Adams v Groegor

The background to the claim 3The plaintiff saw an advertisement in "The Land" newspaper offering agistment on the defendant's property. He travelled to the defendant's property on 26 August 2009 and inspected the premises in the company of a Mr Trevor Griffith. On 28 August 2009, having entered into an agreement with the defendant, the terms of which are in dispute, the plaintiff and a Mr Griffith bought 1,070 pregnant merino ewes to be delivered to the property by a Mr Anthony Tuckwell. These ewes subsequently gave birth to lambs on the defendant's property. 4In or about September 2009, the plaintiff brought an additional 319 merino ewes and their lambs (already born) to the defendant's property for agistment. Both the first and second lots of sheep remained on the defendant's premises until December 2009 when, the plaintiff commenced removing them from the property. This followed a telephone conversation between the plaintiff and defendant in which the defendant told the plaintiff "if you want to come and get them [the sheep] you can get them anytime" (paragraph 16 of the Further Amended Statement of Claim). 5The plaintiff first came to the property in December 2009 and took possession of 640 ewes and their lambs. He brought friends to help him muster the sheep, but they were not able to find all of them. In January 2010, the plaintiff came to the property a second time and took a further 300 ewes and 250 lambs. In February 2010, the plaintiff attended the property for a third time and took possession of a further 120 ewes and 120 lambs. The plaintiff says he has taken possession of 1,096 ewes and 1,046 lambs. There are still some sheep on the defendant's property, the precise number of which is unknown, but which could be as many as 40. 6The plaintiff claims damages for the loss of market value of 293 ewes and 343 lambs he claims were unaccounted for in the course of his three visits to the property (paragraph 30 of the Further Amended Statement of Claim). 7In summary, the total number of ewes and lambs brought to the defendant's property amounted to 2,778 (1,389 ewes and their lambs) and the total number removed was 2,142 (1,096 ewes and their lambs). This is how the figure for the shortfall of 293 ewes and 343 lambs is arrived at. The shortfall in ewes was 21% and the shortfall in lambs was 25%. The total loss of ewes and lambs is 636, or 23% of the total sheep.

The issues in the case 8The matters for consideration are: (a)The plaintiff's claims for breach of contract (paragraphs 26-27 of the Further Amended Statement of Claim), bailment (paragraphs 29-30) and breaches of the Fair Trading Act (paragraphs 31-33); (b)The plaintiff's claim for damages (paragraphs 34-36) including a monetary amount (paragraph 36A) for the value of those sheep which it is asserted that the defendant has failed to return to him upon reasonable request, in breach of his obligations in bailment. 9The defendant brought a cross-claim but conceded in the course of the hearing that he was not able to make out a claim. That cross-claim has been dismissed with costs. 10It is important to examine the pleadings, as well as the evidence, with some care, as the nature of the oral agreement between the parties was not only a matter of dispute between the parties, but underwent some changes in the course of the evidence. 11I shall commence by a consideration of the claim brought by the plaintiff for breach of contract.

The terms of the contract entered into by the parties 12The plaintiff alleges that the same agreement was entered into on each of the two occasions when he placed his sheep on the defendant's property for agistment. According to paragraph 7 of the Further Amended Statement of Claim, the defendant is alleged to have made the following representations: " Particulars of the representations On 26 August 2009 while the Plaintiff and Defendant and Trevor Griffith drove in a motor vehicle owned by the Plaintiff around the property the Defendant represented that (i) the Property contained sufficient feed for the Plaintiff's ewes and lambs ("the sheep") to ensure the sheep maintained a state of health and condition not less than the condition of the sheep at the time of being placed in the Defendant's care, control and custody, (ii) the property contained sufficient water for the sheep to ensure the sheep maintained a state of health and condition not less than the condition the sheep at the time of being placed into the Defendant's care, control and custody, (iii) the Property was adequately fenced to prevent the sheep escaping the care and custody of the Defendant (iv) the Defendant would check on the welfare, health and condition of the sheep at least daily (v) the Plaintiff would receive a report once per week from the Defendant concerning the welfare, health and condition of the sheep." [Setting out revised] 13It was in reliance upon these representations, according to paragraph 8 of the Further Amended Statement of Claim, that the plaintiff entered into the contractual relationship with the defendant. 14The first three representations set out above are the subject of agreement between the parties. During the trial, the plaintiff conceded he did not allege the defendant provided insufficient feed, insufficient water or inadequate fencing. In final submissions, however, a claim was made that this was the only explanation for so many sheep dying; I have dealt with this late claim elsewhere in the judgment. The nature and extent of representations 4 and 5, which were that the defendant would check on the welfare, health and condition of the sheep at least daily and report once a week to the plaintiff, were the principal contested issues during the hearing. 15In his evidence, the plaintiff agreed that a number of matters remained his responsibilities and were not covered by any obligations undertaken by the defendant. These were as follows: (a)He was free to come and go to the property at any time between September and December 2009 (T 34-35); (b)He was responsible for crutching the sheep (T 35); (c)He was responsible for obtaining and using necessary chemicals and marking the lambs (i.e. castrating) (T 35); (d)He was responsible for drenching the sheep (T 36); (e)He was responsible for mustering the sheep (T 37); and (f)He was responsible for putting ear tags in the sheep (T 37). 16It can be seen from the above list of duties that the plaintiff was accepting that he was responsible for most, if not all, of the activities going to the welfare, health and condition of the sheep, save for providing feed, drink and safe fencing (the first three representations), yet his claim in paragraph 11 of the Further Amended Statement of Claim is as follows: "11. The implied terms of the first agreement were that the Defendant would (i) take all reasonable precautions to ensure the welfare, health and condition of the sheep for so long as the sheep remained at the property in the care and custody of the Defendant (ii) would take all reasonable precautions to ensure that the sheep did not escape from the care, control and custody of the Defendant." 17The main issues of contention between the parties are what is meant by the plaintiff's assertion that the defendant would take "all reasonable precautions about the health and welfare" of the sheep, and what is meant by the plaintiff's assertion that the defendant would regularly provide reports on their condition to the plaintiff. According to answers to particulars, and according to the plaintiff's evidence, the plaintiff expected the defendant would travel all around the 28 square miles in which the plaintiff's sheep were situated, either daily or at least twice per week, to ascertain where all the sheep were, observe all of them closely, and at least twice per week telephone the plaintiff and tell him about the health of the sheep, including whether they were affected by flystrike or any other health condition, and whether they had given birth to lambs. 18The defendant firstly relied upon his own oral evidence as to the terms of the contract, secondly upon common practice in relation to agistment, and thirdly upon pro-forma contracts that he had signed with other persons, to support his claim that only the first three representations pleaded by the plaintiff were made. Objections were raised in relation to the second and third bases. I shall deal first, however, with the evidence of the defendant and the attack made upon his credit by the plaintiff.

