Ballard v Multiplex

An outline of these reasons 19The ultimate issues in these proceedings can be stated quite simply, although at a high level of abstraction, as follows: (1) did the defendants conspire together for the predominant purpose of forcing Mr Ballard out of the demolition industry by the use of lawful or unlawful means? (2) did the defendants or any of them perform overt acts in execution of any such conspiracy? (3) did Mr Ballard suffer loss as a result of the performance of any such overt acts? (4) how should Mr Ballard be compensated for any such loss? Further, is Mr Ballard entitled to exemplary or aggravated damages in addition to compensatory damages? 20It is convenient to record at this point that, at my direction, the parties produced a consolidated statement of what they saw to be the real issues in dispute between them. That statement groups thematically the principal factual disputes in these proceedings, and raises some issues of law. On the view to which I have come, it will not be necessary to deal in any detail with many of those factual disputes. Nonetheless, to enable them to be identified, I attach as an appendix to these reasons the issues as consolidated by the parties (although shorn of the commentary which the parties attached to them). 21It may be thought surprising that so many issues of fact arise out of what is, schematically at least, the simple case summarised at [20] above. That there are so many suggested issues of fact seems to reflect the resolve of the parties (or, at least, Mr Ballard) to treat these proceedings as yet another Royal Commission of Inquiry into the Building and Construction Industry. Numerous allegations were raised that went nowhere; or that were suggested to go to credit, but proved to at most marginally relevant to the credibility of any witness. 22I do not see the role of the court as being to conduct yet another inquiry, or to write yet another report. Thus, I do not propose to deal with all those issues of fact. I propose to take what seem to me to be the crucial events, and to make findings in relation to those events. The events on which I shall focus principally (in relation to liability) are: (1) the program broadcast on A Current Affair on 13 September 1995 (the ACA broadcast); (2) the reaction of the unions and Mr Ferguson to it, including meetings of the executive committee and of organisers; (3) what is said to have been some reconciliation between Mr Ballard and the unions, and the subsequent lack of industrial disruption on Stoneglow's sites; (4) the award of the demolition subcontract for the Pitt Street Mall project and the performance of work on site; (5) the alleged conspiracy meeting and the evidence said to provide some direct corroboration of it; and (6) the acts alleged to have been performed in execution or in consequence of the conspiracy. 23Unfortunately, it is not possible (at least, having regard to the way in which the parties put their submissions) to ignore entirely all those subsidiary issues of fact that I perceive to be irrelevant or, at best, of marginal relevance. Accordingly, I will deal, as briefly as possible, with what I understand to be, in the view of one or other of the parties, the more significant of those subsidiary issues, and with the facts relevant to the limitation defence. Further and in case others should disagree with my conclusion on the liability case, I will briefly deal with the case on damages. 24I return to the overt acts. The overt acts are alleged in 2FAS, para 13: 13. Subsequently the following acts were done: (a) After August or September 1996, Multiplex cut off the income of Stoneglow, and through it the income of the plaintiff, by i. unlawfully in breach of the Pitt Street Mall Contract refusing to pay progress claims submitted by Stoneglow under and in accordance with the Pitt Street Mall Contract; ii. unlawfully in breach of the Chatswood Chase and Grace Plaza Contracts refusing to pay money due and owing to Stoneglow by Multiplex in respect of work performed by Stoneglow on the Multiplex projects at Chatswood Chase and Grace Plaza in breach of the Chatswood Chase and Grace Plaza Projects. Particulars Stoneglow's invoices in respect of the Pitt Street Mall Contract for the period after August or September 1996 were not paid. Money outstanding and due for payment in respect of the Chatswood Chase and Grace Plaza projects was not paid. (b) On or about 8 November 1996, Multiplex unlawfully in breach of the Pitt Street Mall Contract purported to terminate the Pitt Street Mall Contract, and thereafter refused to make payments under the Pitt Street Mall Contract. Particulars From on or about 8 November 1996, the plaintiff and Stoneglow's employees, contractors and agents were refused entry to the Pitt Street Mall Project site and were informed that Multiplex had terminated the Pitt Street Mall Contract. In fact there had been no termination by the first defendant. There was no notice issued or served by the first defendant. Further, the purported notice of termination of 8 November 1996 was issued, if at all, by the second defendant which was not the contracting party. Further, the notice did not specify adequately or at all any relevant default. Further, to the extent that any alleged default relied on an alleged failure by Stoneglow to perform demolition work or to pay its workers, any such failure was a product of the first defendant's own default in failing to meet its payment obligations and the first defendant was not entitled to take advantage of its own default. (c) From on or about 8 November 1996, Multiplex unlawfully in breach of the Pitt Street Mall Contract, locked the plaintiff and Stoneglow's employees, contractors and agents out of the site of the Pitt Street Mall Project such that they could not perform any services in connection with the Pitt Street Mall Contract. Particulars From on or about 8 November 1996, the plaintiff and Stoneglow's employees, contractors and agents were refused entry to the Pitt Street Mall Project site. (d) On or about 8 November 1996, Multiplex unlawfully and without authority or cause seized, and thereby took, detailed and/or converted, all of Stoneglow's plant and equipment that was then located on the Pitt Street Mall Project site, including 4 bobcats, 3 excavators, 1 caterpillar bulldozer, 2 trucks, various compressors, jackhammers, chainsaws, hoses and generators (Stoneglow's Property). (e) Thereafter, Multiplex did not enter into any contracts whereby the plaintiff, whether by himself or in connection with Stoneglow or any associated business, had the opportunity to perform demolition work for Multiplex. 25To give context to the issues of fact that I do deal with, I propose to set out, in what I hope is a non-contentious way, a summary in chronological form of relevant matters leading up to the alleged making and execution of the conspiracy, and, so far as necessary, thereafter. 26Then, but before I turn to the crucial events, I shall deal with: those issues of law that require resolution; an issue as to the application of s 55 of the Limitation Act 1969 (NSW); some arguments as to the application of the so called "Briginshaw" principle; and (to the extent necessary) the credibility of the witnesses called by the parties.

Factual background 27Mr Ballard found his way into the building industry in about the mid-1970s. He worked as a bricklayer, under the name "B & B Bricklayers", from 1977 until 1980. That led him into the demolition business. He and two friends tendered for a job at a landfill depot. The job required that two large chimneys, constructed of brick, be demolished, and that a brick pit be filled in using that rubble and other building waste, so that the site could become a park. Through that, Mr Ballard met many demolition contractors, including Mr Young. He and Mr Young decided to go into business together. They set up Stoneglow. 28According to Mr Ballard, whilst Stoneglow was operating, he spent most of his time working on demolition jobs or supervising its subcontractors. Mr Young's primary role was to negotiate contracts and carry out such administrative duties as were required. The accounting records and tax returns of Stoneglow were maintained and prepared by Mr Jack Richards (who has since died). 29The first demolition contract performed by Stoneglow was for work in connection with the refurbishment of the former Maritime Services Board building to become the Museum of Contemporary Art. Thereafter, Stoneglow carried out numerous demolition jobs, for various principals and contractors, the value of which ranged (according to Mr Ballard) from about $30,000 to about $2 million. Most of those jobs appear to have been performed in the Sydney metropolitan region. 30During 1994, Mr Ballard was diagnosed with major depression. He was admitted to Evesham Hospital and stayed there for some seven days. It will be necessary to return to some of the detail of this. 31At some time in 1995, Stoneglow obtained a contract to carry out demolition work for Thiess Constructions Pty Ltd (Thiess) at the "HMAS Waterhen" site: a Naval base on the shores of Sydney Harbour. It was when Stoneglow was performing that work (under the supervision of Mr Ballard) that some conflict occurred with the unions, which led to the recording by ACA, with the co-operation of Mr Ballard, of a confrontation between Mr Ballard and two union organisers. That confrontation featured heavily in the broadcast by ACA on 13 September 1995. Whilst it will be necessary to turn to the detail of that confrontation and the broadcast (because it is said to be the reaction of Mr Ferguson in particular, and the unions more generally, to that broadcast which was the genesis of the conspiracy), it is sufficient to note at present that the broadcast conveyed a very strong anti-union tone. Extracts from that program were rebroadcast by ACA in October and again in December 1995. 32The reactions of the unions and Mr Ferguson to the broadcast will need to be examined. It is enough to note at present that there were meetings of the NSW union's committee of management, and of the NSW union's organisers, and that Mr Ferguson signed a number of letters of complaint (and some were written for him by the NSW union's lawyers) to the producers of ACA, the reporter involved (Mr Mike Munro) and others. 33At some time in about 1995 or 1995, Stoneglow started to obtain demolition subcontracts from Multiplex. There were three such subcontracts before the Pitt Street Mall (or Sydney Central Plaza) subcontract which is central to these proceedings. They were known (and referred to in these proceedings) as: the Chatswood Chase project; the Colonnades project; and the Grace Hotel project. The Chatswood Chase project related to a shopping centre to be constructed at Chatswood. The Colonnades project related to a home unit development at Milsons Point. The Grace Hotel project related to the refurbishment of an Art Deco commercial building in the Sydney CBD for hotel and associated uses. 34There is no doubt that Stoneglow performed (or continued to perform) work on each of the Chatswood Chase and Colonnades projects after the ACA broadcast. There is no doubt that the NSW union was actually aware, through one of its organisers, Mr Jose (Mario) Barrios, that Stoneglow was carrying out work on the Colonnades project. The NSW union must have known that Stoneglow was working on the other project. 35At some time early in 1996, Stoneglow was invited to tender for the demolition subcontract for the Pitt Street Mall project. That project involved a site bounded on three sides by George and Market Streets and the Pitt Street Mall. Multiplex had entered into an agreement with the owner of the site, a company in the Coles Myer Group, for the renovation of the existing department store and the redevelopment of the site (which extended well beyond the boundaries of the Myer, formerly Grace Bros and before that Farmers, department store). 36Stoneglow submitted its tender for the work on 2 April 1996. After negotiations, that tender was revised on about 17 April 1996. The demolition subcontract was then awarded to Stoneglow. There is some controversy as to the precise date when demolition work started, but it is clear that such work had started by (at the latest) June 1996. Although the formal subcontract (between Multiplex Constructions and Stoneglow) was not signed until 12 August 1996, Mr Young had executed an acknowledgement of the award of the subcontract and of its terms before work started. It has not been suggested that the formal document eventually signed differed in any material way from the terms that had been negotiated, and that had been accepted by Mr Young. 37The work required under the demolition subcontract for the Pitt Street Mall project was divided into two stages. It was complicated and difficult work, not least because the Myer department store was to continue to operate whilst the demolition and reconstruction work was carried on around it. To facilitate that, part of the building in which the store was located was to be stripped out and demolished while trading continued in the other part. The cleared part of the building would then be fitted out so that the department store business could be moved into it. Stripping and demolition could then proceed in the other part of the building. 38The subcontract required Stoneglow to make progress claims (if it wished to be paid) by the 20th of each month, projecting work to be completed up to the 26th of that month. Multiplex was required to assess the progress claims, and to pay the amount assessed (less retention) by the end of the month following the month in which the progress claim had been made. In fact, for the progress claims that were made, Multiplex paid by instalments and much earlier than it was contractually obliged to do. Mr Ballard says that this happened pursuant to an "agreement" that he reached with Mr Ronald Murphy of Multiplex (who was the construction manager for the Sydney Central Plaza Project ) in the course of negotiations. 39Stoneglow made progress claims dated 24 July, 15 August, 10 September and 30 October 1996. The last of those claims was not given to Multiplex until 4 November 1996. By 31 October 1996, the total claimed (as then notified to Multiplex) was $1,801,000.00 and the total assessed and paid, or withheld as retention, was $1,776,000.00. Those amounts do not include the amount claimed by the last progress claim. With some exceptions, payments were made in advance of Multiplex's contractual obligations to do so, and at approximately fortnightly intervals. 40There were difficulties in the performance of the stage one demolition works, and Multiplex expressed some dissatisfaction with Stoneglow's performance. Some of those complaints were made before Multiplex and the unions are said to have entered into the alleged conspiracy. 41The conspiracy is said to have been made at a "coffee shop" meeting in late August or early September 1996. The only direct evidence that there was such a meeting comes from Mr Bates. He was then the assistant secretary of the NSW union. The other participants in the coffee shop meeting, according to Mr Bates, were Mr Ferguson, and Messrs Ross McDiven and David Higgon of Multiplex. 42The relationship between Stoneglow and Multiplex deteriorated in September 1996. One cause of that deterioration appears to have been Stoneglow's belief that Multiplex had consistently under-certified the amount due in respect of progress claims. Correspondence between the parties became more confrontational. Multiplex continued to draw to Stoneglow's attention what Multiplex said was defective, incomplete or negligent work undertaken by Stoneglow. 43Stoneglow asserts that, at a meeting held between Multiplex and Stoneglow on 22 October 1996, there was an agreement made for it to be paid, by 1 November 1996, $180,000.00. 44On 22 October 1996, direct debit payments to be made from Stoneglow's bank account for hire purchase liabilities were dishonoured. 45Stoneglow was unable to pay its workers their wages on 24 October 1996. Multiplex advanced $26,000.00 (in fact $23,400.00, with retention of $2,600.00 withheld) to enable Stoneglow to meet its wages bill. 46On 24 October 1996, Multiplex NSW wrote to Stoneglow asserting a number of deficiencies in Stoneglow's performance of its obligations under the subcontract. The letter stated that it was "issued pursuant to cl 6 of your subcontract agreement". It required Stoneglow "to show cause by October 28, 1996 as to why we should not determine your contract". 47Stoneglow had not made a progress claim in October by the required date, 20 October. Nonetheless, on 25 October 1996, Stoneglow wrote to Multiplex NSW asserting an entitlement to be paid $900,000.00 for various outstanding claims, and demanding that $600,000.00 be paid within 14 days. On 28 October 1996, there was a meeting between representatives of Stoneglow and representatives of Multiplex at which, among other things being done, it was acknowledged that no progress claim had been lodged by 20 October. 48Stoneglow was unable to pay its workers their wages on 31 October 1996. Multiplex caused a cheque to be drawn for an amount sufficient to enable wages to be paid, and (on its evidence) sought to pay that money into Stoneglow's bank account. Mr Ballard wrote to Stoneglow's bank directing it not to execute the "list pay" arrangements for Stoneglow's workers. 49Also on 31 October 1996, Stoneglow's workers went on strike, it is said because they had not been paid. There is some dispute as to the precise circumstances in which, and the reasons for which, those workers went on strike. 50On 1 November 1996, Multiplex NSW gave Stoneglow notice of default. The notice alleged that Stoneglow had not undertaken work under the subcontract in accordance with the applicable program. Further, it alleged that Stoneglow's failure to pay its workers was a breach of a specified clause of the subcontract. 51Stoneglow wrote to Multiplex NSW on 3 November 1996 alleging that Multiplex had breached the subcontract, and purporting to suspend the works "until you desist from such breach". The letter made demand for payment of "an appropriate amount". 52On 6 November 1996, Stoneglow sent a fax to Mr John Singleton. Mr Ballard had been acquainted with Mr Singleton, and accepted that he and Mr Singleton were friends. In the fax, which was sent over Mr Ballard's name, the following assertions were made: Multiplex are withholding cashflow, as they are saying, because I haven't provided proper paperwork. This is mostly true. However there are side agreements to pay every two weeks which they have been doing but have now withdrawn. I am currently owed $610,000.00 on contract work alone on Sydney Central Plaza and approximately $200,000.00 for additional variations and in excess of $200,000.00 for contractual claims. Further I am owed approximately $150,000.00 on the other two jobs including retention and variations. Multiplex have been paying me every two weeks but have now turned off the tap. I cannot pay suppliers and sub-contractors and am not prepared to risk my personal assets as Multiplex try to send me bankrupt so they can get in front by $1 Million on this job. Multiplex agreed with my partner Barry Young to pay a cheque on Chatswood Chase in the amount of $132,000.00 last Friday. The cheque was not received. Raymond Yeo and Bob Downes of Multiplex agreed with Barry to pay $180,000.00 by last Friday if he agreed to move the value of Stage 2 from $1.2 Million to $1.6 Million in return for the payment of $180,000.00. This is extortion and commercial blackmail. Neither the $132,000.00 nor the $180,000.00 was received. Multiplex would appear to be getting ready to terminate my contract and unjustly enrich themselves at my expense and sink all my subcontract truck drivers, suppliers and my employees. In discussions with Ron Murphy of Multiplex he has not said what the real reason for non payment is and I don't trust him because he is not forthright. The men on site are in support of my position and have stopped work in protest at my not having received payment. The Unions have been contacted but don't want to get involved on the basis that they say it is essentially a contractual dispute between Multiplex and my company Stoneglow Pty Ltd. Multiplex brought in a scab contractor to do our work last Thursday night but that has been stopped. The only reason that the job is not progressing is because I haven't been paid. 53Passing over numerous letters, meetings and other events, on 8 November 1996 Multiplex NSW wrote to Stoneglow giving notice that the subcontract was terminated as a result of Stoneglow's (alleged) breaches. On the same date, Multiplex terminated the subcontract for Chatswood Chase. Stoneglow and its workers were locked out of the Pitt Street Mall site. Stoneglow's equipment was impounded within the site. Multiplex asserted that it had a contractual right to do this. 54The parties attempted to resolve their disputes. They were not successful. Multiplex made payments on account of Stoneglow's liabilities for its workers' wages and (ultimately) for amounts owing by Stoneglow to some subcontractors and others. 55In around late 1996 or early 1997, Multiplex considered funding Mr Ballard to start up a new demolition business. That proposal went nowhere. Mr Ballard relies on this incident also as a manifestation of the execution of the conspiracy. 56Stoneglow went into administration on 18 February 1997. A report as to affairs (RATA) signed by Mr Ballard stated that Stoneglow had debts, at that date, in excess of $970,000.00. 57On 17 March 1997, Stoneglow's creditors resolved to wind it up. The administrator (Mr John Vouris) was appointed as liquidator. 58On 10 August 1998, Stoneglow (by the liquidator) and Multiplex entered into a deed of release. Mr Ballard was not a party to that deed. 59On 26 April 2005, the prominent Sydney identity Mr James W (Jim) Byrnes wrote, purportedly on behalf of Mr Ballard, to a partner of Clayton Utz. That firm was then (and in these proceedings is) acting for Multiplex. That letter (the Byrnes letter) made the interesting observation that Mr Ballard (who was referred to as "Sharkie Raymond") "much like myself, is a person seen by others to be a person capable of bringing about sufficient pressure to resolve ... disputes, and so other people will gravitate to him for assistance, and there are a number of other creditors 'coming out of the woodwork' who are alleging both mistreatment and fraud on the part of Multiplex". 60The letter suggested, in no uncertain terms, that Multiplex and its officers had been guilty of fraudulent and criminal conduct in the treatment of Stoneglow. It threatened exposure in the press, "significant embarrassment", "criminal charges" and "major inquiries". It also contained a statement that Mr Byrnes, through companies controlled by him, proposed "to start short-selling the stock [in Multiplex]", and accordingly suggested "that it is appropriate that you prepare the relevant notice to the exchange, properly advising the market" of various things. 61Following these less than subtle threats, the letter concluded: On the off-chance that you would like to reconsider and get very serious about settling with Ballard, Byrnes and Widdup, my mobile phone number is... . The above should not [sic] interpreted as demanding money with menace. I either want to settle things and move on... . But I do not wish to breach any ASIC or ASX regulations, hence my request. Settle or don't settle. Just let me know the company's intentions. 62On 11 September 2007, an article headed "Wrecking Ball" appeared in the Bulletin magazine. That article referred to Mr Ballard's boxing history, and then to his "beef with Multiplex" arising from the claim that "he was never fully paid for the Pitt Street Mall job". The article noted that "a retired Multiplex director and a former senior official of the CFMEU have come forward to blow the whistle on how Ballard's business was destroyed over his refusal to allow union members he employed to take part in a strike on another site." It seems to be clear that the reporter, Mr Adam Walters, based the article at least in part on interviews with Mr Ballard and Mr Ian Widdup (the "retired Multiplex director"), and on an interview given, and affidavit made, by Mr Bates. 63These proceedings were commenced by the filing of the summons on 23 November 2007 - about six weeks after the Wrecking Ball article was published.

Elements of the tort of conspiracy 64Counsel in their submissions referred to numerous cases. It is not necessary to go to all of those cases. For present purposes, it is sufficient to refer to two decisions of the High Court of Australia: (1) McKernan v Fraser (1931) 46 CLR 343; and (2) Williams v Hursey (1959) 103 CLR 30. From those cases, the following principles may be deduced. 65At common law, the parties to an agreement may incur civil liability to a third party if by their agreement they "combine" for the purpose of causing harm to that third party; if they execute their agreement by the performance of overt acts; and if thereby the third party does suffer harm. 66An actionable conspiracy may be one to be performed by legal or by illegal acts. In the first category, it must be the sole or predominant purpose of the conspiracy to cause harm to the third party. In the second category, it must be a purpose of the conspiracy to cause harm to the third party. To prove the (or a) purpose of a conspiracy, it must be shown either that the parties agreed on that purpose or that one party, having that purpose, made it known to the other or others, and that the other or others, having that knowledge, joined or continued with or performed the conspiracy. 67The purpose of a conspiracy (or combination) is not necessarily to be identified with its immediate result. For example, merchants may combine for the purpose of enhancing their business and profits. The inevitable result of that combination may be that a competitor is ruined. Indeed, the ruin of a competitor may be the means by which they intend to achieve their purpose. But the law seems to recognise that such a combination would not be actionable (leaving aside, of course, any statutory prohibitions), because the purpose was lawful even though both the result and the means to the achievement of that purpose was the ruin of a competitor. See Mogul Steamship Co v McGregor Gow & Co [1892] AC 25. 68As Viscount Simon LC put it in Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435 at 445, "the test is not what is the natural result to the plaintiffs of such combined action, or what is the resulting damage which the defendants realise or should realise will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It is not consequence that matters, but purpose...". 69Evatt J considered the question of intent, or purpose, at some length in McKernan. At 390, his Honour enquired "[w]hat is the test for ascertaining the "motive" of a combination which inflicts injury upon a plaintiff?". At 397, his Honour referred to the judgment of Cardozo CJ in Nann v Raimist (1931) 255 NY 307 at 319. Evatt J said, of the phrase "disinterested malevolence" used by Cardozo CJ, that it "is valuable as pointing to malice which is irrelevant to any trade, professional or union interest possessed by the defendants". 70At 399-400, Evatt J differentiated between the immediate purpose of a combination and the ultimate object or motive of the combiners. His Honour said: I. Where the agreement to cause damage or loss is made solely with the object or motive of causing such damage. ... II. Where the agreement to cause damage or loss is made, all the parties seeking to carry out some object or satisfy some motive, beyond the mere infliction of damage. This case assumes the existence of a similar object or motive in all the parties to the agreement. III. Where the agreement to cause damage or loss is made, each one of the parties seeking to carry out some object or satisfy some motive beyond the mere infliction of damage, but one or more acting solely from on object or motive, others acting solely from a different object or motive, and others still, acting from more than one object or motive. ... ... I am assuming that the defendants have combined to do certain acts which must necessarily cause temporal harm or injury to a plaintiff or a class of which the plaintiff is one. I have also assumed that the harm to the plaintiff is 'intended' by all parties to the agreement. The infliction of such harm may also be called their 'object' or 'purpose.' Each of these two words indicates the conscious pursuit of some end or goal, or the presentation to the actors of such end or goal as a desirable thing. It may be more accurate to call the immediate end or goal the 'purpose' of the combination and the ultimate end or goal sought, the 'object' of the person who enters the combination. If each party has the same ultimate 'object,' that is also the 'object' of the combination. In this sense, the 'object' desired by each and all, is also the 'motive,' both of each individual and of the combination. It may be that the 'intention' or immediate 'purpose' of the persons combined is to inflict harm, but their 'motive' or ultimate 'object' is the furtherance of their trade interests. It may be, on the contrary, that the 'motive' or ultimate 'object' beyond the immediate 'purpose' or 'intention of the combination, is to do harm because the plaintiff is hated for some personal reason and his harm or ruin is desired as an end to be achieved by means of inflicting harm upon him. 71At 403, Evatt J referred to the need to ascertain "the predominant motive or object of the defendants" (that is, in his Honour's terms, the ultimate object rather than the immediate purpose). His Honour said: 'You must consider whether the act or acts complained of which caused loss and hurt to the plaintiff were done with the purpose of injuring the plaintiff. Was such a purpose the real·root of the acts that grew from it, or was the true motive of the acts something else, such as, for instance, the furtherance of the defendant's own business?' (per Lord Dunedin in Sarrell v. Smith (1925) AC at p 717). ... the question is approached by asking whether the predominant motive or object of the defendants is to protect or defend their association, trade or professional interests; any proved hostility or dislike to the plaintiff must be further analyzed, in order to ascertain whether it is a motive related to a clash of economic or professional interests and arises from strong opinions as to the plaintiff's own conduct in relation thereto; whether, on the other hand, the hostility or dislike is not a result of the feelings and attachments of the defendants to the economic and professional interests which they allege they are advancing or defending, but has its true source in personal hatred or bitterness. 72At 407 - 408, Evatt J made the point that the motives of one of a number of "conspirators" will not necessarily convert the combination into an unlawful conspiracy: Where two or more persons are proved to have jointly committed a tort, their liability is joint and several, and each is liable for the entire amount of damages sustained. And, if action is brought against several persons in respect of a tort said to be committed jointly, but the facts show that one only is a tortfeasor, a verdict and judgment may be recovered against him alone for the whole damage sustained by the plaintiff. But, in a case of civil conspiracy against A and B for damage caused by the carrying out of an agreement between them, it is not possible (except in the rare instances where evidence admissible against one party only, authorizes a finding to be made against him alone) to adjudge that A conspired with B, but that B did not conspire 'with A. As a general rule, unless both are liable, neither is liable. ... When, therefore, McCardie J. says that 'the proved malice of one or more may be attributed to the other participants in the combination', the authorities cited do not bear out the general statement, and principle is not consistent with the application of the statement to the tort of conspiracy to injure. The question is always-what has been agreed upon ?-what is the nature of the combination ?-it must be possible to say of the combination as such that it is of a 'malicious' character. I do not see how malice is imputable to all participators in a design merely because it exists in one. The existence of a common purpose gives no authority to every party to it, to act as he thinks best on behalf of the other parties, for the attainment of the common purpose. If an agreement or a common design is proved, each participant is the authorized agent of the others for the purpose of carrying out what is the design or agreement, but not otherwise. I am of opinion that, if a number of traders or professional men or members of a trade union agree to do acts which must cause harm or damage to A, the fact that the sole motive of one member of the combination is a purely personal hatred of A and a desire for his ruin as an end in itself, does not convert such combination into an unlawful conspiracy. No doubt, overt acts or words indicating such personal malice may be of such frequent occurrence in and about the execution of the common agreement, and so well known to and accepted by all participators in it, as to furnish some evidence of the malicious nature of the whole combination. But acts or words indicating malice in one or two or more, are merely evidentiary, in order to prove the general motive or object. The evil motive proved to exist in one or two or more is not imputable to the other members of the combination. Each party is the agent of the others, only for the purpose of carrying out the agreed plan. If the plan is imbued with personal spite against a plaintiff, the nature or quality of the agreement may be termed 'malicious'. If there is an agreement to perform acts to A's detriment, and the motives of some participators are merely to protect or advance their professional organization or their trading interests or their trade union, the additional fact that one or more other participators are not really pursuing such objects or motives, but merely desire to satisfy their personal hatred, does not give a different quality to the agreement. In short, such hatred or grudge does not, on any principle of law, become a motive imputable to those who are either unaware of it, or who, being aware of it, condemn. 73At 409, Evatt J stated the result of the application of the principles to the facts under consideration in that case. His Honour's analysis is important as showing the need for a "bad motive" to be shared: ... there cannot be a finding that McKernan was a party to an executed conspiracy or agreement to injure, even if he himself was actuated by a purely personal grudge. Allen v. Flood (1898) AC 1 shows that his own bad motives cannot affect the lawfulness of what he did, considered merely as personal action. If the bad motives of McKernan in doing certain lawful acts, do not affect the lawfulness of his conduct, the further fact that his conduct was in pursuance of a combination to which others without bad motives were also parties, does not make McKernan liable for the tort of conspiracy to injure, unless the others are equally liable with him. Their good motives make it impossible to predicate of the combination that it was an agreement entered into for the purpose of satisfying personal malice. Assuming an agreement of the parties to induce the shipping companies not to employ Fraser or Stapleton, it was not an agreement characterized by personal malevolence. The greasers did not know of, much less approve or share, such malevolence. 74To similar effect, Evatt J stated at 410 that "the proof of personal malice on the part of some members of the association will not show that the ultimate object or motive of the members combining is malicious. Usually it will show that the common object is not malicious" (his Honour's emphasis). 75I have referred at length to the judgment of Evatt J in McKernan because it contains a detailed analysis of "purpose" or "motive". I note that, in Cox v Journeaux (1935) 52 CLR 713, Dixon J referred to the "full examination" of the civil cause of action for conspiracy in McKernan and, and in particular to the judgment of Evatt J in that case at 399 and following. However, the judgment of Dixon J in McKernan (a judgment with which Rich and McTiernan JJ agreed) also deals with the question of purpose. At 361 - 362, Dixon J referred to the need to find an intention to harm, and to the distinction between consequence and purpose. His Honour said: ... the cause of action in conspiracy was also supported upon the ground that the appellant was party to a combination which had for its object the wilful infliction of damage upon the respondents. This assumes that the end is not in itself unlawful, that the means are not unlawful, and that no threat of an illegality is made in furtherance of the combination. It appears now to be settled that, for a combination or acts done in furtherance of the combination to be actionable in such circumstances, the parties to the alleged conspiracy must have been impelled to combine, and to act in pursuance of the combination, by a desire to harm the plaintiff, and that this must have been the sole, the true, or the dominating, or main purpose of their conspiracy. ... To adopt a course which necessarily interferes with the plaintiff in the exercise of his calling, and thus injures him, is not enough. Nor is it enough that this result should be intended if the motive which actuates the defendants is not the desire to inflict injury but that of compelling the plaintiff to act in a way required for the advancement or for the defence of the defendants' trade or vocational interests. ... what actuated the meetings of the Branch and the appellant in pursuing the policy which the Branch adopted and he probably advocated, was the desire and the purpose of compelling the promoters of the rival Union to desist from the project by depriving them of employment and making manifest to their followers the unwisdom of adhering to them. ... I think the cause of action in conspiracy was not established. 76Of course, in the passages which I have quoted at some length, the courts were talking of the civil action for conspiracy to cause harm by lawful means. Mr Ballard relies also on the tort of conspiracy to cause harm by unlawful means. To make good that case, Mr Ballard must show that the means employed to execute the conspiracy were unlawful. However, he does not need to show that the sole or predominant motive of the conspirators to cause him harm. It is sufficient if he proves that this was one of their motives.

Other causes of action Wrongful interference with trade or business 77Mr Ballard also asserted, against each of Multiplex and the unions, a claim based on the tort of wrongful interference with trade or business. That was one of the causes of action alleged in Sanders v Snell (1998) 196 CLR 329. The majority in that case (Gleeson CJ, Gaudron, Kirby and Hayne JJ) said at [30] that it was not "necessary to decide in this case whether a tort of interference with trade or business interests by an unlawful act should be recognised in Australia". 78The tort was recognised by the House of Lords in OBG Limited v Allan [2008] 1 AC 1. In that case, Lord Hoffman said at [47] that the essence of the tort of wrongful interference with trade or business was: (1) wrongful interference with the actions of a third party in which the claimant has an economic interest; coupled with (2) an intention thereby to cause loss to the claimant. 79It is clear that by "wrongful interference", his Lordship was referring to "unlawful acts": see, for example, at [49]. In that paragraph, his Lordship said that with one qualification, acts against a third party would count as unlawful only if they were actionable by that third party. The qualification was that they would also be unlawful if the only reason why they were not actionable was because the third party had suffered no loss. 80Lord Walker of Gestingthorpe and Baroness Hale of Richmond agreed with Lord Hoffman. So, too, did Lord Brown of Eaton - under - Heywood. His Lordship said at [320] that the unlawfulness must be vis a vis the third party, the claimant: ...the unlawfulness is that of the defendant towards the third party and the defendant's conduct must be such as would be actionable at the suit of the third party had he suffered loss. 81The tort of unlawful interference with trade or business was considered by the Court of Appeal of Queensland in Deepcliff Pty Ltd v The Council of the City of Gold Coast [2001] QCA 342. McMurdo P, after referring to the decision in Sanders, proceeded by "accepting for present purposes that the tort is recognised in Australia". I do not understand her Honour to have decided that it is, or should be. What her Honour said was an introduction to pointing out that the unlawful act must be one that is forbidden by law. It was not sufficient to point to an act that was unauthorised only because it was beyond power and void. In her Honour's view, there was no relevantly unlawful act. On that basis, even if the tort existed, it had not been made out on the facts of that case. 82In the same case, Williams JA considered the tort at [72] and following. Having referred to the decision in Sanders, his Honour said that "in the light of the reasoning of the High Court ... it is not for this court, in my view, to hold that such a tort to does exist in Australian law". 83The third member of the court, Helman J, agreed with both McMurdo P and Williams JA. 84In Qantas Airways Ltd v Transport Workers Union of Australia [2011] FCA 470, Moore J considered the tort of unlawful interference with trade or business at [422] to [430]. Having referred to, among other things, the decision of the High Court in Sanders, the decision of the Queensland Court of Appeal in Deepcliff, and the decision of the House of Lords in OBG, his Honour concluded at [430] that it would be inappropriate for him, as a trial judge, "to take the step of deciding the tort exists". His Honour did so by reference to the principles stated by the High Court in Farah Constructions Pty Ltd v Say - Dee Pty Ltd (2007) 230 CLR 89, in particular at [135]. 85I propose to adopt the approach taken by Moore J, and to do so notwithstanding the decision in OBG. Intimidation 86Mr Ballard also asserted, against the unions and Mr Ferguson, the tort of intimidation. He pleaded threats by them that if Multiplex did not comply with the alleged requirement of the unions and Mr Ferguson that it turn Stoneglow off the Sydney Central Plaza Project, and not give it or Mr Ballard any further work, the unions "would procure or engage in industrial action on building and construction sites on which Multiplex was engaged as a builder". See para 26 of the contentions set out in the second further amended summons (2 FAS), which paragraph picks up the "Threat" alleged in para 10(a). 87There is an immediate problem with the pleading of the "Threat". It is clear that the threat must be such as to constitute "unlawful means". See Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844 at [100]; Jack Brabham Engines Ltd v Beare [2010] FCA 872 at [303], [304]. But not all industrial action is (or in August 1996 was) unlawful. As a matter of pleading, Mr Ballard seeks to circumvent that problem by asserting that the Threat was unlawful because it was one to induce, procure or engage in unlawful industrial action, and for other reasons. That characterisation of the Threat (2FAS para 26), does not sit easily with the way that it is described (and the description is the source of the defined term) in 2FAS para 10(a). However, it is unnecessary to pursue this question. 88Be all that as it may, the elements of the tort of intimidation are clear: (1) the defendant must threaten to use unlawful means to compel the person threatened to obey the defendant's demand; (2) the person threatened must comply with that demand; (3) the plaintiff must suffer damage as a consequence of that compliance; and (4) the defendant must have acted with the intention of harming the plaintiff. See Jack Brabham at [303].

