Analysis of the 2012 Misrepresentation Case
625 I have found Rino and Jason did not have a genuine belief that Concrete Supply was entitled to the alleged discount or rebate. In those circumstances, their failure to point out the reduction in the March 2012 Statement of Account and to implement the scheme involving the selected payment of RCTIs was misleading or deceptive conduct. The fact is that Concrete Supply was receiving large quantities of cement for which it was obliged to pay, but did not pay. I reject the submission that the payment of selected RCTIs was in some way an express representation to ABCL that Concrete Supply was not paying the amounts it was obliged to pay.
626 The issue of whether Ms Burgess' knowledge should be attributed to ABCL is a complex one. She was the credit manager and in charge of the day-to-day operations of Concrete Supply's account. I did not understand ABCL to submit that she occupied such a position within ABCL that her knowledge was irrelevant in terms of the knowledge of ABCL.
627 As I have said previously in these reasons, it is not part of ABCL's case in this proceeding that Concrete Supply procured Ms Burgess' conduct or colluded with her in the false entries. Furthermore, it is a puzzling aspect of this case that no financial motive for Ms Burgess' conduct has been established on the evidence in this case.
628 Nevertheless, and fully recognising the gravity of the finding and the fact that I have not heard evidence from Ms Burgess, I have concluded that Ms Burgess' conduct was fraudulent. The making of a large number of false entries over such an extended period of time not only rules out the possibility of mistake, but was completely inconsistent with Ms Burgess' employment duties and well outside any authority she may have had. Furthermore, her conduct means that she knew, if not down to the last dollar, the substance of the true indebtedness of Concrete Supply to ABCL.
629 In those circumstances, ABCL submitted that any knowledge she had could not be attributed to ABCL because she had acted fraudulently. The Concrete Supply defendants responded by submitting that if this point was reached, attribution could only be negatived if Ms Burgess' conduct was in total fraud of ABCL. This raises a legal and factual issue of some complexity.
630 In Re Hampshire Land Co [1896] 2 Ch 743, the Court said (at 749-750):
The case is very much more like the one which both Mr. Bramwell Davis and Mr. Jenkins had to admit was an exception to the general rule that they sought to lay down, for they admitted that if Wills had been guilty of a fraud, the personal knowledge of Wills of the fraud that he had committed upon the company would not have been knowledge of the society of the facts constituting that fraud; because common sense at once leads one to the conclusion that it would be impossible to infer that the duty, either of giving or receiving notice, will be fulfilled where the common agent is himself guilty of fraud. It seems to me that if you assume here that Mr. Wills was guilty of irregularity - a breach of duty in respect of these transactions - the same inference is to be drawn as if he had been guilty of fraud. I do not know, I am sure, whether he was guilty of actual fraud; but whether his conduct amounted to fraud or to breach of duty, I decline to hold that his knowledge of his own fraud or of his own breach of duty is, under the circumstances, the knowledge of the company.
(see also J C Houghton & Co v Nothard Lowe & Wills Ltd [1928] AC 1.)
631 In Canadian Dredge and Dock Co Ltd et al v The Queen (1985) 19 DLR (4th) 314, Estey J said (at 351):
In my view, the outer limit of the delegation doctrine is reached and exceeded when the directing mind ceases completely to act, in fact or in substance, in the interests of the corporation. Where this entails fraudulent action, nothing is gained from speaking of fraud in whole or in part because fraud is fraud. What I take to be the distinction raised by the question is where all of the activities of the directing mind are directed against the interests of the corporation with a view to damaging that corporation, whether or not the result is beneficial economically to the directing mind, that may be said to be fraud on the corporation. Similarly, but not so importantly, a benefit to the directing mind in single transactions or in a minor part of the activities of the directing mind is in reality quite different from benefit in the sense that the directing mind intended that the corporation should not benefit from any of its activities in its undertaking. A benefit of course can, unlike fraud, be in whole or in part, but the better standard, in my view, is established when benefit is associated with fraud. The same test then applies. Where the directing mind conceives and designs a plan and then executes it whereby the corporation is intentionally defrauded, and when this is the substantial part of the regular activities of the directing mind in his office, then it is unrealistic in the extreme to consider that the manager is the directing mind of the corporation. His entire energies are, in such a case, directed to the destruction of the undertaking of the corporation. When he crosses that line he ceases to be the directing mind and the doctrine of identification ceases to operate. The same reasoning and terminology can be applied to the concept of benefits.
Where the criminal act is totally in fraud of the corporate employer and where the act is intended to and does result in benefit exclusively to the employee-manager, the employee-directing mind, from the outset of the design and execution of the criminal plan, ceases to be a directing mind of the corporation and consequently his acts could not be attributed to the corporation under the identification doctrine. This might be true as well on the American approach through respondeat superior. Whether this is so or not, in my view, the identification doctrine only operates where the Crown demonstrates that the action taken by the directing mind (a) was within the field of operation assigned to him; (b) was not totally in fraud of the corporation, and (c) was by design or result partly for the benefit of the company.
632 In Beach Petroleum NL v Johnson [1993] FCA 392; (1993) 43 FCR 1 (Beach Petroleum), von Doussa J addressed the attribution of the knowledge of a director of a company to the company in circumstances where the director has acted fraudulently. His Honour said (at 30-32):
22.32 In my opinion, this statement of the law in Canada provides compelling guidance to the law which should be applied in this case. If, for the purposes of criminal responsibility, a company is imputed with the knowledge and intention of a person who is the directing mind of the company, acting in the field of operation assigned to him, when his actions are not totally in fraud of the company and by design or result are partly for the benefit of the company, the imputation of the knowledge and intention of that person to the company for the purposes of civil responsibility should be no less extensive: see Dixon v Deacon Morgan McEwen Easson et al (1990) 70 DLR (4th) 609. Under the test propounded by Canadian Dredge and Dock Co Ltd, to determine whether the fraud of directors is totally in fraud of the company, it is necessary to consider whether all the activities of those people are directed against the interests of the company with a view to damaging it. In determining this question, the question of benefit, if any, to be received by the company will be of particular importance.