A preliminary issue: Is the credit of the parties "crucial" to determination of the issues? 19The plaintiff submits that the defendant's credibility is the essential issue which will enable the court to determine what the actual terms of the contract were, stating that "the credibility of the parties is crucial" (plaintiff's supplementary submissions, 17 October 2011, paragraph 3). 20The plaintiff's written submissions go on to state at paragraph 4: "The plaintiff gave his evidence in an undemonstrative manner. He made numerous appropriate concessions under cross-examination. He gave no impression of seeking to "push his own barrow". In contrast, it is submitted, the defendant was, in numerous respects, evasive, often leaving the impression that he was an advocate in his own cause." 21Examples that are given of the reliability of the plaintiff's evidence, and the unreliability of the defendant's evidence, include: (a)The plaintiff's denial that he even entered the defendant's home, which assumes importance because the defendant said that it was after the plaintiff entered his house that he handed him a pro-forma contract. Mr Griffith, who gave evidence for the plaintiff, also denied ever entering the defendant's home. (b)Whether a pro-forma contract was provided - The defendant's evidence was that he had a practice of providing contracts to persons seeking to agist their stock on his property and provided examples of other contracts which he had entered into with other persons for this purpose. The plaintiff denied being handed such a document. Mr Griffith, who accompanied the plaintiff, similarly denied this (T 95). (c)Changing the number of the waybill - The defendant admitted he changed the number of sheep on a waybill after a conversation with the plaintiff. He made this change to his own copy and not to the plaintiff's copy of the waybill. The defendant's evidence was that he so because he disagreed with the number of sheep recorded by the plaintiff. It would have been difficult for the defendant to gauge accurately the number of stock actually on the plaintiff's truck and he conceded this. (d)The defendant's offer to keep an eye on the stock was described by him as not being a "promise". The defendant had the following to say at T 157: "Q. No, what I would like you to do is to answer each question individually. You told him that because you wished him at that point to enter into a commercial arrangement with you? A. What did I tell him? Q. That you would check on his sheep? A. I didn't commit myself to that. Q. Did you say to him that you would check on his sheep or not? A. Not in words. Q. Well, what is it that you say now were your words by which you conveyed to him that that was your intention? A. Okay. I said to him when I have a look at the property the feed and the water I will keep an eye on your sheep and let you know how they're doing but I'm not a farmer. It's your responsibility. Q. Well, what part of, "I will keep an eye on your sheep and let you know how they are doing," is inconsistent with a promise to him that you would check on the sheep? A. That's no promise. No promise. Q. So when you say, "I will keep an eye on your sheep and check on them," what you're saying is you didn't really mean what you were saying? A. No. It is not. When I drive around to check the property you see livestock around. Of course you have a look. Q. You told him that you would do that didn't you? A. Yes I said I will have a look when I go around the property and check the property. Q. And now you say that that wasn't a promise that you made to him? A. I didn't see it as a promise. I thought Q. I see. So are we here distinguishing between promises and core promises are we Mr Groegor? A. I don't know what a core promise is but I did not promise him that." He went on to say at T 159: "Q. You expected I would suggest to you having promised to him that you would drive around the property a couple of times a week and check on his sheep that he might rely on you to do what you had promised him you would do? A. I didn't promise him. I drive around the property but I didn't promise him that. Q. You told him you'd do it? A. Yes they're two different things to my knowledge; promising and doing and saying I do it. Q. Is that right Mr Groegor? A. To my yes. Q. So if you say to someone you are going to do something knowing that they are relying on you to do that you don't regard that as a promise? A. No. What I did I did go around the property but it wasn't a promise to him as such." It is submitted that the evidence on this matter "merely provides more cause for disquiet about the defendant's credibility". (e)The claim that sheep were still on Killawarra. The defendant provided photographs he had taken of some sheep which remain on the property. It is asserted that one of the most telling aspect of the defendant's evidence in this regard was where he sought to identify a flock of sheep in a photograph where they were simply unavailable to be seen (T 215). There are photographs of the sheep taken by the defendant on 11 May 2010 and no further photographs were taken until 4 April 2011. These photographs appear to have been taken in a haphazard way. The circumstances in which the defendant claimed that there were large numbers of sheep, and in fact brought (and abandoned) a cross-claim concerning these sheep is submitted to be a matter which does not go to his credit. (f)The defendant's unsatisfactory response to the plaintiff's offer to pay for the mustering of the sheep claimed to be left on Killawarra. 22I shall first set out a brief summary of the law relating to the credit of a party or witness.

The law relating to credit of a party or witness 23The task of a judge considering the credibility of a witness has helpfully been the subject of recent review by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74] as follows: "[73] There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pages 3ff; Current Legal Problems, vol 38 Stevens & Sons Ltd 1985 page 1-27). Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not. (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness. [74] Lord Bingham then added these observations: "In choosing between witnesses on the basis of probability, a judge must of course bear in mind that the improbable account may nonetheless be the true one. The improbable is, by definition, as I think Lord Devlin once observed, that which may happen, and obvious injustice could result if a story told in evidence were too readily rejected simply because it was bizarre, surprising or unprecedented.... ... so long as there is any realistic chance of a witness being honestly mistaken rather than deliberately dishonest a judge will no doubt hold him to be so, not so much out of charity as out of a cautious reluctance to brand anyone a liar (and perjurer) unless he is plainly shown to be such."" 24The manner in which a trial judge should approach this task in this court is set out by the Court of Appeal in The Nominal Defendant v Kostic [2007] NSWCA 14; Whalan v Kogarah Municipal Council [2007] NSWCA 5; and The Honourable Justice Ipp, "Problems with Fact-finding" (2 September 2006) Lawlink, Supreme Court of New South Wales . 25The defendant submits that credit issues do not determine this matter at all. Differences between the plaintiff and defendant on factual issues, such as whether or not the plaintiff and Mr Griffith went into the defendant's home for the purpose of discussing the contract, whether the plaintiff was offered a pro forma contract, and whether the defendant altered a waybill number are disputed issues of fact which should be resolved in the usual way as part of the general matrix of fact-finding, rather than picking out selected facts and deciding, on the basis of demeanour and credit, that these findings dictate whose evidence should be accepted. 26As the submissions of Mr Toomey, set out above, make clear, a great deal of weight is placed by him upon matters such as demeanour, such as the manner in which the parties gave evidence. 27The Court of Appeal has warned judges of this court not to make findings of this sort. I do not know what is meant by a claim that a witness gives evidence in an "undemonstrative" manner. All of the witnesses in this case gave evidence in more or less the same manner. Similarly, assertions that the plaintiff gave no impression of seeking to "push his on barrel" or that the defendant was "an advocate in his own cause" are of little assistance to me in determining the factual matters in this case. Each of the plaintiff and defendant gave evidence of what they said occurred, and each preferred his own view to that of the other, as commonly occurs in adversarial litigation. 28This is not a case where there is clear evidence of dishonesty or lying. The only admission of dishonesty in these proceedings was in fact an admission by the plaintiff that, when he filled out a form requiring him to enter the numbers of sheep that he was carrying, he did not include the number of lambs on this document. When it was put to him that this was dishonest, he agreed (T 85, lines 11-28). However, this does not mean that I should make a finding that the plaintiff was dishonest. What I must do is to approach the findings of fact in the careful and objective fashion identified by the Court of Appeal in The Nominal Defendant v Kostic and Whalan v Kogarah Municipal Council . 29As will be clear from my summary of the evidence, analysis of the evidence of the plaintiff as to what the terms of the contract were means that, in his own case, the plaintiff effectively resiled from the claims made in particulars and pleadings that he expected the defendant on a daily or twice weeks basis to travel all over the 28 square miles where the sheep were foraging in order to inspect each of them individually in relation to their health, lambing, sheep numbers and the like. In other words, the plaintiff's claim fails because of the plaintiff's own evidence, not the defendant's demeanour or lack of credit.