Fraudulent concealment: s 55 of the Limitation Act 89The defendants relied on a limitation defence. On the face of things, that defence would be made good. Mr Ballard's causes of action accrued, at the latest, early in 1997. The proceedings were not commenced until 10 years later. 90To answer this, Mr Ballard called in aid s 55(1) of the Limitation Act. That section reads as follows: 55 Fraud and deceit (1) Subject to subsection (3) where: (a) there is a cause of action based on fraud or deceit, or (b) a cause of action or the identity of a person against whom a cause of action lies is fraudulently concealed, the time which elapses after a limitation period fixed by or under this Act for the cause of action commences to run and before the date on which a person having (either solely or with other persons) the cause of action first discovers, or may with reasonable diligence discover, the fraud deceit or concealment, as the case may be, does not count in the reckoning of the limitation period for an action on the cause of action by the person or by a person claiming through the person against a person answerable for the fraud deceit or concealment. 91Mr Ballard asserted that: (1) the defendants fraudulently concealed from him the causes of action that he had against them; and (2) he first discovered that fraudulent concealment in 2007 (or 2006). 92The defendants submitted that I should not be satisfied that Mr Ballard had proved, on the balance of probabilities, that he first discovered the fraudulent concealment in 2006 or 2007. It will be necessary to return to that issue of fact. However, Multiplex submitted (and the unions and Mr Ferguson adopted the submission) that Mr Ballard was required to prove when, with reasonable diligence, he might have discovered the fraudulent concealment, and that he had not done so. Mr Bannon submitted, I think, that Mr Ballard was required to prove only when in fact he first discovered the fraudulent concealment; if the defendants wished to submit that he might have discovered it earlier through the exercise of reasonable diligence, that was for them to plead and show. 93Section 55(1) applies where, among other things, a cause of action against a person is fraudulently concealed. Where there is such fraudulent concealment, time elapsing (in effect) from accrual of the cause of action does not count, in the reckoning of the limitation period. However, that suspensory effect is not permanent or eternal. Time does not count until "the date on which [the] person having ... the cause of action first discovers, or may with reasonable diligence discover, the ... concealment". 94The obvious meaning of s 55(1) is that the suspensory effect for which it provides expires upon the first to happen of one of two things. The first is the time when the person having the cause of action first discovers the fraudulent concealment. The second is the time when that person, acting with reasonable diligence, might have discovered the fraudulent concealment. For convenience, I will refer to the first of those alternatives as "actual discovery", and to the second as "notional discovery". 95A plaintiff who wishes to take advantage of s 55(1) must plead and prove the facts that enliven its operation. In my view, simply as a matter of construction and evidentiary onus, that plaintiff must prove the duration of the suspensory period. That requires, in turn, that the plaintiff prove the first to occur of the two possible events that will bring to an end the suspensory period. 96Counsel were not able to refer to any decision in Australia that dealt with this question. However, Mr Pike (who dealt with this aspect of the submissions for Multiplex) relied on the decision of the English Court of Appeal in Paragon Finance plc v DB Thakerar and Co [1999] 1 All ER 400. One of the issues in that case was whether a limitation period had been postponed because of fraud, concealment or mistake. That issue arose under s 32 of the Limitation Act 1980 (UK). That section reads, so far is it is relevant: 32 Postponement of limitation period in case of fraud, concealment or mistake.E+W (1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either- (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent. ... 97It will be seen that the wording of s 32(1) of the English Act (as I shall call it) is similar, but not identical, to the wording of s 55(1) of the NSW Act. 98Each section achieves the effect, in the case of fraudulent concealment of a cause of action, that the time elapsing between accrual of that cause of action and the time when it is actually or notionally discovered is not taken into account for the purposes of any relevant limitation period. However, they do so by different means. Section 55 starts with the proposition that time commences to run, but achieves its effect by providing that the time between accrual of the cause of action and the time of actual or notional discovery does not count in reckoning the limitation period. Perhaps more simply, s 32(1) provides that time does not begin to run until the time of actual or notional discovery. 99It does not seem to me that this difference in drafting approach has any relevance to the question of onus. 100Further, s 55(1) refers, in the case of notional discovery, to the time when the proposed plaintiff "may with reasonable diligence discover" the fraudulent concealment. Section 32(1) refers to the time when the proposed plaintiff "could with reasonable diligence have discovered" that fraudulent concealment. 101Again, I do think that anything of present significance turns on this linguistic distinction. 102In each case, I think, the approach is the same. There is either a negation of time that in fact has run, or a postponement of the moment in time from which a limitation period begins to run, until either actual or notional discovery of the fraudulent concealment occurs. In each case, I think, it is clear as a matter of drafting, particularly taking into account both the purposes of limitation statutes in general and the purpose of postponement of the bar in the case of fraudulent concealment in particular, that it is the first of actual or notional discovery that has the effect of causing time to begin to run (s 32) or the equivalent effect under s 55. 103Thus, it must be for the plaintiff to prove the first of actual discovery or notional discovery, so as to show that he or she commenced his action within the requisite period after the first to occur of those events. 104Paragon Finance was a case of fraud, brought by a lender against solicitors who had acted for it in a lending transaction, and who were alleged to have acted fraudulently in a manner which was not known to the plaintiff. The plaintiff was confronted by a limitation defence. It relied on s 32(1) of the English Act. The primary judge concluded that the plaintiff had not actually discovered the fraud at any material time. Further, the plaintiff submitted and the primary judge accepted, it had acted reasonably at all relevant times in pursuing recovery actions against the debtors rather than a claim against its former solicitors. 105Millet LJ (with whom May LJ agreed and with whom, on this point, Pill LJ also agreed) said at 418 that the plaintiffs' submission was "misconceived". His Lordship said: The question is not whether the plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take. In this context the length of the applicable period of limitation is irrelevant. In the course of argument May LJ observed that reasonable diligence must be measured against some standard... he suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and were motored by a reasonable but not excessive sense of urgency. I respectfully agree. (His Lordship's emphasis.) 106In my view, his Lordship's reasons show, at least for the purposes of s 32(1), that the plaintiff must not only prove actual discovery but must also negative the possibility of earlier notional discovery (or at least, earlier notional discovery at a time that would be too early to rebut the limitation defence). To discharge the latter requirement, the plaintiff must show that, without taking unreasonable or exceptional measures, it could not have discovered the fraud earlier than it did. 107In my view, that is the approach to be taken to s 55(1). Of course, there will be cases where it is only actual discovery that is in issue. But where there are facts raising the issue of earlier notional discovery, the plaintiff bears the onus of proving that there was no earlier (or relevantly earlier) notional discovery. In other words, the plaintiff bears the onus of proving that it could not reasonably have discovered the fraudulent concealment of the cause of action earlier than in fact it did.

Approach to assessment of the evidence; the "Briginshaw standard" Approach to assessment of credibility 108Each side (for present purposes, regarding all the defendants as one "side") launched a sustained and fierce attack, both in cross-examination and in submissions, on the witnesses called by the other. That is hardly surprising, since resolution of the contested issues of fact depends on an analysis of the conflicting testimony (informed, where possible, by reference to contemporaneous documents and considerations of objective probability). That exercise in turn requires some analysis to be made of the credibility of the witnesses whose testimony is in conflict. 109I start by saying that, to the extent that counsel made reference to the appearance presented in the witness box by particular witnesses (no doubt, at a time when it was thought that the written submissions would be considered by Smart AJ), those submissions must be put to one side. 110Nonetheless, the court is required to look at the evidence (in affidavit and, either in chief or cross-examination, in oral form) and to attempt to make some assessment of the credibility of, at least, the principal witnesses. 111For the defendants, Dr Bell and Mr Oslington made detailed submissions on the credibility of virtually every witness called for Mr Ballard (including, of course, Mr Ballard himself). The approach taken was to analyse the evidence of each witness in detail, looking for inconsistencies, conceded mistakes (or in some cases false statements) and all the other matters generally, and properly, taken to be indicia of credibility. Mr Bannon submitted that this was not the appropriate way to approach the assessment of credibility (although, perhaps inconsistently with that submission, he undertook precisely the same exercise in his own submissions on the credibility of the defendants' witnesses). 112Mr Bannon submitted that the credibility of witnesses was to be assessed in the context of the evidence overall. He said (PSR paras 44 to 46): In their submissions, the defendants seek to deal with the issue of the credibility of the witnesses of the plaintiff in a similar manner to that in which the defendants have sought to analyse the elements of the direct and circumstantial case put forward by the plaintiff. The defendants have separately examined the credit of each of the witnesses of the plaintiff, invariably leading to the same asserted conclusion in respect of each witness - that is, to the asserted conclusion that each witness of the plaintiff is not credible and that the evidence of each such witness must be rejected, effectively ad seriatim. In a matter such as this, where there are numerous pieces of direct and indirect evidence touching upon the primary issue (the existence of the alleged conspiracy), the credibility of any one witness does not stand alone as a discrete consideration. The credibility of any witness who gave evidence going to the primary issue, at least to some extent, is interdependent upon the evidence of the other witnesses who gave evidence on the issue, and also upon the other circumstantial evidence relevant to the issue. The credibility of the evidence going to the primary issue of any witness in this matter must be assessed against the full matrix of the evidence going to the primary issue. Because of this, the credibility of the witnesses in this matter is not amenable to discrete, witness-by-witness analysis, with the drawing of conclusions as to the acceptability of the evidence of each witness at the end of analysis of the evidence of each witness. As with the principled examination of circumstantial evidence, no final conclusion about the credibility of any of the witnesses can properly be made until the end of the process of examination of all the evidence. Of course, this is not to say that no regard should be given to particular credit issues in relation to particular witnesses. 113I accept, of course, that an assessment of the credibility of any particular witness must take into account the extent to which the testimony of that witness is, or is not, conformable to other evidence in the case: particularly where that evidence comprises contemporaneous documents unlikely to have been prepared in an atmosphere that might lead to some partisan or partial statement of the relevant facts, or where that evidence appears, for a variety of reasons, to be credible. To take an example from this case: the evidence of Mr Bates (which, as I shall show, must be regarded as untrustworthy, having regard to admissions as to dishonest, discreditable and corrupt conduct in which he engaged and to admissions of serial perjury) may, nonetheless, find corroboration in other parts of the evidence, such as that of Mr Len Anthony. 114However, that does not mean that the evidence of each witness should not be assessed, on its own merits, for credibility. It means, at most, that in assessing the credibility of any particular part of the evidence, due regard must be paid to the extent to which it is conformable to, or corroborated by, other parts of the evidence. 115Further, I think, Mr Bannon's reliance on the principles relating to the assessment of a case based on circumstantial evidence is misplaced. Those principles were considered by the Court of Appeal of the Supreme Court of Victoria in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125. In that case, the plaintiff (respondent in the Court of Appeal) suffered loss when his house was severely damaged by fire. He claimed against a policy issued by the defendant (appellant in the Court of Appeal). The defendant asserted that the plaintiff had deliberately lit the fire. There was, as the headnote correctly recites, "a large body of circumstantial evidence" that he had done so. Nonetheless, the trial judge found for the plaintiff. 116The ultimate fact to be found (of course, on the balance of probabilities) was whether the plaintiff had deliberately started the fire. The trial judge considered each part of the circumstantial case relied upon by the defendant, and concluded that it did not satisfy him that the plaintiff had deliberately started the fire. As Winneke P explained at 128 and following, that approach was erroneous because the trial judge "denied himself... the full benefit of the evidentiary impact of the combined weight of all the intermediary facts when considered as a united force". 117Further, as Winneke P explained at 129, the task of the court is: ... to consider the weight of the combination of facts proved... and then to determine whether the combined weight of those facts and circumstances supported the inference, as a matter of probability, that the respondent lit the fire. The onus of proof is only to be applied at the final stage of the reasoning process. It is, erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. ... In the present case, even though the ultimate fact to be proved involved the commission of a criminal offence, the standard of proof which the learned judge was bound to apply "at the final stage of the process" [a reference to the judgment of the Court of Criminal Appeal of South Australia in R v Van Beelen (1973) 46 SASR 353 at 374] was the civil standard. The application of that standard required him, at the end of the day, to determine whether the various facts and circumstances which he had found, or accepted, raised the inference, on the balance of probabilities, that the respondent had lit the fire. 118If the facts which are found to have been proved, when viewed in combination, are capable of raising the inference on the appropriate standard then, in considering whether to find accordingly, the court may take into account, among other things, the failure of the party against whom the inference may be drawn to call evidence on the point which it was within the power of that party to call: Jones v Dunkel (1959) 101 CLR 298. Winneke P made this point at 131, and Tadgell JA made the same point at 138 - 141. That seems to me to be a particular application of the general principle stated by Lord Mansfield CJ in Blatch v Archer (1744) 1 Cowp 63 at 64; 98 ER 969 at 970, that evidence is to be weighed "according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted". 119In my view, the judgments in Transport Industries set out clearly and appropriately the task of the court in considering a case built on circumstantial evidence. Those principles do not support the position for which Mr Bannon contended. As the judgment of Winneke P in particular makes clear, the court is required to consider each piece of circumstantial evidence, or "intermediary fact", on which the party propounding the circumstantial case relies, and to consider whether the particular intermediary fact is proved to the satisfaction of the court. Once that task is completed, the court is required to analyse the proved facts as a whole, and to consider whether, on the appropriate standard of proof, they raise the inference that is the subject of contention. 120Applying those observations to the present case, the court is required to assess the evidence relating to the conspiracy, or coffee shop, meeting, and to consider whether that evidence, considered in the context of the evidence as a whole, should be taken to prove, on the balance of probabilities, that the meeting occurred, and that at the meeting words substantially to the effect of those said by Mr Bates to have been uttered, were uttered. In undertaking that process the court necessarily must consider the credibility of the competing accounts. As I have now said more than once, in doing so the court must take into account the extent to which those competing accounts are or are not consistent with other (acceptable) evidence. But it cannot defer resolution of the question of credibility until all the facts have been found; that process is at best circular. No purely circumstantial case alleged 121Further, to the extent that a party relies on a circumstantial case, the task of the court is to find which of the "intermediary facts" relied upon are proved, and then to consider whether those facts, in combination, assist in proving the conspiracy on the civil onus. Those of course are the facts that may be taken into account in assessing the credibility of the individual witnesses; but that assessment must necessarily be made (so that findings of primary fact can be made) before the ultimate question is decided. 122In this context, I should note that in the course of submissions, Mr Bannon accepted that he could not make out a conspiracy purely on circumstantial evidence. That is to say, he accepted that if I were to find, against his client's case, that the coffee shop meeting did not occur, or that the words said to have been used were not said, then his client could not succeed on the conspiracy case. See T 5017.35-5019.41. See, too, PSR para 17, where it is submitted, among other things, that "acceptance of the evidence in support of the claim on conspiracy, involves acceptance of the evidence of Mr Bates in relation to the coffee shop meeting and the evidence of Mr Anthony in relation to his meeting with Mr Ferguson and Mr Sharkey". Whilst I think that this submission was directed to a different purpose, nonetheless it reinforces the inextricable link between the credibility of Mr Bates (and Mr Anthony) and acceptance of the conspiracy case. The "Briginshaw standard" 123At common law, the standard of proof required of a party who bears the onus in civil litigation is proof on the balance of probabilities. See Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170. That position is reflected in s 140 of the Evidence Act 1995 (NSW) 124As McLelland CJ in Eq pointed out in Watson v Foxman (2000) 49 NSWLR 315 at 319 (speaking in the context of a cause of action based on misleading or deceptive conduct, but nothing turns on this): 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... obtained or established independently of the nature and consequences 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"...". 125The quotations in that passage come from Helton v Allen (1940) 63 CLR 691 at 692. 126In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, speaking with the concurrence of McColl and Bell JJA, I expressed the view at [44] to [52] that proof on the balance of probabilities required: (1) a feeling of actual persuasion; (2) that the event in question was more likely than not to have occurred; (3) "with a probability in excess of 50%". I remain of that view. 127Is the onus of proof in civil litigation any different where the fact to be proved involves criminal conduct or fraud, or (more generally) serious misconduct? The answer is "no". That follows from s 140 of the Evidence Act. At common law, the standard of proof remained the civil standard, as the majority in Neat Holdings made clear at 171. Their Honours said that statements of a requirement for "clear" or "cogent" (or even "strict") proof were not directed to the standard of proof, but: ... should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct... and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. 128Dixon J had made this point with clarity in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (cited with approval in Helton at 711): The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from the particular finding are considerations which must affect the answer to the question whether the issue has been proved... 129In this case, many of the allegations made do involve serious misconduct; in some cases, criminal conduct. To the extent that it is necessary to consider whether those allegations are made out, I proceed on the basis that I must feel a sense of actual persuasion, on the balance of probabilities; and that, in considering the evidence, I should take into account the serious quality of the allegations made and the consequences that might follow from a finding that the conduct was engaged in. To my mind, analysis that goes beyond the statutory test may well confuse rather than assist. See Qantas Airways v Gama (2008) 167 FCR 537 at 577 [139]. 130Thus, to the extent that the defendants intended to suggest some different analysis, by their repeated insistence on "the Briginshaw standard", I do not agree.