…
22.34 These authorities indicate that if a company is to be imputed with the conduct and knowledge of a director, the director must be acting within the scope of his or her authority, that is, within the scope of his or her actual or apparent authority. The scope of the authority of a director may vary widely from company to company and according to the circumstances of the case. In many instances a director might not be formally appointed by resolution of the board to act on the company's behalf for a particular purpose, but may assume that role without dissent from those who customarily run the company, perhaps even assume the role of managing director: Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480. Provided that the director is acting within the scope of his or her authority, in civil proceedings the state of mind of a director ordinarily will be attributed to the company where there is a duty on that director to communicate his or her knowledge to the company. The exception to this rule is where the director is acting totally in fraud of the company, that is, where all the director's activities are directed against the interests of the company, and not partly for the benefit of the company. If the director is guilty of fraudulent conduct which is not totally in fraud of the corporation, and by design or result the fraud partly benefits the company, the knowledge of the director in the transaction will be attributed to the company.
(Emphasis added.)
633 In Grimaldi v Chameleon Mining NL (No 2) [2012] FCAFC 6; (2012) 200 FCR 296 (Grimaldi) the Full Court of this Court said at [282]-[284]:
282 This matter can be dealt with shortly. As Murchison put it in its submission, it was common ground that, subject to one exception, Mr Grimaldi's knowledge with respect to the matters in issue in the case was at all material times to be imputed to Murchison. The exception relied upon was that knowledge of a director's own fraud committed upon his or her company was not to be imputed to that company: Re Hampshire Land Company [1896] 2 Ch 743. It was not the knowledge of that company.
283 This "fraud exception", as it has been called, has been controversial in a number of common law countries: see Watts, "Imputed Knowledge in Agency Law - Excising the Fraud Exception" (2001) 117 LQR 300; 3 Am Jur 2d "Agency" 280; Dal Pont, The Law of Agency (2nd ed, 2008), [22.57]-[22.59]; Nathan v Dollars & Sense Finance Ltd [2007] 2 NZLR 747 at [99]-[108]; and see Re Parmalat Securities Litigation (2009) 659 F Supp 2d 504 at 519 for the view taken in some number of US States jurisdictions:
… the principal suffers imputation as long as the agent in some respect served the principal or, stated another way, unless the agent totally abandoned the principal's interests. The rule of imputation absent total abandonment, moreover, is not simply a matter of mechanics or rhetoric. It embodies a determination that it would be undesirable to permit principals to avoid responsibility for an agent's actions or knowledge whenever an agent could be said to have acted even in part for the agent's own interest notwithstanding that the agent simultaneously served the interests of the principal.
See also Restatement of Agency 3rd s504.
284 The fraud exception to imputation has not only been accepted in first instance decisions in this country: Beach Petroleum NL v Johnson (1993) 43 FCR 1 esp at 22.14-22.35; it also has been extended beyond knowledge of fraud to that of breach of fiduciary duty "at least where the fiduciary's conduct is morally reprehensible": Aequitas Ltd v AEFC Leasing Pty Ltd (2001) 19 ACLC 1,006 at 1,062; see also Farrow Finance Company Ltd (in liq) v Farrow Properties Pty Ltd (in liq) [1999] 1 VR 584 at 627-628. Nonetheless, the exception itself has been qualified in a fashion which resonates with that suggested in the Parmalat quotation above. As von Doussa J observed in Beach Petroleum (at 22.34), while a director's knowledge will not be imputed to a company where the director's activities are directed against the interests of the company, it will be otherwise if his or her conduct is not totally in fraud of the company if, "by design or result the fraud partly benefits the company": see also Canadian Dredge & Dock Company Ltd v The Queen (1985) 19 DLR (4th) 314 at 351 which von Doussa J considered provided "compelling guidance".
634 In my opinion, the proposition which emerges from these authorities is that an agent's knowledge or conduct will be attributed to a company even where the agent was fraudulent unless the fraud was total fraud, being fraud where there is no benefit to the company, whether by design or result. In other words, if the company partially benefits in the result, then the fraud exception to the rules of attribution is not engaged.
635 ABCL recognised that this was a possible approach to attribution and the fraud exception, and this, it seemed to me, was the reason for its attempt to adduce the evidence in Mr Lemmon's second affidavit. That attempt failed insofar as there was an attempt to prove the WACC. As I have previously noted, even if that evidence had been received, there may well have been arguments as to its effect in terms of whether there was, in fact, a partial benefit to ABCL from its continuing trading relationship with Concrete Supply (at [119]).
636 Counsel for the Concrete Supply defendants asked me to find that, in fact, ABCL made a profit from its trading relationship with Concrete Supply between 2012 and 2017 of nearly $2.5 million. This amount had been calculated on the basis of costs for "Divisional costs" and "Allocation of divisional corporate overheads" and no allowance for the cost of capital. I am not prepared to make that finding because what has not been established on the evidence is the quantum of the cost of capital. I have no difficulty in accepting that in an industry involving large expenditure on the purchase and maintenance of plant and equipment and ongoing operations that there would be a cost of capital and it would not be insignificant. That was the evidence of Mr Lemmon which I accept. However, I do accept that ABCL has not established that it did not partially benefit from its trading relationship with Concrete Supply in the sense of receiving amounts over and above its costs per tonne of cement or other product supplied.
637 In its closing submissions, ABCL advanced two quite different arguments as to why Ms Burgess had acted in total fraud of ABCL and, therefore, her knowledge or conduct should not be attributed to it.
638 First, ABCL submitted that it would not have sold cement to Concrete Supply at the prices reached after the application of the alleged discounts or rebates and it lost the opportunity to sell its cement at the prices Concrete Supply should have paid or higher prices. As I will explain later in these reasons, I accept Mr Lemmon's evidence that the cement supplied to Concrete Supply would have been sold elsewhere if not sold to Concrete Supply and I accept that that was likely to have been at the prices Concrete Supply should have paid. The difficulty for ABCL is that, although it has not made the money it could have made, it has not shown that it has not received a partial benefit. A partial benefit of its nature means something less than a full benefit.
639 Secondly, ABCL submitted that it is not appropriate to characterise the trading relationship as one in which Concrete Supply took a discount of between 30% and 40% on each delivery of cement. Rather, it was appropriate to characterise the relationship as one in which Concrete Supply did not pay at all for certain deliveries of cement and, with respect to those deliveries, there was a total failure of consideration.