The evidence of the plaintiff 30The plaintiff states that the defendant undertook to check on the welfare, health and condition of the sheep "at least daily". Whether it was at least daily, or at least twice a week, is only the first part of the problem. While I accept the contentions of the defendant that it is a problem that the plaintiff cannot identify with precision how often the defendant was supposed to check the sheep, the real problem is that such a term was, in the context of this being a 42 square mile territory (although the sheep area was 28 square miles), where the amount paid to the defendant for their agistment was 50 cents per ewe per week and 20 cents per lamb per week (once the lamb was six months old), what the plaintiff is contending for would have been a physical impossibility. 31Some idea of how difficult the sheep were able to find, in a 42 square mile territory consisting largely of scrub and small trees, can be obtained from the fact that the plaintiff and his friends required three attempts to muster the sheep over a three month period. It took five men and two dogs to find the 60% of the sheep that were found on 12 December 2009 and a further day in January 2010 to find another 25% of the total sheep (namely 550 sheep), even with the assistance of a plane conducting an aero survey of the whole property. On 24 February 2010, another 240 sheep were found and on 29 March 2010, another 72 sheep were found. Photographs taken by the defendant showed that there are still sheep on the property (see Exhibit M1 and M2). 32The plaintiff agreed in cross-examination that the sheep in question were spread all over the property, not just in one area, that they were hidden behind bushes, and that it was difficult to find sheep when they are in scrub area (T 45). In those circumstances, all he seemed to expect was that the defendant would "look at them" while riding his motorbike: "Q. It is a mammoth task, isn't it, for an individual to go out twice a week and find all of the sheep on each occasion? A. It wasn't to do like, it was only to look. I can't see why it took us two days, we've got to walk the sheep, they that's why it took two days. Q. But, Mr Adams, you found only 60% of the sheep that you eventually found. How can you put that he could find all of the sheep and make observations of them? A. He only had to it was only to view them. I can't see if it was to walk them, no, but all you'd have to do is look at them, ride the bike." 33That is precisely what the defendant did do. The plaintiff, however, expected the defendant to travel over the entirety of his property (which was 42 square miles in total) twice a week, and to devote time to the inspection of all the sheep on each of these trips: "Q. So, again, we've got five people I'll just summarise them, yourself, Dave Hegarty, Johnno Baston, Ray Adams and Troy Adams five people working in conjunction with Troy Thomas in the plane, and this time you found an extra 550? A. Yes. Q. Which is still only just accept from me again 85% of all those you eventually found. Do you still maintain that he volunteered to go over the whole property and find all of the sheep and that he could do so? A. Yes. ... Q. That makes up the 2142. Do you still maintain that he volunteered to go over every area in this 42 square miles and make inspections of the sheep? A. That's what he said. Q. He said that he did that that he would do that twice a week; is that correct? A. That's right. Q. That's a pretty generous agreement, isn't it, from your perspective? A. Yes. Q. Extremely so, because he's being paid 50 cents per sheep per week and nothing for the lambs? A. Yes. Q. Am I correct in putting that? A. That's right. Q. That has got to be one of the best deals you've ever made, would that be correct? A. I wouldn't say that, but it was good. Q. It is a good agreement because it's an enormous property? A. Yes. Q. With a lot of scrub country; correct? A. Yes. " (T 47-48) 34Although this was the plaintiff's first attempt of agistment of sheep (T 52-53) he said he understood about agistment contracts (T 54 line 25). He agreed at T 56-58: "Q. In no sense was it correct that the defendant in this case was responsible for the care of the sheep? A. Yes. ... Q. Yes, I was referring to the affidavit of Greg McCann dated 2 September, paragraphs 11 and 12. I'll read out the whole part first. I don't want you to just make a general comment on it: "In my experience as a general rule in agistment, the agistor provides the land, fencing and the feed to sustain the animals on agistment and as a general rule all animal husbandry procedures are undertaken by the agistee such as strategic drenching, jetting and vaccinations to minimise fly strike and intestinal worms as well as all mustering of the agisted animals." Now, in terms of your understanding, it is correct is it not that as a general rule, all animal husbandry procedures are undertaken by the person who owns the sheep correct? A. Yes. Q. That involves jetting, is that spraying with a fly repellent? A. Yes. Yes. Q. That's part of the program about doing the fly strike isn't it? A. That's right. Q. And includes drenching, jetting and vaccinations to minimise fly strike and intestinal worms, that's correct? A. Yes. Q. Also you're responsible for all mustering of the agisted animals? A. Yes. Q. The reason I put that to you is there is evidence in this proceeding to do with the defendant not being much help when it came to mustering, but you affirm yourself that at no stage was he responsible in any way for the mustering? A. Yes. Q. There's an affidavit of a farmer, Don Hollis, sworn 16 August 2011, and again I'm not going to read all of this to you, but I'm going to read it and then come back to it. Don't make a general comment. "I've used my property consistently over the five year period for agistment, not so much in the last six months. The general idea is the owner of the sheep delivers the sheep to my property. He remains responsible for the care of the sheep." Now up to that, you would agree that that is the common practice, that's a yes? A. Yes. Q. "I of course am required to provide secured fencing to ensure the sheep cannot escape", there's no question here is there that Mr Groegor did provide secured fencing? A. Yes. Q. "I am also required to provide feed and water for the sheep. These matters are checked out by the owner of the sheep before the agistment begins", that's all correct? A. Yes. Q. You did make all of those checks before this proceeding began, before you put the sheep onto the property? A. That's right. Q. And you are totally satisfied that in respect of the provision of the feed, the provision of the water and the security of the property, all was well? A. Yes. Q. You had no hesitation with going ahead? A. That's right." 35During the hearing, in the course of the evidence of the plaintiff and defendant, no claim was made that the fencing was inadequate. The plaintiff's submissions in reply seeks to argue that if stock were not lost to disease or predation then the overwhelming probability is that they were lost through inadequate fencing, which would amount to a breach of contract. 36This was not put to the defendant. The plaintiff conceded in his evidence that he checked the defendant's fencing when he went to the property prior to delivery of the sheep. The two expert reports tendered by the defendant (one of whom was cross-examined) do not deal with issues of what the sheep were fed, what water was necessary, how one can tell that a sheep has died of thirst or starvation, or any other matter which would assist me in relation to determination of whether these sheep died because of lack of food or water. Nor was the issue of what amounts to adequate fencing ever raised, either by lay or expert witnesses. 37The highest the plaintiff can put this claim is that Mr Griffith said in his evidence that, in December 2009, he observed about 20 dead sheep (Exhibit C, paragraph 26). In his oral evidence, he said he had seen them near a boundary fence, some short distance from water. It is submitted that the inference is that the sheep died from inadequate water because they could not get through the fence to the dam. This was not put to Mr Griffith, or the defendant, or to the defendant's expert in cross-examination. I decline to draw any inference that the sheep died of thirst. There were numerous dams on this property, and there is no evidence any were fenced off to prevent sheep from drinking there.

Commentary on the plaintiff's evidence 38The terms of the oral contract as pleaded by the plaintiff are difficult to reconcile. On the one hand the plaintiff said in his evidence (T 35-37) that he was responsible for the welfare, health and condition of the sheep, as is set out in the extract above. However, paragraph 11 of the Further Amended Statement of Claim provides that it was an implied term of the agreement that the defendant would "take all reasonable precautions to ensure the welfare, health and condition of the sheep for so long as the sheep remained at the property in the care and custody of the Defendant". If this clause is interpreted to mean that he would ensure that there was adequate fencing, feed and water, this would not be a difficulty. However, as noted above, challenges to the adequacy of fencing, feed and water were not raised by the plaintiff in his evidence, nor were these matters put to the defendant. The dispute centred around the obligation of the defendant to inspect the sheep on a regular basis. 39The next problem was the question of just what this requirement for the sheep to be regularly checked upon meant. In answers to particulars provided by the plaintiff on 6 October 2010 the expectation was, according to the plaintiff, that at least twice a week, the defendant would travel to where the sheep were and observe them and at least twice a week he would telephone the plaintiff and tell him about "the health of the sheep, whether they were afflicted by flystrike or any other condition, and whether they had given birth to lambs". 40Putting to one side the repetition in paragraph 7 of the Statement of Claim (in its original and amended forms) that the defendant undertook to report on the welfare, health and condition of the sheep "at least daily", the fact remains that the defendant was expected by the plaintiff, according to his pleadings and his oral evidence, to look after the welfare, health and condition by reporting on such matters as flystrike and birth of lambs. 41In his helpful written submissions, Dr Bishop also refers to a paragraph in the Statement of Claim (at paragraph 7) stating that a report was to be made "once per week" concerning the welfare, health and condition of the sheep - a third time requirement. 42Thus, the first problem in ascertaining the terms of this contract is what the plaintiff expected the defendant to report to him about, and the second problem is how often such reports were to have been made. However, these problems are comparatively minor compared to the third problem, namely the problem of the impossibility of such an agreement for a 28 square mile scrub and bush country property, where everyone agrees that finding sheep would be difficult (see the affidavits of Mr Curran of 21 July 2011 at paragraph 3, the affidavit of Mr Griffith of 28 January 2011 at paragraph 23 and his evidence at T 94). 43It was common ground that in order to inspect sheep for flystrike or any other health condition, or to determine whether or not sheep had lambed, it would be necessary to get close to the sheep. These were not sheep kept in pens; they were roaming widely across a 42 square mile territory, albeit only over 28 square miles of that territory. Given that the defendant was being paid 50 cents per ewe per week, and nothing for the lambs until they reached the age of six months, and his obligations to provide them with feed and water, the expectation that he would personally inspect hundreds of sheep for flystrike and lambing on a daily or twice weekly basis, as well as report to the plaintiff, is completely implausible. What makes it completely implausible is that the plaintiff conceded in his evidence, as is set out above, that the responsibility for these matters was his own, and not that of the defendant.

The defendant's evidence 44The defendant's evidence was that he provided the plaintiff with a pro forma draft contract, which he has used before for the purpose of running sheep or other herds on his property. It was simply necessary to fill in the relevant parts of the agreement in order to make it binding. 45Copies of prior and contemporaneous agreements between the defendant and other persons who had agisted animals on the defendant's property were tendered. Those documents contained the words "with no liability or responcebility [sic] of well being or safety for sheep or cattle owned by ________ [blank space]". In addition, the expression "looked after and taken care of" is used by the defendant to describe his own responsibility under the contract. 46The defendant said in his evidence (T 132) he had provided a copy of this document to the plaintiff and that when it was not returned to him signed by the plaintiff, he asked for it but was never returned. The plaintiff denies that he ever received this document and Mr Griffith, who was also present when the document was handed over, similarly denied ever having seen the document. 47It was certainly the defendant's practice to require a signed agreement to this effect; an agreement for a Mr Harris for the period June to December 2008, in the same terms as the draft form attached by the defendant to his affidavit was provided (annexure C). A Mr Monk agisted sheep on the defendant's property from January to July 2009 using an agistment contract (annexure D). A Mr Stephen Archard agisted sheep from May 2008 to April 2010, first at Killawarra and later at Buckaroo (T 119). 48Dr Bishop submits that the evidentiary value of these agreements is to be approached in accordance with the principles explained by J D Heydon, Cross on Evidence , (7 th Aust. Ed. 2004) at page 20: "To prove an act has been done, it is admissible to prove any general course of business or office, whether public or private, according to which it would ordinarily have been done, there being a probability that the general course will be followed in the particular case." 49On the balance of probabilities, I am satisfied that it was the defendant's practice to require a written agreement each time he agisted sheep or other animals on his property, and that whether he gave the pro forma contract to the plaintiff or not (and I am satisfied, on the balance of probabilities, that he did so) the terms and conditions for the oral contract for agistment which he discussed with the plaintiff would have been along the same or similar lines as the terms of the pro forma contracts that he has produced to the court. He was the more experienced in this area; he had agisted stock before, whereas this was the first time the plaintiff had done so. In those circumstances, there is no likelihood that he would volunteer to perform the onerous task of travelling around his large property twice a week for the purpose of reporting on the health of the sheep and whether lambs had been born.