The principal witnesses 131The parties devoted an enormous amount of effort, both in cross-examination and in submissions, to attacking the credibility of the witnesses called against them. I do not propose to deal in detail with all those submissions. If I were to do so, the length of these reasons would be dramatically increased. The approach I propose to take is to deal with the attacks on the credibility of those who seem to me to be the principal witnesses. I regard as "principal" those whose evidence is relevant, either directly or substantially by way of corroboration, to the key events out of which these proceedings have arisen. 132To the extent that it is necessary to consider the credibility of what might be called "subsidiary" witnesses, I shall do so when considering the events to which the evidence of those witnesses is said to be relevant. General matters 133In many cases the witnesses were being asked about events that occurred up to 15 years before they were cross-examined. In some instances, the witnesses had not been asked to turn their minds to those events until relatively recently. In those circumstances, it is again hardly surprising that the witnesses had less than total or perfect recall. Indeed, if any witness had professed to have total or perfect recall, the court would be entitled to view the evidence of that witness with some degree of suspicion. But incomplete or defective recollection is not synonymous with dishonesty. 134In relation to the witnesses with whom I deal below, I have sought to form my views on credibility from the whole of the evidence given by those witnesses. Of necessity, I refer only to what I regard as some of the key points made by the parties in their submissions. I take into account, of course, the conclusions that I have reached in relation to those key points. But I take into account also, not just my general impressions made on a consideration of their evidence as a whole, but also, where relevant, specific matters to which I refer in the course of making findings of fact. Jones v Dunkel submissions 135Each side made lengthy submissions based on Jones v Dunkel (1959) 101 CLR 298. It is not necessary to deal with most of them. The unexplained failure to call an apparently relevant and available witness may assist in the drawing of an inference of fact that is otherwise available on the evidence. But it has no work to do where, otherwise, the evidence falls short. Again, if a party having the onus of proof of a particular matter fails to discharge it, it matters not that the opposing party has failed to call otherwise relevant and available witnesses. 136To the extent necessary, I shall deal with Jones v Dunkel submissions in making findings of fact. Mr Ballard 137Mr Bannon submitted that there were a number of factors that favoured accepting the credibility of the witnesses called for Mr Ballard. These factors included their independence from each other, and (so he put it) the lack of any demonstrated motive to do other than tell the truth. 138Mr Ballard gave evidence in chief by affidavit and (by leave) orally. He was cross-examined at length, from days 7 to 14 of the hearing and again (his recall being necessitated by the late tender of the evidence of Mr Anthony) on day 40. Mr Ballard's evidence is important, for several reasons. First, he gives an account of events during October and November 2006, on the Pitt Street Mall project, which is at odds both with evidence given by relevant Multiplex witnesses and, to some extent, with contemporaneous documents. Secondly, he gives evidence of a conversation with Mr John Roberts, then the chairman of Multiplex (who has since died), in which Mr Roberts is said to have admitted that Multiplex was at fault in relation to the Pitt Street Mall subcontract, and to have offered to compensate Mr Ballard. Thirdly, Mr Ballard's evidence is critical to his claim for damages. Fourthly, his evidence is critical to the s 55 point. 139At the outset, two points should be made. The first is that, as he frankly conceded, Mr Ballard has become "obsessed" about the subject matter of this litigation. Even had he not conceded this, the conclusion would be inevitable, both from a reading of his evidence overall and from observations made by other witnesses. Secondly, and again as Mr Ballard frankly conceded, his memory is poor. Again, the conclusion is manifest from even a casual perusal of his affidavit and oral evidence. 140I have the very strong impression, again from a perusal of the affidavits and oral evidence of Mr Ballard, that his undoubted obsession with the events leading up to the termination of the Pitt Street Mall subcontract, and with what he perceives as the consequences, has shaped - perhaps unconsciously - his recollection. At a level of generality, there are two things that support this view of his evidence. The first is that, almost invariably, when errors of recollection were demonstrated, the purported recollection that Mr Ballard claimed to have was more favourable to his case than the actual history that he was forced to acknowledge. The second is that, on many occasions when a deficiency in recollection or mistake was pointed out, Mr Ballard blamed inattention on his part and over-reliance on the work of others (including, but not limited to, the various solicitors who drafted his affidavits and other documents, the accuracy of which he had attested). 141I have referred at [59] and following above to what I called the Byrnes letter. Mr Ballard was at pains to deny any involvement in, or even knowledge of, the sending of that letter. (To jump ahead for a moment: so, too, was Mr Widdup.) But the information in the letter could only have come from Mr Ballard or Mr Widdup. I will deal with the extent of Mr Widdup's connection with Mr Byrnes later, when considering Mr Widdup's credibility. What is important for present purposes is that Mr Ballard sought to downplay the extent and timing of his dealings with Mr Byrnes. Mr Ballard accepted that he might have known Mr Byrnes from his fighting days. However, he said, he did not meet him thereafter until about mid 2006. That meeting occurred, Mr Ballard said, because he became aware through publicity in the press that Mr Byrnes had written a letter purportedly on his behalf, and he was annoyed about that. Mr Ballard went so far as to say that: (1) prior to that meeting, "I haven't had any contact with Byrnes at all" (T326.17-18); and (2) "I wouldn't have a clue what business he's in. I don't know the fella" (T326.41). 142However, as telephone records produced (belatedly) showed, Mr Ballard had been in telephone contact with Mr Byrnes from 16 May 2005. I might add that those same telephone records showed that Mr Ballard had been in regular telephone contact with Mr Widdup from 21 April 2005, shortly before the Byrnes letter (dated 26 April 2005) was sent; and they showed also that Mr Ballard rang or attempted to ring Mr John Roberts on several occasions shortly before and after that letter was sent. 143I have the strong impression that Mr Ballard deliberately put his meeting with Mr Byrnes a year or more later than the contacts shown by the telephone records, and a year or more after the Byrnes letter was sent, to give credence to his denial of involvement in the sending of that letter. 144Again, I have the strong impression that Mr Ballard sought to postdate his acquaintance with Mr Widdup by a year or so, in order to distance both himself and Mr Widdup from the Byrnes letter. I infer that both Mr Ballard and Mr Widdup were involved, contrary to their denials, in the drafting and sending of the Byrnes letter. That letter was no more than a crude attempt, through unsubtle threats of menace, to force Multiplex to the negotiating table. But even if it were not possible to reach that conclusion, the shifts in Mr Ballard's evidence on what, clearly, he perceived to be a difficult point do not speak well for his credibility. I do not think that it is possible to isolate this aspect of his evidence, in an attempt to confine the contagion. 145Likewise, Mr Ballard sought to distance himself from the fax to Mr Singleton referred to at [52] above. At one stage, Mr Ballard suggested that the fax had been put before him for signature by Mr Nelson Henwood (a consultant by then retained to help Stoneglow in its dispute with Multiplex), and that he signed it without reading its contents. (In fact, the fax was unsigned.) That is not at all convincing. Mr Ballard was personally well acquainted with Mr Singleton. The information in the fax was within Mr Ballard's personal knowledge. There was no reason for Mr Henwood to send the fax except as a communication from Mr Ballard; and in my view it is inherently unlikely that Mr Ballard would have allowed put his name to be put to it unless he was satisfied that it was appropriate for the fax to be sent. 146Again, in relation to the Wrecking Ball article (which I repeat was published shortly prior to the commencement of these proceedings), Mr Ballard sought to distance himself from its preparation. He said that he did not provide, or cause to be provided, the information contained in that article. However, in the course of cross-examination, Mr Ballard conceded that he had said to Multiplex that unless he received an appropriate settlement he would go to "Kerry Packer's boys" and "tell the full story" (or "something along those lines") (T459.7-.9). He agreed that he said something along the lines that if Multiplex didn't pay him, he "would go to the Bulletin and tell the Bulletin the full story" (T460.45-461.4). When pressed further on this, Mr Ballard retreated to evasion (T461.21-.36). As I have said, it is clear that at least some of the information in the article must have come from Mr Ballard. In fact, I conclude, much of it did. I do not regard this aspect of Mr Ballard's evidence as honest. 147The summons and list statement originally filed in these proceedings were verified by Mr Ballard. The list statement contained a number of allegations of fact that were demonstrably incorrect. Those matters were put to Mr Ballard and he conceded that they were incorrect, and that his memory in November 2007 (when he swore the affidavit verifying the summons) was not clear. That is a demonstration of an area - central to the case - in which Mr Ballard's memory has been shown to be faulty. 148There were other aspects of Mr Ballard's evidence that, on a fair reading, are unacceptable. They include: (1) his repeated assertion that he had no influence over Stoneglow's workers' decision to go, and remain, on strike. That assertion was falsified by unchallenged contemporaneous records, which showed that he clearly had (or thought that he had) it in his power to get the men to return to work if he wanted to do so; (2) his instruction to Stoneglow's bank to stop the "list pay" of the workers on 30 October 1996, which in my view was no more than a cynical attempt, at the expense of Stoneglow's employees, to bring about a situation where Multiplex would be forced to negotiate; (3) his unimpressive attempt to suggest that his pleas of guilty to two charges of giving false evidence were entered on the advice or instruction of a detective, and that as soon as he was in a position to do so he would take action to have the convictions reversed. It may be noted that at the relevant time, Mr Ballard was, on his evidence, doing well in business, and lack of funds could hardly have been a reason for a failure to defend the charges; (4) more generally, the pervasive tendency to attribute blame or responsibility to others for deficiencies in his evidence; (5) the related tendency, when confronted with inconsistent or inaccurate propositions in his affidavit, to suggest that he had not read them thoroughly before swearing them, and had relied on the solicitor to ensure that they were accurate; and (6) harking back to what I said at [141] and [142] above, the statement in Mr Ballard's affidavit of 10 November 2009 that he knew Mr Byrnes "as a developer active in the building industry"; Mr Ballard asserted that he "didn't have a clue what [Mr Byrnes] done" (T529.27) - another error attributed to the solicitor. 149Further, Mr Ballard's affidavit evidence was not entirely candid about his earlier brushes with the law. I do not intend to contrast what he said on this topic in his affidavit to the truth, as revealed in cross-examination. It is sufficient to say that Mr Ballard was either extremely forgetful or, perhaps, selectively cautious in his recollection. Neither interpretation is supportive of an assessment that, in general, his evidence should be treated as credible. I should make it plain that I do not consider that, of itself, a conviction (on a plea of guilty) on two charges of false swearing necessarily demonstrates that Mr Ballard's evidence in this case is unacceptable. The point is that the way in which Mr Ballard approached the question of his criminal history is less than impressive. 150On balance, taking into account these and other matters to which I refer later in those reasons, I have come to the view that I should not accept Mr Ballard's evidence unless it is supported by the evidence of other, credible, witnesses; or is supported by contemporaneous documents; or is consistent with what I regard as the probabilities, objectively ascertained. Mr Bates 151Mr Bates is the only witness who gives express evidence of the alleged conspiracy. He is described in Multiplex's submissions (MS) at para 178 as "a totally disgraced former Union official and serial liar". That description is not far from the truth. 152Mr Bates has an extensive criminal history, dating (on the evidence) from 1985 to 2006. It includes numerous offences of dishonesty. It does not include any convictions for false swearing. However, Mr Bates admitted that, in relation to a particular subject matter, he lied repeatedly and on numerous occasions when giving evidence to the Cole Royal Commission. That does him no credit. 153The occasion for those lies does Mr Bates no credit either. He (and apparently other union officials) had concocted a corrupt scheme whereby they extorted payments from contractors or subcontractors, threatening that industrial action would be taken on their sites if the payments were not made, and promising industrial harmony if they were. The nature of that extortion is described in the following passage of his evidence (dealing with a particular contractor, or group of contractors) (T1375.9-.27): Q. When you were extorting money from these contractors in relation to Angel Place you were taking advantage of what you thought was some leverage over those contractors, weren't you? A. Yes. Q. Yes. You thought you knew, did you, that you could make their life easy or you could make their life hard unless they came to your little party, correct? A. Correct. Q. So you saw them coming and you thought what can I get out of these people, correct? A. Oh well, I don't think in those terms I don't think really, no. Q. How can I use my position of authority to extract a benefit from them? A. Correct. Q. And you had no hesitation in using whatever advantage you had, real or perceived, to get money out of them, correct? A. Correct. 154Not only did Mr Bates confess his involvement in that behaviour, he sought, in my view falsely, to implicate Mr Ferguson in it. I say "falsely" because there is no other evidence to suggest that Mr Ferguson had been involved in such behaviour. 155The extent of Mr Bates' false testimony before the Cole Royal Commission may be shown by the following extract from his cross-examination (again, dealing with a particular series of transactions) (T1365.9-1366.10): Q. Turn over to page 13459, Mr Wallace gave you $6,000 in an envelope, didn't he? A. I'm not sure. Q. You don't recall? A. No, I don't recall. Q. He gave you envelopes containing cash or cheques from time to time, didn't he? A. Yes, he did. Q. So your answer about line 19 and 20 is totally false? A. What line was that? Q. No, but the answer you gave me about never having received cash or cheques in envelopes from Mr Wallace is totally false? A. That is false, yes. Q. And then you added a little flourish, didn't you, "The only one I have received in an envelope from was the postman". A. I don't recall saying that, but-- Q. Well, it's there, isn't it? A. It is this, so I must have said it. Q. So what you were trying to do was to suggest that was preposterous, the suggestion that you might have received cash or cheques in an envelope from Mr Wallace? A. Yes. Q. You were trying to paint a wholly deceptive picture? A. Yes. Q. And you did that in relation to each and every contractor about whom you were asked? A. Yes. Q. And you were asked at length about your dealings with these contractors? A. Yes. Q. And your answers, in respect of each of the contractors you were asked about, were all false, weren't they? A. I would have to check every contractor, but some of them, the ones that I answered to were false, yes. Q. Every contractor with regard to whom it was suggested you extorted money, and you denied it, your answers, all of your answers in respect of each of those contractors were totally and utterly false? A. True. 156Quite apart from these matters, which go to credibility in the broad sense, there is another major problem with Mr Bates' evidence. In his affidavit sworn 19 October 2009 (paras 19 to 39), Mr Bates effectively suggested that the conspiracy arose from Mr Ferguson's continuing anger at the ACA broadcast and Mr Ballard's role (as, apparently, Mr Ferguson is said to have perceived it) in procuring that program to be made. Had the conspiracy followed immediately on the screening of the ACA broadcast, that might be understandable. But in circumstances where the conspiracy meeting is said to have happened some 11 months after the program was screened, and after excerpts from it were twice repeated, and where (as I have said) Mr Ballard through Stoneglow had been engaged in demolition projects in the Sydney metropolitan region since then, to the knowledge of the union but without any interference, this seems somewhat tenuous. 157Mr Bates swore a further affidavit, on 29 June 2010. That affidavit was said to constitute evidence in reply, although that description of some of it is doubtful. 158In that affidavit, Mr Bates gave evidence (paras 12 to 22) of what he described as a "union friendly, preferred contractors" scheme. That evidence (to the extent that it was admitted) referred in particular to two major demolition contractors: Delta Demolitions Pty Limited and Metropolitan Demolition Pty Limited. Delta was controlled by Mr Con Petropoulos and Metropolitan was controlled by Mr Paul Giannikouris. 159This aspect of Mr Bates' evidence was supplemented orally (over objection) once he had obtained the protection of a certificate under s 128 of the Evidence Act. In that oral evidence, Mr Bates said that there was a corrupt scheme in place, to which he and Mr Ferguson were parties, that "preferred contractors", including Delta and Metropolitan, would make payments (which Messrs Bates and Ferguson shared), in exchange for procuring the support of the unions in being awarded demolition contracts. 160Mr Bates suggested that when Stoneglow was awarded the demolition subcontract for the Pitt Street Mall project, Mr Petropoulos complained to Mr Bates, who passed that complaint on to Mr Ferguson. 161Thus, in his affidavit evidence in "reply" and oral evidence given in the circumstances that I have outlined, Mr Bates sought to suggest that the conspiracy was put into place to ensure that the preference that Delta and Metropolitan were said to have procured through their alleged corrupt payments to Messrs Bates and Ferguson was not the subject of interference from outsiders such as Stoneglow. 162Mr Ferguson denied this. So, too, did Mr Petropoulos and Mr Giannikouris. The last two said that they had come to court to give evidence because they had become aware, through the press, of most serious allegations raised against their companies. 163The evidence of Mr Giannikouris was supported by the evidence of a Mr David McInnes, who had been at the relevant time Metropolitan's project manager. 164Contrary to Mr Bannon's submissions, I see no reason for rejecting the evidence of Messrs Petropoulos, Giannikouris and McInnes. Such inconsistencies as there are in the evidence given by them (and there was nothing substantial) can be explained by the lapse of time - 15 years - until they gave evidence in 2010. 165Further, if Mr Petropoulos had complained of the award to Stoneglow of the Pitt Street Mall demolition contract (which as I have said occurred in April 1996), the lapse of time from then until August 1996 (when the coffee shop meeting at which the conspiracy was hatched is said to have taken place) is hard to explain. 166In my view, Mr Bates' evidence as to the preferred contractor scheme is fabricated. That reflects adversely on his credibility, and not in any peripheral way. It goes to the heart of his evidence, because the existence of the preferred contractor scheme is said to be either the, or at least a supplementary or alternative, explanation for the hatching of the conspiracy. 167It may be noted that Mr Bannon did not labour too much to support this aspect of Mr Bates' evidence. He said (plaintiff's submissions in chief (PS) para 266): Acceptance of Mr Bates [sic] evidence in relation to the preferred contractors scheme is not essential to the plaintiff's case. 168In my view, this whole aspect of Mr Bates' evidence is utterly implausible: not only in its substance, but also having regard to the way in which and the belated time at which it emerged. I cannot regard it as anything other than something intended both to buttress the central plank of Mr Bates' evidence - the coffee shop meeting - and to embarrass or discredit Mr Ferguson. 169Mr Bannon sought to uphold Mr Bates' credibility. He noted, correctly, that Mr Bates had come forward voluntarily, and exposed himself to what he must have known would have been detailed cross-examination in which the unsavoury events of the past would be raked over. Why, Mr Bannon asked rhetorically, would Mr Bates do this if his evidence were not true? Mr Bannon pointed to Mr Bates' evidence that in fact his lifestyle had improved substantially since he and the union parted company in 2000: he had time out on the beach, he was able to engage in his "passion" for surfing, and he was not under pressure. 170There is force in that submission. However, it presents only a partial picture of the whole of Mr Bates' evidence on the point. As I note in the following paragraph, Mr Bates was driven, ultimately, to acknowledge that he regarded Mr Ferguson as having destroyed his entire life. It is unlikely that the bitterness that must have been engendered thereby would be dissipated entirely by the consequent ability to spend more time surfing. 171In truth, I think, Mr Bates was motivated by a desire to obtain revenge. Ultimately, he conceded (T1333.49) that he regarded Mr Ferguson as having destroyed his whole life. Mr Bates at first sought to dissemble on this topic when pressed. He was did not concede the point until confronted with his evidence given to the Cole Royal Commission. 172Mr Bannon submitted, in relation to Mr Bates, that if he had sought to fabricate evidence of the conspiracy meeting, he would have done it in as simple and non-specific a way as possible. Mr Bannon submitted that, if the meeting had not occurred, Mr Bates was simply making trouble for himself by implicating so many people - four, apart from himself - in the meeting. Further, and in particular, Mr Bannon submitted that Mr Bates would not have known to include Mr Higgon in the meeting (there was evidence that Mr Higgon attended because of his particular responsibility, within Multiplex, for industrial relations), and that this was a further reason for accepting the further veracity of Mr Bates' account. 173All those points may be accepted, and they deserve careful attention. But to be put against them is the history of lying, deceitful, corrupt and dishonest conduct in which Mr Bates has, on his own admission, engaged over some years. It defies human experience to suggest that a person who has demonstrated such disdain for the mores of society, for notions of proper and ethical dealing, and for the concept of testimony on oath, should be accepted as a witness whose evidence should be given inherent credibility in the absence of powerful corroboration. Speculation as to why Mr Bates may have made life more difficult for himself by giving more details than were required of the meeting does not, in my view, outweigh the damage to his credibility done by the matters to which I have referred. 174Be all that as it may - and inquiries as to motive are not always capable of satisfactory resolution - the simple fact is that the combination of Mr Bates' past criminal history, including many offences of dishonesty, his admission of widespread corrupt behaviour, and his reluctant admissions of widespread on oath lying about that behaviour are such as to make him a witness whose evidence is not worthy of belief unless it is supported by other, credible, evidence. That conclusion is supported by the matter referred to at [156] to [168] above. Mr Anthony 175The principal direct evidentiary support for Mr Bates' evidence of the conspiracy comes from the evidence of Mr Anthony, to whom I now turn. 176Mr Anthony is an enigmatic figure. His evidence did not come to light until the hearing was well under way. Mr Anthony said that he did not become aware of the proceedings, or the issues in them, until 6 October 2010, when he read a copy of the Sydney Morning Herald (for 5 October 2010) at a coffee shop. That took his mind back to the events of 1996 concerning which he gave evidence. 177In 1996, and for some time before, Mr Anthony had been associated with Mr Henwood (Mr Henwood died in 2002). Mr Henwood had been retained to assist Mr Ballard in the preparation of Stoneglow's claims against Multiplex. Mr Anthony obtained a job on the Pitt Street Mall site as a builder's labourer employed by Stoneglow. That happened in late October 1996. Perhaps somewhat strangely, Mr Anthony was almost immediately elected as a union delegate for the site. 178Mr Anthony said that on 7 November 1996, Mr Ferguson called him and summoned him to a meeting to be held at the NSW union's office on Saturday, 9 November 1996, which Mr Sharkey would also attend. According to Mr Anthony, he went to that meeting. In the course of it, Mr Sharkey said words to the effect: "we have agreed with Multiplex Construction that Stoneglow's contractual relationships with them (Multiplex) no longer continue. Stoneglow and David Ballard are finished and we want them permanently out of the industry. We do not want you to be mixed up in this and we would like you to keep out of it." 179Mr Anthony said that he was astonished by this. However, he did nothing for about a month. 180Mr Anthony said that, during the meeting with Messrs Ferguson and Sharkey, he took notes of what was said. Those notes, he said, were used when on 10 December 1996, he made a statutory declaration. 181Mr Anthony said that, on 10 December 1996, he went to a firm of solicitors at Stanmore and spoke there to an employed solicitor, Mr Scott Johnson. Mr Anthony said (affidavit sworn 7 October 2010, para 17): While I was with him, Scott had a statutory declaration typed up for me which set out my recollection of the telephone call from Andrew, the Ferguson / Sharkey meeting and the surrounding circumstances. I read the typed document, made a couple of minor changes to it, then declared the contents to be true in the presence of Scott on 10 December 1996, and signed it and initialled the changes (my statutory declaration). I recall that I signed two original versions, in identical form, at the time. My recollection is that one original version was kept by Scott. I took with me the other original statutory declaration... 182Thereafter, Mr Anthony said, he gave Mr Henwood a copy of the statutory declaration. 183Mr Leo Muggleton, the then principal of the firm of solicitors in question, gave unchallenged evidence. He said that he could not find any copy of the statutory declaration among such of the records as survived from 1996. This is hardly a matter of significance, for two reasons. The first is that, as one might expect, Mr Muggleton routinely destroyed records that were more than seven years old. The second is that, in 2006, Mr Muggleton sold his practice. 184More significantly, Mr Muggleton said in substance that the statutory declaration was not in a form which suggested that it had been prepared at his office. He gave reasons: the paragraphs were not numbered; the pages were not numbered; the jurat was on a separate page and not on a page containing at least some text; and the jurat was prepared for signature with the place and date of execution, and the capacity of the witness, unspecified. 185Mr Johnson, the solicitor who witnessed the statutory declaration, also gave evidence, which was effectively not challenged. He said that he had no recollection of witnessing the statutory declaration, but accepted that he had done so; and that the place and date of execution, and his capacity as a witness, were in his handwriting. 186Mr Johnson did not controvert in any way the matters that Mr Muggleton had pointed to as suggesting that the statutory declaration was not such in a form or of such a kind that would ordinarily have been produced in that office at the time; on the contrary, he confirmed that evidence. Further, Mr Johnson said that: (1) mistakes or changes would have been made on the word processing system, and not corrected by hand on the printed copy and initialled (as a matter of usual practice "depending on the timing of course" - T 23337.42); (2) there were some typographical errors that he would have corrected when reading through the document before presenting it to the declarant for consideration and signature; and (3) as a matter of practice, that if (as Mr Anthony claimed to have done) the declarant had produced handwritten contemporaneous notes on which the declaration was based, he would have identified those notes in, and annexed a copy to, the declaration. 187The evidence given by Messrs Muggleton and Johnson is directly inconsistent with Mr Anthony's account of the circumstances in which the statutory declaration was prepared. That is not just a formal matter. It suggests, at the very least, that Mr Anthony was entirely mistaken as to how the document came into existence. 188What is more surprising is that, although the declaration was given to Mr Henwood, Mr Henwood seems to have made no attempt to deploy the document or its contents in the course of negotiations. It is very hard to understand why he would not have done so; and speculation on this point must take into account the fact that Mr Henwood is no longer alive to give his account. 189More surprising still is that neither Mr Anthony nor Mr Henwood seems to have told Mr Ballard of the existence or contents of the declaration. (Of course, if they did, that is the end of Mr Ballard's reliance on s 55 of the Limitation Act.) Mr Henwood was then retained to assist Mr Ballard, or more accurately Stoneglow. Mr Anthony was then employed by Stoneglow. He acknowledged that he had owed a duty of loyalty to Stoneglow to bring to its attention matters that had come to him that were relevant to his employment or duties. It is very difficult to understand why he did not do so; and his explanation (or rather, evasion) was less than convincing. 190The other, and equally surprising, aspect of non-disclosure is that Mr Anthony did not share with his fellow workers either the fact of his alleged meeting with Messrs Sharkey and Ferguson or the substance of what he said was discussed at that meeting. Yet, according to Mr Anthony, he was summoned to the meeting because he was the delegate of those workers. On any view, what (according to Mr Anthony) was said at the meeting was of real interest to those workers. One would have thought it likely that a union delegate, acting responsibly, would have disclosed at least the substance of what was said to those workers. But Mr Anthony did not do so. I note that it is clear, from the wording of the declaration, that Mr Anthony well understood that what he was told would have an adverse effect on him and his workmates: I also stated [at the alleged meeting with Messrs Ferguson and Sharkey] that it was my understanding. To the best of my knowledge, that all of my fellow employees would also be adversely affected, like myself, now that our employers contracts were terminated and we were all suddenly unemployed. I emphasised to them in the strongest terms possible that the lead up to the Xmas break was the worst time of the year to be thrown out of work, particularly in the construction industry, as the chances of finding new work until the new year would be virtually nil. I also stressed that their sudden unemployment was viewed very gravely by all employees concerned. I then requested that whatever impasse reached with Stoneglow it be held over until at least the new year. I pointed out that they were in a clear position to assist us in at least he short term and as a good trade union they should do so, considering the circumstances. The disregarded my plea to favourably consider the continued employment of all of the employees until at least the Christmas break, employees who by far in the majority were members of the union. 191If the statutory declaration is to be accepted at face value (or anywhere approaching face value) Mr Anthony must be taken to have appreciated that the NSW union's leadership was acting in a way that was directly inconsistent with the best interests of its members who were employed by Stoneglow. Yet he mentioned not a word of this to those fellow workers. 192That Mr Anthony had this understanding of his role and obligations as a union delegate is confirmed by the following passage of his evidence given in cross-examination (T2028.8 - .31): Q. When you were, as you claim, elected as union representative, tell the Court what you understood your obligations as union representative were? A. It was to represent the workers on site who appointed me a delegate or elected me a delegate, to represent their interests with Stoneglow, the employer, with the unions if they came on site, and any grievances that arose. A delegate's role was to represent the employees on site. Q. And to report back to them in relation to any representations you made on their behalf? A. Absolutely, yes. Q. Absolutely-- A. To report back to the men? Q. Yes? A. If I were to attend a meeting or anything with anybody, yes, I was required to report back to the men, matters that I discussed with anyone, anyone I had discussions with regarding matters relating to the employees on site. Q. And keep them fully informed of what you learnt? A. To the best of my ability. Q. And you understood that to be your obligation and your duty in that role? A. Yes. 193Mr Anthony was asked to explain why it was that, given his understanding of the importance of what was discussed at the alleged meeting with Messrs Sharkey and Ferguson, he did not tell his fellow workers of it. He said that he could offer no explanation (T2306.46 - .49): Q. Are you able to offer any explanation at all to his Honour for not seeking to assist the Stoneglow workers who you claimed to represent by alerting them to the improper conduct which had put them out of work? A. No. 194I should note that Mr Anthony had accepted, moments earlier in his cross-examination, that he did regard what he had been told at the alleged meeting as indicating improper conduct on the part of Multiplex and the unions (T2306.10). 195There are other circumstances relating to the alleged meeting and the declaration that are puzzling. First of all, Mr Anthony struggled to explain why it was that he - a union member of only a few days' standing - had been summonsed to the meeting at all. (I should note that Mr Anthony claimed to have been a union member for a lengthy period of time. This claim was shown, in cross-examination, to be either mistaken or false.) 196Secondly, and following on from this, one may wonder why two experienced union officials would discuss such a potentially explosive matter in the presence of someone who had only recently joined the union. 197Thirdly, one may think it remarkable that such men, having such a discussion, would permit a relative stranger to sit there and make notes. (I have not overlooked that Mr Anthony claimed an acquaintanceship of some standing with Mr Sharkey, dating from the time when Mr Anthony had been employed by the Master Builders' Association. I do not think that a prior history of association with "the bosses" would suggest to Mr Sharkey, or for that matter Mr Ferguson, that Mr Anthony was a person fit to be entrusted with such explosive knowledge.) 198Fourthly, the whole purpose of the meeting is obscure. One could, perhaps, understand that Messrs Sharkey and Ferguson might wish to explaining their intentions to the Stoneglow workers. However, there were other mechanisms for doing this - including through the union organisers, and (as apparently happened from time to time) by direct address to meetings of the workers. More importantly, that cannot have been the purpose of the meeting, because Mr Anthony was told, in substance, to keep out of things. Quite why Mr Anthony was summoned to a meeting to be told something that he did not know, and did not need to know, and that he was to keep out of, is entirely mysterious. 199All of those matters, in my view, cast very grave doubts on the reliability of Mr Anthony and his statutory declaration. Further, they are all matters directly associated either with events on which the declaration is said to have been founded or with the preparation with the declaration. 200Quite apart from those matters, the defendants laid stress on other aspects of Mr Anthony's evidence that, they submitted, were unsatisfactory. 201I said earlier that Mr Anthony was an enigmatic figure. I said that because I am left with the very distinct impression, on the whole of his evidence, that he has not told the truth (or at least anything like the complete truth) as to how he came to be working for Stoneglow. 202There is no doubt that Mr Anthony had a close association with Mr Henwood over a number of years. He was a director of Mr Henwood's company Monsain Consulting Pty Limited. Mr Henwood arranged for Mr Anthony to be employed on the Pitt Street Mall site. However, when Mr Anthony was taken on (on 30 October 1996) he was aged 50, and had not worked as a builder's labourer, or in any equivalent position performing manual duties, for about 30 years. 203It is difficult to understand why, at that time, Stoneglow needed to employ more workers. It was unable to pay its men on 30 October 1996; and indeed, Mr Ballard took active steps to ensure that they would not be paid. According to Mr Ballard, work on stage one of the Pitt Street Mall project was basically complete. Stage two was not due to commence for some time. Stoneglow had a team of 30 to 40 men at the Pitt Street Mall site. It had no other work for them to do. On any view, its workforce was sufficiently large to perform whatever (according to Mr Ballard) was the small amount of work required to be done to complete stage one. 204Mr Ballard was unable to give any satisfactory explanation as to why Mr Anthony was employed, at a time when Stoneglow was unable to pay its workers and when in any event there was insufficient work for its workers already employed to perform. 205Mr Anthony denied vigorously that he had been "planted" among Stoneglow's workforce to foment trouble. Despite that denial, I think it is likely that he was so "planted". There was no legitimate reason (in terms of Stoneglow's needs for labour and available work) for him to be employed, and no other acceptable explanation has been proposed of why he had been employed. 206Mr Anthony asserted that he was a member of the union when he was taken on by Stoneglow. He was unable to explain why he had joined the union before taking up employment before Stoneglow; nor could he explain when he did so. In fact, the union's records showed that Mr Anthony did not become a member of the union until 31 October 1996 - the day after he commenced employment with Stoneglow. 207The other matter to consider in this context that, Mr Anthony conceded, he had no skills, or prior experience, in the demolition industry. 208All of those matters make it very difficult to accept Mr Anthony as a witness whose evidence can be relied upon. Certainly, they suggest that his evidence is not the sort of reliable corroboration that would be needed to lend sufficient weight to the evidence of Mr Bates to give it any shred of credibility. 209There are other issues with Mr Anthony's credibility. They are more remote from the events of which he gave evidence. For that reason, and because (to the extent that they are relevant) they support the view of Mr Anthony's evidence that I have just expressed, I will not deal with them in detail. They include: (1) evidence that was, regarded charitably, confused (or, regarded more objectively, at least misleading) in relation to his employment history and in relation to his résumé, where the statements of experience in his résumé were completely inconsistent with what Mr Anthony suggested in cross-examination was his actual employment (or unemployment) history; (2) shifts in his evidence in relation to the extent of his communications with Mr Ballard after November 1996 (contrast para 22 of Mr Anthony's affidavit sworn 7 October 2010 with his cross-examination at T 2232 - 2234); (3) in the context of the matter last mentioned, Mr Anthony's claim that, before he came to swear his affidavit, he realised that it might not be correct, told the solicitor of this, and was advised to "You've done that affidavit. It's to be left like that." (T2234.34); the claim is inherently implausible, the solicitor was not called to corroborate it, and in the absence of that corroboration, I do not accept it. (4) a consistent pattern of evasive, argumentative and non-responsive answers, apparent from the transcript, on matters such as whether or not he had actually performed any work on the site (see T2065-2066); the accuracy of his résumé (see T2083, 2095-2096); and the "witness expenses" that, it appeared, he had been paid (T2015 - 2016, 2053, 2055; his invoice for expenses became Exhibit 1/2D 16). 210Again, Mr Bannon submitted that there was no reason for Mr Anthony to have come forward, and to have exposed himself to what he must have known would be vigorous and prolonged cross-examination, if his evidence (including what was said in the statutory declaration) were false. Again, there is force in that submission. But the matters to which I have referred disclose major concerns with Mr Anthony's credibility, both in relation to the central matters with which his evidence was concerned and more generally. In all the circumstances, whilst acknowledging the difficulty of finding any motive for Mr Anthony to come forward and give false evidence, I am not satisfied that his evidence is reliable. Thus, I am not satisfied that it provides acceptable corroboration for the evidence of Mr Bates. Mr Widdup 211Mr Widdup was employed by Multiplex from 1980 to 2000. He was first employed as financial controller, and in 1985 became a director (at least, of Multiplex NSW and some of its subsidiaries). He remained a director until his employment terminated in 2000. 212According to Mr Widdup, it was the practice of Multiplex NSW to assign to at least one director responsibility for each development being undertaken. Although Mr Widdup's background was in finance rather than building or engineering, he did from time to time have responsibility for individual projects (including, in 1996, the redevelopment of the Finger Wharf at Woolloomooloo Bay). Mr Widdup gave evidence on a number of matters, including: (1) the proposal to offer the demolition subcontract for the Finger Wharf project to Mr Ballard or to a new company to be started up by him, and the withdraw of that proposal; (2) an allegation that Multiplex, through Mr McDiven, was engaged in corrupt and fraudulent schemes for the payment of money to the unions; and (3) an alleged conversation with Mr John Roberts (as I have said, at that time, the Chairman of Multiplex), in which Mr Roberts is said to have offered a sum of money to Mr Widdup, referable to the termination of Mr Widdup's employment, on the basis that the payment "buys silence about everything but especially Ballard". 213Mr Widdup has prepared, and sworn or signed (as the case may be): (1) an affidavit sworn on 26 April 2006; (2) an affidavit sworn on 31 October 2006; (3) a statement dated 22 April 2008; (4) an affidavit sworn on 14 October 2009; and (5) an affidavit sworn on 15 July 2010. 214In addition, Mr Widdup swore an affidavit on 1 May 2006, which was read in other proceedings. Nothing appears to turn on this affidavit. 215The only affidavits read in these proceedings were the fourth and fifth listed above. The other affidavits, and the statement, were deployed in the cross-examination of Mr Widdup and were tendered by one party or another. 216The defendants rely on a number of matters which, they submit, show that Mr Widdup's evidence should not be regarded as credible. In reply, Mr Bannon submitted that the principal attacks made by the defendants do not stand up, and that many of them "are, at best, peripheral to, and do not constructively inform, the probabilities as to whether or not Mr Widdup should be accepted in relation to his evidence, principally, in respect of the Finger Wharf offer" (PSR, para 87). 217For the reasons that follow, I do not think that the attacks on Mr Widdup's evidence can be disposed of so easily. In particular, as to the supposedly "peripheral" attacks, I think that they demonstrate, both individually and collectively, insurmountable concerns about Mr Widdup's credibility. 218I have set out above Mr Widdup's employment history with Multiplex. That employment came to an end, as Mr Widdup ultimately accepted, because he was asked to leave. However, in his April 2006 affidavit, he said that he retired "on account of ill health". He repeated and embellished that statement in his October 2006 affidavit, where he said that he retired "because of my ill health including high blood pressure". 219Further, whilst dealing with Mr Widdup's employment history, it may be noted that in his April 2008 statement he asserted that he had been General Counsel of Multiplex. He repeated that statement in his oral evidence (eg, T 1519-1520). Mr Widdup had no legal qualifications. His business card did not describe him as General Counsel. None of his affidavits asserted that he had been General Counsel. The evidence of Messrs McDiven and Murphy, which on this point was unchallenged, was to the effect that for as long as they had known Mr Widdup at Multiplex, he had not referred to himself as General Counsel, had not been referred to by other people as General Counsel, and had not been regarded as General Counsel. Mr McDiven added that, over much of the period in question, Multiplex had employed solicitors who were given the title "General Counsel". 220I do not know why Mr Widdup felt it necessary to embellish his evidence by describing himself as the General Counsel of Multiplex. Peripheral it may be; but unexplained, it raises at least some doubt as to his veracity. 221The defendants submitted that Mr Widdup had some animus against Multiplex. Mr Bannon sought to counter that by referring to the fact that Mr Widdup was (on his own evidence) gravely, if not terminally ill; and had expressed a desire to regularise his life because "I don't want to include perjury in amongst those explanations I have to offer to God" (T1826.21). That does not seem to me to be persuasive. Whether or not it reflects genuine apprehension of mortality and the consequences, instructed by an appreciation of the tenets of the Christian faith, or whether it is no more than a self serving statement, depends not so much on acceptance of the statement at face value but on an assessment of the evidence to which it is said to lend some air of verisimilitude. 222Mr Widdup agreed that it was "fairly galling to be asked to leave Multiplex" after 20 years of service (T1577.3) and that he felt that "an injustice had been done to him" in those circumstances (T1649.29). That sense of injustice was compounded because he had not received a bonus for four years prior to termination of his employment. That was (and he perceived it to be) discriminatory (T1650.29). Although Mr Widdup was paid a substantial sum ($750,000.00) in a way that made it effectively tax free, he did not think that he got fair and reasonable treatment (T1715.26-.28). 223Further, after Mr Widdup's employment was terminated, he entered into a transaction with Multiplex relating to the "Bauhaus Development" at Pyrmont. That transaction ended in litigation against Multiplex "of the most bitter kind" (T1556.33) which, he agreed, was the cause of his financial ruin (T1561.12). Mr Widdup was of the view that he had been defrauded by Multiplex, to the extent of $2 million or $3 million, in relation to that transaction (see T 1758-1759). 224Dr Bell drew attention, also, to the active assistance that Mr Widdup had given to Mr Ballard in relation to these proceedings. Mr Widdup approached two prospective witnesses to persuade them to give evidence: Mr Ludwig Strutzenberger and Mr Bill Ireland. In addition, Mr Widdup reviewed all 17,000 pages of the discovery given by Multiplex, and was compensated at the rate of $500.00 per day for doing so. Whilst those may be regarded as unusual steps to be taken by someone who is no more than a witness, they do not, of themselves, suggest to me that Mr Widdup's evidence should not be accepted. But I have not finished with the challenges to credibility raised by the defendants. 225One memorable aspect of Mr Widdup's April 2006 affidavit was his narration, in para 3, of the circumstances in late 2005 that (he said) brought to mind, among other things, Stoneglow and the unions. He said that it was a "near death experience" which provoked this flood of memory: I retired in 2000 on account of ill health. Towards the end of last year I had a near death experience which caused three matters that I had been involved in and which people had been wronged to spring vividly to mind. One of these matters was the business of Stoneglow Pty Ltd and the CFMEU. 226It is difficult to see what function the reference to a "near death experience" could serve, except to give credibility both to the fact of recall and to the accuracy of the recall ("spring vividly to mind"). 227In para 41 of his October 2009 affidavit, Mr Widdup said that he had had no particular recollection of meeting Mr Ballard, at least from the time that he left Multiplex, until he "had a chance meeting with Ballard in about the first half of 2006". That "chance meeting" occurred, Mr Widdup said, when he was "approached by a gentleman who [he] did not recognise", who "introduced himself as David Ballard". Even the mention of the name "did not initially assist in me recalling who he was". Enlightenment only came "[w]ith further conversation, and the mention of the name Stoneglow and his dealings with Multiplex". 228One might think that this detailed account of the first meeting (at least since 2000) between Messrs Ballard and Widdup was designed to suggest that they had had no prior contact in relation to the matters that are the subject of this litigation. I should note that Mr Ballard, too, sought to suggest this in his evidence, although with a striking difference: Mr Ballard said that in the first half of 2006, he tracked down Mr Jim Byrnes, who introduced him to Mr Widdup. 229At a relatively late stage in the proceedings, Mr Ballard produced, by way of further discovery, telephone records relating to 1995 and 1996. Those telephone records showed that Mr Ballard had been in contact with Widdup since 21 April 2005, and with Mr Byrnes since 16 May 2005. 230In fairness to Mr Widdup, he was taken in his evidence in chief to para 41 of the October 2009 affidavit, and corrected "2006" to "2005". It is clear that he did so, having been made aware of the contents of Mr Ballard's telephone records. (See, generally, T1511.) Ultimately, Mr Widdup agreed that what caused Stoneglow "to spring vividly to mind" had been, not his near death experience, but his first meeting with Mr Ballard in April 2005 (T1589.5). 231One might understand why, when swearing an affidavit four years after the event, Mr Widdup may have been confused as to the date of the meeting. But that cannot explain why, in his affidavit of April 2006, he attributed his recollection of events relating to Stoneglow to his "near death experience" a few months earlier, when he must have known (as ultimately he conceded) that those events had come back to his mind because of his meetings with Mr Ballard from April 2005 on. The dramatic account of the near death experience, and its invigorating influence on Mr Widdup's memory, are to be seen, in my view, as embellishment designed to give verisimilitude to his account (and, incidentally, to distance himself from Mr Ballard prior to that no doubt remarkable experience). 232Whilst dealing with the telephone records, it should be noted that Mr Widdup asserted on more than one occasion that he had been rung repeatedly by Mr Ballard, and that Mr Ballard was accustomed to ring at about 6:30 am. Not surprisingly, Mr Widdup said that he was less than pleased by this. However, the telephone records are inconsistent with that evidence. I think that this, too, was an attempt by Mr Widdup to give verisimilitude to his account of his dealings with Mr Ballard. 233In relation to the Finger wharf proposal, Mr Matthew Stagg (another director of Multiplex NSW) said that Mr Widdup had discussed with him the proposal to give the Finger wharf demolition work to Mr Ballard. Mr Stagg was strongly opposed to that. He said, in para 25 of his affidavit sworn 20 April 2010, that when Mr Widdup floated the idea, he (Mr Stagg) replied: No way, that would be a fucking stupid idea - we can't do that. The Finger Wharf is a complex job, he clearly does not have the experience or the ability to do it. 234In para 80 of his July 2010 affidavit, Mr Widdup said: I did not have a conversation with Stagg in which he said words to the effect alleged in paragraph 25 of the Stagg Affidavit. 235It is clear, from the cross-examination of Mr Widdup, that he was well aware of the difference between a denial that something took place and a lack of recollection as to whether it did or did not. It is equally clear that para 80 was a denial. 236Nonetheless, in cross-examination, Mr Widdup agreed that he did have a conversation with Mr Stagg in the terms alleged by Mr Stagg; and could offer no satisfactory explanation (other than mistake) as to why he had denied it (see, generally, T 1750). 237Of itself, this may reflect no more than a (or another) failure of recollection. Given the emphatic nature of the statement made by Mr Stagg, it is difficult to believe that mere failure of recollection could be responsible for a denial. But there is, I think, more than this to the denial. One of the elements of Mr Ballard's conspiracy case is that the "pulling" of what was said to be the offer of the Finger Wharf demolition job was either an overt act done in execution of the conspiracy, or a consequence of the prior overt acts. It is a key tile in Mr Bannon's evidentiary "mosaic". If the job was not offered to Mr Ballard (or if he was not invited to tender) for sound practical reasons (as, clearly, Mr Stagg's comment suggests), that tile does not fit into the mosaic. 238In para 21 of his October 2009 affidavit, Mr Widdup deposed to discussions and meetings with Mr David Hicks, who was an accountant who did a great deal of work for Multiplex, and who was involved in the circumstances surrounding the termination of the demolition subcontract for the Sydney Central Plaza project. (Mr Hicks was either a principal of, or interested in, a company called Carpan Pty Limited, which was used in the attempt to put money into Stoneglow's bank account to enable it to pay its workers on 31 October 1996.) 239Mr Widdup said that he was concerned "that Multiplex was potentially exposed to legal action by Stoneglow, interests behind it, or by administrators/liquidators of it". He said that he discussed this with Mr Hicks, who "agreed". In the course of that discussion, Mr Widdup said, "the suggestion arose that any potential threat of legal action might be averted by placating the principals of Stoneglow through an offer of further Multiplex work on the basis that Stoneglow be co-operatively liquidated". 240In para 22 of the same affidavit, Mr Widdup said that he "developed" a strategy for Mr Ballard and Mr Young to be offered the Finger Wharf demolition contract, together with a payment of $500,000.00 to enable them to set up a new company to carry out that work "in return for them co-operating in a liquidation of Stoneglow". 241In paras 23 and 24 of that affidavit, Mr Widdup said that he discussed this proposal with Mr McDiven, and then with Mr Hicks. In brief, Mr Widdup said, Mr McDiven agreed that the strategy should proceed, and Mr Hicks undertook to make the offer to Mr Ballard. 242Thereafter, according to para 25 of that affidavit, Mr Hicks reported back to Mr Widdup, saying that he had made the offer to Mr Ballard and that it had been "well received". That was said to have occurred "in or about early 1997". After that, according to Mr Widdup, Mr McDiven said that he had spoken to Mr Ferguson and that "all deals with Ballard are off". Mr Widdup passed that on to Mr Hicks. Some weeks later, Mr McDiven is said to have elaborated on Mr Ferguson's requirement. 243I set out paras 26 to 28 of the October 2009 affidavit: At a time that I do not exactly recall, but within a few weeks after the above-mentioned conversation with David Hicks (in which he had advised me that the offer had been made to Ballard), while I was sitting in my office, McDiven walked in and closed door. It was very unusual for McDiven to close the door in this way; he appeared very stern. There was a short conversation during which words to the following effect were said: McDiven: I have just had a conversation with Andrew Ferguson. All deals with Ballard are off. I responded in words to the effect that I would fix it. I then telephoned David Hicks and had a conversation during which words to the following effect was said: Widdup: The deal with Ballard is off. Hicks: What do you mean? Ballard has put his company into liquidation [he possibly said 'adminstration']. You can't just pull the pin like that. You have put me in a very difficult position as I was the one making the promises for you. Widdup: There is no discussion on this, Dave, I have my orders. Just do your best. In a conversation I had with McDiven, that occurred in the office in the following few weeks, concerning what Ferguson had said to McDiven regarding Ballard, McDiven said to words to the following effect: McDiven: Ferguson told me the Union wants Ballard out of business. Ferguson says he has been in dispute with Ballard some time. He said he would not tolerate seeing Ballard get the Finger Wharf project. This is our flagship development. Ballard has upset Ferguson by showing the Union up in public on TV. We can't afford any trouble with the Union on this job. Ballard can't get the job. 244However, there was in evidence a memorandum dated 11 April 1997, from Mr Hicks to Mr Widdup. (That memorandum was, I think, admitted on a limited basis; but nothing of present moment turns on this.) In that memorandum, Mr Hicks reported on discussions that he had had with Mr Vouris on 10 April 1997. Mr Vouris had been the administrator of Stoneglow (appointed 18 February 1997) and by 10 April 1997 had been appointed as its liquidator. 245In the memorandum, Mr Hicks reported on options that Mr Vouris had put to resolve any dispute between Stoneglow and Multiplex. He then turned to other "options available to Multiplex". 246It is clear from the memorandum that Mr Hicks had had discussions with Mr Ballard (and perhaps Mr Young) as well as with Multiplex. It is in my view equally clear that no firm proposal had been put to Mr Ballard. Finally, it is clear that what ever discussions were then taking place, were taking place against the background that Stoneglow had already been liquidated. 247Mr Widdup was taken to the memorandum, and referred in detail to its contents (see, generally, T1729 - 1735). 248Mr Widdup accepted that he had given an instruction to Mr Hicks, and that Mr Hicks could only act on Mr Widdup's instructions. On that basis, and in the light of the memorandum, he agreed that any offer made by Mr Hicks to Mr Ballard must have occurred after 10 April 1997 (T1733.26 - .37): Q. You recall giving an instruction to Mr Hicks and you indicated that Mr Hicks could only act on your instructions? A. Yes. Q. Therefore you agree, can I suggest to you, in light of this memorandum that any offer that Mr Hicks may have made to Mr Ballard in relation to a monetary amount and involvement in a Multiplex job must have postdated the date of this document? A. Yes. Q. Thank you. The date of that document is April, 10 April 1997? A. It says that, yes. 249Mr Bannon devoted a deal of ink and paper to the proposition that this aspect of Mr Widdup's evidence, or more accurately the concession I have just set out, should not be taken at face value (PS paras 687 - 695). The thrust of Mr Bannon's argument on this point was that, as was put at para 688, "[a] fair reading of the ... memorandum does not support the conclusion that any offer to Mr Ballard must have been made after its date". 250Further, Mr Bannon pointed to Mr Widdup's evidence in re-examination on the point, in the course of which Mr Widdup expressed somewhat different views as to the memorandum. 251I do not accept the submissions put as to this aspect of Mr Widdup's evidence. The proposition set out at [248] above was reinforced at T 1734.46 - 1735.17 and, after an interruption that need not be discussed, at T 1736.31 - 1737.27. I do not propose to set those passages out at this point. Mr Widdup was given more than one opportunity to consider the memorandum and the consequences (as to chronology) that followed from the way it was worded, and agreed that the chronology that he had been given must be wrong. 252Further, on this point, I do not accept the submission that the premise of the second question set out at [248] above was unsound. On a fair reading of the memorandum, it is I think, clear, that what it communicates is that no offer had been made at its date, so that any offer that was made, must have been made (on the basis that Mr Hicks could not act except upon Mr Widdup's instructions) until after that date. 253That aspect of Mr Widdup's evidence had appeared, three years earlier, in his October 2006 affidavit. He said that at some stage that he became concerned at the possibility that if Stoneglow went into liquidation, it might pursue and succeed on a substantial claim against Multiplex. He then said, in paras 26 to 28 that: (1) he conceived the idea of letting Messrs Ballard and Young put Stoneglow into administration, on the basis that Multiplex would give a new company to be started up by them the Finger Wharf demolition contract, and would provide $500,000.00 capital; (2) he reported this to Mr McDiven, who agreed and said "tell Hicks to offer it to them"; (3) he told Mr Hicks to make that offer; and (4) Mr Hicks had reported back, saying that he had made that offer. 254I set out those paragraphs: 26. I came up with the idea of doing a deal with the principals of Stoneglow that if they put Stoneglow into administration, Multiplex would employ them in a different company, for demolition at the finger wharf on the Finger Wharf Project. Multiplex would pay the new company $500,000.00 for start up costs and they would have a profit at the end of the Finger Wharf Project of about $3,000,000.00. I know now the demolisher who was awarded the contract made more than $3 million dollars because the salvage was much greater than previously expected. 27. I recall saying one day to Mr McDiven, words to the effect: Because of Stoneglow's problems and how that could impact on us, I want to offer David Ballard and Barry Young the Finger Wharf demolition. I'll tell them if they put the company into administration and don't pursue Multiplex for what they are owed, we will give them $500,000.00 upfront for new equipment and start up costs and the Finger Wharf Project contract. There will be about $3 million profit in it for them. I can't see them causing us any further problems them. Mr McDiven said to me, word to the effect: That's fine, tell Hicks to offer it to them. I said, words to the effect: Ok, I'll tell David to offer it to them. 28 I later had a conversation with David Hicks, who said to me, words to the effect: I have put your offer to David Ballard. I told him that this was a good outcome for him as all of the liabilities which are outstanding in Stoneglow would be rubbed out and he will have a new profitable contract in a lean company with enough money to start up again to compensate him for the loss cause[d] by the Coles Myer fiasco. I said: Good Hicks said: I have recommended that they appoint a liquidator. 255It was put to Mr Widdup that any conversation to the effect of that set out in para 27 must have occurred after 10 April 1997. He first disagreed, quibbling over the distinction between "commitment" and "floating proposals", and an apparent further distinction relating to "capital O offers", but then seemed to accept the point (T1734 - 1735.17): Q. But plainly enough Mr Hicks, from the review of the memo, had not by 10 April put anything to Mr Ballard? A. I don't think it says that but I understand the intent of your suggestion. Q. And do you accept that? A. It says "We make no commitment to Mr Ballard". Commitment I understand to be different from floating proposals. But I, I'm rambling a bit. If you ask me a question, I'll answer it. Q. Any offer made to Mr Ballard on Multiplex's behalf through Mr Hicks was not for the purposes, in relation to the Finger Wharf project and commitment of money, was not for the purposes of putting a company into administration, was it? A. I'm not following that question. If I could answer it in my own words, I will. Q. Do you have your October 2006 affidavit? A. I do. Q. Could you go to paragraph 27, the paragraph I asked you about before? A. Yes. Q. The conversation which you set out in paragraph 27, if it occurred in those terms, must have occurred, don't you agree, some time after 10 April? A. No, I don't. Q. Well, I thought you said, you accepted that no offers as to either money or to jobs could be made prior to-- A. Capital O, offers, is correct and I qualified it by saying that the idea could have been floated before that time. Q. But you don't know? A. But I don't know. Q. The idea could have been floated. You certainly would have instructed, if what you are referring to is the floating of an idea, that would not be an instruction to Mr Hicks to make an offer, would it? A. Certainly not. Q. And so if you look at paragraph 27 and read the last sentence? A. I see it. Q. The recollection you set out in paragraph 27 which is not identified as to timing could not have occurred prior to the 10 April memorandum to Mr Hicks, do you agree? A. Correct. Q. Right, thank you. And can I suggest to you that given your acceptance of that, that your statement or that your quoted statement, "I'll tell them if they put the company into administration..." cannot be correct for the reason that the company was not only in administration but was in liquidation by the time of Mr Hicks's 10 April memorandum to you? A. Yes. Q. So to that extent your memory of the conversation set out in paragraph 27 of the October 2006 affidavit must have been faulty? A. To the extent that I used the word "administration" instead of "liquidation". Q. And the word - but, but also liquidation, Mr Widdup. Because I'd ask you to assume that the company-- A. Because they were in liquidation. 256Of course, the real point is that by 10 April 1997 (indeed, from 17 March 1997), it was meaningless to talk of putting any proposal to Mr Ballard or Mr Young in exchange for them bringing about a "co-operative liquidation" of Stoneglow. Stoneglow was in liquidation and there was nothing that they could do "co-operatively". Co-operation was up to the liquidator, who no doubt had his own duties, priorities and agenda. That in turn suggests that the whole concept of Mr McDiven pulling the plug - "[a]ll deals with Ballard are off" - and that being communicated to Mr Hicks, with the response that "Ballard has put his company into liquidation [administration]" cannot be correct. There was no deal to call off. Mr Ballard did not put his company into liquidation or administration. It was the creditors, on 17 March 2007, who put Stoneglow into liquidation. 257Mr Widdup was then taken to the equivalent paragraphs of his October 2009 affidavit. He sought to explain the reference to "co-operative liquidation" in a way that does him little credit. However, he agreed, the discussion set out in para 23 with Mr McDiven must have been wrong, at least in so far as it refers to co-operation in bringing about the liquidation. He would not make the same concession as to para 24, taking refuge in "clumsy language" (T1736.31 - 1737.45): Q. Now, Mr Widdup, just to return, I suggested to you and I think you agreed that the statement set out in the quoted passage in paragraph 27 in the October 2006 affidavit about "I'll tell them if they put the company into administration..." must have been a flawed memory and you agreed because of the sequence of events that I pointed out? A. Very clumsy language was used by me. Q. Not just clumsy. Language, the whole concept of putting a company into administration can't have been used in this consideration because the company was already, not only had been in administration but was under liquidation? A. Read literally, you're correct. Q. Similarly in paragraph 28 the statement you attributed to Mr Hicks at the end of that paragraph, that "I have recommended-- ". I'm sorry, you record, you quote Mr Hicks as having recorded here that you have actually put the offer to Mr Ballard? A. Not me, but him. Q. I'm sorry, that he'd put the offer to Mr Ballard. If to the extent any offer was put to Mr Ballard that could only have been made, if it was made at all, after 10 April 2005, I'm sorry, 1997? A. Yes, that's correct. Q. And therefore, what you have attributed to Mr Hicks in the final sentence "I have recommended they appoint a liquidator" must also be mistaken? A. Correct. Q. Right. Similarly if you return to your October 2009 affidavit, paragraph 22, from the sentence beginning "The strategy" and the final sentence beginning "I saw that" have you had a chance to read those? A. I have. Q. Can I suggest to you that your references to "In return for co-operating on a liquidation of Stoneglow and co-operative liquidation", that the same reasons relating to your October 2006 affidavit, your recollection in relation to liquidation must be wrong? A. This says it slightly differently but it is in clumsy language but it's better than the language used in that affidavit. By "co-operative liquidation" I rather inexpertly said that the directors of Stoneglow would not pursue any actions against Multiplex either through the liquidator or through a liquidator's funder in exchange for the awarding of the contract to demolish the Finger Wharf. But I quibble. You're right, that is poor language and is a mistake on my part. Q. Because if and to the extent any offer was made, the company was well and truly in liquidation? A. Yes, yes, that is correct. Q. Right. And similarly in paragraph 23 where you set out the substance of your discussion with Mr McDiven, and I invite you to read paragraph 23? A. Yes. Q. The reference to, and I quote, the words "In return for co-operation in bringing about the liquidation of Stoneglow" have to be wrong, don't they? A. Yes. Q. Similarly in paragraph 24 in relation to your conversation with Mr Hicks, to the extent it uses the expression "In return for co-operation in having Stoneglow wound up"? A. I can't see the same problems in 24. The word "them" on the third line, fifth line, refers to the principals of Stoneglow as opposed to Stoneglow. Q. I'm looking at the phrase "In return for co-operation in having Stoneglow wound up"? A. I agree with you, that's very clumsily said and is wrong and is my fault. 258At the very least, Mr Widdup's memory of events relating to the Finger Wharf demolition contract - which is a key part of the case for Mr Ballard - is shown to be faulty. A less charitable view, which in my view is the correct one, is that there are numerous elements of fabrication. But even on the more charitable view, the mistakes in recollection (particularly since Mr Widdup had apparently reviewed all the discovery of Multiplex, from which the Hicks memorandum came) inspire no confidence in him as a witness whose evidence should be regarded as reliable. 259I referred at [212(3)] above to evidence that Mr Widdup gave of a conversation that he said that he had had with Mr John Roberts, in which the latter offered him a substantial sum of money, in exchange for his silence, "especially about the Ballard matter". Mr Widdup said that he remembered that particular conversation because "it is etched into my mind like engraving in titanium" (T1652.6). He agreed that it had remained thus etched, or engraved, "all these ten years" since the conversation allegedly occurred (T1652.20). He was cross-examined about the apparent inconsistency between the strength of that memory, as enhanced by the vivid simile that he used, and his initial failure to recognise Mr Ballard or his name ("this did not initially assist me in recalling who he was") when they first met (at least, after 2000). 260When cross-examined on this, Mr Widdup at first (apparently forgetful of what he had said in his October 2009 affidavit) claimed to recall that when Mr Ballard first approached him and introduced himself, he had an instant recall of who Mr Ballard was (T1663.29-.36). He was then taken to para 41 of October 2009 affidavit and, having first denied any inconsistency, ultimately admitted that there was a mistake which should be added to the "list of mistakes" (T1663.45 - 1664.41): Q. It is wholly inconsistent with the evidence you have just given to his Honour, isn't it? A. I said what I said. I don't see the inconsistency. He said he was David Ballard. I initially, for a few moments didn't know who he was. Q. The name meant nothing to you, did it, initially? A. Within the first few seconds it didn't. Q. I see. This man's name was etched in your mind like titanium from 2000 right through to today, you have told his Honour? A. Yes. Q. As a result of something John Roberts said to you on the 24th or so of December 2000? A. Question? Q. And I put to you very clearly before I took you to paragraph 41 that when you met him, the name didn't ring any recognition with you? A. (No verbal reply). Q. And you denied that on your oath. You said, "It did, I knew who he was"? A. (No verbal reply). Q. In light of that - please don't signal at me. A. Well, don't wait for an answer when you haven't asked a question. HIS HONOUR: What is the question? BELL: I was about to ask the question. Q. The statement, your answer that you held Mr Ballard's name in your memory and that when he did introduce himself to you, you knew immediately who he was, is flatly inconsistent with the evidence you have given in paragraph 41, the sentence beginning "The gentleman introduced himself" isn't it? A. It is. Q. And that's because there was no titanium etched memory of what Mr Roberts said, as you claim he said it, in December 2000, was there? A. There was. Q. Why did you lie in paragraph 41 of your affidavit about not initially recognising the name? A. I can't explain that. Q. We'll add that to the list of mistakes? A. Yes. 261Further cross-examination on this point did nothing to improve the situation. 262It is strange that an event that had been etched into Mr Widdup's mind like engraving in titanium, and which he recognised dealt with a matter material to Mr Ballard's claim against Multiplex (T1643.24 - .32), had not been mentioned in the April or October 2006 affidavits. Mr Widdup said that he had been at pains to recall everything he could in April 2006, and had given as detailed an account as he could to the solicitor who prepared the affidavit (T1629.15 - .22). He said, further, that the meeting was present in his mind in April and October 2006 (T1652.130 - .37). I return to this point at [691] to [695] below. 263Those surprising features of the evidence are magnified when one has regard to the terms in which Mr Widdup dealt with the Finger Wharf proposal in his April 2008 statement. In para 13 of that statement, he said that he instructed Mr Hicks to offer Mr Ballard $500,000.00 and the Woolloomooloo project. In para 14, he said that Mr McDiven instructed that offer to be withdrawn a few months later. The account of the conversation did not attribute any reason for the instruction, let alone refer to Mr Ferguson. 264That there had been no reference to Mr Ferguson, or the unions, is clear from para 18, in which Mr Widdup said that it was only "[b]y a process of elimination" that he worked out that the instruction was motivated by interference from the unions. 265I set out paras 13, 14 and 18: Any termination of contract would normally have to go through me. In or about early 1997, I recall saying words to the following effect to Hicks: Offer Ballard $500,000 as a payout for his equipment and offer him the Woolloomooloo project. This should put Stoneglow to bed. A few months following, Ross McDiven came in at my office and words to the following effect were exchanged: Ross: Withdraw your offer to Ballard Me: I've already made Ross: This isn't a debate, I have my orders and you have yours 10 minutes later he came back into the office and said words to the following effect: Ross: Have you withdrawn the offer yet? In reply, I said words to the following effect: No Ross: Can you do it immediately? ... By a process of elimination, I knew that there were no problems with Stoneglow and from a sceptical start it must have been the Unions interference. Kouris was hurt by not getting the job and it might have been the end to his affiliation with Multiplex. He might have gone to Union. He might have made a donation to the 'picnic fund' to get rid of Ballard. 266What is remarkable, when one compares this with the later account, is that Mr Widdup was making it plain that Mr McDiven had not given any reason for the instruction to withdraw the offer, and that Mr Widdup was left out to work for himself that it must have been due to the unions' intervention. There could have been no need for any such cerebration, had the conversations with Mr McDiven taken place as alleged in paras 26 and 28 of the October 2009 affidavit (which paragraphs Mr Widdup affirmed in paras 81 and 82 of his July 2010 affidavit, notwithstanding that he had read Mr McDiven's denial of those conversations). 267Those matters give me no confidence whatsoever in accepting as reliable Mr Widdup's evidence as to the events surrounding the Finger Wharf offer, or the proposal, or as to Mr McDiven's alleged instructions and the reasons said to have been given for it. 268The defendants relied on numerous other matters in Mr Widdup's evidence which, they said, pointed to its unreliability. I do not propose to go through all those matters. Two that I will mention briefly relate to the topic of consultancy work and to the topic of board minutes. 269As to the former, Mr Widdup said at para 6 of his April 2008 statement that he had retired in 2004, "and [I] now do consultancy work for government". When cross-examined on this, he acknowledged that it was incorrect: another mistake to be added to the list of the mistakes, and attributable to human frailty (T1679.17 - .49): Q. You didn't indicate yesterday you did consultancy work for the government when I asked you whether you did any consultancy work for the government, because you never did any consultancy work for the government, did you? A. I'm thinking, just give my a moment. No. Q. Why did you sign a statement saying you now do consulting work for the government in 2008 when this was not true? A. Having examined the word "do", I would rather say I worked with parties who worked with the government, with Commonwealth Government parties. To the extent the word "do" does not encompass that, you are correct. Q. You are making things up, to get yourself out of difficult spots, aren't you? A. No. Q. When I asked you first, you said you did do work for government. You offered to provide a list. But the reality is you have never done consulting work for the government since 2004? A. That's correct. Q. Why did you sign a statement saying you did? A. Well, it doesn't say that. But I could have expressed it better. Q. Why did you sign a statement saying you now do consulting work for the government when you had never done work for the government, certainly as at 2008? A. I made a mistake. Q. Do we add this to the list of mistakes? A. Yes, you do. Q. How could you make a mistake about that, Mr Widdup, on 22 April 2008. How could you possibly make a mistake about what you were then doing? A. Human frailty, I suppose. 270As to the topic of board minutes, Mr Widdup said in para 6 of his October 2009 affidavits that discussions between directors regarding operational matters would almost never be recorded. There was, he said, a deliberate procedure not to record those matters or anything else that might be controversial. 271By contrast, in paras 38 and 39 of his July 2010 affidavit, Mr Widdup said that if complaints about Stoneglow's performance were of concern, they would have been discussed at directors' meetings, and that discussion would have been minuted. He accepted that there was a plain inconsistency and that "without a detailed explanation, it looks ridiculous" (T1706.25). No explanation of that inconsistency was ever offered. 272I do not accept Mr Widdup as a witness on whose uncorroborated evidence I can rely, unless that evidence happens to coincide with what I perceive to be the probabilities, objectively ascertained. Attacks on the defendants' witnesses: general observations 273At a level of some generality, there are difficulties in the way the submissions for Mr Ballard approach the credibility of the defendants' witnesses. 274First, in many cases, the attacks depend on accepting the evidence of one of the witnesses called for Mr Ballard (for example, Mr Widdup) over the evidence of a witness called for one or other of the defendants (for example, Mr McDiven) in relation to some disputed question of fact (for example, the circumstances surrounding the termination of Mr Widdup's employment and the payment of a sum of money to him). There is an element of circularity in saying that the evidence of one witness (Mr Widdup) should be believed over the evidence of another (Mr McDiven) because the evidence of Mr Widdup on the particular topic is inherently credible and the evidence of Mr McDiven is not; and in then relying on this proposition as redounding adversely upon the credit of Mr McDiven. 275The second matter is that a number of attacks are made upon the basis that a witness did not advert to something in his affidavit. In many cases, those attacks overlook the fact that the particular issue was not raised, in some cases, until affidavits were filed for Mr Ballard very late in the day; and in others, only in the course of cross-examination of other witnesses called for Mr Ballard. 276Thirdly, in many cases, witnesses are criticised for alleged inconsistencies between their oral evidence and their affidavit evidence. But in many cases, although the general area of evidence was opened up, the witness was never taken to the specific conflict said to exist between what he said in cross-examination and what he had said in his affidavit. 277Fourthly (particularly in the case of the witnesses called for Multiplex), in some cases the attacks were based on matters relevant only to credit occurring many years ago, in circumstances where the witnesses had no opportunity of turning their minds to the point until the topic was raised in cross-examination. In many cases, the matters were remote from the issues in this case. It is hardly surprising, in those circumstances, that the witnesses' memories may have been confused or inconsistent. 278Unfortunately too, a perusal of the transcript references given from time to time in the written submissions for Mr Ballard, dealing with the credibility of one witness or another, demonstrates that the summary of what appears in the transcript is not always accurate. In evaluating some of the criticisms, it is necessary to have regard to the whole of the evidence of the witness on the particular topic. That task is made no more easy because, in many cases, individual topics were addressed on numerous occasions. (This is not just a reflection on Mr Bannon's cross-examination. The same pattern is notable in Dr Bell's cross-examination and, to a lesser extent, Mr Oslington's. Further, in the case of the defendants (considered as a group), there is much repetition between what was put by Dr Bell on the one hand and Mr Oslington on the other.) 279Again, witnesses were from time to time cross-examined about statements that appear in, or more accurately inferences to be drawn from, documents, and criticised in submissions for their responses. There are occasions when what was put is, at best, a brief and inadequate summary of their evidence, or the relevant part of the document. 280It should also be noted that, on a number of occasions, witnesses were cut off in the course of giving their answers in cross-examination, and it appears that from time to time Mr Bannon may have raised his voice (or, according to Dr Bell in the course of cross-examination, "shouted" at a witness). I do not suggest that any such conduct was more than a demonstration of the robust traditions of the Bar in this state. But it may well be that on occasions, a witness's adverse reaction to such treatment explains the manner of an answer. Mr McDiven 281As I have foreshadowed, one of the attacks on Mr McDiven's credibility was based on his evidence as to the circumstances of the termination of Mr Widdup's employment, and the negotiation of a payment for Mr Widdup. 282In so far as it is suggested that documents created by Multiplex relating to Mr Widdup's termination were false, or gave a misleading impression, in some cases at least this was done not only with the knowledge of Mr Widdup, but at his request. For example, the memorandum to staff relating to the termination of Mr Widdup's employment said that he had advised the board that he would be retiring in July. As Mr Bannon pointed out, Mr Widdup was not retiring; his employment was to be terminated; and there was no evidence that Mr Widdup had advised the board of any retirement. 283The memorandum had been shown to Mr Widdup before it was circulated. He marked it "9/10", presumably to indicate his approval of its wording. It is hardly surprising that, after 20 years in senior positions with Multiplex, Mr Widdup wished to leave with some degree of dignity. 284I might mention that the cross-examination of Mr McDiven on this memorandum is one of the occasions when, as is apparent from the transcript, Mr Bannon both raised his voice in cross-examination and cut the witness off (see for example T 3261 - 3263). 285Further, it should be noted that the payment of $750,000.00 to Mr Widdup on termination of his employment was negotiated by him in the form of a loan. No doubt, that was done in an attempt to secure taxation advantages. The loan was discharged through a "round robin" of cheques, but the benefit of the payment remained with Mr Widdup (or a company associated with him) through that round robin transaction. In other words, although the actual loan was discharged by a payment to the lender, it was done in such a way that Mr Widdup was put in funds to do so by another advance that was never repaid. 286Whether all of this is commercially moral or not, to the extent that it does involve any reflection on the credibility of the participants (and I am not really sure that it does), it must be remembered that the participants included, in an active and not merely a passive way, Mr Widdup. 287Mr McDiven is also criticised for what Mr Bannon characterised as his "belated denial that Ferguson had his direct line." Mr Widdup is said to have given unchallenged evidence that Mr Ferguson did have Mr Widdup's direct telephone number. Mr McDiven did not deny that in his first affidavit, but did deny it in cross-examination. 288However, the evidence is that Mr McDiven did tell the lawyers for Multiplex that he denied that Mr Ferguson had his direct telephone number. That was shown by counsel's notes of a conference, over which privilege was waived, and which were tendered without objection and without challenge. For whatever reason, the denial did not make its way into the affidavit. If that it is a problem, it is a problem of oversight on the part of the lawyers. But it cannot be said that the denial in cross-examination was made up on the spot. 289Mr McDiven was criticised for his evidence that he was not directly involved in relation to the Pitt Street Mall project or the dispute between Multiplex and Stoneglow. That evidence is hardly incredible. Mr McDiven was the managing director of Multiplex NSW, and a director of Multiplex Constructions. In the former role, he was responsible for overseeing all of the company's projects, and its attempts to win more business. In the latter capacity, no doubt, he had some responsibility for the affairs of the whole group. The evidence showed clearly that, in and around 1996, Multiplex had many current (and substantial) projects, and many more "in the pipeline". It was then one of the largest building contractors in Australia. 290Mr Bannon relied on the fact that Mr McDiven had been copied in on industrial dispute notifications relating to the Pitt Street Mall project. That is correct; but so had other directors, including Mr Denis O'Regan and Mr Ron Koefed. Indeed, so had the Perth, Melbourne and Brisbane offices of Multiplex. What is more significant is that none of the project - specific correspondence appears to have originated from, or been directed to or copied to, Mr McDiven. 291It is, in my view, unrealistic to expect that the managing director of a company such as Multiplex NSW at the time would have been closely involved in the day to day running of each and every one of that company's projects (even accepting, as I do, that the Pitt Street Mall project was a major one for Multiplex). It was the company's policy to assign individual responsibility for each project to one or other of its directors; and in addition, the company employed competent project and construction managers, and other professional staff, for each of its projects. 292I do not think that the evidence of lack of direct or day to day involvement is inherently implausible, and I do not think that this reflects adversely on Mr McDiven's credibility. 293Mr McDiven was attacked for his evidence that he was not aware of the ACA program. If I may say so, that submission appears to me to have little to do with Mr McDiven's credit, and a lot to do with Mr Ballard's obsession, to which I have referred to earlier. 294Mr McDiven was criticised for evidence that he gave to another Royal Commission, the Royal Commission of Inquiry into the Building Industry conducted by the Honourable RV Gyles AO QC. His evidence to that Royal Commission, as to the level of industrial disputation during 1989, was said to be inconsistent with submissions made by an industrial advocate on behalf of Multiplex in a proceeding in the Industrial Relations Commission in 1989. This is an example of matters far distant temporally (at the time when Mr McDiven gave evidence) being dredged up, out of context, and deployed in an attempt to generate credibility issues. The fact that Mr McDiven, in 1992, did not have the same view as appears to have been held by an industrial advocate in 1989, is hardly damning; and the fact that, in 2010, Mr McDiven could not give clear evidence on the point is, in my view, irrelevant to his credibility. 295Mr McDiven was attacked for his professed ignorance of payments made to a company known as Comet Training Pty Limited (Comet). Comet was in effect a joint venture company set up and owned equally by the unions (or their predecessors) and the Master Builders' Association (MBA). It provided training courses for people and enterprises engaged in the building and construction industry, and utilised the services of contractors to undertake that training. There is no doubt that the training was provided at a profit to Comet, and that the profit was ultimately shared between the unions and the MBA. 296Mr Higgon suggested that this was in some way, in effect, a scheme for passing on donations the unions. (I pause to note that, if this be a correct characterisation of what was happening, it was also a scheme for passing on donations to the MBA.) Mr McDiven said that he was unaware of this. Mr Higgon suggested that Mr McDiven was, or might have been aware. However, as Mr Higgon said, that was an assumption that he made that might or might not have been accurate (T3606.20). 297On the evidence, Mr Stagg appears to have been the person who had executive responsibility, within Multiplex, for the decision to engage the services of Comet. Again, in my view, it is unrealistic to suggest that the managing director, in the person of Mr McDiven, either should have been or must have been involved in that decision. 298I do not regard Mr McDiven's evidence of non-involvement or lack of knowledge as reflecting adversely on his credibility. 299Mr Bannon attacked Mr McDiven for alleged involvement in participation by Multiplex in collusive tendering said to have occurred in 1988. This is another example of a matter being dredged up from the past without warning. It is also an example of matters being put to Mr McDiven at a level of generality, and of his then being criticised for giving less than specific answers. 300However, the ultimate answer to this submission seems to me to be that the material in question can go only to credit, and thus that, the matter having been explored so far as Mr Bannon wished to explore it in cross-examination, Mr Bannon is bound by the answers given. Those answers do not discredit Mr McDiven. 301Other criticisms were directed at other aspects of Mr McDiven's evidence. I do not propose to go to them, save to note that one (relating to the Finger Wharf project), affords another example where Mr Bannon appears both to have talked over and to have shouted at the witness (in this instance, that description of the mode of cross-examination comes from Smart AJ) (see T 3522). 302I do not regard the matters on which Mr Bannon placed reliance, either individually or collectively, as reflecting adversely on the credibility of Mr McDiven's evidence. 303I should say, also, that in so far as one can make a judgment from reading the transcript of cross-examination, Mr McDiven appears to have been careful to give accurate answers, and not to go beyond the extent of his knowledge when dealing with the matters put to him. Mr Higgon 304Mr Higgon is said to have been an extremely defensive witness, who parried with questions and preferred "obtuseness to a willingness to answer questions" (PSR 273). If that is so, it does not appear from the transcript. On the contrary, what does appear from the transcript, in relation to one matter on which Mr Higgon's credibility was attacked, is that he sought, but did not receive, specificity instead of generality in relation to the broad proposition that Multiplex in the past had succumbed to industrial pressure or threats (see T 3632 - 3633). Given the general nature of the question, and the fact that it related to matters occurring between 15 and 20 years before Mr Higgon gave evidence, that seems to me to be sensible rather than otherwise. 305Mr Higgon was criticised for his involvement in payments to Comet. To the extent that the invoices that Mr Higgon approved may have "disguised" donations made to the unions (and, if they were, to the MBA also), it is to be remembered that the invoices were issued by Comet to Multiplex. Mr Higgon's responsibility was to certify the invoices as appropriate for payment. That responsibility I take to include satisfying himself that the services had been provided and that the price charged for them was in accordance with whatever had been negotiated. 306It is correct to say, as Mr Bannon submitted, that the form of the invoices was later changed, so as to make them more "transparent". But it does not follow that Mr Higgons should be criticised for approving them in their earlier, and presumably opaque, form. Mr Stagg 307Mr Stagg was an executive director of Multiplex, who had particular responsibility for the Pitt Street Mall project. He also had responsibility for industrial relations in New South Wales. He left the employment of Multiplex in 2005, and has since been employed as the managing director of a company based in Singapore that provides project management and construction and design services in South East Asia. 308I do not propose to go in detail to the criticisms made of Mr Stagg. It is sufficient to note that, in many cases, the criticisms are not based on direct conflicts in his evidence (or between his evidence and apparently incontrovertible matters established, for example, by contemporaneous records), but on conflicts between his evidence and the various conspiracy and case theories advanced on behalf of Mr Ballard. 309Mr Stagg was criticised for what is said to be advancing concepts in the course of cross-examination. This was put, in particular, in relation to a phrase, "industrial blackmail", used by Mr Stagg in cross-examination. I accept that Mr Stagg may not have introduced this phrase until he was being cross-examined. But it is very hard to disagree with the proposition that, as a compendious summary of the detail set out in his affidavit relating to the circumstances in which Stoneglow's workers stayed out on strike, it is both accurate and apposite. 310Again, Mr Stagg was criticised for his assertion in cross-examination that the "ambit claim" made by Stoneglow lacked credibility. That assertion is hardly surprising. The claim in question was the one for $900,000.00 (soon to be increased to $1 million) made, in an entirely non-specific and undocumented way, in Stoneglow's letter of 25 October 1996. That was no more than an ambit claim. It had no credibility. It is undermined both by the view formed by Mr Peter Hammond at the time and by the conclusions of the referee as adopted by Smart AJ. Mr Hammond was a quantity surveyor engaged to assess what might be owing by Multiplex to Stoneglow following termination. Multiplex was prepared to accept his assessment; Mr Ballard was not. The referee inquired into and reported on the same question. Each of those pieces of evidence suggests that the ambit claim was overstated by a factor of about four. 311Nor do I propose to take up time and space by going in detail to the remaining criticisms made of Mr Stagg. It is sufficient to say that they do not, in my view, undermine his credibility. I take this course also because, to the extent that Mr Stagg's evidence is relevant (and it is relevant to the Finger Wharf proposal), an essential element was accepted in cross-examination by Mr Widdup, as I have recorded at [236] above. Mr Murphy 312Mr Murphy was a construction manager employed by Multiplex from 1991 to 1997. He left the employ of Multiplex in 1997 to work for the Sydney Organising Committee for the Olympic Games. In 2000, Mr Murphy, together with other former Multiplex personnel, set up a company called Cadence Australia Pty Limited. Cadence provides project management services. Mr Murphy is, and since 2000 has been, its managing director. 313The first attack on Mr Murphy's credibility was based on the Cadence website. That website was divided into sections: Our services People Projects Contact us 314The website included a quotation from someone from the (Federal) Department of Education and Training, relating to the "Building the Educational Revolution" program. That quotation read: Cadence Australia has been one of the leading firms in the delivery of projects under the BER program... . I believe this is a direct reflection of Cadence Australia's ability to push the boundaries of success and exceed [sic] well beyond the expectations of their clients. 315Reference was made to that quotation both in cross-examination and in submissions. I have to say that I do not understand the significance of it, save that it identifies Cadence as (according to one satisfied customer at least) a capable project manager. 316The "projects" that were listed included projects under the heading "demolition, hazardous materials, site remediation and façade retention". The second item under that heading was "Sydney Central Plaza Demolition and Façade Retention Sydney CBD". 317The Pitt Street Mall project was referred to again, under the heading "retail", as was the Chatswood Chase project. 318Mr Murphy accepted (correctly) that those projects were undertaken by Multiplex, before Cadence came into being. It was put to him that the website was misleading, because it suggested that Cadence had been involved in those projects. His response, in substance, was that the website was intended to suggest, and in his view did suggest, that the personnel employed by Cadence (who were listed) did have that relevant experience (see, for example, T 3916.24 - .44): Q. What you are intending to convey is that this was work done by Cadence, weren't you? A. No. Q. Is there any other way of reading this document and those references other than that was work done by Cadence do you say to His Honour? A. Is that a question for me? Q. Yes, it's a question for you? A. All the intent of that represents the people that worked for Cadence worked on those projects and that's how we established our career path and career projects and experience. Q. Cadence didn't exist at the time the work was done at Chatswood Chase and Sydney Central Plaza, did it? A. That's correct. Q. It was utterly dishonest to say that Cadence had done the work on those projects? A. I don't agree with that. I'm not suggesting that Cadence did those projects. The people that worked for Cadence worked on those projects. 319It may be that the website, read literally, could be taken to have suggested that it was Cadence itself that had carried out the projects in question. But it seems to me that the point that would be of interest to those contemplating employing the services of Cadence was the qualifications and experience of those who would provide the services. If the website had stated expressly that, between them, the people that it employed had experience on the projects listed, it would be completely correct. 320Technically, the website may be misleading. But in substance, in my view, it is not. In this context, I do not think that it is appropriate to approach Mr Murphy's credibility on the basis that he should be taken to have a precise understanding of the legal doctrine often summarised in the phrase "the veil of incorporation". In common parlance, at least among non-lawyers, it is not unusual to regard corporations as comprising and being interchangeable with, in aggregate, the people who direct and work for them. That is true particularly of corporations that exist to provide the professional or other services of their personnel. 321The website consistently uses the first person plural pronoun to refer to Cadence: "our services", "our clients", "we use", "we know", "we choose". All those quotations come from the first paragraph, which read as a whole is consistent with the notion that corporations are no more than the aggregate and equivalent of their personnel: The reputation of Cadence Australia rests on our clients' success. To achieve that, you need exceptional people. That's why the process we use to select our people is rigorous. We know that the success of any project depends on the skills and qualities of each individual. That said, we choose people who believe in team work and who know that when they apply their individual skills, as part of a collective goal, the results can surpass all expectations. 322I do not regard this semantic point as reflecting adversely on Mr Murphy's credibility. 323Mr Murphy was attacked for a number of aspects of his evidence which were said to be "disingenuous", "absurd", "implausible in the extreme", "plainly untrue" or "implausible" (see, generally, PSR paras 245 to 250). Most of those submissions depend for their effect on an acceptance of the case or conspiracy theories underlying the way that Mr Ballard's case was put. They also seem to me to overlook the reality that Mr Murphy was giving evidence almost 15 years after the events in question, for most of which time he had not been employed by Multiplex. They overlook the fact that, as construction manager on the Pitt Street Mall site, Mr Murphy had many concerns on his hands and was required to deal with many issues during the period October and November 1996. 324Further, in some cases, the submissions depend for such force as they have on scraps of evidence taken out of context, or on a mis-statement of the effect of the relevant parts of Mr Murphy's evidence in cross-examination. I do not propose to go into detail. It is sufficient to say that I do not regard these attacks as having any weight (they relate to his evidence that he could not recall progress claim 6, his evidence as to his handwritten notes on a copy of the fax sent by Stoneglow to Mr Singleton and his evidence to the effect that in early November 1996, he would not necessarily be interested in knowing the detail of short payments or underpayments or of the value of assessment of progress claims). 325Other criticisms of Mr Murphy relate to purported discrepancies between his affidavit evidence and his evidence in cross-examination. Those criticisms suffer from the problem that the cross-examiner failed to confront Mr Murphy, fairly and squarely, with the suggested inconsistency. It may be that Mr Murphy could have explained the supposed inconsistency. It may be that he could not. In circumstances where he was not given the opportunity to do so, I do not propose to speculate on the outcome, for the purpose of assessing his credibility. 326Nor (with one exception) do I propose to deal with the detail of the remaining criticisms; in my view, when they are examined (in the light of what I have said as to some deficiencies in the approach taken), they do not disclose any real reason for entertaining doubts as to Mr Murphy's credibility. That is so whether they are considered individually or together. 327I turn to the exception: which raises a matter of some concern. It is adverted to in the submissions for Mr Ballard (see, for example, PSR 247 referring to "belligerent resistance to obvious truths" and 248, referring to "obtuse refusal to speak truly"). 328There are passages in Mr Murphy's cross-examination that could be said to demonstrate a degree of belligerence. Whether that is a correct interpretation of the transcript, and (if it is) whether it represents an understandable, although perhaps inappropriate, reaction to the manner of cross-examination, is something that is impossible to judge purely from reading the transcript. In this context, it may be noted that the witness was often interrupted by counsel, before a complete answer had been given; and this was not always or only where it appeared that the answer was, or was becoming, non-responsive. 329Further, there are occasions when Mr Murphy refused to concede matters that, objectively, must have been correct. Although he was no longer employed by Multiplex, it was as though he were trying to "maintain the company line". That argumentative tendency does not reflect well on his credibility.