640 I was initially attracted to this argument. After all, even if it turned on form over substance in that the argument would not be available if Concrete Supply had paid between 60% and 70% of each invoice, that form was the form adopted by the Concrete Supply defendants with no genuine belief that Concrete Supply was entitled to the alleged discount or rebate. However, on further reflection, I do not think that I should accept the argument. This was a long term trading relationship between a supplier and a purchaser governed by a general agreement, namely, the BSA, and payments were made by reference to batches of invoices, not invoice by invoice. It seems unrealistic in those circumstances to find that there was a total failure of consideration in the context of such a relationship.
641 There are other matters in this area of the law that might be deployed in favour of ABCL's argument. If part of the rationale for attribution is to protect parties who deal with the company in good faith, then that rationale hardly applies in this case where I have found that the Concrete Supply defendants had no genuine belief that Concrete Supply was entitled to the alleged discount or rebate (Dal Pont GE, Law of Agency (3rd ed, LexisNexis Butterworths, 2014) at [22.49] et seq). If one considers only the design part of the rule, then it is strongly arguable that whatever Ms Burgess' intentions, they were not to benefit ABCL in any way.
642 Despite these matters, I consider the statements in Beach Petroleum and Grimaldi are clear and that I should follow them. The effect of that approach is that the fraud exception has not been established and Ms Burgess' knowledge is attributable to ABCL. As I have said, she was aware of the true level of indebtedness of Concrete Supply and, in those circumstances, the claim of misleading or deceptive conduct against the Concrete Supply defendants must fail.
643 This conclusion may also have been relevant to the second element of the estoppel plea, although had it been necessary to consider it in that context, there may have been some additional considerations before deciding whether the second element of the estoppel plea was established.
644 Although, in view of these conclusions, it is not strictly necessary for me to consider the other arguments advanced in relation to the misleading or deceptive conduct claim, I will do so to the extent possible in case I am wrong with respect to the attribution of Ms Burgess' knowledge to ABCL.
645 The Concrete Supply defendants contended that there were a number of other employees of ABCL who, it should be inferred from the evidence in this case, knew of Concrete Supply's true level of indebtedness. They submitted that the sales staff who knew from time to time of the volume of cement most recently purchased by Concrete Supply must have been aware of the true level of indebtedness. They submitted that accounts receivable staff, such as Ms Cook and Ms Penny Wong, must have been aware that ABCL had stopped sending statements of account and invoices and that Concrete Supply was generating RCTIs and must have known the true level of indebtedness because they were manually entering the payments into the SAP system. Finally, they submitted that Mr Taeger must have known of the anomalies and accounting irregularities in the Concrete Supply account. Mr Taeger's role at ABCL was identified by Mr Hughes in his evidence (see [86], [93], [100], [110]-[111] above).
646 The type of false entries made by Ms Burgess were identified by Mr Hughes in his evidence (see [61], [63], [74]-[77] above). All the false entries were made by Ms Burgess (see [72] above), although Ms Cook also made manual entries in the Concrete Supply account (see [89]-[91] above).
647 As I understood the submission of the Concrete Supply defendants, the failure of ABCL to call any of the witnesses stationed at Birkenhead at the relevant time should support the drawing of adverse inferences in terms of their knowledge of the true level of Concrete Supply's indebtedness (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) at 308 per Kitto J; at 312 per Menzies J; at 320-321 per Windeyer J; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 (Kuhl); Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (Hellicar)).
648 It is important to identify with precision the inferences the Concrete Supply defendants ask me to draw more confidently having regard to the failure of ABCL to call any witnesses from Birkenhead. It is not, or not merely, that one of the accounts receivable staff was aware of Concrete Supply sending RCTIs or could have, acting diligently, detected Ms Burgess' false entries or that sales representatives obtained details of the recent amounts, in volume, of cement purchases by Concrete Supply before their visits to the company's premises. Rather, it is an inference that they were aware of Concrete Supply's true level of indebtedness. As I understood it, armed with this inference, the Concrete Supply defendants' arguments ranged from inviting me to conclude that, in fact, the whole accounting by Ms Burgess was approved by ABCL and designed to disguise the discount or rebate and thereby avert complaints by other customers receiving discounts or rebates such as the "favoured nation arrangements" (see [129] above) to inviting me to conclude that others were part of Ms Burgess' plan and scheme. I must say, I am not sure what the latter proposition adds to the case on attribution of the Concrete Supply defendants.
649 In Hellicar, the plurality referred to a holding in Jones v Dunkel as follows (at [167]):
But the Court held "that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence".
(Jones v Dunkel at 309 per Kitto J; see also at 312 per Menzies J; at 320-321 per Windeyer J.)
650 In Kuhl, Heydon, Crennan and Bell JJ said (at [63] and [64]):
63 The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn…
64 The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party…
(Citations omitted.)
651 It may be accepted that at least most of the witnesses identified by the Concrete Supply defendants were available to be called. However, the important point is whether there is a ground in the evidence for drawing the inference sought by the Concrete Supply defendants.
652 In my opinion, there is no ground in the evidence to infer that officers and employees of ABCL were aware of Concrete Supply's level of indebtedness and authorised a large number of false entries in its books and records in order to disguise a discount or rebate to Concrete Supply. Such a course of action makes no sense.
653 Nor do I think there is a sufficient basis in the evidence to infer that other employees of ABCL were part of Ms Burgess' plan or scheme. That is a very serious allegation and I do not think that there is a sufficient basis for it in the evidence. Poor systems and inattention over a prolonged period there may have been, but I do not think there is a ground in the evidence for an inference beyond that.
654 I reject the argument that other employees of ABCL knew of the true level of indebtedness of Concrete Supply and that that knowledge should be attributed to ABCL.
655 I turn to the next submission of the Concrete Supply defendants, that is, that knowledge of Concrete Supply's true level of indebtedness was contained within ABCL's accounting records and that knowledge can and should be attributed to ABCL.
656 The Concrete Supply defendants relied on three matters in support of the submission that the company's true level of indebtedness and the irregularities would have been easily discovered by an examination of ABCL's accounting records as follows: (1) direct evidence of Mr Hughes of the information stored on CAS concerning deliveries and its automated transmission to the SAP system; (2) the fact that Mr Shaddock discovered anomalies involving the user ID of Ms Burgess in early October 2017 in a routine inquiry carried out in the absence of Ms Burgess; and (3) the inference more confidently drawn in the absence of any evidence from the staff who worked at Birkenhead during the relevant period.