Evidence of agistment from other witnesses 50A number of the witnesses in these proceedings gave evidence as to common practice concerning agistment in country properties in New South Wales. These were as follows: (a)Mr Archard (paragraph 5 of his affidavit); (b)Mr Curran (paragraphs 12 and 14 of his affidavit); (c)Mr Hollis (paragraphs 2 to 4 of his affidavit); (d)Mr McCann (paragraphs 11 to 12 of his affidavit); (e)Mr McCann in cross-examination explained the obligations of agistment as "[c]hecking waters to make sure the stock don't run out of water, and moving them from paddock to paddock if there are multiple paddocks associated with the agistment as feed dictates" (T 258-259); Mr McCann went on to say that a landowner who agist his property is making available food, water and what he called "biosecurity" (T 259). Mr McCann's experience as an expert is discussed in more details below. 51The plaintiff's understanding of the agreement was described by him in his evidence was follows: " Q. Well, that's not entirely correct is it Mr Groegor because I think that you've agreed in any event that you had an agreement with Mr Adams that you would check on his sheep? A. No. Q. Do you now wish to say to this Court that you never offered to do that for him? A. I offered. Q. Yes? And you offered to do that on the first occasion he visited your property did you not? A. Yes. Q. You knew that that was a representation that you were making to him because you wished to enter into a commercial arrangement with him? A. My agreement what I told him would you like to know? Q. You wished A. Was that Q. No, what I would like you to do is to answer each question individually. You told him that because you wished him at that point to enter into a commercial arrangement with you? A. What did I tell him? Q. That you would check on his sheep? A. I didn't commit myself to that. Q. Did you say to him that you would check on his sheep or not? A. Not in words. Q. Well, what is it that you say now were your words by which you conveyed to him that that was your intention? A. Okay. I said to him when I have a look at the property the feed and the water I will keep an eye on your sheep and let you know how they're doing but I'm not a farmer. It's your responsibility. Q. Well, what part of, "I will keep an eye on your sheep and let you know how they are doing," is inconsistent with a promise to him that you would check on the sheep? A. That's no promise. No promise. Q. So when you say, "I will keep an eye on your sheep and check on them," what you're saying is you didn't really mean what you were saying? A. No. It is not. When I drive around to check the property you see livestock around. Of course you have a look. Q. You told him that you would do that didn't you? A. Yes I said I will have a look when I go around the property and check the property. Q. And now you say that that wasn't a promise that you made to him? A. I didn't see it as a promise. I thought Q. I see. So are we here distinguishing between promises and core promises are we Mr Groegor? A. I don't know what a core promise is but I did not promise him that. Q. Well, what part of, "I will drive around the property and check on your sheep is not a promise?" A. Drive around the property is when I check the fences, check the water this is what I do and the sheep are everywhere so I have a look at the sheep as well when I go past. Q. You're aware that there has been a document filed in this Court which is a defence filed on your behalf to these proceedings? Are you aware of that? A. Yes. Q. Well, I wish to read to you a part of that defence and I wish you to understand that it is put on your behalf by those who are acting for you that this was one of the terms of the agreement that you would drive around the property a couple of times a week and would let the plaintiff know how the sheep were doing? A. Yes. Q. Did you tell him that that's what you would do? A. Yes. I thought I explained that earlier. That was my explanation of that. Q. You told him that you would drive around the property a couple of times a week and would let the plaintiff know how the sheep were going? A. Yes. Q. I should say to you in fairness that your defence then says, "But that the plaintiff left the sheep on the property at his own risk." But what part of the term of your agreement that you would drive around the property a couple of times a week and would let the plaintiff know how the sheep were doing was not a promise that you made to the plaintiff? A. I drive around the property besides checking his sheep that's what I do. Q. But that's not what was said was it? You told him that you would drive around the property and check on his sheep? A. It depends how you interpret it. I drive around the property besides checking on the sheep. That's what I do. Q. You'd be checking on fences too? A. Yes of course. That's what I do. Q. Because that's all part of the care of livestock? A. No, it's part of my property. It's what I still do even if there's hardly any stock left. Q. But it's part of the care of the stock to ensure that they don't escape from your property? A. I did not care for his stock. He was responsible for his own stock. Q. I see. You've been told I suppose that this care aspect is a very important legal aspect in the case? A. You've already told me that. " (T 156 line 44 to T 158 line 50) 52This was a contract which was entered into, on the evidence of the plaintiff, without the plaintiff and Mr Griffith even being invited into the defendant's home (the defendant disputes this and says he invited them into his home where he gave them the contract). Whether the plaintiff and Mr Griffith were invited into the defendant's home or not, it was a contract entered into between two farmers in what Dr Bishop called in his submissions "the enervating heat of country Coolabah", in terms of little formality, where one of the parties (the defendant) had some standard practices of his own as to what he was offering to do. 53The issue of the defendant's credit is of little assistance in determining whose version of the terms of the contract I accept. The plaintiff's own evidence, and his conduct, all point to his having placed the sheep on the defendant's property on the understanding that the defendant would attend to the feed, water and fencing but that all other matters remained the obligation of the plaintiff.