330Nonetheless, much of Mr Murphy's evidence is supported by contemporaneous documents. It may be that criticisms of Mr Murphy's evidence, based on his demeanour and the manner of response, could be justified. But since I did not see Mr Murphy give evidence, I do not feel that I should express a view as to his credibility based on those matters. Thus, I do not (because I cannot) regard those matters as sufficient to undermine his credibility overall. The "Systems Resources allegations" 331The other witness called by Multiplex was Mr Ireland. His evidence was rendered necessary because of evidence given by Mr Widdup, under the protection of a certificate given pursuant to s 128 of the Evidence Act, relating to alleged corrupt payments made by Multiplex to the unions. 332Initially, Mr Widdup said, Multiplex paid cash to the unions from cash that it had in hand. However, at some stage in the 1990s that Mr Widdup could not recall, that system changed. Mr Widdup said that the scheme was concocted between Mr John Roberts, Mr McDiven and himself. 333Mr Widdup said that from month to month, Multiplex Constructions would draw a cheque in the sum of $100,000.00 in favour of Systems Resources Pty Limited, a company controlled by Mr Ireland. Systems Resources was a company that provided, or had provided, computer or IT services to Multiplex. Mr Ireland also ran a liquor business, through Oddbins Pty Limited. 334Mr Widdup said that Mr Ireland would cause Systems Resources to generate false invoices to Multiplex (false, in the sense that they were not for services rendered or goods sold and delivered), receive the $100,000.00 cheque in payment, and hand back $90,000.00 in cash. The difference was in effect Mr Ireland's profit, or commission, on the transaction. 335Mr Widdup said that the cash, which was delivered in a "brown bag", was held by him, and paid out to the union in amounts of $5,000.00 or $10,000.00 per month. According to Mr Widdup, he himself made those payments, in cash, to Mr Strutzenberger, a worker employed by Multiplex who was also a union official. 336Mr McDiven, Mr Ireland and Mr Strutzenberger each denied this scheme unequivocally and emphatically. 337The only evidence in support of the existence of the scheme comes from Mr Widdup. Mr Bannon relied on a document, Exhibit AEN, which he said showed that some payments of the kind alleged were made. In my view, that document is incapable of bearing the construction put upon it, and provides no support for this aspect of Mr Widdup's evidence. 338Exhibit AEN appears to be a document prepared by Reed Construction Services Pty Ltd. It is dated 16 November 1993. It is called a "Multiplex Summary". It shows amounts payable by Multiplex to various parties, and payments (presumably said to have been made on behalf of Multiplex) by Reed Construction. One of those payments, of $103,810.00, is said to have been to "Systems Resources". 339The document is not supported by, and does not include, any copy of an invoice rendered by System Resources. It is not a document created by Multiplex. 340Exhibit AEN includes a post-it note in the top left hand corner. There are two pieces of handwriting on that note. The first reads: Ross OK with you? IW [enclosed in a circle] 341The second piece of handwriting (apparently using a different pen, and certainly written by a different hand) reads: Yes! I'm happy With adjmt R. 342It is I think a reasonable inference from that note that Mr Widdup received the "Multiplex summary" of 16 November 1993, considered it and passed it on to Mr McDiven; and that Mr McDiven approved the adjustment of accounts, apparently as between Reed Construction and Multiplex, set out in the document. 343Apart from showing, as I think, that both Mr Widdup and Mr McDiven considered exhibit AEN, the post-it note adds nothing relevant, in terms of the reference to "Systems Resources". It certainly does not show that the document is some record of any corrupt and unlawful scheme of obtaining a source of cash from which to make corrupt payments to the unions. 344Mr Bannon applied the label "fantasy" to an aspect of Mr Murphy's evidence. In truth, I think, that is an appropriate label to attach to this aspect of Mr Widdup's evidence, and also to the attempt to support that part of the evidence by reference to Exhibit AEN. If the scheme operated as Mr Widdup suggested it did, one would have thought that the last thing that Multiplex would have wanted was to have a payment in execution of the corrupt scheme made by a third party on its behalf. 345In an attempt to prove that the accusations should be accepted, Mr Bannon attacked the credibility of Mr Ireland. The attacks related to what was said to be unacceptable or improbable evidence given by Mr Ireland in relation to annual returns and the like of Systems Resources and Oddbins. That evidence may be unacceptable in one sense, involving as it does a suggestion that Mr Ireland signed company returns without carefully reading them. But it does not follow that he is lying in his denials of the Systems Resources scheme. Even if I were to conclude that Mr Ireland was lying (and I do not), that would not prove the "Systems Resources" allegations. See Federal Commissioner of Taxation v Steinberg (1975) 134 CLR 640, in particular at 694 (Gibbs J). (Since Mr Ireland was not a party to the litigation, the observations made by Heydon, Crennan and Kiefel JJ in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64] do not require consideration.) 346Further, in my view, there is no basis shown for doubting Mr Strutzenberger's evidence. He was called by the unions, not by Multiplex. He is retired. His denial was forthright and credible (at least on paper). 347In the circumstances, I do not accept that there is any substance in the Systems Resources allegations. I do not accept that they provide any basis for doubting the credibility of Mr McDiven, Mr Ireland or Mr Strutzenberger. Mr Ferguson 348Mr Ferguson is criticised for a number of aspects of his evidence. The first criticism that is raised concerns his evidence as to the relationship between him and Mr Bates in the 1990s (before the two of them fell out). Mr Ferguson said that he and Mr Bates had "a work friendship" that was "not a close friendship that extended into our social lives and involved our respective families" (affidavit affirmed 5 May 2011, para 4(h)). 349Mr Ferguson was cross-examined on this, including by reference to Mr Bates' wedding and preceding bucks' night. A video of Mr Bates' wedding was shown, and extracts from that video were tendered. It showed clearly enough, as Mr Ferguson acknowledged, that he and his wife had attended Mr Bates' wedding. Mr Ferguson acknowledged this, although he said that he could not recollect the wedding. 350I have to say that I simply do not understand why the video, or for that matter the undoubted fact that Mr Ferguson and his wife attended Mr Bates' wedding, disproves Mr Ferguson's evidence that the relationship between him and Mr Bates was as I have set out above. The video includes extracts from Mr Bates' speech, in which (speaking for himself and his bride), he said, among other things, the following: We both agreed that what we wanted our [sic]... was both our families and our closest friends and... our comrades from work as well... Karen's work mates, some of our close friends and tonight that's what we've got here... There's 58 people here and every person here, there are some people I haven't met before, only one or two from Karen's family, but every person here certainly from my point of view means something to me and... I have... an individual relationship with everyone in some way, so... for Karen and I [sic] it's important that everyone's here tonight and I'd like to thank everyone for being here. 351It is apparent from the first extract from Mr Bates' speech that those who attended were not just "our closest friends" but also "our comrades from work as well". On any view, Mr Ferguson fitted into the latter category. As Mr Bates acknowledged in that speech, close personal friendship (or family relationship) was not a prerequisite for attending the wedding. 352I do not regard either the fact that Mr Ferguson attended the wedding or what was shown on the video extract that was tendered as supporting any criticism of Mr Ferguson's credibility. 353When questioned about the bucks' night, Mr Ferguson at first said that he had no recollection of it or the wedding "and I could say I never attended any bucks' night with Craig Bates" (T4308.47 - .48). When pressed on that in the next question, Mr Ferguson did recollect that he had attended Mr Bates' bucks' night (T4309.1 - .5): 354It may be that Mr Ferguson was too hasty in answering the first time; but it is apparent that, on reflection, he did recall attending the bucks' night. I am not sure that this is a matter going to his credibility, although I would have thought that, the topic of the wedding having been raised, Mr Ferguson might be expected to recall both attending it and attending (given that he did so) the preceding bucks' night. 355It is apparent from this passage of the cross-examination of Mr Ferguson that there was some tension between him and Mr Bannon. That tension becomes even more apparent in other aspects of the cross-examination. Clearly, from what Mr Ferguson said, he took the view that Mr Bannon was both shouting at him (or raising his voice at him) and being sarcastic. It is apparent that Mr Ferguson resented this. Whether that undesirable method of cross-examination was prompted by something on the part of Mr Ferguson which is not apparent from the transcript, I have no way of knowing. It is however apparent that Smart AJ took the view, at least on one occasion, that Mr Bannon's cross-examination needed to be "toned down a bit" (T4379.12). 356Mr Ferguson was criticised for other aspects of his evidence, in relation to letters that he had written or signed, and what were said to be clear inferences arising from those letters; and as to Mr Henderson and the unions' policy in relation to Enterprise Bargaining Agreements (EBAs). There are aspects of those passages in Mr Ferguson's cross-examination where he appears, at least on a reading of the transcript, to be taking a considered stand to divulge as little as possible and only when pressed; or, to put it another way, a stance that might be seen to impede and aggravate cross-examining counsel. However, that may not be a fair impression; and not having seen Mr Ferguson give evidence, I do not feel able to express an opinion based on those matters. 357Nonetheless, reading the transcript of Mr Ferguson's cross-examination in its entirety, I do have the impression that, if not deliberately obtuse, he was being, to some extent, obstructive, and certainly non-cooperative, in his approach to the questions asked. If that be correct, there is of course a question as to whether it reflects some deliberate intention to evade issues as much as possible, resentment of the entire process, or some more particular and significant resentment based on the method of cross-examination. Only the first of those alternatives would raise a genuine question as to credibility: see Kuhl at [60]. 358One particular aspect of Mr Ferguson's cross-examination which does show him being either extremely careful or more than a little obstructive relates to the circumstances in which he and Mr Bates fell out, into 2000. 359Mr Bates said that he and Mr Ferguson had an agreement that, when the latter became secretary of the NSW Union and the former became its assistant secretary, Mr Ferguson would retire in about 2000 and leave the secretary's position vacant for Mr Bates to claim (by unopposed election). Mr Ferguson denied that there was any such deal. He did not stand aside in favour of Mr Bates. There was a bitterly contested election campaign, which Mr Ferguson won when Mr Bates was drummed out of the union. 360Mr Ferguson said (affidavit affirmed 5 May 2011, paras 5 and following, referring back to para 14(b) of his affidavit affirmed 22 April 2010) that the circumstances were entirely different. He said that in about mid 2000, he became aware that a union delegate, Mr Martin Warner, had received payment for negotiating an EBA with a company known as A-Tech Carpentry Services Pty Ltd. The principal of that company was Mr Bob Bouzaid. Mr Ferguson spoke to Mr Bouzaid and received confirmation of what he had been told. According to Mr Ferguson, Mr Bouzaid also said "that Craig Bates might have been involved in this arrangement". 361Mr Ferguson said that he followed up the allegation that Mr Bates might have been involved, and received what he regarded as acceptable corroboration of it. He found that Mr Bates may have been involved in procuring a company called Excel Solutions Pty Ltd to sign an EBA. It appears that this company also was associated with Mr Bouzaid. 362Mr Ferguson raised those allegations with Mr Bates. Mr Bates denied them. That happened on more than one occasion. 363Subsequently, Mr Ferguson learnt that Mr Bates had been involved in procuring Excel Solutions to sign an EBA. 364In short, the matter was raised in the committee of management and complaints were made against both Mr Bates and Mr Warner. The outcome was, from Mr Bates' perspective, unhappy. 365All that is a rather long introduction to an altercation which occurred between Mr Ferguson and Mr Bates at a meeting at Sans Souci on 22 August 2000. Mr McClelland was present, as was Mr Steve Kamper, an accountant who was apparently well known to all those present. Mr Bates appears to have been upset, and to have expressed a desire to obtain revenge for what he saw as Mr Ferguson's actions. Mr Ferguson gave an account that suggested that he feared for his physical well being. 366Following that meeting, Mr Ferguson took out a complaint that lead to the issuing of an Apprehended Violence Order (AVO) against Mr Bates. In the "circumstances of complaint", Mr Ferguson referred briefly to the matters that I have summarised, and stated, as to the meeting of 22 August, that Mr Bates "also made a death threat against" him. 367The AVO was granted, and was subsequently modified. 368Mr Ferguson was cross-examined about the circumstances of the altercation, and about the information given to procure the issue of the AVO. He adhered to his evidence that Mr Bates said "you destroyed Martin [Warner] and you're trying to destroy me". He accepted that he definitely did not understand Mr Bates to be saying thereby, that he (Mr Ferguson) had killed or attempted to kill, or to do physical harm to, Mr Bates or Mr Warner. He said that he understood Mr Bates to be alleging destruction "in some other non physical sense" (T4553.8). 369Nonetheless, Mr Ferguson claimed that when Mr Bates said that he would destroy Mr Ferguson "as you are trying to destroy me", he did understand that there was a threat of physical violence. 370I do find this aspect as Mr Ferguson's evidence difficult to accept. According to him, Mr Bates said "I will destroy you... as you are trying to destroy me". The plain meaning of that utterance (if it were uttered) is that Mr Bates would do to Mr Ferguson what, he believed, Mr Ferguson had done to him. If Mr Bates' repeated references to destruction (of himself and Mr Warner) were not to be taken as conveying physical harm, it is impossible to see how his repetition of the very same threat, but against Mr Ferguson, could do so. This part of Mr Ferguson's evidence does him little credit. 371Mr Ferguson accepted, also, that there had been no death threat made against him; it was "a threat to my physical wellbeing... a serious threat to my wellbeing (T4554.24 - .28). Smart AJ at least had the "pretty plain" perception that Mr Ferguson had not understood what was said as a death threat (T4554.44). 372It is a serious matter that Mr Ferguson made an incorrect, and indeed false, statement to a judicial officer, in support of an application for an order of a court restraining Mr Bates from doing certain things. That, too, I regard as reflecting adversely on Mr Ferguson's credibility. 373Nonetheless, what I have just said has to be considered in the context that on any view there was an altercation between Messrs Bates and Ferguson that threatened to become violent. It may be noted that Mr McClelland, who was present, appears to have regarded what Mr Bates said as comprising or including a threat to kill Mr Ferguson. See para 5(b) of the Mr McClelland's affidavit affirmed 21 April 2011. 374There is a discrepancy between the account given by Mr McClelland (who recalls specific threats made by Mr Bates to "kill" Mr Ferguson) and Mr Ferguson. Mr McClelland's account may not be correct. But that is not the point. What is important is that the altercation was sufficiently heated to lead at least Mr McClelland to the view that Mr Bates had expressed an intention to kill Mr Ferguson. 375Thus, whilst I have said I do not regard this aspect of Mr Ferguson's evidence as satisfactory, I do not regard it as requiring that the whole of his evidence be rejected. 376In the circumstances, whilst I think that Mr Ferguson's evidence should be treated with care, I do not regard it as inherently and entirely lacking credibility overall. Mr Sharkey and Mr McClelland 377Mr Sharkey was, at the time with which these proceedings are concerned, the national secretary of the Federal union. He retired in 1998. 378Mr McClelland is and since 1990 has been the President of the New South Wales branch of the Construction and General Division of the Federal union. He is and has since 1994 been the senior vice president of the NSW union. 379In very large measure, the attacks on the credibility on Messrs Sharkey and McClelland relied on asserted inconsistencies between their evidence and the "probabilities". For the most part, those attacks suffer from the defect referred to at [274] above: that is to say, they rely on inconsistencies between the evidence of Messrs Sharkey and McClelland on the one hand, and of witnesses for Mr Ballard (and indeed, the conspiracy or case theories put by Mr Ballard) on the other. 380Consideration of the transcript of the cross-examination of each of Mr Sharkey and Mr McClelland does not suggest that either of them was being obstructive, or seeking to do anything other than tell the truth to the best of his recollection. It is obvious that each of them had a less than perfect recollection of the central events. But there is nothing in the evidence that, to me, suggests that it represents anything other than the best effort of each to give honest evidence as to his recollection of what had happened. 381In the circumstances, I see no reason not to accept either as a credible witness, with the obvious limitations inherent in the process of giving evidence of events that occurred many years ago.