657 I have considered the cases to which the Concrete Supply defendants referred: Commercial Union v Beard [1999] NSWCA 422; (1999) 47 NSWLR 735; Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327; The Bell Group Ltd (In Liq) v Westpac Banking Corporation Ltd (No 9) [2008] WASC 239; (2008) 39 WAR 1. It seems to me that in order to resolve this argument there are a number of complex issues which would need to be resolved, including the effect of the fact that ABCL's books and records contained false entries and the fact that that was known to an employee who was acting fraudulently. Those matters were not addressed in any detail in this particular context and, in circumstances where it is not essential that I express a view, I refrain from doing so.
658 The Concrete Supply defendants submitted that ABCL's failure to join Ms Burgess to this proceeding in circumstances where it ought to have done so is a further reason to draw "an adverse inference as to [ABCL's] knowledge of the status of Concrete Supply's credit account with the [ABCL]". I have decided that Ms Burgess' knowledge should be attributed to ABCL. However, it is not by reason of this submission which I reject. I now explain the reasons I reject this submission.
659 As developed, the submission was that Ms Burgess should have been joined in this proceeding and that ABCL made a "deliberate forensic decision" to pursue Ms Burgess in the Supreme Court of South Australia. As I have said, that proceeding has been stayed because of the prospect of criminal proceedings.
660 The starting point for the submission that Ms Burgess should have been joined to this proceeding was reliance by analogy on the observations of Bryson JA (with whom Mason P and Beazley JA agreed) in Yeshiva Properties No 1 Pty Ltd v Marshall [2005] NSWCA 23; (2005) 219 ALR 112 (Yeshiva Properties) at [77] as follows:
77 When claims based on alleged accessary liability and the second limb of Barnes v Addy are made it is usual, in my experience, that the trustee or fiduciary whose liability is alleged to be the principal liability is joined in the suit and that appropriate equitable remedies are claimed against that person. This accords with the usual approach taken by courts of equity in which, so far as is practicable, all aspects of the controversy are brought under consideration and resolved in the same suit. This approach is sometimes expressed in the obscure maxim "Equity delights to do justice", which alludes to the courts' wish to resolve the whole controversy and give effect to all equities of all persons involved in the controversy. The same policy is expressed in ss 60 and 63 of the Supreme Court Act 1970. Except when the principal cannot be found, is insolvent, has a bankruptcy discharge, or is unavailable to be sued for some other reason, it is appropriate that that person should be joined as a defendant. There may be advantages for the attainment of justice if that person can be required to produce documents on discovery, answer interrogatories or otherwise to participate in the proceedings. It is not safe to assume that all relevant aspects of the principal person's conduct are known to an accessary.
661 I say, by analogy, because in this case, the principal wrongdoer is said to be Concrete Supply and the accessories are the directors. To what extent any of the observations made by the plurality in Michael Wilson & Partners v Nicholls [2011] HCA 48; (2011) 244 CLR 427 affect this issue was not addressed by the parties.
662 The next step in the argument is that the Concrete Supply defendants contend that they have been prejudiced by ABCL's failure to join Ms Burgess to this proceeding in that had it done so, she may have filed an affidavit going to ABCL's knowledge and they may have had the opportunity to cross-examine her.
663 I reject this submission. The situation is not the same as that in Yeshiva Properties. The principal wrongdoer in this case (as alleged by ABCL) is Concrete Supply and it has been joined to the proceeding. In any event, what is being referred to is the usual practice and clearly there may be cases where a trustee or fiduciary has no assets and is not joined for that quite understandable reason. Even if I am wrong about these matters, I cannot see how the fact that Ms Burgess was not joined as a party to this proceeding adds weight to a case for "drawing an adverse inference as to [ABCL's] knowledge of the status of Concrete Supply's credit account with [ABCL]".
664 The Concrete Supply defendants put causation arguments at a number of levels. First, they submit that even if their conduct in failing to inform ABCL that they were not paying the full amount was misleading or deceptive, it did not change anything because the person they would most likely have informed is Ms Burgess and she is unlikely to have done anything. It is probably correct to say that had the "duty" been performed, the directors would have contacted Ms Burgess or arranged for her to be contacted at some stage, perhaps as a first contact. However, I consider that the submission should be rejected for a number of reasons.
665 First, the easiest way of correcting the situation would have been to remedy the other failure alleged against the Concrete Supply defendants, namely, to pay the full amount owing. Secondly, it is difficult to know what Ms Burgess would have done had Concrete Supply advised her that it was not paying ABCL in full. It can be said, however, that the submission tended to proceed on the assumption that one telephone call to ABCL would have discharged the duty and I do not accept that that is the case. Thirdly, and relatedly, I do not accept that it is inevitable that contact would have been made only with Ms Burgess. There would have been ample and regular opportunities to raise the fact of the discount or rebate with, for example, sales representatives who visited the Pooraka property on a regular basis.
666 The broader causation argument advanced by the Concrete Supply defendants is that there has been no loss or damage because all that happened was that ABCL and Concrete Supply continued a trading relationship which was profitable. I have already addressed the issue of profitability. The undertone of this submission may have been that even if fully advised of what Concrete Supply was doing, ABCL would have done nothing. If that is the submission, then I reject it. There is nothing to suggest that ABCL properly informed would have tolerated a discount or rebate of the nature claimed or, on the whole of the evidence, to suggest that ABCL would have done other than insist on payment in full in accordance with the price increase letters. That conclusion is consistent with the evidence of Mr Lemmon (see [130] above).
667 It was part of ABCL's case that it was unlikely that Concrete Supply had the capacity to pay the full price. For example, ABCL pointed to the following matters: (1) Concrete Supply's cashflow was a major consideration in determining the timing of the payment of cheques to ABCL and in the cancellation of cheques made out to ABCL. Full payment at the stipulated time (whether it be 30 days or 90 days) would have caused significant cashflow difficulties; and (2) Mr Morris' analysis of Concrete Supply's financial performance between 2009 and 2017 adding back in as a liability from time to time the alleged discount or rebate, raises a serious issue (at least) as to the solvency of Concrete Supply at various times in the past, that is, its ability to pay its debts.