Was the contract one of bailment? 54The law in relation to bailment has been succinctly and helpfully summarised by Brereton J in Big Top Hereford Pty Ltd v Thomas [2006] NSWSC 1159 as follows: "[36] An agreement for the agistment of livestock may take different legal forms. It may involve a bailment, if the owner of the stock has no right to enter the land on which the stock will be grazed [ R v Croft (Inhabitants) (1819) 3 B&Ald 171; 106 ER 625] and is not responsible for their care [ Australian Breeders Co-op Society Ltd v Corporation of the City of Marion (1992) 76 LGRA 175]; in that case the owner of the property on which the stock are agisted is the bailee and has possession of the cattle, and must take reasonable and proper care of the stock [ Smith v Cook (1875) 1 QBD 79; Coldman v Hill [1919] 1 KB 443; Robinson v Waters (1920) 22 WALR 66; Spring v Young [1923] SASR 115; Backhouse v Judd [1925] SASR 16; Humphrey v Phipps [1974] 1 NZLR 650; Pipicella v Stagg (1983) 32 SASR 464; McArdle v Vadim Nominees Pty Ltd (1984) 2 SR(WA) 156]. Or it may involve a licence, by which the owner of the cattle has permission to graze his cattle on the licensor's land and to enter the land to care for them [ Sinclair v Judge [1930] StRQd 220; Helton v Sullivan [1968] Qd R 562]. In such a case, the owner of the stock retains possession of the cattle while they are on the licensor's land. Or it may involve a lease, if exclusive possession of the land is granted [ Streatfield v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519]. [37] An important distinction between bailment and licence is whether the agistor (landowner) undertakes responsibility for care of the stock. In the present case, I favour the view that the agistment was a licence. The indicia are the ease with which BTH was able to bring cattle to and sell them from the property; the absence of any formal delivery of possession; the circumstance that Mr Michael Tyler did not himself reside on the property, and that BTH's caretaker Mr Tyler continued to reside on the property and look after the cattle, and that (at least for some of the time) Mr Jupp also resided on the property; and the absence of any evidence or even suggestion that Mr Michael Tyler had any obligation of care in respect of the cattle. It follows that, as between Mr Michael Tyler and BTH, the cattle agisted on Big Top and Home Farm were in the possession of BTH." 55In Palmer on Bailment, 3rd Edition (Sweet & Maxwell, 2009) p 1560-1561 the author describes this paragraph as "a useful summary of the case law" (and in fact quotes [36] in full). 56The plaintiff's submissions in relation to bailment appear to assert that there is a prima facie assumption that an agistment contract involves a bailment. This means, according to the plaintiff, that the agistor bears the onus of establishing that he exercised due care, skill and diligence for the sheep. It is then asserted that this did not occur in this case because of a number of the sheep either could not be found or are presumed to have died. 57The defendant submits, and I agree, that this arises from a misapprehension of statements made by Wootten J in Streatfield v Winchcombe Carson Trustee Co (Canberra) Ltd [1981] 1 NSWLR 519 at 526 referring to Halsbury Laws of Australia , 4th ed, vol 2, paragraph 214 at page 90: "A contract of agistment arises where one man, the agister, takes another man's cattle, horses or other animals to graze on his land for reward, usually at a certain rate per week, on the implied term that he will redeliver them to the owner on demand. Agistment is in the nature of a contract of bailment; it confers no interest in the land and therefore does not require to be in writing." 58His Honour went on to add at 527: " The landholder may be an absentee owner, or for other reasons unable or unwilling to accept the responsibilities of a bailee. He may wish the livestock owner to become the occupier of the land so as to be responsible for various common law and statutory duties and obligations. The livestock owner may wish greater security of tenure than that of a mere bailor. For whatever reason the parties may eschew the relationship of bailor and bailee, and adopt another, for example, licensor and licensee: Sinclair v Judge [1930] QSR 220, at p 226, or landlord and tenant: Masters v Green (1888) 20 QBD 807, at pp 808, 809. Such an arrangement may still be referred to as one of "agistment"... " 59However, as Dr Bishop points out, what Wootten J is saying is that agistment is in the nature of a contract of bailment, namely that it is similar to it, not that every contract for agistment amounts to a bailment. 60In Big Top Hereford Pty Ltd v Thomas , the opening words of [36] make it clear that in addition to the owner of the stock having no right to enter the land, the owner is not responsible for their care. This is directly contradicted by the plaintiff's own evidence; he agreed that he, and not the defendant, was responsible for the care of the sheep. What he believed was that the defendant was under an obligation to warn him to care for the sheep. 61Not only was the plaintiff free to come and go, in fact the plaintiff's father and older brother, Troy Adams, visited the defendant's property in October 2009. 62At T 63-43, the plaintiff gave evidence as follows: "Q. You gave evidence earlier that after you delivered the sheep in late September, you then came back to the property on 12 December to do the mustering? A. Yes. Q. You had not visited the property in the interim period, you said that before? A. Yes. Q. This is correct isn't it that at some point, you were concerned about the way the sheep were being looked after or the way you were concerned about the nature of the reports that you were getting from the defendant and you asked your brother Troy to go to the property? A. That's right, my father and brother yes. Q. He went there with your father? A. Yes." 63At T 72, the plaintiff gave the following evidence: "Q. Mr Adams, I was asking you questions about Troy's visit to the property in October 2009, and you will recall I said that the weekend that he would have gone there that's the weekend after the long weekend would have been at 10, 11 October. It's correct, is it not, that he gave you a report that the sheep were in pretty poor condition? A. Yes. Q. He had looked at four to 600 sheep. Did your father also give you a report of the same to the same effect? A. Yes. Q. You must have treated those reports as matters of great concern? A. Yes. Q. Would not the appropriate response have been for you to get down to Killawarra virtually immediately? A. I did ring up. I rung Peter straight away and I was assured that everything was still going all right." 64While he notified the defendant that he was coming, this was essentially out of politeness. He did not inform the defendant of the purpose of his visit. The plaintiff said (at T 63) the purpose of his December 2009 visit was to muster the sheep. It was unclear whether he has made up his mind regarding removal of the sheep before he went to Mr Groegor's property in December. Since October 2009 he heard stories from his brother and father that the sheep were in poor condition. He did not act on his in the interim two months. Mr Adams said in his evidence that the sheep were lambing during this period and that "you can't move the sheep when they are lambing" (T 74). 65The activities described by the plaintiff in the extract of transcript set out earlier in this judgment (T 47-48) indicate that the plaintiff was responsible for these matters and not the defendant. He also stated this at T 35 line 20 to T 37 line 12: " Q. Mr Adams, is it correct that you were responsible for the crutching of the sheep? A. Yes. Q. There was no sense in which the defendant, that's Mr Groegor, was responsible for the crutching of the sheep? A. That's right. Q. So that we're all on the same page, the crutching of the sheep involves the cleaning up the backside of the sheep? A. That's right. Q. Treating it with chemicals is that correct? A. Yes. Q. The purpose of the treating of the backside with chemicals is to remove some of the wrinkles from that area? A. Sorry, can I hear that again? Q. Is the purpose of the treating with chemicals to remove the wrinkles in the skin? What is the purpose of it? A. Crutching? Q. No, what is the purpose of putting the chemicals on? A. To prevent flies from Q. All right, that will do? A. Yes. HER HONOUR: Are you going to ask about those lice? Did I hear something about lice? BISHOP: Yes. That's not greatly significant here. HER HONOUR: All right. BISHOP Q. I don't think there's any dispute of the technical aspects that we put on evidence, but in any event, you were responsible at all times through that period for the crutching of the sheep, correct, and the defendant had no responsibility for it? A. That's right. Q. You were responsible for the marking of the lambs? A. Yes. Q. That involves taking the testicles out of the lambs? A. Yes. Q. It's done by rubber rings now isn't it, is that the way it's done? A. That's right. Q. You were responsible at all times during that period, he was not responsible at all, correct? A. That's right. Q. You were responsible for drenching the sheep? A. Yes. Q. That is to say, there's a gadget is there not, where you poke it down the throat of the sheep and squirt this liquid into their insides, that's correct? It's not a real farmer's description of it A. That's right. Q. What's the name of the A. A drench gun. Q. Drench gun and you at all times were responsible for that? A. Yes. Q. At no times was Mr Groegor responsible for it? A. That's right. Q. I think I've stated have I not, the three principal activities in looking after sheep or are there more? A. There's more. Q. There's more. What else would you do to look after the welfare of the sheep? A. The shearing of the sheep. Q. Yes, the shearing of the sheep, but that's not Mr Groegor's responsibility? A. No. Q. That's your responsibility. What else? A. The mustering of the sheep. Q. The mustering of the sheep. That's your responsibility? A. Yes. Q. There's no sense at all at any time that he was responsible for the mustering, correct? A. That's right." 66However, the relevant test for bailment, in an agistment situation, requires the person upon whose property the sheep or other animals have been placed is responsible for their care, not the person who places them on the property. The plaintiff acknowledged not only that he was responsible for their care, but that he and for that matter other family members were free to come and go for the purpose of carrying out these activities (T 64 lines 21-41). 67Comparing the description of "bailment" with "licence" in [36] of Big Top Hereford Pty Ltd v Thomas , it is clear that the contract was a licence and not a bailment.

Conclusions concerning the nature and terms of the contract 68I am satisfied that the terms of this contract are the first three terms set out by the plaintiff, namely that in return for payment of 50 cents per ewe per week (plus the additional payment for lambs once they reached the age of six months) the defendant agreed to provide feed, water and safe fencing. By definition this would require the defendant to keep an eye on the sheep in the general sense of ensuring that the feed, water and fencing were adequate. However, that was all that the defendant was agreeing to do. 69As is set out above, it is clear that the contract in question was a licence, and not a contract of bailment. 70However, whether the contract is one of agistment in the form of bailment or agistment in the form of a mere licence, the issue of causation is a significant matter in these proceedings. All the evidence, including expert and lay evidence, makes it clear that death of animals on farms due to predators or disease is a not uncommon occurrence. The question is whether or not animals which died during the time that they were agisted on the defendant's property did so as a result of any breach of agreement and it is to this issue I now turn.