The ACA broadcast 382The ACA broadcast was an extended one. It was introduced by the program's then host, Mr Ray Martin. It spanned a commercial break. It included both footage taken on the Waterhen site and interviews with participants in the building industry. Those participants included Mr Ferguson. The submissions for Mr Ballard described the tone of the program as "sensational" and "stridently anti-union"(PS 150). This is not an unfair or exaggerated description. By reference to both tone and balance, the program was a prime example of sensationalism masquerading as current affairs journalism.

383The footage taken on site included what seemed to have been extracts of confrontations between two union organisers (Mr John Henderson and Mr Bill Docherty) and Mr Ballard, an attempt by the reporter (Mr Munro) to interview Messrs Henderson and Docherty, and interviews by Mr Munro with Mr Ballard and some of his workers.

384The background to the confrontation is somewhat controversial. According to Mr Ballard, the unions had been using their right of access to work sites in an attempt to persuade workers to join the appropriate union. Of course, by then, compulsory unionism ("no ticket, no start") had been outlawed. Again according to Mr Ballard, one of the ways that the unions sought to increase their membership was to persuade workers to support the making of EBAs between the unions and the employers. Mr Ballard said that it was the policy of the unions not to enter into an EBA with an employer unless all its employees were members of the union. Although Mr Ferguson disputed this, I have a strong impression that there is truth in this aspect of Mr Ballard's evidence. That impression is supported by, among other things, some comments made by Mr Henderson in the footage of his "discussions" with Mr Ballard. 385Following the introduction by Mr Martin, the broadcast showed a somewhat confused discussion between Messrs Henderson, Docherty and Ballard. Messrs Henderson and Docherty were asking Mr Ballard, in a way that could be taken as "badgering", whether he was refusing them "entry to the job". Mr Ballard said that he was not. 386There was then a voice over by Mr Munro which referred to "the latest in standover tactics being used by builders' labourers and union officials to intimidate men into joining their union by signing an EBA, an enterprise bargaining agreement, by them, not their boss". 387The program then returned to the discussion between Messrs Docherty, Henderson and Ballard. Mr Ballard asked what it was that they wanted him to do. There was discussion of the unions and union membership. This section of the discussion was to the following effect (I am quoting from a transcript which, although not agreed by the parties, appears, by comparison to the recording of the broadcast, to be relatively accurate): David Ballard: What do you want me to do, tell me that? John Henderson: We've already told you what your have to do. Haven't we? You know what you have to do. David Ballard: No-one's told me ... John Henderson: Have you signed an EBA yet? David Ballard: Yes. John Henderson: Are all your employees members of our organisation? David Ballard: No. John Henderson: All right. Let's go and do it. David Ballard: Do what? Do what John? 388The voice of Mr Munro returned. He referred to a "common practice" of "signing up with the union or facing constant stoppages". That was said to be a campaign undertaken for the twin purposes of lifting the unions' "dwindling membership" and winning a "25% wage increase". 389There was then a brief clip of Mr Ferguson speaking to Mr Munro, referring to the "right of entry" and saying that "we are back on building sites in a big way". 390Mr Munro described Mr Ferguson and the position that he held, and the program returned to the interview with Mr Ferguson. Mr Ferguson said that the union officials negotiated hard, but that they "certainly" knew when to stop (to stop what, he did not say). 391There was then a series of interviews with people on the employers' side of the industry, both in New South Wales and in Victoria, which suggested in substance that the union was using illegal industrial tactics to secure its ends. Some of the speakers went so far as to suggest that the unions were the heirs, both in spirit and in some cases in personnel, of the former Builders' Labourers Federation (BLF) and Building Workers' Industrial Union (BWIU). This section of the program could certainly be described as "stridently anti-union". 392The program then returned to Mr Ferguson. He was asked for "an assurance that you won't blackmail or halt any Olympic sites". He said that he would "guarantee" that there would be no "improper conduct in relation to the Olympic building program". 393Mr Munro's voice over observed: "but you have to wonder after Ferguson's men intimidated these workers at this naval site here at HMAS Waterhen in Sydney". 394The program then showed footage of Mr Munro speaking to Stoneglow workers, who described to him what (if true) could only be described as bullying behaviour, or standover tactics, on the part of (presumably) Mr Henderson or Mr Docherty. That footage was interrupted by a brief quotation from a representative of the MBA, who referred to "bully boy tactics" and "great danger for the future of the Olympic games village". There was also voice over commentary by Mr Munro (with vision of Mr Henderson at the Waterhen site) saying that Mr Henderson "was trying to force the men into signing this union agreement and therefore making them become members". 395After further extracts of interviews, including with Mr Ballard, were shown, together with what again can only be described as "stridently anti-union" commentary by Mr Munro, there was footage of another discussion between Mr Henderson, Mr Docherty and Mr Ballard. Mr Ballard asked why they were there. After what may be a break in the recording, Mr Henderson suggested that he had just been threatened. It is not certain that there was some break in the recording, but if the recording at this point is continuous, the discourse between Messrs Ballard and Docherty appears to be remarkably discontinuous. 396The program continued, with Mr Ballard complaining of the way that he had been treated. Mr Docherty and Mr Henderson suggested that they would go to the head contractor, Thiess, "and... discuss it with them" and finishing with the words (from Mr Henderson) "all right, let's go and do it". 397Messrs Henderson and Docherty were then shown leaving the site and walking towards their car. In a way that is apparently typical of programs such as ACA, they were pursued by the reporter (Mr Munro) and a cameraman. Mr Munro sought to speak to them, but they drove off without satisfying his wish. 398The program then played further comments by the MBA official, who agreed that what had just been shown that was "a form of extortion". 399This section of the broadcast finished with a plea by Mr Ballard to the then Premier, the Honourable Bob Carr MP, to "get this thing on the road,... stop this nonsense". 400After a commercial break, there was footage of an "interview" the between Messrs Munro and Ferguson. I have put the word "interview" in quotation marks because, even if the interview were broadcast unedited (and this is by no means clear), it was interspersed with negative voice over commentary from Mr Munro, negative commentary from the then (Federal) opposition spokesman on industrial relations, Mr Peter Reith, and further extracts from the on-site confrontation between Messrs Henderson and Ballard. 401Mr Munro then questioned Mr Ferguson about "intimidation". Mr Ferguson denied that there was any intimidation, and referred to Mr Ballard's "notoriety", being "convictions from the last building industry Royal Commission for false evidence". 402After further, and not entirely edifying, exchanges between Messrs Munro and Ferguson, there was reference to an apology said to have been given by Mr Henderson to Mr Ballard. Mr Ferguson was asked why he "demanded" that this happen. He denied that he had done so, but said that Mr Henderson had "apologised for any remarks that he made that were inappropriate". 403Mr Reith was heard from once again, with further and unsurprisingly negative commentary, as was the representative of the MBA; and after some more negative comments from Mr Munro and Mr Martin, this section of the program finished.

The unions' and Mr Ferguson's reactions 404As is apparent from what I have just said, the program (perhaps more accurately, the material from which the broadcast was compiled) was recorded on several occasions. Some material was recorded on the visit or visits that Messrs Henderson and Docherty made to the Waterhen site. Some was recorded in an interview or interviews between Messrs Munro and Ferguson. Other people were interviewed, and extracts of the interviews were spliced into the program. 405Mr Henderson said that he reported to Mr Ferguson on the "confrontation" that had occurred on the Waterhen site involving Messrs Ballard and Munro (affidavit sworn 12 July 2010, para 14). Mr Ferguson replied to this affidavit, and denied some of the things said in it. He did not deny para 14. I set out that paragraph: One day that I attended the Waterhen site, I was confronted by Ballard, and by the reporter, Mike Munro, and a cameraman from the television program A Current Affair. This appeared to me to be an entire 'set up', and after leaving the site, I reported the incident to Ferguson. During the conversation that I had with Ferguson about this incident, words to the following effect were said: Ferguson: Are you okay? Did you do anything wrong? Henderson: Nothing. Ferguson: Did they get anything? 406Mr Henderson said, further, that Mr Ferguson "was very angry in his response to what I had told him about the incident with Ballard" and ACA. That impression appears to have been based upon "body language, and ... tone" rather than anything said by Mr Ferguson. 407Before the program was broadcast, there was correspondence between the NSW union or its solicitors and Channel 9. In one of those letters, complaint was made of "the behaviour of Channel 9 on the Waterhen (and other) site(s)". It also suggested that "it is questionable for you and Channel 9 to be supporting, and involving yourself with, David Ballard.... Mr Ballard has several criminal convictions, has been associated with many notorious Sydney identities, and was the subject of several adverse findings in the Building Industry Royal Commission". The letter also set out terms on which Mr Ferguson would go ahead with an interview that apparently had been scheduled to occur in the near future. 408Mr Ferguson and another officer of the NSW union, Mr John Sutton, corresponded with the WorkCover Authority of NSW and others in relation to what were suggested to be irregularities in Stoneglow's workers compensation insurance premium payments. 409As I have said, the ACA program was broadcast on 13 September 1995. Shortly after the program was broadcast, there was a meeting of the executive committee of the NSW union. That meeting was attended by Messrs Ferguson, Bates, McClelland and Reiss. (Mr Daniel Reiss was then a legal officer employed by the NSW union.) According to Mr Bates (affidavit sworn 19 October 2009, para 24), Mr Ferguson said words to the following effect at that meeting: At the August 1995 meeting there was discussion about Ballard and his involvement in the ACA report, during which Ferguson said words to the following effect:

• We've got to do something about this Ballard bloke. We've got to get rid of him
• I'm going to handle the dispute with Ballard.
• I will approach any builders that Ballard works for and any other major contractors and let them know that if they employ Ballard or his company then they will have industrial action on their sites around Sydney.
• We're going to drive Ballard and his company out of business.
• We have other Union friendly contractors available. 410Mr Ferguson denied that he so spoke. Mr McClelland denied that Mr Ferguson so spoke. Mr Reiss, who was not required for cross-examination, swore an affidavit in which he said, among other things, that he could not recall attending the meeting or what might have been discussed at it. 411For the reasons that I have given, I am not prepared to accept Mr Bates' account of the meeting. I think that the most reliable account is probably that given by Mr McClelland. He said (affidavit affirmed 22 April 2010, paras 6 to 9) that the meeting included the following: After we viewed the video of the programme at the meeting Mr Ferguson said words to the following effect: Andrew: That's the program. It's a lot of crap. However, the damage has been done. I don't know what we can do about it. Let's have a discussion. Have you got any ideas? At about this time, I said words to the following effect: This is pretty disgraceful journalism but I'm not sure what we can do about it. We obviously have to talk to Henderson and Docherty to get their side of the story but we have probably no choice but to move on from the incident and just do our job. In the course of the ensuing discussion Mr Reiss said words to the following effect: There is an ethics committee of the Media and Entertainment Alliance. There was also some discussion about the legality of secretly taping Mr Henderson and Mr Docherty. To the best of my recollection, Mr Ferguson said to Mr Reiss: Daniel, can you please look at this? Mr Bates then referred to the issue of possible defamation. He said words to the following effect: Is there defamation against the union? In response, I said words to the following effect: My understanding is that you can only defame an individual, not an organisation. Is that right? Daniel Reiss: That's right I said: We are going to have to talk to John [Henderson] and Bill [Docherty] and ask them what happened. There is a need to raise this issue at the next Organisers' meeting. 412I have no doubt that Mr Ferguson and the others present were upset at the ACA broadcast. They were entitled to be. But it does not follow that they regarded Mr Ballard as having some responsibility for it. On the contrary, Mr Bates accepted in cross-examination that Mr Ferguson may well have said words to the effect that the union had been set up by the program (i.e., ACA) (T1262.21 - .33):

Q. And did Mr Ferguson say at the meeting something to the effect, "It is unfair and outrageous that the union has been set up like this by the programme"? A. I don't recall the exact words in which Mr Ferguson used, but he was very upset over the issue. Q. Do you recall him saying words to that effect? A. Could you repeat those words again, please? Q. "It is unfair and outrageous the union has been set up like this by the programme"? A. He may well have said those words. 413That evidence of Mr Bates suggests strongly that Mr Ferguson considered that responsibility for the "set-up" was attributable to ACA. 414After the program was broadcast, Mr Ferguson either wrote or signed numerous letters to Channel 9, its senior executives, Mr Munro and others. It is fair to say that those letters were critical of the ACA broadcast for what was perceived to be unfairness in its coverage of the issue (including in relation to the way that the interview with Mr Ferguson was presented). In many cases, too, the letters were critical of Mr Ballard both in his personal capacity and in relation to the way in which Stoneglow looked after its superannuation and workers' compensation and other legal obligations owed to its employees. It is clear that the union and its allies in the labour movement were doing all that they could to bring pressure to bear on Channel 9 in relation to the broadcast. That correspondence continued into 1996, no doubt fuelled, at least in part, by the repetition of the broadcast of the program or extracts from it. 415I have referred more than once to the characterisation, in the submissions for Mr Ballard, of the broadcast as being "stridently anti-union". It is clear that Mr Ferguson and the NSW union shared this view back in 1995. They made a complaint against the journalists involved, Mr Munro and Mr Steve Barrett, to the Media Entertainment and Arts Alliance; and a complaint to the Australian Broadcasting Authority (ABA). 416The complaint against Mr Barrett was upheld in certain respects (the complaint against Mr Munro was not dealt with because he was not a member of the Alliance). So, too, were some aspects of the complaint to the ABA. The ABA concluded that the program was either inaccurate or unfair in the following respects: the program of 13 September 1995 failed to fairly represent the CFMEU's viewpoint in relation to issues of enterprise agreements, forced union membership and standover tactics by union officials; the program of 13 September 1995 was inaccurate in stating that the CFMEU was trying to force Mr Ballard's employees into signing an enterprising bargaining agreement with them and not their boss; the introduction to the program of 13 September 1995 was inaccurate by way of omission of salient points about the findings of the Building Industry Royal Commission; the footage in the program of 13 September 1995 of a violent BLF demonstration was not presented accurately ... 417I do not propose to set out in any detail extracts from, or summaries of, the correspondence. A consideration of the contents of that correspondence, in conjunction with the relevant affidavit and oral evidence, leads me to conclude that Mr Ferguson and other officials of the state union were outraged and angry at the ACA broadcast. I conclude that the primary source of that outrage and anger was what they (in some respects, it would appear, correctly) perceived to be the unfairness of the broadcast, both in its selection and use of material and in its failure (perhaps, in breach of assurances that had been given) to present fairly the unions' point of view. 418It is correct to observe that in some of the letters, including some signed by Mr Ferguson, there was reference made to Mr Ballard's character and associates. That appears to have been done as a criticism of Channel 9, for relying on such a person to "set up" the union. 419It may very well be that Mr Ferguson felt anger and resentment at the role that Mr Ballard had played. But my overwhelming impression is that the great bulk of such anger and resentment as he felt was directed at ACA and those responsible for the broadcast, not at Mr Ballard. 420As I have said, I do not accept Mr Bates' evidence that, at a meeting of the executive committee held shortly after the ACA program was first broadcast, Mr Ferguson made statements to the effect that the union should get rid of Mr Ballard, or drive him out of the demolition industry. Quite apart from the inherent lack of credibility of any evidence that depends, for acceptance, on Mr Bates, there is the fact that for the next 11 months, even on the case for Mr Ballard, there was no industrial confrontation between the unions and Mr Ballard, nor any other form of activity directed by the unions at Mr Ballard trying to force him out of business. On the contrary, there appears to have been some reconciliation between the NSW union and Mr Ballard.

The meeting of organisers 421Mr Bates said, and Mr Ferguson agreed, that shortly after the meeting of the executive officers that I have just dealt with, there was a scheduled meeting of the NSW union's organisers. According to Mr Bates, Mr Ferguson attended the meeting and said words to the effect that if the organisers "found Stoneglow on any building site it was to be got rid of immediately". Mr Ferguson denied having used such words. 422I do not accept that Mr Ferguson said words to that effect at any such meeting. Again, there is the problem that Mr Bates is the only witness who gives that evidence. But there are other problems. One is that Mr Henderson was, at the time, an organiser for the NSW union. He was called in Mr Ballard's case. Presumably, Mr Henderson, in his capacity as an organiser, would have attended the meeting. But he gave no evidence of any such instruction having been given by Mr Ferguson. 423A second, and more substantial, problem is that, as I have noted earlier in these reasons, Stoneglow was at the time, to the knowledge of the unions, carrying out work for Multiplex on the Chatswood Chase and Colonnades projects. It continued to perform work on those projects in the ensuing months. Neither the unions nor the organisers made any attempt to "get rid of" Stoneglow, either immediately or at all, from those sites. 424The history of industrial relations at Stoneglow's sites in the ensuing months is entirely inconsistent with such an instruction having been given. 425I conclude that this aspect of Mr Bates' evidence is a fabrication. This is another matter that I have taken into consideration in forming the adverse view of his credibility that I have set out earlier in these reasons.

Mr Henderson's apology 426Mr Ferguson said (affidavit affirmed 22 April 2010, para 3) that shortly before the ACA program went to air, there was a complaint that Mr Henderson had behaved in an "aggressive and inappropriate" manner at the Waterhen site. 427In para 4 of the same affidavit, Mr Ferguson said that he spoke to Mr Henderson about this complaint and said that, if it were true, Mr Henderson should go to the site "and personally apologise to that person for the behaviour alleged". According to Mr Ferguson, Mr Henderson did not dispute the allegation as to his behaviour, and said that he would give an apology. Mr Ferguson was not challenged on this paragraph. 428Mr Henderson in his affidavit disputed this aspect of Mr Ferguson's evidence. However, in cross-examination, Mr Henderson said no more than that he was not sure that it had occurred (T1058.47). Further, Mr Henderson did agree that he had apologised to Mr Ballard, although he said that this was at the request of Mr McClelland. 429In the circumstances, I accept both Mr Ferguson's evidence that he did instruct Mr Henderson to apologise, and Mr Henderson's evidence the apology was given.

The meeting with Mr McClelland 430In 1995, Mr Ballard's solicitor was Mr Russell Byrnes. Mr Byrnes knew Mr McClelland. Some time after the ACA program was broadcast, Mr Byrnes organised a meeting between Mr McClelland, Mr Sharkey, Mr Ballard and himself. According to Mr McClelland, the following events happened in the course of that meeting (affidavit affirmed 22 April 2010 para 14): Shortly after that a meeting occurred in the CFMEU office at the then CFMEU headquarters at 361 Kent Street, Sydney. At the meeting with Mr Sharkey and Mr Ballard were talking about boxing. During the course of the discussion Mr Sharkey asked David Ballard in words to the effect: What are your concerns? Mr Ballard replied with words to the effect: I believe that Andrew Ferguson is out to get me. Mr Sharkey responded in words to the effect: What has he done? Despite attempts by me and Mr Sharkey to pin Mr Ballard down to specifics, he did not in terms answer Mr Sharkey's question in detail. He said more than once words to the effect: I just want to get on with my business. Ferguson has got it in for me. I don't know what I've done to the union. He gave not details about what Mr Ferguson had allegedly done, despite Mr Sharkey and me saying more than once: What's the problem? or What has Andrew done? I then said to him words to the effect: David, we want a proper civil relationship with you. Andrew Ferguson has no ill will towards you and we just want to move on. Towards the end of the meeting I brought things to a close by saying words to the effect: David you heard what we've got to say and we ask that you go away and think about it. Stan Sharkey also said during the course of the conversation to Mr Ballard words to the effect: David, if you have problems in the future and you don't want to talk to Andrew Ferguson about it, just give me a ring. Mr Ballard responded to that with words to the effect: I'll do that. Immediately after the meeting I said to Russell Byrnes words to the effect: What's all this about? Mr Byrnes responded with words to the effect: I don't know but I thought that the meeting was useful. 431Mr Sharkey's evidence was to similar effect. He expressed the view (affidavit affirmed 20 April 2010, para 7) that "the meeting finished on a positive note, with participants on what I would describe as "good terms". 432Mr Sharkey also observed that "the meeting was conducted in a very courteous fashion". Mr Ballard agreed (T419.10). 433In cross-examination, Mr Ballard did not deny the substance of Mr McClelland's account (T415.18 - .46): Q. Mr McClelland asked you during the meeting what your problem was, didn't he? A. Oh, he could have. Russell done most of the talking. Q. And Mr McClelland said during the meeting that "we", meaning the union, "want a proper civil relationship with you", didn't he? A. That's possible. Q. And Mr McClelland also said to you during the meeting to the effect that Andrew Ferguson had no ill-will towards you, didn't he? A. That's possible. I can't recall actually what was said. It's a long time ago. Q. And Stan Sharkey said to the meeting something to the effect that if you had problems in the future and if you didn't want to talk to Ferguson you could give Stan Sharkey a ring? A. He could have said that. Q. And in response to that you said to Stan Sharkey, "I'll do that"? A. I may have said that. I don't recall. Q. And you remember now that Stan Sharkey was a person who you thought you could trust? A. He had a good name in the industry. Q. And he was someone you believed following that meeting that if you did have any problems with the union or thought you had problems with the union in the future you would give him a call? A. That's possible. I don't know whether he gave me his phone number but he could have said something to that effect. 434Mr Russell Byrnes was not called to give evidence. Whether he should be regarded as a witness "in the camp" of Mr Ballard, so that a Jones v Dunkel inference should be drawn against Mr Ballard from the failure to call him, is something that I need not decide. I accept the substance of Mr McClelland's account of the meeting. 435That the meeting was both useful and productive is confirmed by the events of the following months. As Mr Ballard confirmed, he had no problems with the unions that he could recall during the last quarter of 1995 or during 1996 (T 430.36 - .41, 432.11 - .20, T441.48 - .49). Indeed, Mr Henderson, who attended the Sydney Central Plaza site, said that when he first came onto the site, Mr Ballard came up to him, shook his hand and said words to the effect "I do not want any trouble with the union" (affidavit sworn 12 July 2010, para 18). Mr Henderson appeared to accept that Mr Ballard "didn't want any trouble", and said that he "didn't want any either" (T958 .37). 436Of course, Mr Ferguson is not said to have attended the meeting with Mr McClelland. Thus, neither the fact of occurrence of the meeting nor what happened at it can be taken as indicating Mr Ferguson's state of mind at the time. But even if the meeting is no guide to Mr Ferguson's state of mind, it is certainly a strong indication that, in the minds of Mr McClelland and Mr Sharkey, there was no disagreement with Mr Ballard, let alone any desire to drive him out of the demolition industry. 437Further, Mr McClelland was a participant in the executive officers' meeting that occurred shortly after the ACA program was first broadcast. If some decision had been made at that meeting to drive Mr Ballard out of business, it is highly unlikely that Mr McClelland would have participated in the meeting organised by Mr Russell Byrnes, or that he would have expressed the views that (I have found) he did.

The Manson speech 438Part of the material on which Mr Ballard relied to show that the unions and Mr Ferguson remained angry was a speech made in the legislative Council of the Parliament of New South Wales by the Honourable A B Manson MHR. Mr Manson has since died. That speech related to the ACA program and the unions. Mr Bannon submitted that the information for that speech was given to Mr Manson by Mr Ferguson, and that the speech itself demonstrates that Mr Ferguson remained hostile (PS paras 267-271). 439That submission should not be accepted. The Hansard record of Mr Manson's speech was admitted (over objection) for the limited purpose of proving what Mr Manson had said in the Upper House. The decision of the Court of Appeal in Mundey v Askin [1982] 2 NSWLR 369 at 373 makes it clear that the Hansard record of what is said in Parliament may be admitted to prove the fact of what was said on a particular day by a particular person. But it may not be admitted to permit enquiry into the motives or intentions of members of Parliament as to what was said or done in Parliament. 440When the record was admitted into evidence, Mr Bannon disclaimed any intention to rely on it for the prohibited purposes. But the way that the submissions are framed, there is no doubt that the motives and intentions of Mr Manson are being called into question. 441Quite apart from that, I have to say that neither the speech nor the suggested link to Mr Ferguson (which in any event he denied) seems to me to have any real capacity to sustain the weight that Mr Bannon sought to place on them.