668 These submissions meant it was necessary for ABCL to establish that it could have sold the cement it sold to Concrete Supply to another party if it had needed to. Concrete Supply disputed that proposition.
669 Mr Lemmon's evidence is important in this respect. As I have said, he swore two affidavits. His first became exhibit A11. In his second affidavit, he described, in general terms, the nature of ABCL's operations and its two manufacturing plants in South Australia. None of this is contentious. In para 8 he states as follows:
8. During my time with ABCL, all of the product which has been manufactured in South Australia has been sold. Over the past 20 years, there has not been a surplus of product. When South Australian customers have from time to time ceased trading, other customers have taken up the share. Although Cement Australia has started importing cement into the South Australia market, that did not produce any product surplus. All of the product that ABCL has manufactured here has been sold, either locally or into Victoria through the ICL joint venture.
670 Mr Lemmon's second affidavit was not tendered at the time he gave evidence. I indicated that at that stage that it would be marked for identification. There is some confusion in the transcript as to whether it was given a separate number or was part of MFI A13 (see T 501-502). Counsel for the Concrete Supply defendants subsequently cross-examined Mr Lemmon on the basis that the evidence in para 8 was part of the evidence and the thrust of his cross-examination was that Mr Lemmon did not have the knowledge of the market which would enable him to express any reliable opinions. That is sufficient to bring the evidence in.
671 Mr Lemmon was well qualified to express the opinion he did and I accept his evidence. I accept that ABCL would have been able to sell the cement to another party had it not been sold to Concrete Supply at an equivalent or near equivalent price to that price Concrete Supply ought to have paid. In view of the ultimate conclusion in this section, it is not necessary for me to consider whether there should be some small allowance for contingencies.
672 The next submission to be addressed is the submission of the Concrete Supply defendants that any damages awarded against them should be reduced because of the contributory conduct of ABCL, including the conduct of Ms Burgess. The contributory conduct of ABCL, aside from the contributory conduct of Ms Burgess, may be broadly described as a failing of systems and processes within ABCL. I will refer to this as the alleged ABCL systems failures.
673 At the time of closing submissions, the directors' Defence contained the following pleas:
Contributory Negligence
13. In the event that the Fourth to Sixth Defendants are found liable for misleading and deceptive conduct (which cause of action is denied), they say that the amount of the loss or damage claimed by the Plaintiff ought to be reduced to take into account the Plaintiff's contributory negligence and the contributory negligence of its external auditors.
14. The Plaintiff failed to:
14.1 issue its own invoices, which was a breach of the Bulk Supply Agreement;
14.2 send regular statements to the First Defendant;
14.3 monitor its own accounts;
14.4 inform the First Defendant that its credit limit had been exceeded;
14.5 give proper and adequate consideration to its own financial affairs and books and records;
14.6 prevent the reporting of creditor balances by way of manually-generated Excel spreadsheets, and the Fourth to Sixth Defendants refer to annexure DH9 to the affidavit of Darryl Hughes, sworn 16 January 2018;
14.7 ensure that proper internal auditing of the Plaintiff's books and records was undertaken and, without limiting that plea, failed to ensure that an audit was undertaken of manual journal entries recorded in its SAP accounting system; and
14.8 the Fourth to Sixth Defendants repeat the matters pleaded in paragraph 6A herein;
15. The Plaintiff's external auditors failed to:
15.1 give proper and adequate consideration to the Plaintiff's financial affairs and books and records; and
15.2 undertake an audit, or in the alternative, undertake a proper and diligent audit, of manual journal entries recorded in the Plaintiff's SAP accounting system, including by causing the Plaintiff to generate a manual entry report of the kind set out at annexure DH9 to the affidavit of Darryl Hughes, sworn 16 January 2018, which, had they done so, would have alerted the external auditors to the alleged false entries described in paragraph 74 of Mr Hughes' affidavit.
16. Had the Fourth to Sixth Defendants been informed by the Plaintiff that the credit limit of the First Defendant had been exceeded, they would have caused the First Defendant not to have incurred the alleged debt either by not purchasing the cement or by renegotiating the terms, including the price or by shipping in their own cement at a lower price or by going to another supplier.
674 In addition to their oral submissions in closing, the Concrete Supply defendants relied on extensive written submissions. The submissions addressed the above pleas. A summary of the submissions on this topic, leaving aside those relating to the audit confirmation letter, is as follows:
(1) ABCL's claims against the directors for being involved in alleged misleading or deceptive conduct by Concrete Supply are apportionable claims pursuant to s 87CD of the Competition and Consumer Act;
(2) damages should only be awarded against Concrete Supply to the extent it can justly and equitably be regarded as contributing to, or being responsible for, ABCL's overall loss and to the extent that ABCL, or some other party, has contributed to its own loss, it must bear a portion of the loss;
(3) in relation to the damages sought in connection with the RCTI practice adopted after March 2013, the "dominant" cause of ABCL's loss was the conduct of Ms Burgess "in hiding the indebtedness of Concrete Supply and other customers";
(4) Ms Burgess' conduct was facilitated by failings internal to ABCL i.e., the systems failures to which I referred earlier. The failures were identified as follows:
(a) ABCL ignored the recommendations of internal auditors in relation to deficiencies within its credit control function;
(b) ABCL (or ABL) maintained a practice of outstanding debtor balances being reported manually and in Excel, rather than a report generated automatically from ABCL's accounting systems;
(c) ABCL gave Ms Burgess the ability to amend credit limits within its books and records to a level which is alleged to be above the authorised credit limit set for Concrete Supply and which is also more than Concrete Supply would require based on its average monthly purchases, even assuming trading terms were 90 days and not 30 days; and
(d) ABCL failed to review creditor aging records that would disclose irregularities in ABCL's debtor records for Concrete Supply.
(It will be necessary for me to come back to these when I consider the substance of the plea of contributory negligence.)
(5) the fact that ABCL has brought proceedings against Ms Burgess in the Supreme Court of South Australia illustrates that ABCL's internal problems, including the conduct of Ms Burgess, were the major cause of its loss; and
(6) ABCL's internal failings, including the conduct of Ms Burgess, means that ABCL should bear the majority of the losses claimed, "at least in the order of 80% of those losses".