The causation issue 71The parties agree it is necessary for the plaintiff to establish that any breach of agreement that he propounds is a cause of the loss of the sheep (defendant's written submissions, paragraph 19; plaintiff's written submissions, paragraph 12). The defendant relied upon two experts, Mr Curran and Mr McCann. Only Mr McCann was required for cross-examination. 72Mr Curran, a veterinary officer with the Department of Primary Industries, is the technical specialist for the western division, which incorporates the arid and semi-arid areas of western New South Wales including the Coolabah area where the defendant's property at Killawarra is situated. Mr Curran's knowledge of the Killawarra property goes back to the 1980s (paragraph 3 of affidavit). The plaintiff submits that this must mean that he cannot comment on conditions at Killawarra at the relevant time, but there is no material before me to suggest that there is any significant change in relation to the climate or country conditions in this area over this period of time. As a specialist in diseases affecting sheep and other areas particularly in respect of arid areas, Mr Curran's expertise relates to his work in this area over a number of decades and in the absence of evidence of any significant change to the environment or to diseases in the area, it would be wrong for me to disregard or place little weight on his evidence simply because he has not been to this particular farm since the 1980s. His description of the property is consistent with its current condition, and while he may not have visited this particular farm, he says that he knows the general area well. 73Mr Curran describes his role as an expert in these areas to advise both farmers and the Department about diseases, management and welfare of sheep. This includes diseases which are more common where there is heavy or above average rainfall. Mr Curran recites that he has checked the records for the rainfall in the area and he notes that in 2009 in May, September and October, there was heavy or above average rainfall, and in particular in early 2010, when the rainfall could again be described as very heavy or greater than usual. It is in these circumstances that the risk of blowfly-strike increases. He explains blowfly problems in his affidavit sworn 21 July 2011 as follows: "6. Blowflies get into the fleece of the sheep or the faecal material around the perineum, and this is particularly evidence after rainfall in the spring and autumn. Blowflies are able to survive and infest sheep because of the good shrub cover. Sick blown sheep are much more difficult to see than normal healthy sheep because they are either moving little or they lie down, hence the difficulty of spotting them on a property. Deaths from blowflies infesting sheep in this way can produce death in something like 2-5 days." (Affidavit of Mr Curran sworn 21 July 2011, paragraph 6) 74Mr Curran goes on to explain other health problems for sheep in wet weather as follows: "8. The losses of sheep in woody weed areas particularly where the woody weed area is heavily infested with undergrowth is 8 per cent across all the years. Where there is additional rainfall, that percentage would be expected to be larger. I would not regard a 20 per cent loss of sheep from all causes as exceptional. At about this time, there were similar or greater losses from sheep blowfly in Western NSW and Northern South Australia. 9. The problem of intestinal parasites is particularly acute in wet weather. I would not rate the significance of internal parasites in this area to be as great as flystrike in causing the death of sheep. It is very difficult to talk specifically about this but where there is heavier rainfall or where there is a pattern of rainfall and heavy rainfall on limited areas where the sheep graze, the problem can be greater." (Affidavit of Mr Curran sworn 21 July 2011, paragraphs 8 and 9) 75Mr Curran also explains why it is that if a sheep falls victim to disease or to a predator, there is little left to the sheep after scavenger have struck: "7. A further problem is that if a sheep dies pigs, foxes and birds rapidly scavenge the carcasses, often leaving very little, and it is much more difficult to see a carcass than it is to see a healthy or even a sick sheep. I say this particularly in respect of scrubby country." (Affidavit of Mr Curran sworn 21 July 2011, paragraph 7) 76This is relevant because the fact that those who attended for mustering saw only smaller numbers of dead sheep. Mr Curran's evidence explains that such carcasses are quickly disposed of by predators. 77In particular, Mr Curran expresses an opinion as to the percentage of sheep likely to die from natural predation at paragraph 8, namely that loss of sheep in woody weed areas such as the land on the defendant's property would be 8% across all ewes, but where there is additional rainfall and additional problems caused by disease, a 20% loss of sheep would not be regarded as exceptional; there was similar or greater losses in sheep blowfly in western New South Wales or northern South Australia generally. In other words, the plaintiff's evidence of a loss of sheep over the period of 23% would fall within expected parameters. 78The evidence of Mr Curran, who was not cross-examined and whose expertise is directly relevant, is something to which great weight should be given. The defendant draws my attention to the statement to this effect by Gibbs J in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 370-371 and to Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 at 586 and 607. 79The fact that an expert is not required for cross-examination does not, mean, given current case management practices, that his or her evidence should be accepted uncritically. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 evidence of an expert was considered unreliable for other reasons. 80However, none of those reasons apply to the opinion of this expert. He clearly has the appropriate expertise, and he has exposed his reasons and provided information in support of the factual material upon which his opinion is based. 81The principal basis upon which Mr Curran's evidence is attacked is that, although he knows the general areas in which the defendant's farm is situated well, he has not specifically visited the defendant's farm since the 1980s. However, the counsel for the plaintiff has not articulated what specific geographical changes have occurred since that time. As to his knowledge of predators in the areas, the mobile and secretive nature of predators is such that even if Mr Curran had visited the defendant's farm, he would not have been in any better position to say whether these predators were on the farm, and in what number. 82In addition, the opinion of Mr Curran was corroborated by the evidence of Mr McCann, who swore affidavits of 19 and 21 July and 2 September 2011, and who was cross-examined. 83Mr McCann is the Senior District Veterinarian at the Central West Livestock Health and Pest Authority (LHPA) and, like Mr Curran, has appropriate qualifications. He has not visited the defendant's property at all, but it falls within the areas administered by the adjoining authority, the Darling LHPA, and he knows the general areas well (paragraph 3). He describes the defendant's acreage of 27,000 acres as "reasonably large" within the area and notes that the area in general is constituted by trees and scrub. 84In his first affidavit of 19 July, he described the problem of activity during moist conditions, noting that the opportunity for sheep loss in these circumstances is "horrendous" (paragraph 7). He explains that it takes merely three days for the sheep to die. The only way that this can be avoided is by shearing or crutching and by the application of chemicals to prevent the flies laying eggs in the sheep's fleece. I note that this was the responsibility of the plaintiff, and agreed by him to be his responsibility, and further that it was not carried out by him during the whole of the time that the sheep were on the defendant's property. 85A second problem described by Mr McCann is the problem of intestinal worm; he notes in particular Haemonchus Contortus ("Barber's Pole"). Unless these worms are controlled by chemical drenches, they can cause the death of the host sheep within one week of the worms reaching adult status. Again, the plaintiff was the person obliged to carry out this work. 86As to loss of lambs and their mothers from childbirth-related problems, Mr McCann's affidavit of 2 September 2011 is particularly helpful. He explains at paragraph 7 that these losses are caused by the following: "(a) Embryonic losses. These losses occur towards the end of a pregnancy and are believed to be due to foetal abnormalities. The losses routinely are in the order of 5%; (b) Losses due to difficult births. If the ram that is used to mate the ewes produces lambs with high birth weights, then lamb losses - and possible ewe losses - will occur during the birthing process. I note that the ewes had been mated to rams of the SAMM breed. This breed has a tendency to have high birth weight lambs. (c) Losses due to low birth weights are inadequate milk production. If the nutritional status of the pregnant ewe is inadequate to establish normal milk production or to ensure normal growth of the lamb towards the end of the pregnancy, then high lamb losses during the first week of life can be expected; (d) Losses due to poor mothering ability. Merino ewes have not been selected for the quality of their mothering ability and some merino ewes are poor mothers. These poor mothers - usually about 10% - frequently abandon their lambs, especially a twin lamb, resulting in the loss of the lamb; (e) Predation. Foxes and pigs can have a devastating effect on lamb survival. Unless eradication measures are undertaken, if the predator population is high, heavy lamb losses will occur; and (f) Disease. Diseases such as Pulpy Kidney and Tetanus can cause significant losses in young lambs given the right conditions. Vaccination protects the lambs. Unvaccinated lambs are at risk from these diseases." 87In his affidavit, he goes on to state that taking into account potential losses from the provision of inadequate management, the normal loss rate for the area, the wet conditions experienced over the period that the sheep were agisted on the property, and the incomplete mustering carried out by the plaintiff, Mr McCann considers that the loss rate of 21% of all ewes and 23% of all lambs is at the lower end of the potential loss rate (paragraph 10). 88Mr McCann confirmed these views in cross-examination. Mr McCann's conclusions were challenged on the basis of there been insufficient exposure of his reasons. In particular, there was an objection to his stating "in my experience as a general rule" ( Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48). I reject that objection on the basis that it was a summary of the material which he had referred to elsewhere in his report. In addition, this evidence was explained by the witness in cross-examination as being obtained by a comparison to losses which occurred in other properties in a similar area, local knowledge such as talking to district vets in the system and landowners, and in the case of the mothering habits of merino sheep, scientific reports (which were later called for by Mr Toomey, but have not been tendered). 89When considering the evidence of experts in relation to agricultural or husbandry issues, it is my view that courts should not be overly pedantic in requiring scientific evidence in relation to what is clearly a matter of expertise obtained through many years experience. Both Mr Curran and Mr McCann have worked in this area for decades. Both have many years of professional experience which in my view are just as important, if not more, than their provision of scientific reports. 90In his evidence, Mr McCann explained an additional problem in relation to predators, which is that it is in wet conditions that there is an influx of pigs as predators (T 254). He rejected the contention that a large part of their diet was vegetable, saying they were carnivores and in fact on occasions cannibals. Given a choice, they are mainly carnivorous and in particular young lambs are most at risk. 91As to predation by the pigs, he considered a serious predation problem would be a report of up to 70% lamb losses, and that the lamb loss that was suffered by the plaintiff in these proceedings "I wouldn't class as serious" (T 256). 92As to lamb losses from poor mothering, he referred to a study of 40,000 merinos in the Gulargambone area in the 1970s which was "not as hard a country" as the defendant's. The average result of losses was 30%. This was a loss in good conditions, not hard conditions or conditions of additional rain as had been the case in the present. 93Mr McCann was asked whether, if 600 stock were lost due to disease or other reasons, he would expect to find large numbers of dead animals or carcasses around the property, to which he replied that "you may not see too much left of the carcasses" (T 268). He agreed that you would have expected to see "something" but asked how big was the land over which they were dying. For a total of 600 carcasses to be spread over a 28 square mile area over a period of months, Mr McCann agreed that one would expect to see evidence of adult carcasses most likely to be found within a kilometre of the waterholes (T 270). However, that was as high as his evidence went in relation to the likelihood of discovery of carcasses. 94I do not accept the submissions of the plaintiff that evidence of losses would be "widespread and obvious" across the defendant's property. The expert evidence is to the contrary. 95The plaintiff called no evidence to respond to these experts. Their evidence is consistent with each other and confirms that the stock losses suffered by the plaintiff were well within the range of acceptable stock losses. The plaintiff has therefore failed to establish causation.