The award of the Pitt Street Mall subcontract 442I move forward in time, to the Pitt Street Mall project. Negotiation of the terms of the subcontract 443Stoneglow submitted its tender in early April 1995. There were two options considered. The prices tendered were $4,402,500.00 for one option and $3,982,500.00 for the other. Metropolitan and Delta also tendered. Their prices were higher, in some cases considerably so. 444Following negotiations between (among others) Mr Murphy and Mr Ballard, Stoneglow reduced its tender price to $3,747,500.00. That was for a combination of the two options. Mr Ballard said that this represented a reduction of, in round figures, $500,000.00 from what had been tendered. 445According to Mr Ballard, the tender price was reduced by $500,000.00 following discussions with Mr Murphy in which Mr Murphy "agreed" to two things. The first was that Stoneglow would "get a crack at" or "have a go at" the demolition work for the Finger Wharf project. The second was that Multiplex would pay Stoneglow every two weeks. 446Mr Murphy denied that there was such an "agreement". I am inclined to accept Mr Ballard's evidence on this point. First, the tender prices that had been submitted were substantially above the amount allowed for demolition in the Multiplex budget. Clearly, it was in the interests of Multiplex to get the price of the demolition work down as far as it could. Mr Murphy, however, suggested in cross-examination that this was a matter of some indifference to him. Smart AJ intervened in the cross-examination, observing that "obviously [Mr Murphy] was anxious to get the best price you could" (T4143.5). That must have been correct. However, Mr Murphy continued to assert that he was indifferent: ... the budget was the budget and the tenderer's price was the tenderer's price, so be it". (T4143 .10-.11). 447I regard that evidence as obfuscatory and unacceptable. The proposition that a head contractor in the position of Multiplex would not try to negotiate down as far as possible the prices submitted by tenderers for subcontract works, particularly when those prices were well above the budget estimate, is risible. This is, in my view, an example of Mr Murphy's acting unreasonably, in refusing to concede what was obvious and correct. It does give rise to some doubts about his credibility, as I have suggested at [329] above. 448Thus, I conclude, it is likely that Mr Murphy would have wished to negotiate the tender price down as far as possible. It is inherently plausible that he would have offered some inducement to Mr Ballard to reduce Stoneglow's price. Mr Murphy sought to answer this by saying that he was not responsible for, and thus could not offer any promise of, the Finger Wharf project. That does not seem to me to be relevant. What Mr Ballard wanted was "a crack" or "a go" at getting that work. Mr Murphy was in a position to put in a good word for him in this regard. 449The other matter that supports acceptance of Mr Ballard's evidence on this point is that in fact, by and large, Multiplex did pay Stoneglow approximately fortnightly over the life of the subcontract, although it was not contractually bound to do so. 450Having said all that, I do not think that it plays any great part in the resolution of the real issues in this case. Relevant terms of the subcontract 451The subcontract was actually signed on about 26 August 1996. However, it was effective from 29 April 1996, and governed the relationship between Multiplex and Stoneglow, in relation to the Pitt Street Mall project, from that date. 452Before the subcontract was signed, Mr Ballard sought advice from Mr Russell Byrnes. Mr Byrnes wrote a letter of advice which confirmed, among other things, that neither Mr Ballard nor Mr Young had any personal liability under the contract. Further, Mr Byrnes gave some sage practical advice: ... it is most important for you to document and keep a very good diary of every event that occurs on a day by day basis, hour by hour, which gives rise to a claim for extension of time. You must document all of these problems continuously with Multiplex because it will be used against you at the end if you don't. 453The works that Stoneglow was to perform were described in a "scope of works" document annexed to the subcontract. The demolition work was divided into stage one and stage two. In broad outline, stage one related to work on the Pitt Street Mall side of the project, and on the George Street side at level 7 and above. Stage two constituted the remainder of the work. The reason for that division is outlined at [37] above. 454There was to be a substantial gap between the completion of the stage one work and the commencement of the stage two work. That was necessary because, once the stage one work (which included asbestos removal as well as demolition) was complete, the fitout of the premises for retail purposes would be undertaken and the department store would be relocated there. Once the stage two areas had been vacated, demolition work in those areas could proceed. 455The subcontract was a lump sum contract, for $3,747,500.00 for both stages of the work. 456By cl 4 of the subcontract, Stoneglow agreed to complete the works and its stages in accordance with the first schedule or with any projected construction program. However, clause 12 qualified the operation of clause 4. It required all work to be carried out by Stoneglow strictly in accordance with the "current construction programme": Notwithstanding clauses 4,5 and 13 all work is to be carried out by the Sub-Contractor strictly in accordance with the Contractor's current construction programme, as amended from time to time and displayed on site or in bar charts sent periodically to the Sub-Contractor, by all of which the Contractor may accelerate or postpone or vary the sequences of the Works or parts thereof and the price payable hereunder shall be deemed to include all costs of doing so, including, without limiting the generality of the foregoing, sufficient provision for overtime, supervision and disruption. Nothing in this clause, and nothing done pursuant to this clause shall relieve the Sub-Contractor of its obligation to commence, execute and complete the Works and any stages thereof in accordance with this Agreement. 457By cl 6(a), Multiplex was given the right to terminate the subcontract for various defaults, if it first gave notice in writing specifying the default and if the default continued after receipt of that notice: (a) If the Sub-Contractor shall: (i) substantially suspend work; or (ii) fail to proceed with the Works consistently, diligently, expeditiously and in a safe, proper, workmanlike and competent manner to the satisfaction of the Contractor and the Architect; or (iii) refuse or neglect to comply to the satisfaction of the Contractor with any instruction from the Contractor, or (iv) otherwise breach any term of this Agreement; or (v) fail to commence the Works or any stage thereof on the dale fixed for commencement: THEN the Contractor may give the Sub-Contractor notice in writing specifying the default and if such default shall continue for two (2) days alter the receipt of such notice the Contractor may, without prejudice to any other rights and remedies it may have, terminate this Agreement This clause is not be interpreted as restricting or excluding the Contractor's right to terminate forthwith for repudiation nor as implying that other conditions apart from 6(b) are not fundamental. 458By cl 6(d), Multiplex was given the right, on termination of the subcontract, to take and use Stoneglow's equipment until completion of the subcontract works: (d) Upon termination, the Sub-Contractor shall, without payment, assign such supply and other sub-contract Agreements made or needed to permit execution of the Works, as may be required by the Contractor and shall vacate the Site forthwith, but the Contractor shall be entitled to take possession of and employ all plant and equipment, materials and other goods for execution of the Works, whether or not these items are on Site or elsewhere and may take possession of the same until completion of the Works. 459By cl 7(b), Stoneglow was required to employ labour under conditions satisfactory to Multiplex, to avoid conduct which might lead to industrial unrest or dispute and to proceed with sufficient labour, materials and equipment: (b) To comply with all laws and with all requirements of all authorities in any manner relating to the Works or their execution, whether introduced before or after the date of this Agreement, to adhere to all industry codes or conduct and practice applicable from time to time; to execute the Works safely and to avoid any conduct, activity, operation, practice or condition which may be unsafe or may be regarded as unsafe by any safety committee, law, authority or union; not to assign, charge or sub-let this Agreement or any portion thereof unless with the written consent of the Contractor; to employ labour under conditions satisfactory to the Contractor and to discontinue the employment of any employee or employees or piece-workers or contractors unsatisfactory to the Contractor, to avoid any conduct or omission which might result in industrial unrest or dispute or otherwise disrupt the Contractor's activities on the Site or on any other site; to commence the Works the subject hereof forthwith on notice from the Contractor and to proceed with sufficient labour, materials and equipment in accordance with this Agreement, and in default thereof to permit the Contractor immediately upon notice and demand to take possession of the Works forthwith and complete the same at the Sub-Contractor's cost 460Clause 11 draw with progress claims. I have summarised the effect of that clause at [38] above. I set it out: Any progress claim for payment to the Sub-Contractor on account of the contract Sum must be in the hands of the Contractor by the 20th day of the month, together with such supporting material as the Contractor may require. Subject to prior receipt of the corresponding payment from the Proprietor, payment will be made, at the end of the following month, of the amount approved by the Contractor less [ten] percent (10%) accumulating up to a total of five percent (5%) of the Contract Sum, the total percentage to be retained until Practical Completion of the Principal Works, when, subject to the other terms of this Agreement, one-half shall become due to the Sub-Contractor and the balance due after the end of the defects liability period under the Head Contract or the issue of the Architect's final certificate, whichever is later. Within fourteen (14) days of the Contractor notifying the Sub-Contractor that it considers with Works are sufficiently complete to do so, the Sub-Contractor shall submit a final claims setting out all the Sub-Contractors claims and entitlements in specific amounts, accompanied by sufficient information, calculations and documentation to demonstrate to the satisfaction of the Contractor that it is correct and to identify the amount which is then appropriate to be paid. Any entitlements not so claimed and accompanied within that fourteen (14) days shall not be recoverable and are herby deemed waived by the Sub-Contractor. Payment of the amount approved by the Contractor for the final claim, less the value of incomplete or defective work, will be made within seven (7) days of the date of the Sub-Contractor's written Agreement to that amount. Immediately upon execution of this Agreement, the Sub-Contractor shall deliver to the Contractor, as security for performance of its obligations, an unconditional bank guarantee on terms and from a bank acceptable to the Contractor for an amount of $-N/A-. The Contractor will, subject to the other terms of this Agreement, release the bank guarantee on practical completion of the principal works. $100,000 Noise bond required under Project specific conditions. [handwritten note] Any payments made by the Contractor shall be treated as payments on account only. No payment made by the Contractor and no claim made by the Contractor on the Proprietor or any other party shall be used or regarded as evidence that or admission by the Contractor that the Works or any part thereof have been executed in accordance with the Agreement or to the satisfaction of the Contractor or the Architect nor as to the value of the Works or any part thereof as executed nor as to the validity or correctness of any other claim by the Sub-Contractor. No approval by the Contractor, the Proprietor or the Architect shall constitute admission of performance, waiver or estoppel in respect of the obligations of the Sub-Contractor nor the rights of the Contractor.

Commencement of work 461The submissions for Mr Ballard suggest that Stoneglow commenced work on about 1 July 1996. I do not think that this is correct. From contemporaneous correspondence, it seems clear that Stoneglow was working on site no later than 6 June 1996. Further, from a Multiplex progress report of 20 June 1996, it could be inferred that some 24 days of demolition work had been performed to that time. In my view, the better view of the evidence is that Stoneglow was working on site at least by early June 1996, and perhaps from late May. 462As I have noted, there were problems attending Stoneglow's performance of demolition works pursuant to the subcontract. Contemporaneous documents (including both correspondence between the parties and internal Multiplex reports) show this. To the extent that it was submitted for Mr Ballard that less reliance should be placed on correspondence, I do not agree. It may be accepted that a contractor in the position of Multiplex would do its best to document what it perceived to be problems in the work perceived by a subcontractor. I accept that Multiplex did not seek to understate, or under-emphasise, those problems that it perceived. But it does not follow that there were no such problems, or that the letters should not be accepted as having a substantial core of truth. Particularly before the alleged conspiracy meeting, there could not have been any underlying malign intent. 463Further, Stoneglow had the opportunity to respond to correspondence if it wished to do so, and to deny matters that it thought were inaccurate. In this context, I refer to Mr Russell Byrnes' advice to Stoneglow to document matters closely. The absence of reply, and (in the face of that advice) the absence of documentation, both seem to me to provide reasons for accepting the substantial accuracy of the correspondence emanating from Multiplex. 464The correspondence and internal reports (and there should be added to this list of contemporaneous source documents minutes of meetings between representatives of Multiplex and representatives of Stoneglow) show that, almost from the beginning of performance of the stage one demolition works, Multiplex expressed concerns both as to the way in which Stoneglow was carrying out its work and as to progress. The concerns expressed related both to matters of safety and to matters of negligent or defective performance of work. It is not necessary to go into the detail. It is sufficient to repeat that at least prior to late August 1996, those expressions of concern could not have been motivated by any malign intent, as being in execution of the conspiracy. 465Further, the character of the complaints does not change in any substantial way from before to after late August 1996. The complaints as to delay become more consistent, and more pressing - particularly in October 1996. But that can be explained (and in my view should be explained) by reference to the repeated deadlines imposed (and in some cases, seemingly, accepted) and not met. 466On 19 August 1996, there was a meeting held between representatives of Multiplex and of Stoneglow to discuss the lack of manpower that Stoneglow had on site. Multiplex noted that Stoneglow did not have men working on the night shift, and that this was having an adverse impact on the progress on the works. Those concerns were reiterated in a letter sent by Multiplex to Stoneglow some eight days later, on 27 August 1996. 467On 26 August 1996, there was another meeting between representatives of Multiplex and of Stoneglow. The meeting was called to discuss a draft construction program for completion of the stage one demolition works. There is no suggestion that Stoneglow objected to the draft program, or protested that it was inadequate to allow the works to be performed. Multiplex sent that program to Stoneglow by letter dated 30 August 1996. The program required completion of the stage one demolition works by 24 September 1996. The letter confirmed that this was "the final date". 468Before I turn to the alleged conspiracy meeting (which is said to have occurred in late August 1996), I note that there was a meeting between representatives of Multiplex and of Stoneglow on 9 September 1996, at which both safety issues and delay were discussed. It was proposed that demolition work should be stopped until Stoneglow had taken appropriate actions in relation to safety issues (which were described as being "severe problems" in the minutes of the meeting). In relation to delay, the minutes recorded that Stoneglow was some six days behind program: presumably, the program agreed on 26 August 1996 and sent to Stoneglow under cover of the letter of 30 August 1996.

The conspiracy meeting 469I interrupt the narrative of work under the subcontract to deal with the conspiracy meeting. I do so because it was put for Mr Ballard that there was a significant change in the relationship between Multiplex and Stoneglow after the time when the conspiracy meeting is alleged to have occurred, and that this of itself provides some corroboration of the making of the conspiracy. 470The only evidence that there was a meeting of the kind alleged comes from Mr Bates. According to Mr Bates (affidavit sworn 19 October 2009, para 32), he was advised by Mr Ferguson to attend the meeting involving Mr Ferguson and representatives of Multiplex. In para 33 of the same affidavit, Mr Bates gave some more detail as to the place and time of the meeting and those attending. In paras 34 to 39 he gave evidence of some of the matters discussed at that meeting. I set out paras 32 to 39: In or about August/September 1996 Ferguson advised me of a meeting that I was to attend with him and with Multiplex. I remember the time of the Multiplex meeting because I recall it happening at about the time of - just before or just after - the birth of my son (28 August 1998). This meeting took place at a coffee shop in Kent Street Sydney, not far from tie offices of Multiplex (the Multiplex meeting). It was held around 7 AM to 8 AM. Present at the meeting was Ferguson and me, and Ross McDiven (McDiven) and Dave Higgon (Higgon). 1 knew McDiven as the managing director of Multiplex (I had met him on approximately two previous occasions). I had known Higgon for some time. At the time I understood that Higgon was the industrial relations officer of Multiplex; previously, he had been an officer with the CFMEU. I recall two topics of conversation at the Multiplex meeting; one concerning Multiplex's use of Ballard/Stoneglow; and, the other concerning a 'donation' to the Union's picnic fund. At the Multiplex meeting in respect of the discussion about Ballard and Stoneglow, Ferguson addressed McDiven and said words to the following effect: Stoneglow is an anti-union company. You and I have an understanding with Multiplex that you will only use contractors who comply with the Union's requirements and are union-friendly. This is not one of those companies. David Ballard caused us adverse publicity in respect of the Waterhen project which embarrassed us. He also called in the television program 'A Current Affair'. We want Ballard and Stoneglow off all of your projects, and we don't want them to be used in the future. l recall that McDiven said words to the effect: I can give you an undertaking that they will not be used on any of our jobs In the future, however I will have to review the contracts in order to find a way of getting out of our current contracts with them. Subsequently, words to the following effect were said: Ferguson: I don't care how you do It, you just have to do it If you don't, our relationship on all your projects will be at risk. McDiven: It will be fixed. Ferguson concluded this part of the discussion with words to the effect: OK Done [or. OK. We're agreed.] Also discussed at the meeting was a 'donation' by Multiplex to the Union picnic fund. I said in words to the effect that I was organising that year's Wonderland Christmas picnic day for the Union and that Multiplex was Invited to make a donation to the fund. I recall that McDiven responded in words to the effect that he was sura that he could accommodate that Invitation. I cannot recall whether, and if so in what amount, Multiplex subsequently made a contribution to the picnic fund. 471The evidence given by Mr Bates on this topic was denied unequivocally and categorically by those who were said to have attended the meeting: Mr McDiven, Mr Higgon and Mr Ferguson. 472For the reasons that I have given, I am not prepared to accept any uncorroborated evidence given by Mr Bates. I do not accept his evidence of the occurrence of the meeting, or as to what was said. I accept the evidence of Mr McDiven, Mr Higgon and Mr Ferguson on this point (as to Mr Ferguson, notwithstanding the reservations that I have expressed in relation to him; those reservations do not seem to me to touch on the integrity of this aspect of his evidence). 473Further, even if Mr Bates' evidence on this topic should be accorded any shred of credibility, it is clear that there were grave problems with his recollection (or purported recollection). As I have said, Mr Bates asserted that those present at the meeting were Messrs McDiven, Higgon and Ferguson. However, in an earlier affidavit (sworn 12 July 2007) Mr Bates said that the only person who attended the meeting on behalf of Multiplex was Mr McDiven. Mr Bates was cross-examined on this discrepancy (see, generally T1406-1415). He conceded that, by 12 July 2007, he had turned his mind to the question of who was present at the meeting on at least six occasions prior to 12 July 2007, and could not recall that Mr Higgon had been present. 474The only explanation of this apparent oversight (or improvement in memory after the lapse of more than two years) was "oversight" (T1407.26). 475I do not propose to encumber these reasons by setting out the whole of the cross-examination of Mr Bates on the topic of the six occasions on which (he said) he had turned his mind to the question of who was present at the meeting. Nor do I propose to set out excerpts from that, since any attempt to do so is unlikely to give a true impression of the unreality of this part of Mr Bates' evidence. 476Mr Bannon submitted that it was a factor in favour of accepting Mr Bates' account that he had ultimately "remembered" that Mr Higgon had attended the meeting. Mr Bannon submitted that to introduce one more participant in the meeting was to introduce the prospect of one more contradictor. That may be acknowledged. But it is a poor reflection on the quality or accuracy of Mr Bates' memory that, having turned his mind repeatedly and in detail to the question in 2007, he could not remember Mr Higgon's attendance; but could do so in 2009. It is, I think, more likely that by 2009, Mr Bates had realised that it was at least possible that Mr Higgon, by virtue of his duties as an employee of Multiplex, would have attended any such meeting, and amended his "recollection" accordingly. 477Mr Bannon relied also on the degree of detail given by Mr Bates as to the time and place of the meeting. I do not agree with this characterisation of the evidence. Mr Bates was not particularly precise as to the date of the meeting, save to say that it occurred around the time his son was born (which was on 28 August 1996). As to the location: it is clear that Mr Bates and Mr Higgon had met at the coffee shop in question in the course of performing their respective duties. To my mind, that makes it more rather than less likely that Mr Bates would have fixed on that coffee shop as the location for the alleged conspiracy meeting. In any event, the best fraudsters are the most plausible; and probable detail (or "artistic verisimilitude") is an aspect of plausibility. 478There are other problems with Mr Bates' evidence as to the conspiracy meeting. I have referred to one of these at [156] to [168] above, in discussing Mr Bates' credibility. That is the problem of the alternative explanations for the genesis of the conspiracy: Mr Ferguson's annoyance at the ACA program and Mr Ballard's apparent involvement in it; or the pressure from Delta and Metropolitan because their companies had not been awarded the demolition contract for the Sydney Central Plaza Project, notwithstanding the alleged "preferred contractor scheme". 479In view of the conclusion that I have reached in relation to the meeting (namely, that it did not occur), I do not propose to go in detail to the evidence of Messrs McDiven, Higgon and Ferguson; in particular, to what I see to be matters corroborative of their denials.

The subcontract is signed 480The formal subcontract document was signed by Mr Ballard on behalf of Stoneglow on 26 August 1996, although it was said to have been effective, and to have governed the relationship between the parties, from 29 April 1996. 481Mr Bannon submitted that there was a link between the requirement that the formal subcontract document be executed and the conspiracy meeting. According to him, the requirement to execute the subcontract could be seen as a step taken by Multiplex to establish the contractual relationship between it and Stoneglow, so that a plausible contractual basis for termination could be constructed. 482To the extent that such a submission is pressed, it seems to me to border on the fanciful. Mr Young had already acknowledged, on behalf of Stoneglow, that Stoneglow was bound by the relevant provisions of the tender documents. Thus, the terms of the subcontract were clearly established at all relevant times, from well before the alleged conspiracy meeting. It was no doubt desirable, as a matter of housekeeping, to have a formal instrument of subcontract executed. It was not necessary to do so to prove either the existence of the subcontract or the precise terms upon which it was made.

Progress claims, payment and the "drip feed system" 483I start by repeating the essence of the payment provisions in the subcontract: (1) any progress claim was required to be submitted by the 20th day of a month, projecting work to be carried out to the 26th of that month; (2) Multiplex was required to assess any progress claim so submitted; (3) the amount assessed, less retention (if any) was to be paid by the end of the following month. 484Multiplex was entitled to retain 10% of each amount assessed for payment, up to a total of 5% of the subcontract price. 485The subcontract price (subject to variations etc), for both stages of the work, was a lump sum of $3,747,500.00. It follows that the total amount authorised to be retained by Multiplex was $187,375.00; and that this retention amount would be reached once the total of the amounts certified for payment was one half the subcontract sum, or $1,873,750.00 (again, in each case, subject to variations and the like). 486Stoneglow's first progress claim was dated 24 July 1996. It claimed not only for work performed under the subcontract but also a "site establishment fee" of $225,000.00, a delay cost of $166,000.00 and various items said to be for variations to the scope of works. 487Multiplex assessed that progress claim in two parts. $267,000.00 was certified for payment on 9 August 1996, and this amount (less retention) was paid on 16 August 1996. A further amount of $116,300.00 was certified on 15 August 1996, and this amount (less retention) was paid on 27 August 1996. 488The next progress claim (labelled progress claim 3, presumably to account for the way in which progress claim 1 had been certified and paid) was submitted on 15 August 1996. The cumulative value of work completed was claimed as $536,700.00. The amount certified for payment, after allowing for previous certifications, was $153,400.00 and this amount (less retention) was paid on 7 September 1996. 489Progress claim 4 was submitted on 10 September 1996. The cumulative value of work claimed was $1,187,500.00. This progress claim, too, appears to have been certified in two parts. Some $388,300.00 was certified for payment and paid (less retention) on 11 September 1996. A further $262,500.00 was certified for payment and paid (less retention) on 20 September 1996. 490Progress claim 5 was submitted on 20 September 1996. It claimed a cumulative value of work completed of $1,801,000.00. It was certified in two or three parts, depending on the view one takes of the evidence. Amounts of $412,500.00 and $150,000.00 were certified for payment and paid (less retention) on 3 October 1996. A further amount of $26,000.00 (less retention) was paid (apparently as an advance to enable Stoneglow to pay its workers' wages) on 25 October 1996. 491In summary, by 25 October 1996, the cumulative amount claimed was $1,801,00.00; the cumulative amount certified was $1,776,000.00; and the cumulative amount paid (after retention) was $1,598,400.00. On the face of things, Multiplex had complied with its payment obligations under the subcontract. Indeed, at a level of some generality, it had paid well in advance of its contractual obligation, and in most cases more or less in accordance with the two-week payment process that Mr Ballard said had been agreed between him and Mr Murphy. 492To the extent that complaint is made that the payments were short by 30 October 1996, that submission must be rejected. Certainly, the amount certified and paid or taken to retention was less than the amount claimed. But the obligation of Multiplex was to pay or account for the amount that it certified, not to pay the full amount of any claim (or the total of all claims). 493Assuming (without deciding) that Multiplex was under some implied obligation of good faith and fair dealing to assess progress claims honestly and fairly, there is no pleaded case that it failed to do so. Nor is there any basis for concluding, on the evidence (to the extent that I was taken to it) that it failed to do so. 494Further, on 1 November 1996, Multiplex sought to pay a further amount of about $25,000.00 (the exact amount was $25,602.72) to Stoneglow. This was done, or attempted to be done, to enable Stoneglow to pay its workers. In fact, as I have noted in dealing with the question of Mr Ballard's credibility, the workers did not get paid because Mr Ballard countermanded the instruction to make the payments to them from Stoneglow's bank account. But if the payment of about $25,000.00 had been made and credited to Stoneglow's account, the result would have been, in fact, that all amounts claimed by the progress claims to which I have referred would have been paid (or taken to retention) in full, and not just the amounts certified. 495On 25 October 1996, Stoneglow wrote to Multiplex asserting that Multiplex owed it $900,000.00. The letter demanded payment of $600,000.00 within 14 days. The amount claimed cannot be justified by reference to any progress claim then extant, whether assessed or unassessed. It was submitted for Mr Ballard that the demand was not maintained, and that both parties understood this. I do not think that this is correct. At a meeting held on 4 November 1996, Mr Henwood stated that all letters that had been tabled would be withdrawn if certain conditions were met. It is apparent that, so far as Mr Henwood was concerned, the letter of 25 October 1996 had not then been withdrawn. It might also be noted that, by 4 November 1996, the claim for $900,000.00 had grown to $1,000,000.00 (Mr Henwood asserted this in the meeting in question). 496Stoneglow prepared a further progress claim, number 6, on 30 October 1996. That claim asserted that some $2,386,400.00 worth of work had been performed under the subcontract. That progress claim was given to Multiplex at the meeting of 4 November 1996. Two things can be said immediately about this claim. The first is that, on the terms of the subcontract, it was not payable (to the extent that it was assessed) until 31 December 1996. The second is that, having regard to the findings of the referee (adopted by the court), the progress claim overvalued the work completed by, in round figures, $350,000.00. 497But regardless of the extent to which progress claim 6 was (or was not) inflated, the simple facts are that it was made after 20 October 1996, did not comply with the requirement to value work (including work projected to be done) up to 26 November 1996, and was not payable until 31 December 1996. 498The submissions for Mr Ballard placed great significance on internal documents of Multiplex suggesting that Multiplex was "drip-feeding" payments to Stoneglow. I have to say that I do not see any malign significance in those documents. There is no doubt that Multiplex was paying in advance of Stoneglow's contractual entitlement. In broad terms, Multiplex was paying Stoneglow, as Mr Ballard said had been agreed with Mr Murphy, approximately fortnightly. Payments of smaller sums more often than required, up to the maximum amount required to be paid, could well be regarded as "drip-feeding". 499Clearly enough, Multiplex had an interest in ensuring that Stoneglow remained financially able to perform the work that was outstanding under the subcontract - in particular, the stage one work. Equally clearly, by October 1996 (and probably earlier), Stoneglow's financial position had become precarious. That had been made apparent to Multiplex if only because, by late October 1996, Stoneglow was apparently unable to pay its workers without the further contribution of funds from Multiplex. 500Thus, it was in the commercial interests of Multiplex to "drip-feed" Stoneglow, by giving it regular payments which, in total, equated to the amount assessed and payable; but which provided more even cash flow for Stoneglow. 501Mr Bannon submitted that Multiplex was seeking, by the "drip-feeding" process, to keep Stoneglow afloat until the stage one works were completed, so that it could then terminate the subcontract. It did indeed terminate the subcontract. The question is whether it was entitled to do so, and did so because of that entitlement; or whether it did so, regardless of entitlement, pursuant to the alleged conspiracy. 502For the reasons that I give in dealing with termination, I conclude that Multiplex was entitled to terminate the subcontract when it did. Since I have found that the conspiracy meeting did not take place, I am not prepared to conclude, as Mr Bannon urged I should, that the termination, regardless of entitlement or contractual justification, was undertaken in execution of the conspiracy alleged. 503Further, having regard to my conclusion that Multiplex paid in advance of its contractual obligation, I am not prepared to conclude that the pattern of assessments and payments is in some way referable to a conspiracy of the kind alleged. It follows that Mr Ballard has failed to prove, in relation to the Pitt Street Mall Project, the first of the overt acts pleaded (see at [24] above). 504To divert from the narrative for a moment: the overt acts alleged included not only refusal, said to be in breach of contract, to pay Stoneglow for work done on the Pitt Street Mall Project, but also refusal, again said to be in breach of contract, to pay Stoneglow for work done on the Chatswood Chase and Grace Hotel projects. The submissions for Mr Ballard did not, so far as I can tell, directly address these latter aspects of the alleged overt act. (Indeed, it should be noted that the submissions for Mr Ballard did not address, specifically or in terms, the overt acts at all.) Mr Bannon asserted (PS para 816) that, at the time Stoneglow "was locked out of the Sydney Central Plaza site", it: ...was owed $147,864.00 in respect of the Chatswood Chase project, and $29,610.00 in respect of the Grace Plaza project. 505Mr Bannon gave no evidentiary references to support these figures. 506Dr Bell referred to the minutes of a meeting held on 15 November 1996, and documents tabled at that meeting (MS para 544, responding to PS para 816). 507The minutes of the meeting show that it was attended by Messrs Ballard, Young, Murphy, Downes and Yeo (Mr Yeo was another Multiplex employee associated with the Pitt Street Mall project). Although the meeting was said to have been conducted "without prejudice", it does not appear that the file note was admitted on any limited basis. 508The minutes show that Mr Hammond's assessment of the amount owing to Stoneglow in respect of the Pitt Street Mall project was discussed. It appears by inference, from a "contract value agreement" relating to that project that was tabled at the meeting, that Mr Hammond's assessment was that $301,894.00 was owing, of which Multiplex claimed an entitlement to a retention of $45,507.00. That retention appears to have included both contractual retention (which cut out, as I have said, once the value of work done and certified amounted to one-half the contract sum, or $1,873,750.00) and amounts paid by Multiplex for wages. 509Contract value agreements were also tabled for the Chatswood Chase and Grace Hotel projects. In respect of those, the minutes note the following: 9 RM tabled the CVA from Chatswood Chase (copy attached) mounting to $43,157, which represented the previously agreed figure, less wage entitlements, paid on Thursday, November 14, 1996 (apportioned to the Chatswood Chase project). RM stated that due to Stoneglow's non-provision of wage entitlement details, the amounts calculated were based on details provided by the CFMEU. DB expressed agreement with the manner in which Multiplex had handled the financial settlement of the Stoneglow employees. 10. RM then tabled the CVA for Grace Plaza (copy attached) amounting to Nil after wage entitlement deductions were taken off. 510The contract value agreements that were tabled conformed to the figures stated. 511That material suggests that Multiplex was prepared to pay the amounts referred to in respect of the three projects (that for the Pitt Street Mall project being in accordance with Mr Hammond's conclusions and that for the Grace Hotel project being nil) provided Mr Ballard and Mr Young signed the contract value agreements and an associated deed of release. Those documents were required by Multiplex, pursuant to the terms of the relevant subcontract, where (as was proposed to be the case) the payment was a final settlement of account. 512That does not suggest to me that there was a refusal to pay. It suggests, at most, that there was an offer to pay which was subject to a condition, but which was in any event rejected. 513It may be that there is other evidence of refusal to pay, or non-payment of, the Chatswood Chase and Grace Hotel projects, and it may be that, somewhere, the link was drawn between that non-payment and the conspiracy. But any attempt to understand the case for Mr Ballard on this point would involve rereading an enormous mass of material in search of the proverbial needle. Since I have found that there was no conspiracy, and because I have found that there was no refusal, in breach of contract, to pay money owing on the Pitt Street Mall project at the date of termination, I do not propose to look further for that needle.

Events leading up to termination 514By late September 1996, Multiplex had directed numerous complaints to Stoneglow relating to safety matters and defective work. For example, on 24 September 1996, Mr Gralton of Multiplex sent a fax to Mr Young pointing out defective work that "must be repaired ASAP" - a reference to intrusions into the retail area. On the same date, Mr de Bono wrote complaining of certain safety matters. The following day, Mr de Bono wrote again, I think following up Mr Gralton's fax. On 26 September 1996, Mr de Bono wrote concerning water penetration caused by Stoneglow's works, and other matters. 515Those complaints, and other matters, were followed up in a series of letters written on 17 October 1996 (and one on 18 October 1996). 516While all this was happening, there was correspondence to and fro on the subject of delay. By way of background, at a "Stoneglow progress meeting" held on 9 September 1996, which Mr Young attended on behalf of Stoneglow, there was reference to severe problems with safety on site, the loss of many hours work and shortage of men, and slippage of some six days behind program. 517A project report issued to the developer by its project manager, Colin Ging & Partners (CGP), noted that Multiplex "is currently eight weeks behind in the Tatler Area and two weeks behind in the Pitt Buildings...". The latter was said to be due to "inclement weather and restrictions imposed on noisy work". The former (which referred to a part of the site fronting George Street) was said to be due to delays caused, in some unexplained way, by the adjoining owner. 518On 19 September 1996, Stoneglow wrote to Multiplex apparently acknowledging delay in performance of the works, but claiming that it was due to "consistent under - certification". As I have pointed out, no case of under - certification, consistent or otherwise, has been pleaded or made out; nor has it been shown that, as at 19 September 1996, Multiplex had not been paying in accordance with its contractual obligations. Omitting formal parts, the letter read: This urgent request has become necessary as your consistent under certification has caused this company problems meeting the programme and to perform in an appropriate professional manner. 519The following day, Stoneglow wrote advising of possible delays in achieving practical completion: We hereby notify in accordance with Clause 13, subclause (b) of the above contract that we have now realised that the Sub-Contract Works may be delayed due to the contractor not allowing Stoneglow to commence completely until 20.8.96. Once we have assessed the full extent of the delay we shall formally submit our claim that the Date for Practical Completion be extended. 520Also on 20 September 1996, Stoneglow wrote advising of delay for other reasons: We hereby notify in accordance with Clause 13, subclause (b) of the above contract that we have now realised that the Sub-Contract Works may be delayed due to the contractor not providing sufficient crane time due to lifts on Tatler. Once we have assessed the full extent of the delay we shall formally submit our claim that the Date for Practical Completion be extended. 521On 20 September 1996, Multiplex wrote two letters relating to the topic of delay and associated matters. I do not propose to set them out. 522The records are not entirely consistent on the question of delay. References to "contract programme status" at various dates show percentages of work complete that do not appear to accord with other matters in the evidence. 523In a project report dated 14 October 1996, Multiplex stated that: Work by the demolition contractor has been protracted and a serious drain on Multiplex's resources. The change over date to excavation was October 9, 1996. We are now waiting on documentation to start demolition of the George Street level 6, 7, 8, 9 and 10 524However, another internal Multiplex document dated only two days later suggests that demolition work on all but level 6 of the George Street buildings was continuing. 525It is clear, from documents passing between Multiplex and CGP and others involved with the project, that Multiplex was contending that it was being delayed, in the progress of the works, by changes to the design and late delivery of documents. For example, a project management report prepared by CGP as at 1 October 1996 observed that work on the George Street side was behind program because of constraints imposed by a neighbouring property owner. Demolition work on the Pitt Street building was behind time because of noise constraints. Other work on George Street was ten weeks behind "due to re-design ramifications". 526Minutes of a meeting of directors of Multiplex held on 25 October 1996 observe, in relation to the Pitt Street Mall project, that: Status is still being monitored against the original program. A revised program is to be prepared by the end of November. Richard Reid (client) acknowledges that "morally" the Builder has a right to claim for Tatler and other delays. However he has indicated that he would prefer us to lodge a compression / escalation claim rather than for us to pursue EOTs. 527The day before, on 24 October 1996, Multiplex wrote a "show cause" letter to Stoneglow. Omitting formal parts, that letter read: RE: SYDNEY CENTRAL PLAZA We are extremely disappointed and concerned with the progress being achieved. You have exceeded the time to complete the works which has resulted in delays to the following trades and the date of Practical Completion for the project. The manner in which your company has conducted itself is not assisting future relationships. Throughout the duration of your time on site, commitments and time frames have not received due consideration, as invariably they fail to materialise. We have now instances of your company refusing to adhere to written instruction. For a long period now, we are of the opinion, you have tested our patience. On October 15, 1996 schedules of work areas, with completion dates, were discussed. It was agreed between Stoneglow (D. Ballard and M. Webster) and Multiplex (R. Murphy and M. Gralton) that all outstanding Pitt Building works were to be completed by 7:00 am, Saturday, October 19, 1996. Interim dates were also included for completion and handover of areas to Walkers. This work remains incomplete and we are still awaiting a detailed resourced programme for Stage 1. In addition, on October 17, 1996 the remaining areas of the Stage 1 works were scheduled and dates for completion were discussed. We note your contract completion date of September 4, 1996 has been exceeded, with still no end in sight. We advise this letter is issued present to Clause 6 of your Subcontract Agreement. As such, we require you to show cause by October 28, 1996 as to why we should not determine your contract. Our Mr Matthew Gralton is available to discuss any issue which may assist in your submission. 528It is common ground that the reference to a "completion date of September 4, 1996" was erroneous. The correct date, in accordance with the program that had been agreed on 26 August 1996 and sent to Stoneglow on 30 August 1996, was 24 September 1996. 529Mr Murphy was cross-examined on the letter. He agreed that he had been involved in its preparation. It was put to him that the letter was a "cynical exercise". He denied the suggestion. 530To my mind, the important thing about the letter is that the substantial factual allegations made in it have not been controverted by any evidence adduced for Mr Ballard. That may, perhaps, be because they are accepted. Certainly, Stoneglow did not reply to the letter, taking issue with any of the statements made in it (for example, that on 15 October 1996, it had been agreed that all Pitt Street building works were to be completed by 19 October 1996). 531In my view, the letter of 24 October 1996 should be accepted as substantially accurate, in relation to the allegations of fact that it makes. As I have noted, there were questions as to the responsibility for delay on aspects of the work on the George Street buildings, and Multiplex appears to have agreed with CGP that those works were not in any event on the critical path. But the principal complaint in the letter is one of delay in completing work on the Pitt Street buildings. Even if the work had been delayed by noise levels, or more accurately because of complaints in relation to noise levels, that was something that Stoneglow had to accept. 532Not only did Stoneglow fail to deny the allegations of fact made in the letter of 24 October 1996, it failed also to respond to the invitation (or requirement) to show cause why Multiplex should not terminate the subcontract. On the contrary, it pursued a totally different path. On 25 October 1996 it made the undocumented and extra-contractual claim, to which I have referred already, for $900,000.00, of which $600,000.00 was demanded to be paid within 14 days. 533There was a meeting between representatives of Multiplex and of Stoneglow (Messrs Ballard and Young) on 28 October 1996, at which, among other things, the show cause letter of 24 October 1996 was discussed. It was noted that Stoneglow had 11 men on the project on 28 October 1996, and had not provided a "resourced programme" as requested. Further, Mr Murphy "instructed Stoneglow to respond to Multiplex's letter and issues raised at the meeting before 5:00pm". There does not seem to have been any response. 534It is apparent that, by late October 1996, Stoneglow was running out of money. One creditor had put Stoneglow on a "COD" basis, requiring payment of arrears forthwith and stating that "henceforth cheques must be received on a daily basis to cover tipping charges" (letter from Kurnell Landfill Company to Stoneglow dated 2 October 1996). 535On 30 October 1996, Stoneglow was served with a statutory demand, claiming $122,726.00 for the supply of rigging and construction goods. 536As I have noted already, Stoneglow was unable, without a financial contribution from Multiplex, to pay all its workers on 23 October 1996. 537The same position obtained on 30 October 1996. Multiplex sought to pay money into Stoneglow's account. Mr Ballard's response was to instruct Stoneglow's bank to "immediately cease the list pay", which payments presumably would have been facilitated by the payment that Multiplex had sought to make. 538On 28 October 1996, Multiplex asked Stoneglow, among other things, to "confirm you have sufficient funds to meet your company's liabilities", making particular reference to "this coming weeks [sic] wages to your employees". No confirmation was given. 539As an aside: on 30 October 1996, the structural engineer made a complaint of further defective work undertaken by Stoneglow. Multiplex passed that on to Stoneglow, together with a request to rectify it. 540On 31 October 1996, Multiplex wrote to Stoneglow making further complaint of failure to complete work. The letter read: RE: SYDNEY CENTRAL PLAZA WORKS COMPLETED 26/27 OCTOBER 1996, TATLER/GEORGE STREET We refer to our fax sent to you 25 October 1996, and note that works in both Tatler and George Street building were not complete 7.00am 28 October, 1996, as discussed. Work not complete in George (South):