675 The following points should be noted about these submissions. First, there is no express allegation directed to the plea by the directors that there was contributory negligence on the part of ABCL's external auditors. In the circumstances, that plea does not call for further consideration. Secondly, the submissions proceeded on the basis that Ms Burgess' conduct should be attributed to ABCL.
676 ABCL subsequently submitted that it had not had the opportunity to address the apportionment submissions of Concrete Supply defendants at the time of closing submissions. On 17 May 2019, I made the following orders:
1. The plaintiff file and serve any written submissions (limited to five pages) relating to the question of apportionment of liability as between the plaintiff and the fourth to sixth defendants on or before 4:00pm on Monday, 20 May 2019.
2. The fourth to sixth defendants file and serve any written submissions in response (limited to five pages) on or before 4:00pm on Monday, 27 May 2019.
677 ABCL filed written submissions as envisaged by these orders. A summary of those submissions is as follows:
(1) reference was made to s 87CD of the Competition and Consumer Act and it was said that the directors' submission should, by reference to s 87CD(3)(a), be taken as directed to an allegation of contributory negligence;
(2) it was not alleged that Ms Burgess was a concurrent wrongdoer and should be held responsible as such;
(3) the allegations of contributory negligence by the Concrete Supply defendants should be restricted to its allegations of ABCL's internal failings which, leaving aside the audit confirmation letter, it described in the following way:
(a) an alleged failure by ABCL to adopt "recommendations of internal auditors in relation to deficiencies within its credit control function"; and
(b) ABCL was allegedly negligent in failing to identify irregularities in Concrete Supply's account.
(4) the alleged failures in the preceding paragraph were not made out; and
(5) if apportionment is appropriate, then it should be no more than 12.5%.
678 The respective submissions to this point may be summarised as follows. The Concrete Supply defendants submitted that ABCL's contributory negligence consisted of the conduct of Ms Burgess and the systems failures. ABCL submitted that only the alleged systems failures qualify as contributory negligence. Ms Burgess' fraudulent conduct is not attributable to ABCL. At most, she is a concurrent wrongdoer and that allegation is not pleaded by the directors.
679 I should note, perhaps in passing, that the relevant contributory negligence section, if I may put it that way, in the Competition and Consumer Act is s 137B and not s 87CD(3)(a). The latter section is directed to how the Court goes about apportionment where there is contributory negligence "under any relevant law". I note that although ABCL has variously referred to the conduct of the Concrete Supply defendants as dishonest and deceitful and I have made findings about that conduct, it has not run a case that contributory negligence is excluded by reason of s 137B(d). In making that observation, I am not to be taken to be making any observation as to whether or not such a case was available to it.
680 In response to ABCL's submissions, the directors did two things. First, they filed submissions in reply. Secondly, they sought the consent of the other parties to amend their Defence to allege that Ms Burgess was a concurrent wrongdoer. ABCL did not consent to the directors having leave to amend their Defence and the directors issued an interlocutory application supported by an affidavit of their solicitor seeking leave to amend para 13 of their Defence so that it reads, relevantly, as follows:
13. In the event that the Fourth to Sixth Defendants are found liable for misleading and deceptive conduct (which cause of action is denied), they say that the amount of the loss or damage claimed by the Plaintiff ought to be reduced to take into account the Plaintiff's contributory negligence, and the contributory negligence of its external auditors, and in the event that the Plaintiff makes out paragraph 3 of its Reply, the contributory conduct of Glenda Burgess in her own capacity.
681 I will come back to the submissions in reply insofar as they deal with submissions as to substantive matters concerning apportionment in due course. For present purposes, a summary of those submissions and the solicitor's affidavit with respect to the application to amend is as follows:
(1) Ms Burgess' conduct should be attributed to ABCL for the purposes of contributory negligence because, even if that conduct was fraudulent, ABCL benefited from her conduct;
(2) ABCL has always asserted that Ms Burgess was fraudulent and its case is that her conduct was fraudulent. It was on this basis that it was given leave during the trial to file a Reply alleging that her conduct was fraudulent;
(3) ABCL's written submissions on apportionment were the first time that it alleged that the directors had not alleged that Ms Burgess was a concurrent wrongdoer "notwithstanding that her alleged conduct was not in issue and formed the basis of the matters pleaded at para 13 of the Defence"; and
(4) leave to amend the Defence will not lead to the directors seeking leave to reopen their case or lead further evidence or make any further submissions.
682 ABCL opposed the application by the directors to amend their Defence. A summary of their submissions in support of its opposition to the application is as follows:
(1) as a general submission, the amendment should not be allowed because it is a significant departure from the case the directors conducted at trial, it is uncertain in scope and as a late amendment it will, if allowed, cause prejudice to ABCL;
(2) the directors' pleaded case is one of contributory negligence;
(3) the opening of ABCL made it clear that Ms Burgess' knowledge could not be attributable to ABCL because of her fraudulent conduct;
(4) the directors limited their case at trial to failures which meant that there was a failure to prevent the fraud perpetrated by Ms Burgess;
(5) ABCL has not had the opportunity to address the Court on the apportionment of liability between the director defendants and Ms Burgess (as distinct from ABCL) or the effect of s 87CC of the Competition and Consumer Act in the event that the Court accepts that Ms Burgess is a concurrent wrongdoer;
(6) the directors seek to expand their apportionment case to include an allegation that Ms Burgess is a concurrent wrongdoer on the premise that Ms Burgess' conduct is not attributable to ABCL. The relevant conduct is not identified in the proposed Amended Defence;
(7) the key relevant principles as identified in the authorities indicate that substantial matters against allowing an amendment are as follows:
(a) the lateness of an application to amend and the inadequacy of the explanation proffered;
(b) prejudice or injustice to the opposing party which cannot be compensated by costs; and
(c) whether the party seeking the amendment deliberately framed his or her existing case in a particular way from which it now seeks to resile;
(8) the directors proffer no explanation for not pleading that Ms Burgess was a concurrent wrongdoer. They acknowledge that they have not pleaded that allegation. Their case has always been, and has always been limited to, an assertion that Ms Burgess' conduct is attributable to ABCL;
(9) the fact that the directors have restricted their case to a case that Ms Burgess' conduct is attributable to ABCL may be seen from the following:
(a) the plea of contributory negligence in the directors' Defence does not make any separate allegation of negligence or breach of contract against Ms Burgess;
(b) on 10 April 2018, the directors wrote to ABCL giving it notice pursuant to s 87CE of the Competition and Consumer Act of their contention that ABCL's external auditors were concurrent wrongdoers and proportionately liable for the misleading and deceptive conduct claims. Ms Burgess was not identified as a concurrent wrongdoer;
(c) on 6 June 2018, the directors wrote to ABCL noting that ABCL sought to recover the same loss against Ms Burgess in the proceedings in the Supreme Court of South Australia as it sought from the directors in these proceedings and reiterated their case that Ms Burgess' conduct was attributable to ABCL. There was no suggestion that Ms Burgess was a concurrent wrongdoer in her own right; and
(d) no attempt was made to suggest that Ms Burgess was a concurrent wrongdoer during ABCL's opening or when ABCL sought leave to file a Reply despite it being made clear by ABCL that its case was that Ms Burgess' conduct was not attributable to it.