Conclusions concerning breach of contract, bailment and causation 96I am satisfied that there was no breach of any term of the contract. I am satisfied that any ewes and lambs which were lost, were lost due to disease, predation, or other natural causes, and that such losses were within acceptable parameters, for the reasons set out by the expert evidence. 97It follows that the claim for breach of contract and the claim that the contract was one of bailment must fail. I now consider the Fair Trading Act claim.

The Fair Trading Act claim 98I shall deal with this claim briefly, as Mr Toomey's submissions on this issue were limited. 99The plaintiff asserts that the statements alleged to have been made by the defendant constitute "misleading and deceptive conduct" (s 42 Fair Trading Act 1987 (NSW)) and "false representations" (s 44(b)). 100The submission that the defendant makes is that statements such as "keeping an eye on the sheep" or "looking after the sheep" are not false representations in that they were statements of a general nature which related to the agreed duties of giving the sheep feed and water and adequate fencing. 101The next difficulty I have is precisely what was said. McLelland J, in Watson v Foxman (1995) 49 NSWLR 315 at 318-319, referred to the need for precision as to just what words were spoken: "Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience." 102More recently, McDougall J in Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets (No 6) [2007] NSWSC 124 at [353]-[355] added: " [353] Before I turn to the detail, I should deal with the submission by the plaintiffs that "[p]recisely when and precisely what words were used by those present are not findings essential to the plaintiffs' actions" (plaintiffs' submissions in chief, Ch 4, para 14.1). I do not accept that submission, at least in its application to the meeting of 16 November 1998. The plaintiffs' case is that the Macquarie parties made representations at that meeting which were misleading or deceptive. It is in my view plain that, where representations are said to have been made orally, it is necessary to prove with some precision the words used. In Watson v Foxman & Ors (1995) 49 NSWLR 315, McLelland CJ in Eq said at 318-319: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. [354] His Honour's observations have received appellate approval: see Moukhayber v Camden Timber and Hardware Co Pty Ltd [2002] NSWCA 58 at [28] (Heydon JA, with whom Beazley and Santow JJA agreed), and Aneve Pty Ltd & Ors v Bank of Western Australia Ltd [2005] NSWCA 441 at [49] (Hodgson JA, with whom Santow and Bryson JJA agreed). [355] It is of course the plaintiffs' case that the representations were made not only orally but also in writing, by the handing over and discussion of PowerPoint slides (in hard copy form). However, consistent with my general acceptance of the evidence given by Mr Jackson as to the meeting of 16 November 1998, I conclude that the slides in question were not handed over, nor were they shown to Mr Saville or discussed, at that meeting. Thus, to the extent that representations are to be spelled out of the meeting, they must be spelled out of what was said. It follows from what McLelland CJ in Eq said in Watson that I must be reasonably satisfied with some precision, based on actual persuasion grounded in the evidence, of the words that were said, before I can consider whether they were in fact misleading in the proved circumstances. For the reasons that follow, I feel no sense of actual persuasion, and am not satisfied on the balance of probabilities, that the representations alleged in 6FAS para 46 were made orally." 103The plaintiff in these proceedings is unable to identify with precision what the misleading statements were. The statements made by the defendant about "keeping an eye on the sheep" or "looking after the sheep" were, even on the plaintiff's evidence, promises of the most general kind. The defendant's evidence was that he went around the property to check the property in relation to the obligations he had in relation to feed and water (T 157) and security. 104I am satisfied that the promises the defendant made as to "keeping an eye on the sheep" or "looking after the sheep" were made in the context of ensuring that the sheep had enough feed and water and that the fences were there to protect them and keep them on the property. His evidence is that he did so. He was not cross-examined about lack of feed and water, or failing to check that fences had fallen down. Accordingly, I find there was no misrepresentation. 105The defendant also raises the question of the issue of mitigation of loss and it is to this submission I now turn.