• L5 Stub beam not started
• remove L1-L2 encasement off C1, C2, C3
• prepare beams between C1/C2 and C2/C3 for removal. Please inform Multiplex why this work was not completed as discussed and agreed Friday, 25 October, 1996. If Stoneglow are not able to complete the works, Multiplex will make alternative arrangements to complete the works on behalf of Stoneglow and adjust the contract sum accordingly. 541The same day, Stoneglow gave notice of dispute: RE: SYDNEY CENTRAL PLAZA I hereby give you notice of a dispute between us under Section 17 (Arbitration) of our subcontract dated April 29, 1996. The subject of the dispute is non payment for work done on the above project and continuing threats of non payment. I seek an urgent meeting with you to discuss this and other issues between us in an attempt to resolve the matter. If payment of monies owing is not forthcoming as a result of the meeting and negotiations I will require the matter to be listed for arbitration as provided for in the sub-contract agreement. 542Against that background, Stoneglow's workers went on strike following non-payment on 30 October 1996. They remained in their shed, and all active demolition work ceased as a result. Whether or not Mr Ballard actively encouraged the men to go on strike, and whether or not he had the ability to get them to go back to work, is not to the point (although I incline to the view that both propositions are correct). The point is, rather, that, as a result of the strike, Stoneglow both breached its contractual obligations in relation to the provision of adequate resources and the maintenance of proper labour relations, and ceased to perform work pursuant to the subcontract. 543I have no doubt that Mr Ballard, perhaps aided and abetted by Mr Henwood, thought that the cessation of demolition work, with the consequent risk of substantial delay to the project and hence, from the perspective of Multiplex, of substantial liquidated damages, might do something to expedite payment of the claim for $900,000.00, or of the $600,000.00 that had been demanded to be paid within 14 days of 25 October 1996. Mr Ballard denied that he was seeking to bring pressure to bear on Multiplex to resolve Stoneglow's claims. I do not accept that denial. 544On 31 October 1996, Multiplex wrote what might be regarded as a final warning: RE: SYDNEY CENTRAL PLAZA DEMOLITION WORKS We note we have not received any replies to our letters of October 24 and 28 last, despite the assurances given at our meeting of October 28, 1996 that you would respond on October 28, 1996. At the request of Mr Young, Messrs de Bono and Murphy met to discuss what the intention of your company was with regard to the completion of the above works. At that meeting, the following issues were discussed: i. The withdrawal of your letter of demand dated October 25, 1996. ii. Stoneglow to prepare a list of matters they considered to be variations iii Multiplex to prepare a list of backcharges they considered applicable. We suggested our companies meet once items ii. and iii. were available. We considered this process to be of an urgent nature. Mr Young undertook to advise Mr de Bono that afternoon (October 28, 1996) on how he proposed to deal with these issues. We are still awaiting that advice. As we write, we note your employees have taken strike action. We further record we have, since yesterday, requested meeting with you to further discuss these issues. You have refused to meet with Messrs de Bono and Murphy unless claims you consider to have an entitlement to, are paid today. Please be advised we are considering our options with respect to our future relationship on this project. 545That letter appears to have produced both discussions and some measure of movement. On the same day, but presumably at a later time, Multiplex wrote as follows: RE: SYDNEY CENTRAL PLAZA DEMOLITION SUBCONTRACT Further to our telephone discussion of even date at approximately 5:00pm, we confirm the following: i. Stoneglow and their representatives will attend a meeting with Multiplex at the site office on Monday, November 4, 1996 at 4:00 pm. We await confirmation of your representatives attending the meeting. ii. If required, a further meeting can take place with Messrs de Bono, Murphy and Stagg. Further, for the record, we confirm your conversation and advice of earlier today to Mr M. Stagg that Stoneglow will continue to complete all works on Multiplex sites, i.e. Sydney Central Plaza, Grace Plaza and Chatswood, to programme. 546It may be noted that Mr Ballard did not deny the "conversation and advice of earlier today" recorded in the last paragraph of that letter. Presumably, the reference to the other projects (Chatswood Chase and Grace Hotel) reflected the fact that Stoneglow's workers on those sites had gone on strike as well. 547On 1 November 1996, Multiplex wrote a further letter to Stoneglow, enclosing a notice of default. The letter read: RE: SYDNEY CENTRAL PLAZA We refer to our letter dated October 24, 1996. You have not replied to our letter and since it was sent, have made no progress towards the completion of all outstanding Pitt Street works as well as all other outstanding works for completion of Stage 1 works under your subcontract. Further, notwithstanding that Multiplex paid your employees wages last week, the same situation of non payment of your employees exists on site again today and the men are idle in the sheds and refusing to work. In a letter from you dated October 31, 1996 you assert an agreement to pay you $180,000 in respect of work completed but as yet unpaid. You have also served a notice of dispute nominating non payment for work done. Our position is that your letter is incorrect and your notice of dispute invalidly served, as no agreement to pay $180,000 or any other sum, was made at the meeting on October 22, 1996. This was done because by that date you had not submitted a progress claim for payment. You still have not done so. You have been paid for all properly claimed sums, less retention. You have also referred to claims to be made for extension of time claims and variations. We have not received any claims of this type for processing, with the exception of your letter of October 31, 1996 referring to a claim for a variation in respect of the availability of the crane. Please be advised that if your letter is intended as a request for confirmation of a variation under Clause 3(a) of the Subcontract, then such confirmation is not given. Given the lack of progress and non payment of employees as referred to above, we enclose a notice of default under Clause 6 of the Subcontract. Please rectify the matters of default within the next two days. 548The notice read:

1. Pursuant to the Subcontract Agreement in writing dated August 26, 1996 ("the Subcontract") Stoneglow was engage by Multiplex Constructions Pty Limited ("Multiplex") to carry out certain demolition and asbestos removal works fully described therein.
2. By letter dated October 24, 1996 Multiplex called upon Stoneglow to progress the completion with outstanding works under the Subcontract which Stoneglow had failed to complete in accordance with programme requirements of the Subcontract. As at November 1, 1996 Stoneglow has not rectified with default which is a breach of clauses 4 and 5 of the Subcontract.
3. On or about October 24, 1996 Multiplex advanced to Stoneglow the sum of $26,000 to facilitate payment of the weekly wages of Stoneglow's employees who are employed to perform work on the Subcontract works. On October 28, 1996 Multiplex wrote to Stoneglow seeking information regarding Stoneglow's ability to meet its company's liabilities, in particular in respect of the payment of wages to employees. As at November 1 1996 no response has been received to that letter and Stoneglow has again failed to pay its said employees their weekly wages for the week ending October 31, 1996.
4. Failure to pay employees is considered by Multiplex to be employment of labour under conditions unsatisfactory to Multiplex which is a breach of Clause 7(b) of the Subcontract.
5. Stoneglow is in default of the Subcontract for the purposes of Clauses 4, 5 and 7(b). Please note that if this default shall continue for two (2) days after receipt of this Notice of Default, Multiplex may, without prejudice to any other rights and remedies it may have, terminate the Subcontract. 549On the same day, attempts were made to persuade Stoneglow's men to return to work. An industrial dispute notification dated 1 November 1996 records that Mr de Bono advised that the men would be (and, later, had been) paid. (Presumably, the later advice was given in the belief that the arrangements that had been put in place for money to be deposited in Stoneglow's account to cover payments to workers had been effected; in fact, they were thwarted by Mr Ballard.) Messrs Henderson and Taylor, who were discussing the matter with the men, advised: "... that the men did not want to be paid by Mpx as they were sitting in the shed in protest and wanted Mpx to pay Stoneglow all their money before they went back to work". 550There was some debate as to whether the reference to "all their money" was intended to refer to all money owed to Stoneglow or all money owed to the men for wages (by Stoneglow). Although the former construction would, perhaps, support the proposition that Stoneglow was fomenting the industrial unrest to attempt to bring Multiplex to the negotiating table, it does not seem to me to be necessary to resolve that debate. I do not think it is possible to read too much into the precise syntactical and linguistic idiosyncrasies of a document, such as the one under consideration, clearly composed in haste and without revision. 551On 3 November 1996, Stoneglow gave what it described as a notice of suspension to Multiplex. That notice read as follows: Re: SYDNEY CENTRAL PLAZA - Suspension of Works For Breach of Contract You are herewith given notice by this Company that you are in breach of the subcontract between us dated April 29, 1996 and as a result Stoneglow has suspended the works until you desist from such breach. Further that the breach of contract occurs not only in the executed written contract but in a number of collateral contracts that are readily identifiable as being in place along side of and in addition to the formally executed subcontract. Details of the specific items of breach are now listed for your consideration of their content and their continuing nature. They include but are not limited to the following:- a. The inducement by Multiplex to have Stoneglow sign a subcontract which obligated Multiplex to provide a tower crane, a personnel hoist and a builder's lift while knowing full well that the facilities were not in place and would never totally be throughout the contracted time for the Works. The above facilities were only provided in part and at dates later than would be required for Stoneglow to meet the performance requirements of its contractual obligations. While knowing that the facilities were not in place, Multiplex in its correspondence and verbal directions on the project sought to intimidate employees of Stoneglow into believing that they were not entitled to extensions of time and compensation for its lack of provision of these facilities. When delay costs of $166,000.00 were included in with Progress Claim No. 1, that Multiplex did not fairly assess the amount of the claim nor did it provide such fair assessment or comment in subsequent Progress Payments. That a denial of the provision of such fair assessments has been used by Multiplex to notify Stoneglow that Stoneglow was and is delaying the progress of the works. This denies Stoneglow the ability to fairly determine what resources it would need to complete the works within a timely and appropriately extended date for Practical Completion of its Works. That such denial also fails to compensate in a monetary sense Stoneglow's fair and reasonable costs on an ongoing basis. That Stoneglow, as a result, is unable to properly ascertain whether any part of the variations have been paid into its Progress Payments which has led to Stoneglow being unable to lodge proper Progress Claims for the work, supported by appropriate variations to the work carried out. b. Multiplex's late handing over of areas of work to Stoneglow has denied Stoneglow the use of machine felling in and about the areas of the façade bracing and other areas. This has led to the highly inefficient use of hand labour as opposed to the highly efficient machine felling resulting in the necessity to employ additional labour. This has resulted in time loss and accompanying acceleration costs. Machine felling in the areas of access denied to Stoneglow's machines are in conflict with the Method Statement which was agreed with Multiplex and on which Stoneglow's price for the demolition was based. c. The Builder's Lift which was provided as an inferior method of vertical transport was often commandeered by Grace Bros for use by its staff and customers. To do this and deny any cost and time compensation is not in accordance with the intention of urgency conveyed by a contract which anticipates that the demolition services will be carried out on a 24 hours per day basis. d. The withholding of Progress Payments from the Chatswood Chase Project as well as the Sydney Central Plaza Project is a deliberate tactic regarded as commercial blackmail and under no circumstances will be tolerated. e. The use of an outside contractor to perform the work of Stoneglow while Multiplex was under a notice invoking the dispute provisions of the contract is a major breach of contract and a totally unacceptable tactic. Should this again happen in injuctive (sic) notice will be sought in the Court ordering the contractor off the site and preventing the works continuing until the dispute resolution procedures have run their course. Until all of the above matters are addressed and an appropriate payment is made our suspension of the works as a result of your breach of contract will remain in effect. The payment of appropriate mounts relating to each contract will ensure a full return to work while the dispute provisions of the contract run their course. 552That letter adds weight to the proposition that Stoneglow was using the cessation of work (although characterising it as a lawful suspension of work) to bring Multiplex to the negotiating table and to secure some immediate payment. It is worth repeating, at this point, that Stoneglow had not made a payment claim, in accordance with the contract, for the month of October 1996. The payment claim that was, ultimately, made was that described as progress claim number 6, dated 30 October 1996 but not given to Multiplex until the meeting of 4 November 1996. 553At the meeting on 4 November 1996, there was discussion, back and forth, of the party's respective positions. The following exchange occurred ("N" referring to Mr Henwood and "RM" referring to Mr Murphy): N not prepared to go back to work because Mpx are illegally withholding money. RM when are the men going to return to work. N when Stoneglow gets a payment We will sit here for as long as it takes variation payment. 554Although the last line is not attributed, it appears, in context, to have come either from Mr Henwood or from Mr Ballard. 555There was no question of Multiplex "illegally withholding money". Everything that had been certified had been paid. The only outstanding progress claim was progress claim number 6, given to Multiplex that very day. If it were to be treated as a progress claim pursuant to the contract, it would not be payable (to the extent certified) until 31 December 1996. 556The reference to "variation payment" could be thought to be disingenuous, given that Stoneglow had never submitted a claim, in any sense, for a variation; let alone a claim properly made, and properly documented, in accordance with the requirements of the subcontract. 557The minutes of that meeting also contain the following notation: Indication that Unions would like to Foster a mediation process. 558It is not clear who it was that made this suggestion. What is, however, clear is that, assuming that the comment was made and reflected the fact at the time, it is, if not flatly inconsistent, then at least difficult to reconcile with the central thrust of the conspiracy case: that the unions, at the urging of Mr Ferguson, were determined to destroy Stoneglow. 559Mr Downes of Multiplex had a conversation with Mr Ballard on 5 November 1996. Mr Downes' record of that conversation reads: I contacted Dave Ballard and asked him if he had a decision regarding sending the men back to work as per last night's meeting. He spoke about many things for 10 minutes, which we both participated in. The final answer was 'If I am going to die, I will die on my side of the fence. I will send the men back to work when I have been paid.' I said, 'You don't have to do this, Multiplex are genuinely trying to help'. He said he didn't agree. Anyway, the men have decided themselves and I can't change their mind. No payment, no return to work. 560Mr Downes reported back to Mr Murphy, who asked for a meeting to be arranged. Mr Downes recorded what had happened as a result: Tuesday, November 5, 1996 at 8:25 am Contacted Ron Murphy and advised him of Dave Ballard's answer. He asked me to contact Dave Ballard and arrange a meeting for him and Dave to discuss face to face and try and find a solution. Ron also said if Dave preferred to have Nelson with him, this would be acceptable. Meeting to be organised for 10:30 am today at SCP Site Office. I contacted Dave Ballard at 8:30 am and put this proposal to him He said he did not want to meet anybody. He felt sick and re-stated things he said in the earlier meeting. I tried to convince him that Ron was genuinely trying to help. He could not be convinced and said 'If Ron wants to see me, he can come to my place. It's my wife's birthday. I feel sick and I don't care anymore'. I asked, 'I can't change your mind?', he said 'No'. 561The next day, 6 November 1996, Mr Downes discussed the problems with Messrs Taylor and Henderson. Mr Downes' record of the discussions notes the following: I stated Multiplex's position to Stoneglow was to have the men return to work and Multiplex will have all resources necessary to resolve and address the entitlement of claims by both parties as quickly as the contract allows. I also told them that I have spoken to Dave Ballard (Stoneglow) he advised me he would not instruct the men to return to work until Multiplex pay him money (amount not specified). John [Henderson] said he would contact Dave Ballard and try himself. He rang him from my office. Discussion took place for some 30 minutes. Dave Ballard would not change his mind. 562There are two significant points in this. The first is that Multiplex was seeking, urgently, to get the men back to work. The second is that Mr Henderson (it will be recalled, an official of the union) tried to persuade the men to go back to work: again, inconsistent with a conspiracy, concocted at the urging of the unions led by Mr Ferguson, to drive Stoneglow and Mr Ballard out of business. 563Mr Henderson was unable to persuade the men to return to work. 564Another file note prepared by Mr Downes, this one dated 6 November 1996, suggests that Mr Ballard had sought to have Stoneglow's equipment taken off the Pitt Street Mall site. That file note reads: I spoke to Tony Creevey (Multiplex Crane Co-ordination). He told me the following. Dave Ballard contacted him and asked to have all of his gear lifted off site. Tony replied he has been instructed by Multiplex to only allow external hire gear leave the site and that he could not lift Stoneglow's machines off site. Dave Ballard replied, 'It's not your fault, I might get a mobile crane and do it myself'. I told Tony he was correct and to continue with the same instruction. 565Also on 6 November 1996, Multiplex gave Stoneglow a notice of default under the Chatswood Chase contract, based on withdrawal of labour and consequent "clear breach of the obligation to diligently progress with the works". 566On 6 November 1996, Stoneglow sent the fax to Mr Singleton to which reference has been made already. Among other things, that fax confirmed that it was "mostly true" that Stoneglow had not been providing proper paperwork (to Multiplex), and stated that Stoneglow could not pay suppliers and subcontractors. Nor was the author prepared to risk his personal assets. The terminology of the fax makes it clear that it was sent on the instructions of Mr Ballard, whose name (although not signature) appears at the foot of the fax. I conclude that he did instruct the fax to be sent, and do not accept his evidence to the contrary. 567I referred above to matters suggesting that Stoneglow was running out of money. This is confirmed by another file note prepared by Mr Downes, again of 6 November 1996: I returned a call from Colin Neale of the TWU (Tip Truck Owners Branch) on 9829 1998. He stated his concern of monies owing to his members and Stoneglow's ability to pay. He also advised me of the following conversation with Nelson Henwood. Nelson Henwood rang asking for the TWU's assistance to obtain money from Multiplex. Colin asked Nelson for copies of invoices outstanding. Nelson replied he would not pass them on, as the TWU could then do a deal with Multiplex and pay the drivers and Stoneglow would not get any money. Colin then stated to Nelson that the money for his members was his only concern. Colin advised me he was contacting all of his drivers to try and find out monies owed. At this stage, he knows of five drivers owed a total of approximately $180,000, with invoices from August not paid. He believes it could be as high as $400,000 and suggested Multiplex pay no money at all to Stoneglow. Colin also stated his Union may be forced to come to site and beat the drum to ensure his members are paid. At all times Colin spoke with a courteous manner and did not make any threats. 568In the event, Multiplex paid a substantial sum of money to the truck drivers. 569Numerous other events were addressed by the parties in their submissions, including some alleged agreement (said to have been breached) for Multiplex to pay $180,000.00 to Stoneglow. I do not propose to deal with those matters; they do not in my view bear on the essential question, which is whether Multiplex was entitled to terminate the contract when it did so. Further, in relation to the alleged agreement to pay $180,000.00, it forms no part of the case as pleaded or particularised.

The notice of termination and subsequent events 570On 8 November 1996, Multiplex wrote to Stoneglow giving notice of termination of the subcontract. The notice relied on the notice of default given on 1 November 1996 and the failure to remedy it. 571A similar notice was given in respect of the Chatswood Chase project. 572Notwithstanding the termination of the subcontract, Multiplex and Stoneglow sought to resolve their difficulties. It was agreed that Mr Peter Hammond of Napier and Blakeley Pty Limited, quantity surveyors, would be appointed "to assist in the determination of the amount due by" Multiplex to Stoneglow. Multiplex agreed to be bound by the outcome of Mr Hammond's determination. If Mr Ballard also agreed, he withdrew from that agreement when the ultimate determination was not to his liking. 573On 11 November 1996, Mr Ballard, on behalf of Stoneglow, wrote to Mr de Bono, on behalf of Multiplex: We wish to advise that the Company has appointed Mr Peter Hammond of Napier & Blakeley Pty Ltd, Quantity Surveyors, to assist in the determination of the amount due by you to us. Our Company is endeavouring to finalise the amount due by it to its sub-contractors and would request that your Company pay directly to the sub-contractors all monies properly due to them and that that sum be deducted from the amount due to this Company. 574Thereafter, Mr Hammond did in fact work hard to attempt to assess the amount owing, and did so. It was substantially less than the amount claimed by Stoneglow in either its ambit claim of 25 October 1996 or its progress claim of 30 October (delivered 4 November) 1996. Multiplex thought that the amount was excessive, but nonetheless remained prepared to pay it. As I have noted, Mr Ballard would not accept it.

Validity of the termination 575The termination of the subcontract is the second of the overt acts alleged to have been performed in execution of the conspiracy. It is alleged that the termination was unlawful and in breach of contract. It is also alleged that, thereafter, Multiplex refused to make payments due under the subcontract. 576As to the former: I conclude that Multiplex was in a position to do, lawfully, that which it did: namely, terminate the subcontract. There is no doubt that Stoneglow was in breach. It was well behind program, and had not complied with requirements to expedite progress. On the contrary, by not paying its men, Stoneglow had effectively caused the project to be delayed even further. Stoneglow was required to maintain adequate resources to complete the project on time, and was required to maintain appropriate labour relations. Even if it be concluded that Mr Ballard did not actively encourage the men to go on strike (and the evidence suggests that, in fact, he had the ability to exercise influence over their decisions), nonetheless the fact that they went, and remained, on strike because Stoneglow did not pay them is in itself a breach of the terms of the subcontract. 577As to the alleged non-payment: I repeat that, by 8 November 1996, Multiplex had paid all that was contractually due. It had by then began the expedited assessment of the progress claim delivered on 4 November 1996, and had authorised an initial payment (not in accordance with any contractual obligation to do so) of about $172,000.00. Presumably, that was overridden by the event of termination. But in any event, Multiplex had also agreed to have the amounts due to Stoneglow assessed by an independent quantity surveyor, and to be bound by his assessment. It was prepared to pay in accordance with that agreement and assessment, although it did not agree with the amount assessed. Since that agreement was made well before any payment was contractually due, it seems to me impossible thereafter to argue that Multiplex had failed to pay money that was contractually due, and thus that the allegation, as to Multiplex being in breach of contract by reason of failure to pay, must fail. 578Accordingly, as I have said, I conclude that the second overt act alleged is not made out.

A technical argument 579The submissions for Mr Ballard advanced the case that the notice of default given on 1 November 1996 was ineffective because it was given under cover of a letter from Multiplex NSW and was signed by Mr de Bono as project manager for Multiplex NSW. A similar argument was advanced in respect of the notice of termination. Again, in relation to the notice of suspension given by Stoneglow on 3 November 1996, it was submitted that the notice could be ignored, as being of no effect, because it was addressed to Multiplex NSW. 580In my view, this argument, in each of its manifestations, is without substance. It is correct to say that the contract was made between Stoneglow and Multiplex Constructions, not between Stoneglow and Multiplex NSW. However, all correspondence addressed to Stoneglow in relation to the Pitt Street Mall Project came on the letterhead of, and was signed by representatives of, Multiplex NSW. The payment claims that were made by Stoneglow were addressed simply to "Multiplex Constructions". They were assessed by Multiplex NSW. Some correspondence from Stoneglow in relation to the subcontract was addressed to Multiplex Constructions. Other Stoneglow correspondence was addressed (as was the notice of suspension) to Multiplex NSW. 581The notice of default makes it clear that it is given in reference to the particular subcontract made between "Multiplex" (defined in the notice as Multiplex Constructions) and Stoneglow. So, too, the show cause letter of 24 October of 1996 was said to have been "issued pursuant to Clause 6 of your Subcontract Agreement." 582In this context, and taking into account the letters written in late November and early December 1996, I note that Stoneglow's ambit claim letter of 25 October 1996 was addressed to Multiplex NSW. The subcontracts to which it referred were those between Stoneglow and Multiplex Constructions relating to the Pitt Street Mall and Grace Hotel projects. 583The notice of default specified the subcontract in detail. It alleged defaults under that subcontract. It concluded (I repeat) that if those defaults: ...shall continue for two (2) days after receipt of this Notice of Default, Multiplex may, without prejudice to any other rights and remedies it may have, terminate the Subcontract. 584Again at the risk of repetition: the word "Subcontract" was expressly defined by reference to the subcontract for the Pitt Street Mall Project made between Multiplex Constructions and Stoneglow; and the word "Multiplex" was expressly defined to mean "Multiplex Constructions Pty Limited", not Multiplex NSW. 585In my view, it is clear that the parties treated Multiplex NSW as, relevantly, the agent of Multiplex Constructions for the purpose of giving notices under the subcontract. It is clear that Stoneglow understood and acquiesced in this practice. That follows, among other things, from the ambit claim letter and the notice of suspension. 586The notice of termination is written on the letterhead of, and signed by Mr de Bono apparently as an employee of, Multiplex NSW. Again, however, it refers to the particular subcontract made between Stoneglow and Multiplex Constructions, employing the same definitions for "Subcontract" and "Multiplex" as did the notice of default. Having done that, and having referred to the continuing defaults and other matters, it states that: In accordance with Clause 6, Multiplex hereby terminates the Subcontract. ... 587In context, it is clear that the letter was one written on behalf of Multiplex Constructions giving notice of the exercise by Multiplex Constructions of a right that it claimed to have (and, on my view of the matter, did have) in relation to the subcontract between it and Stoneglow. 588As I have said, I conclude that this technical point as to "parties" lacks any substance.

The lockout 589The third overt act alleged is that, on and from 8 November 1996, Multiplex unlawfully locked Stoneglow and its employees out of the Pitt Street Mall site. 590There is no doubt that Multiplex did take steps - effective steps, in the event - to exclude Stoneglow and its workers from the site. The validity, or legality, of those steps turns on the validity of the termination of the subcontract. That is because Stoneglow's only right to possession or occupation or use of the site was, pursuant to the subcontract, to perform its obligations under the subcontract. 591Since I have concluded that the termination was valid, it follows that the exclusion of Stoneglow and its workers from the site was effective, and was not illegal or in breach of the subcontract. 592It could, perhaps be argued (at least, if there were no contrary provision in the subcontract) that Stoneglow had some implied right, following valid termination of the subcontract, to re-enter the site for the purpose of recovering its material that had been left on the site. But there was such a contrary provision: cl 6(d) of the subcontract. The argument thus stands or falls with Mr Ballard's submission that Multiplex was not entitled to do as it did, and retain those items of equipment on site following termination.

Impounding Stoneglow's plant and equipment 593This is the fourth of the overt acts alleged to have been performed in execution of the conspiracy. The allegation (see at [24] above) is that "Multiplex unlawfully and without authority or cause seized, and thereby took, detailed (sic: presumably, detained) and / or converted, all of Stoneglow's plant and equipment that was then located on the Pitt Street Mall Project site..." 594Clause 6(d) of the subcontract (see at [458) above) expressly authorised Multiplex so to act. It provided, among other things, that on termination of the subcontract, Multiplex should "be entitled to take possession of and employ all plant and equipment, materials and other goods for execution of the Works... and may take possession of the same until completion of the Works". 595It follows that cl 6(d) authorised Multiplex to act as it did, by impounding (or taking possession of) Stoneglow's plant and equipment. It follows, in turn, that those acts were not done "unlawfully and without authority or cause".

The insolvency of Stoneglow as at November 1996 596I have set out above various matters that suggest that Stoneglow was effectively insolvent by early November 1996. There is strong corroboration of that. When Stoneglow went into administration, Mr Ballard completed a RATA. The RATA showed that, as at the date it was given (6 March 1997), Stoneglow had an estimated deficiency of, in round figures, $980,000.00. Mr Ballard agreed that Stoneglow had not done any work, nor incurred any liabilities, from the time of the strike until the time the RATA was prepared. 597Mr Bannon submitted, based on some evidence given by the accounting expert called for Mr Ballard, that the RATA should not be taken as providing a reliable guide to the state of Stoneglow's indebtedness as at the time of termination of the subcontract. I do not agree. No doubt, as the expert said, the RATA did not say anything as to the timing of the debts that were listed or as to what it was that had crystallised them. However, even a summary perusal of the RATA shows that many of the debts were owed to ordinary trade creditors, which would be classed as current liabilities payable on whatever were the trading terms agreed between Stoneglow and those creditors. 598As against that evidence, there is the undoubted fact, to which I have pointed, that whatever liabilities Stoneglow had as at the date the RATA was prepared were liabilities incurred up until the time the subcontract was terminated. Thus, regardless of speculation as to the precise impact of administration and liquidation on the relationships between Stoneglow and its creditors, I accept the RATA as portraying with substantial accuracy the state of indebtedness of Stoneglow at the relevant time. 599Multiplex had paid $23,400.00 into Stoneglow's account on 23 October 1996, so that Stoneglow's workers could be paid. It paid (on the adopted findings of the referee) $153,035.72 for Stoneglow's workers' entitlements. Further, it seems, Multiplex paid truck drivers (who had been unpaid since about August 1996) amounts totalling a little under $220,000 (according to a Multiplex reconciliation of the "account" between it and Stoneglow). 600On Mr Hammond's conclusions, the amount properly owing to Stoneglow as at the date of termination of the subcontract was no more than about $302,000.00, before any account was taken of offsetting payments. On the referee's findings (to the extent adopted), the value of the work undertaken by Stoneglow, to the date of termination, was $2,019,815.00. On that basis, there was an amount of $421,415.00 unpaid. But as I have noted, this was subject to offsets for wages and other payments made by Multiplex on behalf of, or on account of, Stoneglow. 601Thus, on the adopted findings made by the referee, Multiplex could have owed Stoneglow no more than about $67,000.00. That includes the referee's assessment of the last progress claim lodged by Stoneglow (which was not payable at the date of termination of the subcontract) but does not take account of any amounts paid by Multiplex to truck drivers. 602It is obvious that, even if Stoneglow had been entitled to anything like the amounts of $900,000.00 or $1,000,000.00 demanded by it in the ambit claim and the subsequent meeting, it would not have been able to pay all its creditors in full. 603I conclude that Stoneglow was insolvent on the date of termination of the subcontract.

Was the termination commercially illogical? 604Mr Bannon submitted that the decision by Multiplex to terminate Stoneglow's subcontract "was counter-intuitive and uncommercial at a number of levels" (PS para 539). There were a number of reasons advanced in support of that submission. Based on that submission, and prospectively its acceptance, Mr Bannon suggested that "there must have been another explanation for the termination and lockout" (PS para 561): the conspiracy. 605It may be accepted, as Mr Bannon submitted, that termination of a sub-contractor's contract was a measure of last resort for Multiplex. Ordinary experience suggests that termination of a subcontract is likely to increase the cost of, and to extend the time for, achieving completion. There is no doubt that Multiplex was aware of this, and no doubt that the relevant officers of Multiplex accepted that termination was a matter of last resort. 606Mr Bannon submitted that Multiplex must have realised that termination would have "a terminal effect on Stoneglow/Ballard's business" (PS para 541). Presumably, Multiplex knew, or had it, through its relevant officers, thought about it must have realised, that termination of the subcontract would have a deleterious effect on the business of Stoneglow. But the reality is that, at the time the subcontract was terminated, Stoneglow was insolvent. Multiplex did not know this. But it did know that it had asked Stoneglow to provide evidence of financial stability, and that Stoneglow had declined to do so (no doubt, because it could not do so). It knew also that Stoneglow was not meeting at least some of its liabilities. 607Mr Bannon submitted that competition in the market place for demolition works was of advantage to Multiplex, so that the termination of Stoneglow's subcontract, coupled with its likely financial ruin, was against the interest of Multiplex. It is correct to say that Multiplex acknowledged, through Mr McDiven among others, that competition between subcontractors was good for a head contractor in the position of Multiplex, and that in particular, competition in the demolition industry was desirable. Again, that is something that Multiplex would have taken into account. 608In this context, Mr Bannon referred to what he said were the attempts by Multiplex to finance the start of a new demolition business to be conducted by Mr Young or Mr Ballard, and the Finger Wharf proposal. I will return to that in the next section of these reasons. 609Mr Bannon put other submissions, which came down either to a restatement of what had already been put or to the proposition that the real issue was one of money. In an attempt to bolster this last submission, Mr Bannon pointed to what he said were the additional costs that Multiplex would incur as a direct result of the termination, which he put at about $500,000.00. 610I accept that Multiplex must have realised that there would be additional costs incurred as a result of terminating the subcontract (quite apart from whatever additional amount it might have to pay another subcontractor to do the work for which Stoneglow had contracted). But a substantial part of those costs - the amounts payable for employees' entitlements and to truck drivers referred to at [599] above - were payable by Multiplex in any event if Stoneglow could not do so. See s 127(2) of the Industrial Relations Act 1996 (NSW), in relation to Stoneglow's workers; and s 343(1)(c) of that Act in relation to the truck drivers. 611The reality was that Stoneglow was unable to pay those amounts in any event. Thus, whilst it might have been the termination that crystallised Multiplex's obligation to pay them, it was going to have to pay them sooner or later, regardless of termination. Whilst Multiplex did not then know that Stoneglow was hopelessly insolvent, it did, as Mr Stagg said, know that Stoneglow was running out of money. Thus Multiplex must have appreciated, as a strong probability, that it might be called upon to pay the amounts due to workers and truck drivers regardless of termination. 612Mr Stagg crystallised his reasons for supporting termination of the subcontract at T 3751.8 - .21: We formed the view that they were unable to complete the work - sorry - that they were running out of money and we formed that view because we had to keep, not only drip-feeding, but then we started to have to pay their wages bills directly as well. They told us that they had significant claims. We actually formed the view that there was little or no credibility to those contractual claims. We were faced with a position where we had a subcontractor who was in our view running out of money and then his men sat in the shed and we had a view as to - and we had a view that - sorry - and the men refused to go out until the subcontractor was paid. We had a view that he was instrumental in the men sitting in the shed in progressing a claim against us. So we had a subcontractor who was running out of money and it was doing no work and was using, we used the word industrial blackmail, to pursue significant sums of money from us, which we thought he had no entitlement to. On the basis of those, and the big claim is the last thing I guess, but it's intertwined with everything else. On that basis, we took a view that he had to be terminated because we were never going to get the job finished. 613Taking that explanation, the facts are these: 1)Stoneglow was not so much "running out of money", but had run out of money; and the reasons for thinking that it was running out of money were valid. 2)Stoneglow had put claims which Multiplex, with good reason, thought were unjustified and unjustifiable. 3)Stoneglow - in particular, Mr Ballard - was using the men's strike as a weapon to force Multiplex to the negotiating table. 4)The characterisation of Stoneglow's, or rather Mr Ballard's, conduct as "industrial blackmail, to pursue significant sums of money" to which there was no entitlement, was amply justified on the facts as they existed at the date of termination. 614Many of the factors on which Dr Bell relied to justify the termination were matters of which Multiplex might not have been aware at the time. For example, Multiplex might not have known that Stoneglow had no money in its bank account; or that it had received a statutory demand for $122,722.60, dated 30 October 1996, which it did not comply with, and thus would be presumed to be insolvent in late November 1996. 615However, there were other matters of which Multiplex was aware. Stoneglow had submitted an ambitious and unjustifiable ambit claim for payment, and had suspended work when it had no contractual right to do so. It had said that it would only return to work if a substantial amount of that ambit claim was met. 616Multiplex knew, further, that Mr Ballard had said to Mr Downes that "he didn't care any more" and was trying to get his equipment off the site as soon as possible. (Mr Downes recorded these comments in a contemporaneous note, and I accept that Mr Ballard did use words to the effect of those stated.) 617Thus, Multiplex had good reason to be suspicious of Stoneglow's ability, as well as its intention, to finish its work under the subcontract. It had good reason to think that Stoneglow was using the suspension of works as a lever to obtain a payment to which it was not entitled. And Multiplex had good reason to think that Stoneglow was, in any event, prepared and preparing to walk off the site completely. 618Accepting that the termination of a subcontract is a matter of last resort, it seems to me that that is precisely the situation that Multiplex faced. Mr Stagg said as much in the passage of his evidence that I have set out above. 619There were, in my view, ample commercial reasons for Multiplex to take the step that it did when it did, in terminating the Stoneglow subcontract.

