. (The Concept Design Documents comprise those referred to in paras 9A, 11 and 12 of the Amended Summons, and include a concept design report, concept design drawings, a detailed specification, the geological investigation, and a concept design).
93 It submitted that the evidence led only to one conclusion, that is that the representation made in the documents were made by SCA. It was put that the Referee should have found that SCA adopted the material prepared by DPWS on its behalf, and presented it as its own as part of the tender documents which it asked and expected tenderers to use for the purpose of tendering for the works.
94 Relevant to this issue is the analysis of the evidence as to the work undertaken by DPWS for SCA. That is to be found at R 91-163, some of which is referred to in paras 23-25 above.
95 Also relevant to this issue are the following extracts from the Report:
"164 However, what the evidence does establish is that the Concept Design was prepared by officers of DPWS and their agents pursuant to the contract with the defendant. The defendant had nothing to do with its preparation and, in these circumstances, I am of the opinion that the proper conclusion is that in so far as the DPWS documents were passed on to the plaintiff, that was done by the defendant in circumstances where it had no input into the documents, nor can be shown to have taken any responsibility for them. Nor, in my opinion, is there any basis on which the defendant could believe that the work performed by DPWS was not done properly. Therefore, in so far as the defendant passed on the information, it was conveying information from an expert which both in itself and in the circumstances of the terms of the Invitation to Tender was done "for what it was worth".
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420 On the issue of "inadvertence", I am satisfied that the defendant only directed its mind to the sufficiency of the information for the purpose of deciding that it was sufficient to enable the tenderers to fulfil their tasks, but on the express basis that it would be transparently clear that the information may be inaccurate, incomplete, in error and/or misleading, such that the defendant would not be liable if any reliance was placed on it and that no reliance should be placed on it, but the tenderer should make its own enquiries and carry out its own investigations. Therefore, in so far as it refrained from providing information, I am satisfied that it did so inadvertently.
421 In his written submissions, Mr Corsaro submitted that the defendant adopted the information received by it from DPWS as accurate and caused it to be published to the plaintiff as part of the tender for the works.
422 He relied in this context upon the decision in Miba Pty Limited & Ors v Nescor Industries Group Pty Limited & Anor (1996) 141 ALR 525. In that case it was accepted that Yorke v Lucas is the leading case considering the circumstances in which the passing on of misleading or untrue information supplied by another can constitute misleading conduct. The well known passage from Yorke at p.666 was cited and its application by the Full Court of the Federal Court in John G. Glass Real Estate Pty Limited v Karawi Constructions Pty Limited (1993) ATPR (Digest) 41-249 was noted. His Honour quoted from portion of the judgment in that case, in which it was said:-
"In the present case the appellant adopted the information in question and incorporated it as a central and prominent feature of their selling effort on behalf of the defendant. There was certainly no express disclaimer of the appellant's belief in the truth of the information in the brochure - indeed there was an express assertion of such belief . As part of its ordinary business the agent was providing information in a persuasive form with a view to achieving a sale of its principal's property and of course earning commission. It was this conduct which the learned trial judge, correctly in my opinion, held to be misleading and deceptive. Once the falsity of the figure was demonstrated, it seems to us that no other conclusion could follow." (My emphasis.)
423 In the present case it may be said that the defendant adopted the information provided to it by DPWS, although it seems to me that the meaning to be attributed to the word "adopted" in this context must be considered carefully. In my opinion, one can receive a piece of information and "adopt" it by showing that one has not only received and passed on the information from a person with the expertise to give it, but has also made it clear that the person passing on the information believes in its truth. That, so it seems to me, is a true adoption. In my opinion, the defendant did not adopt the information in that sense. That form of adoption is to be distinguished from the receipt of information from an expert, commissioned to provide it, and passing it on in the circumstances referred to in Yorke v Lucas . The defendant was non-committal. It passed on the information subject to all the qualifications, including the responsibilities accepted by the plaintiff, and, in the end, I consider that those qualifications and acceptances made it clear that far from the defendant taking responsibility for the information, it was stating not only that it was not, but it was also warning that it may be inaccurate, incomplete or misleading. Further, it was made clear that notwithstanding the furnishing of this information the obligation was on the plaintiff, which was taking the commercial risk in relation to latent conditions, to makes it own inquiries. There was no obligation on the plaintiff to tender and, if it took the view, for the various reasons submitted by Mr Corsaro and pleaded in paragraph 21A as the "circumstances", that it could not make an informed judgment on the matter, then it was at liberty to refrain from doing so.
424 In the result, I am of the opinion that the proper construction of the facts in this case is that the defendant was merely passing on the information from DPWS for what it was worth.
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444 It was in this context that Mr Donaldson relied upon the fact that the reader of the documents could not reasonably conclude that the defendant was expressing any view of its own as to the accuracy or reliability of the DPWS opinions and he referred to Yorke v Lucas ; Argy & Anor v Blunts & Ors (1990) ATPR 41-015 and The Saints Gallery Pty Limited v Plummer (1988) 80 ALR 525.
445 Mr Donaldson also relied upon Lake Koala Pty Limited v Walker [1991] 2 QdR 49 where, at p.58, Connolly J said:-
"It was argued for the plaintiff that a vendor cannot, without incurring liability, furnish the reports of experts to prospective purchasers unless they are in fact free of all taint of error and incapable of being misleading in any respect. The representation which is made in the case of a mere furnishing of a report, such as that prepared by Peat Marwick, is that the document is what it purports to be namely the opinion of an expert, and that the vendor believes it to be honestly made and made in the exercise of professional competence or, which amounts to the same thing, that he had no reason to believe to the contrary."
446 As I have said, I consider that this is the appropriate factual finding to be made in the present case. It was clear that the report had been prepared by DPWS and purported to be its opinion. It was never suggested to any representative of the defendant that he did not believe that it was made honestly in the exercise of DPWS's professional competence, nor that he had any reason to believe to the contrary."
96 Abigroup submitted that the finding was contrary to the weight of the evidence found in the Concept Design Documents said to show that SCA presented them to tenderers as its own. That material included the cover pages of volume 1, Detailed Specification, on which appeared the logo of Sydney Water Corporation, and volume 9, Concept Design Report on which appeared the words "Sydney Water". Also referred to was the statement in para DS-3.3 of volume 2, Detailed Specification, that "The Principal has prepared a concept design for the works which is documented in the following documents:".