(10) ABCL has been prejudiced in that it could have addressed in its written submissions the relative culpability between Ms Burgess and the directors and the relative causal effect of their respective conduct. ABCL may have sought to adduce evidence from Mr Lemmon and its sales representatives regarding the comparative reliance they placed on Ms Burgess and the directors' conduct and representations at their meetings.
683 It may be convenient if I summarise the issues to this point. A plea of contributory negligence is raised by the directors, but there is no plea that Ms Burgess was a concurrent wrongdoer. ABCL alleged that Ms Burgess' knowledge and conduct was not attributable to ABCL. The directors denied this, but they did, as an alternative, plead that Ms Burgess was a concurrent wrongdoer in order to take advantage of the provisions of Part IVA of the Competition and Consumer Act. The directors sought to remedy that by an application made after closing submissions.
684 I have found that Ms Burgess' knowledge is to be attributed to ABCL and that the misleading or deceptive conduct claim must fail. This argument is, therefore, hypothetical, but I have decided to consider it in case I am wrong on the attribution issue. The assumption on which I considered it is that Ms Burgess' conduct is not attributable to ABCL.
685 Sections 87CB and 87CD of Part VIA are in the following terms:
87CB Application of Part
(1) This Part applies to a claim (an apportionable claim) if the claim is a claim for damages made under section 236 of the Australian Consumer Law for:
(a) economic loss; or
(b) damage to property;
caused by conduct that was done in a contravention of section 18 of the Australian Consumer Law.
(2) For the purposes of this Part, there is a single apportionable claim in proceedings in respect of the same loss or damage even if the claim for the loss or damage is based on more than one cause of action (whether or not of the same or a different kind).
(3) In this Part, a concurrent wrongdoer, in relation to a claim, is a person who is one of 2 or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
(4) For the purposes of this Part, apportionable claims are limited to those claims specified in subsection (1).
(5) For the purposes of this Part, it does not matter that a concurrent wrongdoer is insolvent, is being wound up or has ceased to exist or died.
87CD Proportionate liability for apportionable claims
(1) In any proceedings involving an apportionable claim:
(a) the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited to an amount reflecting that proportion of the damage or loss claimed that the court considers just having regard to the extent of the defendant's responsibility for the damage or loss; and
(b) the court may give judgment against the defendant for not more than that amount.
(2) If the proceedings involve both an apportionable claim and a claim that is not an apportionable claim:
(a) liability for the apportionable claim is to be determined in accordance with the provisions of this Part; and
(b) liability for the other claim is to be determined in accordance with the legal rules, if any, that (apart from this Part) are relevant.
(3) In apportioning responsibility between defendants in the proceedings:
(a) the court is to exclude that proportion of the damage or loss in relation to which the plaintiff is contributorily negligent under any relevant law; and
(b) the court may have regard to the comparative responsibility of any concurrent wrongdoer who is not a party to the proceedings.
(4) This section applies in proceedings involving an apportionable claim whether or not all concurrent wrongdoers are parties to the proceedings.
(5) A reference in this Part to a defendant in proceedings includes any person joined as a defendant or other party in the proceedings (except as a plaintiff) whether joined under this Part, under rules of court or otherwise.
686 Counsel for the directors submitted that they misapprehended the position such that they thought it would be sufficient for them in dealing with concurrent wrongdoing to rely on the conduct of ABCL, rather than the conduct of one of its employees, Ms Burgess. They considered that it was sufficient to rely on the conduct of ABCL. I accept that explanation. It seems to me the most likely in the circumstances, coupled with the fact that their primary focus was the case that Ms Burgess' conduct was attributable to ABCL. I accept that the absence of a plea of the nature the directors now wish to advance was due to a misapprehension or inattention to an alternative allegation and was not held back for a forensic reason. None is obvious in the circumstances.
687 On the one hand, the application to amend comes at a very late stage and at a time when the company is under deed administration and that deed is under challenge. On the other hand, if the directors are not able to rely on the conduct of Ms Burgess as a concurrent wrongdoer, then the only contributory conduct upon which the directors could rely would be what I have described as the alleged ABCL systems failures.
688 In the circumstances, I was particularly anxious to determine what prejudice ABCL might suffer if the amendment was allowed. The absence of an opportunity to make submissions on relative culpability could be cured by an order giving the parties the opportunity to make submissions within a short time frame. Of more concern was the significance of s 87CC referred to in ABCL's written submissions. I called the parties back to identify clearly the significance of s 87CC.
689 It became clear from what the parties said that ABCL would wish to rely on s 87CC to defeat the directors' claim that Ms Burgess was a concurrent wrongdoer should the directors be permitted to raise that allegation. The directors indicated that they would strongly oppose ABCL being able to rely on s 87CC. It seemed to me that the effect of the attitude of the parties was that had I allowed the Concrete Supply defendants to allege that Ms Burgess was a concurrent wrongdoer, there would be further pleading arguments. That was enough to persuade me that the application to amend by the directors should be refused. As it happens, it should be refused on the basis that it is, in the circumstances, unnecessary. Had it been necessary, I indicate that I would have refused it on the merits.
690 Finally, the Concrete Supply defendants submitted that, even if all their other arguments were rejected, Tina was not involved in the misleading or deceptive conduct.