Mitigation of loss 106The plaintiff's father and older brother, Troy Adams, visited the defendant's property in October 2009 and told the plaintiff that the sheep were not looking good. The plaintiff, however, did nothing until December 2009 two months later. 107This visit was approximately six weeks after the first group of sheep had been delivered to Killawarra, and two weeks after the second load of sheep had been deposited. The plaintiff asked his older brother to go to the property and report on the condition of the sheep. Troy Adams spent 90 minutes at Killawarra during which time he says he inspected 400 to 600 sheep (affidavit of 28 January 2011, paragraphs 6 to 7). According to paragraph 7 of the affidavit, Troy Adams told the plaintiff "those sheep you have got up there near Bourke aren't looking too good". 108Mr Ray Adams, the plaintiff's father, an experienced sheep farmer, gave the same advice to the plaintiff: "Q. Your father your brother and your father are saying that the sheep are in pretty poor condition; that's correct? A. Yes, my brother said that to me, yes. Q. Your brother said that to you, but you said that your father expressed much the same view? A. Much the same, yes." (T 72 lines 42-48) 109The plaintiff said he was concerned about this information (T 72 lines 16-17) but in spite of that he did not come to the property until two months later (T 74). He explained this as follows: "Q. Mr Adams, I was asking you questions about Troy's visit to the property in October 2009, and you will recall I said that the weekend that he would have gone there that's the weekend after the long weekend would have been at 10, 11 October. It's correct, is it not, that he gave you a report that the sheep were in pretty poor condition? A. Yes. Q. He had looked at four to 600 sheep. Did your father also give you a report of the same to the same effect? A. Yes. Q. You must have treated those reports as matters of great concern? A. Yes. Q. Would not the appropriate response have been for you to get down to Killawarra virtually immediately? A. I did ring up. I rung Peter straight away and I was assured that everything was still going all right. Q. Let's explore this. You've got your own brother, your own father, telling you that there are serious problems with the sheep HER HONOUR: Hang on a minute, did they actually say those words, "There are serious problems"? BISHOP: Well, "They're in pretty poor condition". TOOMEY: That's something different, I would suggest, your Honour. HER HONOUR: The thing is this, if BISHOP: I'll put that. HER HONOUR: I think you need to put the precise words, because BISHOP: Yes. Q. Your father your brother and your father are saying that the sheep are in pretty poor condition; that's correct? A. Yes, my brother said that to me, yes. Q. Your brother said that to you, but you said that your father expressed much the same view? A. Much the same, yes. Q. Yes. HER HONOUR: Well, what does that mean, "pretty poor condition"? I know nothing about sheep. BISHOP Q. Would you just explain what you mean by when you answer the question what you mean by it. It's to do with the HER HONOUR: No, what did they tell him? Q. I mean, is that what they said that's all they said, "The sheep are in pretty poor condition"? A. They're in poor I was telling them how good the sheep were, the reports that I was getting, that the sheep were in great condition, good condition, and they said, "No, they're in poorer condition to what you're being told." Like, they're lambing as well, but they Q. Did they say what was wrong with them? A. No. BISHOP Q. Did you explore that with them? A. No, no. Q. You didn't bother to actually ferret out what it was that they were talking about? A. Well, they were lambing as well, so I obviously thought that they were looking hollow. Q. Doesn't the term "pretty poor condition", doesn't that convey the idea of the sheep being thin? A. Thinner, yes. Q. That is a pretty good indication there are problems? A. Yes. Q. You would recognise problems to do with fly strike? A. They were not no, not being poor sheep has anything Q. Certainly to do with worms? A. Could do. Q. Yes. Or generally to do with diseases and intestinal problems? A. Could do. Q. So you were given this information. You take the defendant's assurance as something that, in effect, outweighs the opinion given by your brother and your father; is that a correct way of putting it? A. No, I wouldn't say that. I don't Q. Well, you took two months to go back there? A. Yes. Q. It doesn't suggest, does it, that you were greatly concerned about it? A. No. Q. But you did say you were concerned; you repeated that to more than one person, that you were very concerned about the information that you go from Troy? A. Yes. Q. Notwithstanding that concern, you took two months to go back and examine the situation? A. Yes, Troy is my older brother, but he hasn't been into farming. Dad more or less said to me that they the sheep were all mangy, he said, "They're looking hollow but they've just spat a lamb out, some of them are looking quite hollow." Q. Are you changing the evidence that you gave before? A. No. Q. You said that your father said much the same as your brother? A. That's right. Q. Your brother had said they were in pretty poor condition, that's correct? A. Yes. Q. Your father said something to the same effect? A. Yes. Q. So you cannot treat this information that's coming from your brother and you father as anything but of the first importance, that's correct isn't it? A. Yes. Q. You know how quickly sheep can die on a property once they're ill? A. Yes. Q. You've experienced that? A. Yes. Q. You know all about it? A. Yes. Q. Wouldn't the correct approach be, given the gravity of the information that you'd been given, to get down to Killawarra as soon as you could? A. There's still the lambing, you can't move the sheep when they are lambing. They were in the middle of lambing. They've got to finish lambing. Q. Mr Adams, the question was not whether you were moving the sheep but to get down there and inspect the sheep for yourself? A. Yes. Q. Wouldn't that have been the appropriate thing to do? A. Yes. Q. Because didn't you say in your evidence that this was an important investment on your part? A. Yes. Q. There was a lot of money at stake? A. Yes." (T 72 line 5 to T 75 line 11) 110The plaintiff admitted in his evidence that it would have been appropriate to go to the property if he was in fact concerned (T 75). 111This two-month period was approximately two-thirds of the time that the first group of sheep had been on the property and an even higher percentage in relation to the second group of sheep. A significant percentage of the loss would have taken place within that two-month period if the sheep were indeed in such poor condition. 112In addition, the defendant informed the plaintiff of a large number of dead sheep he had seen on the property (affidavit of 28 February 2011, paragraph 26). It was never explained why, if the plaintiff was told by his father and brother that the sheep were in poor condition, he never asked what was wrong, and he never challenged the defendant about this. 113The plaintiff's evidence is that if he had been told by the defendant that the sheep were in poor condition, he would have acted. However, despite being told by his father and brother that the sheep were in poor condition, he failed to act for a further two months. This was despite a further conversation with Mr Griffith about a month after the visit by the plaintiff's father and brother (affidavit of Mr Griffith of 28 January 2011, paragraph 20), where he raised the topic with Mr Griffith. 114The evidence of what was meant by "poor condition" was never elaborated upon. However, there is no evidence before me that the sheep were starving or dehydrated, or that they were escaping through fences, or otherwise in poor condition by reason of any breach of obligations by the defendant in accordance with the tasks he had agreed to perform, namely to provide the sheep with feed and water and safe fencing. As an experienced farmer, the plaintiff's father would have been in a good position to point out if sheep were starving or dehydrated, but this evidence is not before the court. 115Accordingly, I am satisfied that the plaintiff wholly failed to mitigate his loss. Given that the sheep which were on the property in the first group must have been inspected by the plaintiff at the time that he placed the second group onto the property, the likelihood is that most of the ewes and lambs which died during this period did so during the two-month period after the plaintiff said he was warned by his father and brother that the sheep were in poor condition. It must be recalled if that poor condition was due to flystrike or other disease, the responsibility for treating the sheep was the responsibility of the plaintiff and not the defendant. 116In addition, up to 40 sheep still remain on the property. The plaintiff has not returned to collect these sheep and it appears that they are now feral. Again, failure to collect all the sheep is failure to mitigate loss.

Conclusions concerning liability 117As the plaintiff has failed to establish breach of contract or any claim under the Fair Trading Act , there should be judgment in favour of the defendant. 118In the event that I have erred in finding for the defendant on liability, I set out some brief findings in relation to the issue of quantum.

Quantum 119The plaintiff's evidence was that his intention was to sell the stock after he had fattened them on the defendant's property (T 22): "Q. Mr Adams, what was it your intention to do with the stock after you'd fattened them on Mr Groegor's property? A. It was just to sell them. Again to make a profit. Q. I think the 1,070 ewes that you'd placed with Mr Groegor in August of 2009 were due to lamb the following month? A. That's right. Q. With the second lot of stock that you placed, they were ewes with lambs at foot, is that right? A. That's right. Q. What was the approximate age of the lambs at foot in the second lot? A. They'd have been six weeks to 12 weeks of age, or one and a half to three months old. Q. Did you anticipate selling all of the stock at around the same time or in stages? A. Well, yes, if I'd if I could sell them all at the same time, there's just a small tail that would hold on a bit longer. So the majority at the same time. Q. When did you anticipate that that sale would occur? When you placed them with Mr Groegor in August and September 2009? A. Well not until the following year, probably the March about, April. " 120The plaintiff accordingly claims the amount he could have achieved by selling, in or about April 2010, the 636 head of stock he has been unable to recover. The plaintiff has provided estimates based on evidence of Mr Cullinane as follows: Cullinane Opinion

1. Market value as at 1 April 2010 Ewes $87.00 per head x 293 = $25,491.00 Lambs $88.00 per head x 343 = $30,184.00 Total = $55,675.00 OR
2. Market value as at February 2011 Ewes $108.00 per head x 293 = $31,644.00 Lambs $112.00 per head x 343 = $38416.00 Total = $70,600.00 OR
3. Average of prices achieved from plaintiff's sold Plaintiff's 11 August 2011, Affidavit; - calculations Annexure A Ewes $68.62 per head x 293 = $20,105.66 Lambs $117.07 per head x 343 = $40,155.01 Total = $60,260.67 121This amounts to a 100% claim for every sheep on the property. Yet it is evident from the expert evidence that a large number of sheep would have died irrespective of any actions by the defendant. The plaintiff does not submit that predators got onto the defendant's land by reason of inadequate fencing, nor that the sheep died by reason of lack of feed and water. In addition, it would appear that most losses occurred after the second delivery of sheep, and in particular, after 10 to 11 October 2009, namely the period during which the plaintiff did not mitigate his loss despite saying he received warnings from his brother and father about the condition of the sheep. 122Mr Toomey acknowledged during oral submissions that claims for 636 sheep should be reduced to 600 sheep because up to 30 or 40 sheep remain on the property. 123The evidence of the experts is that sheep losses of this kind fall within normal expected results for loss of sheep. Even if I disregard any claim for mitigation of loss, the evidence of the experts, which is not countered by any expert evidence in reply, is that sheep losses of some magnitude are to be expected even where the best practices are in place. 124The plaintiff and defendant in these proceedings have conducted the case on an "all or nothing" basis. The defendant submits that not one sheep should be compensated for even if I find that the defendant was in breach, by reason of the expert evidence. The plaintiff asks me to disregard the expert evidence and to award damages as if no sheep had died (although some adjustment had been made for the number of sheep still on the property). 125As a result, if I found for the plaintiff on liability, I would be in the difficult position of having submissions on behalf of the plaintiff which paid no regard to the estimate of stock loss contained in the defendant's experts' report. It would not be proper for me to speculate as to whether some allowance should be made in circumstances where the evidence of the defendant's experts is clear. 126Accordingly, if I have erred in holding that the contract was not one of bailment, and in relation to the Fair Trading Act claim, no loss has been occasioned by reason of the failure of the defendant to comply with his obligation to keep an eye on the sheep, either daily or twice a week during the period of time when they were grazing on his property. This includes any claim by reason of the late submission (plaintiff's submissions in reply, 15 November 2011) that sheep were lost due to inadequate fencing.

Orders (1)Judgment for the defendant. (2)Plaintiff pay defendant's costs. (3)Defendant's cross-claim dismissed. (4)Defendant to pay the plaintiff's costs of the cross-claim. (5)Liberty to restore, concerning costs, on 7 days' notice. (6)Exhibits retained for 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2012