691 It is well-established that for a person to be involved in a contravention the person must have knowledge of the essential matters which make up the offence (Yorke v Lucas at 667 and 670 per Mason ACJ, Wilson, Deane and Dawson JJ). In the case of a representation, there must be actual knowledge of the falsity of the representation. Actual knowledge includes wilful blindness and is more readily inferred in the case of a person who has intimate knowledge of the company's operations and was actively and directly involved in the company's management.
692 There is, with respect, a helpful summary of the law as to the knowledge required in order for a person to be involved in a contravention in Australian Competition and Consumer Commission v IMB Group Pty Ltd [2003] FCAFC 17 at [133]-[135]. It is as follows:
133 For a person to be involved in a contravention within the meaning of s 75B(1)(c) of the Act, a person must be an intentional participant in the contravention, the necessary intent being based upon knowledge of the essential elements of the contravention: see Yorke v Lucas (1985) 158 CLR 661 at 670. Thus, while it is not necessary to establish that the individual Respondents had knowledge that there was a contravention of a provision of Pt V of the Act, it is necessary to demonstrate that each individual Respondent had knowledge of each of the essential elements of the contravention.
134 In order to establish whether any of the individual Respondents was involved in a contravention, it is necessary to examine the state of mind of each of them separately in relation to each alleged contravention. Here the Commission's pleading did not permit of such a course. It did not ever identify the contravention that the particular Respondent was said to be involved in. We do not understand any of the Respondents to have addressed any case specific to them. Rather, his Honour appears to have assumed that merely being a director of IMB and being involved in promoting its activities was sufficient to attract the operation of s 75B(1)(c) in relation to any contravention on the part of IMB that occurred during the time that the individual was involved in promoting IMB's activities. However, his Honour made no finding concerning the state of mind of any of the individual Respondents. Further, the Full Court was not invited by the Commission to make findings in that regard. Rather, the Commission sought to support the conclusions reached by the primary judge.
135 It is not necessary to establish any subjective element in relation to a contravention of Pt V of the Act. A contravention may be committed unintentionally. That is to say, a person may contravene a provision of Pt V even though that person does not have knowledge of all of the essential elements that constitute the contravention. However, before any accessorial liability will arise, it is necessary to establish the subjective element of knowledge of each of the essential elements of the contravention. That knowledge may be constructive in the sense that it may be possible to show wilful blindness in relation to the elements of a contravention. However, absent a finding of wilful blindness, it is necessary to establish actual knowledge on the part of a person to whom it is sought to sheet home accessorial liability in respect of a contravention of Pt V.
693 The Statement of Claim contains the following particulars of "involvement" in the contravention:
81 The Fourth to Sixth Defendants acted dishonestly in that they:
81.1. were aware of the First Defendant's trading terms and indebtedness to the Plaintiff consistent with their obligations to the First Defendant as pleaded at paragraphs 3 and 6 above;
81.2. knew (based on the matters referred to in paragraphs 7 to 25) that the First Defendant was not entitled to receive Purchased Product without paying for it in accordance with the terms of the Bulk Supply Agreement and the Price Increase Letters;
81.3. caused the First Defendant to make the Credit Entries, cancel RCTIs and withhold payment for $12,457,472 of Purchased Product between March 2012 and November 2017; and
81.4. failed to disclose to the Plaintiff that the First Defendant was making the Credit Entries, cancelling RCTIs and withholding payment totaling [sic] $12,457,472 between March 2012 and November 2017.
694 The evidence establishes the following:
(1) that whilst Rino and Jason were involved in the day-to-day operations of the business, Tina was not;
(2) further, Tina was not involved in the day-to-day decisions of the business;
(3) Tina's involvement in decision-making was limited to major investment decisions;
(4) Tina signed cheques on a regular basis, including cheques made out to ABCL; and
(5) Tina was the public officer of Concrete Supply under s 252 of the Income Tax Assessment Act and she signed income tax returns and BAS from time to time. Those documents reflected the system adopted by Concrete Supply in claiming the rebate.
695 Although I formed the opinion Tina was keen to disclaim any knowledge of the details of the business (see [292] above), I am not satisfied that she knew the matters in paras 81.3 and 81.4, even if she knew aspects of the matters in para 81.1 and 81.2. Even if it can be said that she ought to have known all the matters in paras 81.3 and 81.4, that is not equivalent to knowledge (Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473) and knowledge is essential to a claim of knowing involvement.
696 The claim against Tina fails for the reason previously given but also because she was not involved in the misleading or deceptive conduct.
697 ABCL's misleading or deceptive conduct claim against the Concrete Supply defendants fails.
698 With respect to the allegation of contributory negligence on the part of ABCL, the Concrete Supply defendants identified the following alleged ABCL systems failures:
(1) the alleged discount or rebate in the March 2009 Statement of Account and its origins within ABCL's business was not brought about by any conduct of Concrete Supply;
(2) ABCL ignored the recommendations of internal auditors in relation to deficiencies within its credit control function;
(3) ABCL, or its parent company, ABL, maintained a practice of outstanding debtor balances being reported manually and in Excel, rather than a report generated automatically from ABCL's accounting systems;
(4) ABCL gave Ms Burgess the ability to amend credit limits within ABCL's books and records to a level which is alleged to be above the authorised credit limit Concrete Supply would require based on its average monthly purchases, even assuming trading terms were 90 days and not 30 days; and
(5) ABCL failed to review creditor ageing records that would disclose irregularities in ABCL's debtor records for Concrete Supply.
699 I have addressed a number of arguments in relation to ABCL's misleading and deceptive conduct claim on the assumption that my conclusion that Ms Burgess' knowledge of Concrete Supply's level of indebtedness is to be attributed to ABCL is wrong, with a view to addressing as many issues as is possible.
700 However, in this area, I consider that the assumptions I would need to make to determine the issue of contributory negligence mean that the process would be artificial and unhelpful and I do not propose to undertake it. I would need to assume the following: (1) that Ms Burgess' knowledge was not to be attributed to ABCL; (2) that Ms Burgess' conduct was to be left out of account because it was not pleaded that she was a concurrent wrongdoer; and (3) the assessment of contributory negligence would involve an assessment of the wrongdoing of the Concrete Supply defendants and the alleged ABCL systems failures.