The Finger Wharf proposal 620I have dealt, to some extent, with the circumstances relating to the Finger Wharf "offer" in considering the credibility of Mr Widdup, at [238] - [268] 621The submissions for Mr Ballard made much of the offer alleged to have been put to Mr Ballard, in relation to the Finger Wharf project, and of the circumstances in which, and reasons for which, any offer (or proposal or suggestion) that had been put was withdrawn. 622There is no doubt that Mr McDiven discussed with Mr Widdup a proposal that Mr Ballard, or Mr Young, or both of them, be financed to start a new demolition company that could provide competition in the marketplace. Mr Widdup proposed that an amount of $500,000 might be required for this purpose. Mr McDiven agreed that some such proposal was discussed, but could not recall the figure. 623Nor is there any doubt that Mr Widdup suggested to Mr McDiven that Mr Ballard be approached in relation to the demolition work for the Finger Wharf project. Mr McDiven's position was (he said) that, given the ownership structure of the project (it was a joint venture between one or other of the Multiplex companies and Walker Constructions Pty Ltd), no firm commitment should (or could) be made. 624Mr Ballard's evidence is in substance that Mr Hicks, an accountant and the person through whom payments were made, or sought to be made, by Multiplex into Stoneglow's bank account, spoke to Mr Ballard about the Finger Wharf project. To the extent that Mr Ballard adhered to his evidence in cross-examination, it should, I think, be accepted. An affidavit sworn by Mr Hicks was filed for Multiplex. It was not read, and Mr Hicks was not called. There was no reason given for the failure to call him. The fact that his evidence was available, and not availed of, supports acceptance of this aspect of Mr Ballard's evidence. 625However, the important question is not whether discussion were conducted between Messrs Ballard and Hicks. There is no doubt that they were. Mr Hicks' memorandum of 10 April 1997, to which I referred at [245] and following above, makes it clear that there were some such discussions. 626The matter of real importance is the circumstances in which, and the reasons why, the discussions with Mr Ballard were called off (or any offer or proposal or suggestion that had been put to him was withdrawn). 627The case for Mr Ballard is that Multiplex withdrew from discussions with him on this point because Mr Ferguson so directed. The case for Multiplex is that the discussions did not proceed because there were doubts within Multiplex as to Mr Ballard's capacity and experience to undertake successfully what would on any view be a complex and difficult project. That view was expressed most strongly by Mr Stagg (see at [233] above); ultimately Mr Widdup accepted that Mr Stagg did express that view to him. Mr McDiven recalled that Mr Stagg had expressed strong objections to Mr Ballard's being considered for the Finger Wharf project. 628The only evidence that the termination of dealings between Multiplex and Mr Ballard in relation to the Finger Wharf project occurred at the instigation of Mr Ferguson comes from Mr Widdup. 629In this as in all contested aspects, Mr Widdup's evidence is in my view completely unacceptable. I have adverted to this at [263] - [267] above. At the risk of repetition, Mr Widdup said, in paras 14 to 16 of his April 2008 statement, that the conversation with Mr McDiven in relation to withdrawing the "offer" was as follows: 14. A few months following, Ross McDiven came in [sic] at my office and words to the following effect were exchanged: Ross: "Withdraw your offer to Ballard" Me: "I've already made it" Ross: "That isn't a debate, I have my orders and you have yours" 10 minutes later he came back into the office and said words to the following effect: Ross: Have you withdrawn the offer yet?" In reply, I said words to the following effect: "No" Ross: "Can you do it immediately?" 15. Shortly thereafter, I said to Dave [Hicks] words to the following effect: "Withdraw the offer" In reply he said words to the following effect: "I can't do that" I then said words to the following effect: "I have my instructions" 16. I cannot remember what happened after that. The matter might have fallen out of my agenda. 630Mr Widdup was cross-examined on those paragraphs. He said that they gave "a true and accurate account" of his recollection of the circumstances in which the offer had been withdrawn, and that in them he did his best to "set ... out to capture the words used by Mr McDiven ... and by Mr Hicks ..." (T1745.26 - 28). 631It will be noted that this "true and accurate account", containing Mr Widdup's "best" effort to recall what was actually said, makes no reference to Mr Ferguson. 632However, in October 2009 affidavit, Mr Widdup said at para 26 that Mr McDiven informed him he had "just had a conversation with Andrew Ferguson. All deals with Ballard are off". 633That reference was amplified in paragraph 28 of the same affidavit: 28. In a conversation I had with McDiven, that occurred in the office in the following few weeks, concerning what Ferguson had said to McDiven regarding Ballard, McDiven said to me words to the following effect: Ferguson told me the Union wants Ballard out of business. Ferguson says he has been in dispute with Ballard for some time. He said he would not tolerate seeing Ballard get the Finger Wharf project . This is our flagship development. Ballard has upset Ferguson by showing the Union up in public on TV. We can's afford any trouble with the Union on this job. Ballard can't get the job. 634If what had been said in para 28 of the October 2009 affidavit were correct, Mr Widdup must have had no doubt as to why it was (on his account) that Mr McDiven had instructed the withdrawal of any offer made to Mr Ballard. There was no need to guess, or to ponder. But in the April 2008 statement, Mr Widdup said, at para 18, that it was (I interpolate, only) by a "process of elimination" that he worked out "from a sceptical start [that] it must have been the Unions' interference" that led to the instruction to withdraw any offer. 635Mr Widdup was cross-examined on that discrepancy (T1746.40 - 1747.27): Q Turn to par 18 of your statement of 2008. Could you read that to yourself? A. I have read it. Q. Had you been told by Mr McDiven that he'd just had a conversation with Andrew Ferguson and that all deals with Ballard were off you wouldn't need to engage in a process of elimination to work out some involvement with the unions, would you, because you would have been told that Mr Ferguson had conveyed that instruction to Mr McDiven, do you agree? A. That's correct. Q. So par 18 is entirely consistent with Mr McDiven simply telling you to withdraw an offer and not mentioning Mr Ferguson at all, isn't it? A. Yes. Q. And had you in fact had a conversation with Mr McDiven in the following few weeks following your instruction to Mr Hicks as set out in par 28 of your October 2009 affidavit you similarly wouldn't have had to resort to a process of elimination to draw a conclusion that the withdrawal of the offer might have had something to do with the unions, would you? A. I'm not following your question. Q. Look at par 28 of your October 2009 affidavit? A. I see it. Q. If you'd had a conversation along those lines with Mr McDiven as you claim you did, you would never have had to resort to what you describe in par 18 of your 2008 statement as a process of elimination to work out the union's involvement? A. That's correct. Q. And again you've got no explanation you can offer His Honour for the inconsistency between your two accounts, do you? A. Excepting that my memory 18 months later was better. Q. In 2008 you had to resort to a process of elimination but then in October 2009 you remembered explicit reference to Mr Ferguson and the union on two occasions? A. Yes. 636The explanation given - of improvement of memory - is characterised by Dr Bell as "fanciful" (MS para 508). I agree. 637Mr McDiven denied the relevant conversation. I accept his evidence on this point. 638In my view, whatever offer, or proposal or suggestion, had been put to Mr Ballard in relation to the Finger Wharf proposal, or whatever discussions had been conducted on that topic, came to nothing because of the strong opposition of Mr Stagg, which as I have said was a view communicated both to Mr Widdup and to Mr McDiven. I accept that it was Mr Widdup, and not Mr Stagg, who was the director with overall responsibility for the Finger Wharf project. But Mr Stagg was a construction man. Mr Widdup was not. Mr Stagg was (under Mr McDiven) the senior construction director within Multiplex. It is hardly surprising that his view on a matter related to construction prevailed over Mr Widdup's. 639Mr Stagg was asked whether his view would have prevailed in the face of a decision by Mr McDiven to the contrary, presumably with a view to suggesting that higher authority might have prevailed. His answer suggests that there was no such imposition of authority (T3796.29 - .31): I would have expected there to be a lot more discussion after, if that was the case. There would have been a lot more discussion, and there was not more discussion as far as I was aware. 640The conspiracy theory, as applied to this particular aspect of the case, requires acceptance of the proposition that in some way Mr Ferguson found out that Multiplex was discussing with Mr Ballard giving him seed capital to start up a new demolition business, and the prospect of his undertaking the demolition work on the Finger Wharf project. Mr Ferguson was not asked about this; nor was Mr McDiven. There is no obvious explanation of why something internal to Multiplex should have come to the knowledge of Mr Ferguson: at least, at such a preparatory stage. 641Mr Ferguson denied any involvement in the relevant events relating to the Finger Wharf. Notwithstanding the reservations that I have expressed as to some aspects of his evidence, I accept this part of it. It is in my view consistent both with the other and acceptable evidence on the point and with the probabilities, objectively ascertained. 642Accordingly, I conclude (as I have said) that whatever discussions had commenced between Multiplex and Mr Ballard in relation to the Finger Wharf project were terminated, not in execution of the conspiracy or at the direction of Mr Ferguson, but because Mr Stagg's view on the undesirability, from a practical perspective, of giving the work to Mr Ballard prevailed within Multiplex. 643This key tile in the mosaic of facts making up Mr Ballard's case is missing.

Admissions said to have been made by Mr John Roberts 644The late Mr John Roberts was, at the time with which this section of these reasons is concerned, the Chairman of the Multiplex group of companies. It is part of the case for Mr Ballard that Mr Roberts made offers of recompense to Mr Ballard, in respect of the Pitt Street Mall project, that were consistent with a consciousness of wrongdoing on the part of Multiplex. That, in turn, is said to provide some support for the allegations as to the making and execution of the conspiracy. Mr Ballard's evidence 645Mr Ballard gave evidence of a conversation that he had with Mr Roberts "in about 2001 or 2002", at the yearling sales in Randwick. That evidence is contained in para 77 of Mr Ballard's November 2009 affidavit: In or about 2001 or 2002, while at an Inglis Racehorse Sale at Randwick, I heard a horse knocked down to 'Multiplex'. The bidder was pointed out to me, and identified as John Roberts (Roberts). I knew that Roberts was the owner of Multiplex. I approached him, and we had the following conversation: Me: I'm Charkey, David Ballard. I pulled the Pitt St Mall down for you, I never got paid, and you locked up all my equipment and sold it. I want my fucking money. Roberts: Charkey, let's go downstairs and have a drink and I'll discuss it with you. I walked together to the bar, where our conversation included the following: Me: John, what you did to me at Pitt St Mall is unbelievable. Roberts: I know you were locked out of the job. I only found this out after you were thrown off. I know we did the wrong thing by you, Charkey. I will see you fully compensated. Me: What did I do to you not to get paid? Roberts: Charkey, we were in an awful position. Me: I don't care what position you were in. What position do you think I'm in? Roberts: Here's my number. Give me a call. 646In paras 78 - 85 of the same affidavit, Mr Ballard referred to a number of telephone conversations with Mr Roberts over the following years, until the latter's death in mid-2006. In those conversations, Mr Ballard said, he used words to the effect of "I want my money". 647In one of those telephone conversations, Mr Ballard said that Mr Roberts asked how much was owed, was given a reply, and promised that it would be fixed up (para 80): In one telephone conversation, Roberts responded by asking, 'How much do you think we owe you?' I replied, 'About a million and a half'. He asked, 'That much?' I replied, 'That much, plus all my machinery'. He replied, 'I guarantee you, it'll all get fixed up'. 648In another of those conversations, Mr Ballard said that Mr Roberts asked him to "come over and help us with Wembley Stadium" (para 83): In another telephone conversation, Roberts asked, 'I'm on the boat. You can come over and help us with Wembley Stadium'. 649Perhaps not surprisingly, Mr Ballard was challenged at length on this aspect of his evidence. 650Mr Ballard was asked to give his recollection in the witness box of the conversation, and did so (T502.29 - .44): Q. What is your recollection as you sit in the witness box about what you said to Mr Roberts at the yearling sales? A. Best to my recollection I went down and a fellow was sitting in the seat and I said 'Pop out of the seat, I want to speak to John'. I said 'John I'm Dave Ballard. You might know me as Charkey. I pulled the Pitt Street Mall down for you and I never got paid and you locked up all me gear owing me a lot of money', and I was pretty agitated and he said - I said 'John you owe me a lot of money and they've done the wrong thing'. He said 'Come down and see us, I've got lots of problems, lots of problems' and he said he would fix me up, pay me. He'd give me his home phone and he gave me his other numbers and I kept in contact with him right up till he died and then I realised I wasn't going to get paid. I know it sounds stupid but I do believe John was going to fix me up. Q. That's your best recollection of that conversation? A. That's about it, yeah. 651When asked further about this conversation, Mr Ballard said that Mr Roberts invited him downstairs for a drink, and repeated the offer to "fix you up, pay you"; and indeed, asked how much was required (T503.1 - .24): Q. How long did the conversation last, pretty short wasn't it? A. No, no. We went downstairs and he bought me a drink, stood there and he said 'Charkey don't worry I'll reconcile and I'll fix you up'. Q. You said to him you never got paid, you wanted your money? A. 'I got thrown for Pitt Street Mall and your company locked me out, locked all my equipment inside the building' and I was jumping up and down. He said 'Charkey settle down, settle down, I'll make sure it gets fixed up'. I was starting to get agitated. He said 'Come downstairs and we'll have a drink'. We went down and had a drink and John said he will definitely settle for me, reconcile with the whole thing. Q. You said he said he'll fix you up before you went down for a drink? A. He said 'Come down and have a drink, I'll work it out with you', he'll pay me. Q. Did he say 'I'll pay you' or 'Fix it up' before you went down to have a drink, isn't that what you just said? A. When we won't down to have a drink John said 'I will fix you up, pay you'. Q. Didn't you say-- A. He said 'How much do I owe you' and I said 'John around a million and a half plus all my machinery'. That's to the best of my recollection. 652Mr Ballard then elaborated on the way in which he had initially approached Mr Roberts (and I should note that Mr Ballard accepted that, before the occasion in question, he had never met Mr Roberts) (T503.26 - .30): Q. You say you said he'd fix you up before you went downstairs for a drink? A. Well, as I say I was pretty agitated at the time because he just bought a yearling for a large amount of money and I heard his name. I was with a vet and I asked the vet where he was and he said 'That's him down there' about five rows back from the bottom. I flew down and started to attack. 653Mr Ballard said that he was not in a rage, but was not happy, and was angry (T503.32 - .42): Q. You flew down and started to attack? A. Well, you know I said to him "John I want me money". Q. Were you pretty aggressive? A. I don't recall how it was, but I wasn't happy. Q. You said you flew down. Do you mean you flew down in a rage? A. I didn't fly down in a rage. I made my way to John and I was angry. Q. So you accept that you were angry? A. Yes. 654Mr Ballard was then asked about the emphatic demand for payment narrated in the affidavit (T504.8 - .18): Q. How did you let him know about that [that Mr Ballard was unhappy], by swearing at him? A. I don't believe I swore at him. Q. You said to him 'I want my fucking money', didn't you? A. I don't recall that. Q. You said to him 'I want me [sic] fucking money', didn't you? Do you deny that? A. I don't know actually the words I said to him, but I just said 'John I want my money, you've locked up all my equipment and put me out of business'. He said 'Charkey come downstairs, we've got lots of problems'. I did not swear at him like that in front of women like you just did. 655After the denial of swearing "in front of women", it was pointed out to Mr Ballard that he was being questioned on the account given in his affidavit. The answers that he gave on this topic give me little confidence in the accuracy of the affidavit, at least on this point (T504.20 - .33, .45 - .48): Q. What I was doing Mr Ballard was quoting your affidavit back at you? A. That didn't happen. I can understand if it did. Q. You gave careful thought when you swore your affidavit to your account of this conversation, didn't you? A. I didn't. Where's it at? Q. Pardon? A. Whereabouts in my affidavit is it? Q. The question was you gave careful thought to what you put in your affidavit about this conversation with Mr Roberts, didn't you? A. I don't believe so. The answer may be yes but if it's in there I'm just trying to tell you - recollect what I said that night to John "I want my money". ... Q. My question before that was you gave very careful thought to what you put in your affidavit about your conversation with Mr Roberts, didn't you, or do you say you didn't give careful thought to what you put in that conversation? A. I probably didn't, no. 656Further, Mr Ballard accepted that his memory was not good (T510.19 - .29). 657It will be seen immediately that there are significant differences between Mr Ballard's evidence in chief, in his affidavit, and his account of the same matters in cross-examination: (1) the affidavit makes no reference to "flying down"; (2) the oral account makes no mention of - and indeed denies - the vehemence of the request for payment; (3) the affidavit makes no reference to the request, alleged in the oral evidence, by Mr Roberts for details of the amount owing; or of the provision of some details. 658As I have noted, Mr Ballard said that in one of the subsequent telephone conversations, Mr Roberts asked him to "come over and help us with Wembley Stadium". That was a project being undertaken by Multiplex in London. It is common knowledge that Multiplex suffered significant difficulties and losses in connection with that project. Mr Ballard was cross-examined on this evidence. Initially, and unprompted, he referred to it (presumably by mistake) as "Wimbledon" (T501.35 - .39): Q. But apart from that you kept your ongoing conversations with Mr Roberts pretty much to yourself prior to his death? A. I spoke to John. He asked me to come over to Wimbledon. Me he said 'Matt [Stagg] stuffed it right up, I want you to come over'. I said 'John I'm not coming over unless I get paid'. 659Dr Bell returned to the topic at T 516.10 - 518.26. I will not set out the whole of that part of the cross-examination. It started again with reference to Mr Stagg's having "stuffed up" and the request for Mr Ballard to go across and help. Mr Ballard was asked how he might have been able to help, and was unable to give any indication of how, save to refer to the fact that he had been a brick-laying contractor and a demolisher (T516.47). When pressed on this, the absurdity of the suggested request became apparent (T517.20 - .27): Q. And you say he told you Matt Stagg had stuffed up with the construction of the Wembley Stadium, 'I want you to come over and help'? A. I don't actually recall what he asked me to do. He didn't specifically say what he wanted me to do. He asked me to come over. Q. Yes. A. And I declined. Q. To come over to do what? A. He didn't say. Q. Oh, I see. Didn't he say, 'You can come over and help us with Wembley Stadium'? A. Something along those lines. Q. That's just nonsense, Mr Ballard, isn't it? A. It's the truth. Q. You had no qualifications to assist with the construction of a 100,000 seat stadium, did you; correct? A. Correct. Q. You had no team of employees between 2001 and 2006 who could assist with the construction of a 100,000 seat stadium, did you? A. He didn't say what he wanted me to do, but I'm telling you the truth, that's what he said to me on the telephone. 660Mr Ballard then suggest that Mr Roberts had not asked him to go over to Wembley to "help" and was unable to explain why he had used the words "come over and help us" in his affidavit (T517.44 - 518.16): Q. He didn't say to you, 'You can come over and help us with Wembley Stadium', is that your evidence? A. He just said, 'Come over to Wembley Stadium'. I don't know what he wanted me to do and I didn't ask him because I wasn't going to go. Q. Did he say to you 'Come over and help us with Wembley Stadium'? A. I don't believe that was the exact words. He said, 'Come over to Wembley Stadium'. Q. Why have you got in your affidavit in paragraph 83 that he said to you 'You can come over and help us with Wembley Stadium'? A. Well - 83? I don't know what he wanted me to do. Q. Can you answer my question? Why do you say in paragraph 83 that he said 'You can come over and help us with Wembley Stadium', if your evidence is he didn't ask you to come over and help with Wembley Stadium? A. All I can say to you is John said, 'You should come over to Wembley Stadium'. Q. Yes and my question to you, Mr Ballard, is why you say in paragraph 83 of your statement, he said to you, 'You can come over and help us with Wembley Stadium'? A. If that's 'help us', I don't know what that - if that's the correct word. 661Finally, Mr Ballard suggested that he might have been able to help as "a labourer ... or something" (T518.24 - .26). 662This whole aspect of Mr Ballard's evidence is to my mind incapable of acceptance. The proposition that Mr Roberts would have asked a man whom he had never met until the alleged meeting at the racecourse to come across and help rectify the trouble that Multiplex had got into with the Wembley Stadium project is absurd. At the most, taking Mr Ballard's evidence at face value, and assuming that Mr Roberts, having been approached, had made some enquiries about Mr Ballard, Mr Roberts would have found out from other Multiplex personnel that Mr Ballard was a demolition contractor whose contract on the Pitt Street Mall project had been terminated for poor performance. The suggestion that the help might have been required "as a labourer ... or something" demonstrates the utter implausibility of this aspect of Mr Ballard's evidence. 663Nor do I think that this can be divorced from the evidence as to the alleged conversation at the yearling sales. On the contrary, I think, it is something added by Mr Ballard in an attempt to give verisimilitude to what is otherwise a somewhat strange and inexplicable occurrence: that a person in Mr Roberts' position, never having met Mr Ballard, would immediately, upon an approach being made, acknowledge wrongdoing and offer to make good all loss caused by it. 664Mr Bannon pointed, in submissions, to a letter written by solicitors then acting for Mr Ballard (Dennis & Co) to Multiplex on 4 April 2006. That letter asserted, among other things: Subsequent to the intentional destruction of Mr Ballard's business by yourselves, Mr John Roberts undertook to redress all wrongs and to compensate Mr Ballard accordingly. Mr Roberts has failed to honour his undertaking, probably due to his ill-health. 665Clayton Utz responded on behalf of Multiplex. Mr Bannon submitted (PS para 797) that "a number of the allegations made in the Dennis & Co letter were traversed, but that, notably, there was no denial of the assertion that Mr John Roberts had undertaken to redress all wrongs and to compensate Mr Ballard". Mr Bannon relied upon that to fortify his submission that Mr Ballard's evidence should be accepted. 666However, although the Clayton Utz letter did not specifically respond to the allegations concerning Mr Roberts, it did contain a general and complete denial, stating that "no moneys are owing from Multiplex Ltd or any of its subsidiaries to Mr Ballard or any company associated with him". In those circumstances, I think, the failure to respond to the allegations as to Mr Roberts is of no probative value. I take into account that, as the Dennis & Co letter indicates, Mr Roberts was then ill; as events showed, mortally ill. It is hardly to be wondered, in those circumstances, that his particular instructions on the allegation involving him were not sought. 667If there were no corroboration of this aspect of Mr Ballard's evidence, I would reject it as fanciful and lacking credibility. Mr Brown 668However, Mr Bannon submitted, Mr Ballard's evidence was corroborated by the evidence of Mr John Brown. Mr Brown was a bloodstock dealer who said that he had been at the yearling sales in question, and had witnessed, or overheard, the exchange between Messrs Ballard and Roberts. The relevant part of Mr Brown's evidence is contained in his affidavit in chief made on 19 October 2009, paras 4 and 5: During the Easter Sales in 2001 on one of the days of the sales, I can't remember which day, I was sitting at the back of the sales room whilst the sales were taking place. I was up high when I heard from somewhere down below me (which was approximately three rows of seats away from the top), words to the following effect: Brownie, come here. I looked down and saw John Roberts, his Trainer David Edwards and a female whom I did not know. I sat down in the row behind him. We talked generally about sales, racing and other things. While I was sitting there Sharkey [sic] came down behind me and I heard him say to Mr Edwards words to the following effect: Do you mind if I take your seat. I need to speak to John [Roberts]. I observed David Edwards get up and Sharkey took his seat. I then heard John Roberts say to Sharkey words to the following effect: Come downstairs we can talk about this further. I followed them downstairs. I observed John Roberts took Sharkey aside. I then approached John Roberts and Sharkey and said to them words to the following effect: Can I get you something to drink? As I approached them I heard John Roberts say to Sharkey words to the following effect: Whatever you do, please don't sue Multiplex. I will make sure you get your money. Leave it to me. I then said words to the following effect: Can I get some too? Sharkey smiled. 669Mr Brown was cross-examined. He gave evidence, of the alleged discussions, which is quite inconsistent with the evidence given by Mr Ballard (and, in some respects, with Mr Brown's own evidence in chief). To start with, Mr Ballard said that he had noticed Mr Roberts at the sale only because he "heard a horse was knocked down to Multiplex" and that, thereafter, the bidder was identified to him as Mr Roberts. By contrast, Mr Brown appeared to be certain that Mr Roberts had not bought a horse on the day in question (T1934.32 - 1935.40); I shall not set out the whole of that passage of cross-examination: Q. And had Mr Roberts been buying anything that day, do you remember? A. No, I don't. I don't think he had though because he asked me what I liked. Q. You would be able to remember if he'd just made a purchase? A. He could have told me and I think I would have remembered but I don't remember him talking he bought anything. ... Q. And you don't recall if Mr Roberts had just bought a horse? A. No. Q. You don't think he had? A. No, that's right. Q. Certainly if he'd just bought a million dollar horse that would strike your mind, wouldn't it? A. Yes, it would because I don't think he'd buy a million dollar horse. Q. Or a million and a half dollar horse? A. I would have known that, I'm sure. Q. That would be pretty memorable if Mr Roberts had just bid for one and a half million dollars on a horse? A. Yes. Q. That would be the subject matter for discussion, wouldn't it? A. I don't think he'd ever bid up that high. I'm sure he hasn't. 670Further, as to Mr Ballard's initial approach, Mr Brown agreed that Mr Ballard had come down quite calmly (T1935.48 - .50) and that Mr Ballard was "quite calm" in the course of the discussion (T1934.18 - .19). This is quite inconsistent with Mr Ballard's versions of "flying down" or demanding his "fucking money". 671Again, Mr Brown said that Mr Ballard "certainly knew Mr Roberts" and agreed that "he didn't have to introduce himself" (T1934.12 - .16). This is quite inconsistent with Mr Ballard's evidence that he did not know Mr Roberts until he was identified to him, and that when he "flew down" he identified himself as "Charkey, David Ballard. The person who pulled the Pitt Street Mall down for you". 672This discussion between Mr Ballard and Mr Roberts, at least in the stand and before they went downstairs to have a drink, was "just general chit-chat about the horses" which "went on for a few minutes" (T1932.45 - .49). That is not consistent with Mr Ballard's evidence that, immediately he had introduced himself to Mr Roberts, he demanded his money (and this is so whether the demand is the vehement one given in chief or the less vehement version asserted in cross-examination). As is plain from Mr Brown's affidavit evidence, there was no conversation at all about money owing, or the Pitt Street Mall project, upstairs in the stand so far as Mr Brown could recall. 673Mr Brown's evidence has an air of unreality. He was being asked to recall, in October 2009, a conversation that was said to have occurred more than eight years earlier (on his evidence, it took place during the 2001 Easter yearling sales). It was, as Mr Brown said, part of his business to attend those sales, and he did so. It defies belief that Mr Brown, having had no interest in the subject matter of the conversation, could have recalled anything about it some eight years or more later. Perhaps, the reason why Mr Brown did recall the conversation appears from the following passage of his cross-examination, in relation to a discussion with Mr Ballard when Mr Ballard asked Mr Brown to give evidence (T1926.22 - 1927.3): Q. When you had the conversation with him did it go along these lines 'Do you remember when I saw you at the yearling sales in 2001'? A. Well, he wouldn't have mentioned a date to me. Q. Did he say we had a conversation? A. 'Remember that conversation' words to this effect. I can't quote it, that 'remember that conversation' and I said 'Yes' and he said 'Would you be prepared to repeat that in a court for me'. Q. When he said 'Remember that conversation' he identified the conversation he was talking about? A. Yes. Q. When he said 'Remember that conversation when I saw you at the yearling sales with John Roberts'? A. Yes. Q. 'And I was talking about Multiplex' A. Yes. Q. 'And he said he'd fix things up'? A. Sorry? Q. 'Where John Roberts said he'd look after me'? A. Yes. Q. So whenever this was, this meeting between you and Mr Ballard, whether it was some time in 2001 or 2002 or 2003, 4, 5, 6, 7, 8, or 2009 up to about October, he twigged your memory about meeting him and John Roberts at the yearling sales some time before? A. Yes, but it wasn't a long time after this happened. That's just my - I can't quote years or days or months. 674Mr Brown must have met and dealt with hundreds of people, and had thousands of conversations at the yearling sales over the years, given that those sales continue over several days. It is certainly open to regard the passage of Mr Brown's cross-examination that I have just set out as supporting a conclusion that his purported recollection of the conversation was "inspired" by Mr Ballard's putting the substance of it to him. 675Mr Brown sought to give some credence to the excellence of his memory by suggesting that he had particular recollections of various minor matters: (1) he remembered that he did not stop to talk to anyone when he moved from the sales yard to the bar (T1936.22 - .28); (2) he remembered that there was no queue to get drinks (T1941.18-.20); and (3) he claimed to have heard the whole of the conversation that occurred in the bar areas between Messrs Ballard and Roberts (T1944.48). 676As to the first two points: it is surprising that Mr Brown should have, after so many years, such a clear recollection of irrelevant detail. I shall return to this in a moment, in considering demonstrated deficiencies in Mr Brown's recollection. 677As to the third point: if Mr Brown did recall, and give evidence of, the whole of the conversation between Mr Ballard and Mr Roberts in the bar area, that account is not entirely consistent with the account given by Mr Ballard in his affidavit, or indeed with some of the accounts given by Mr Ballard in cross-examination. 678I referred to demonstrated deficiencies in Mr Brown's recollection. In his evidence in chief, Mr Brown made two corrections to his affidavit. First, Mr Brown corrected para 2. In that paragraph, he had said, among other things, that Mr Roberts "had been a friend of mine for approximately five or so years". In chief, Mr Brown said that he "had known him quite a lot longer than that ... since the early eighties" (T1920.30 - .32). 679Secondly, Mr Brown corrected the first part of para 4 of the affidavit. He had there referred to "sitting at the back of the sales room while the sales were taking place". In chief, he said that he "was actually standing up and leaning against a rail. There were no seats right at the back". 680When questioned about these corrections, Mr Brown accepted that before he swore the affidavit, he had read it closely because he understood that he was being asked to say that it was true and correct (T1921.6 - .11). He was then asked to explain how he had made the mistakes, one at least of which (I interpolate) should be regarded as significant. He was unable to give any, let alone any satisfactory, explanation (T1921.13 - .44): Q. How did you come to make such a basic error of misstating the length of time you'd known Mr John Roberts for in paragraph 2 of your affidavit? A. I can't say why I didn't do that, because I had known him for a long time. Q. Yes. You must have told somebody that that was how long you'd known him for at the time in order for that to be written down, mustn't you? A. I can't remember if that's so or not, but it's definitely wrong. Q. You don't sign affidavits every day of the week, do you-- A. No. Q. --in use for a court? You knew this was for a court proceeding? A. Yes. Q. And you did read it carefully before you signed it? A. Yes. Q. Are you able to give his Honour absolutely no explanation as to how you could have made such a significant mistake as to how long you'd known the person who was the subject of the affidavit for? A. I have no reason to offer. Q. The other correction you made in paragraph 4, you say at the time you swore this affidavit in October 2009, that you remembered that you were standing up against a rail? A. Yes. Q. If that was what your memory was at the time you swore this affidavit, why were you happy to sign a document which didn't say that, but which said something quite different? A. As I said, I can offer no reason, but I corrected the matter. 681The mistakes, and that aspect of Mr Brown's evidence, stand in stark contrast to the claimed precision of recollection in relation to minor and trivial events. They also stand in stark contrast to other aspects of Mr Brown's powers of memory: for example, as to when he had seen Mr Ballard after the events of Easter 2001, or when he had spoken to Mr Ballard about giving evidence in these proceedings (see, generally, T 1925 - 1928). 682I do not find Mr Brown's evidence at all persuasive. Further, both because of that and because of the discrepancies between aspects of his evidence and aspects of Mr Ballard's evidence, I do not find that it provides any acceptable corroboration of the evidence of Mr Ballard as to the alleged admissions made by Mr Roberts. Mr Widdup 683Mr Widdup gave evidence of a conversation that he said he had had with Mr Roberts just before Christmas 2000. In that conversation, Mr Widdup said, Mr Roberts agreed to make a payment to Mr Widdup on the basis that the payment "buys your silence about everything, but especially about Ballard". 684I have dealt in part with this aspect of Mr Widdup's evidence at [260] to [267] in considering his credibility. 685There are at least two aspects of this part of Mr Widdup's evidence that cast grave doubt on it - even if one were to put out of mind what I have said as to his credibility overall. 686The first difficult aspect follows from the words attributed to Mr Roberts: namely, that the payment "buys your silence about everything, but especially about Ballard". 687The conversation is said to have occurred late in 2000. The background to the conversation is that the Pitt Street Mall subcontract had been terminated in November 1996, and in 1997 Multiplex had reached a settlement with Stoneglow (through its liquidator) documented by a deed of release. Mr Widdup agreed that he regarded that deed of release as putting to an end any contractual dispute with Mr Ballard or with Stoneglow (T1659.46 - .48). Further, since the deed of release had been executed, "there had not been a peep" from Stoneglow or Mr Ballard or Mr Young, at least to Mr Widdup's knowledge, from the time of execution of the deed until the time of the alleged conversation with Mr Roberts (T1659.37 - .40). Nor had Mr Roberts mentioned Stoneglow or Mr Ballard to Mr Widdup over those years (T1659.42 - .44). 688Ultimately, Mr Widdup accepted that, at the time the conversation with Mr Roberts is said to have occurred, there was nothing in Multiplex's relationship or dealings with Stoneglow that Mr Widdup considered to involve any illegal conduct (T1660.33 - .35). 689Against that background, Mr Widdup agreed that there was nothing that he was aware on in which silence was required (T1660.37 - .40): Q. I suggest to you if Mr Roberts had said, 'This buys your silence about everything but especially about the Ballard matter', there was nothing that you were aware of in respect of which silence was required? A. That's correct and that is why I was untroubled giving the promise. 690In those circumstances, it is surprising that Mr Widdup accepted, at face value and without any demur, the proposition that the payment was to buy his silence "especially about the Ballard matter". So far as Mr Widdup was aware, there was no reason for Multiplex to wish to buy his silence, nor anything in respect of which the silence was to be bought. Why, then, did Mr Widdup not turn his mind to what it was that might be subject of the promise of silence? 691The second aspect of this part of Mr Widdup's evidence that raises serious doubts is that, although the conversation was apparently "etched" into Mr Widdup's mind "like engraving in titanium" (T1652.10-.12), and had remained so etched since the conversation is said to have occurred (T1652.20), it did not feature at all in Mr Widdup's April or October 2006 affidavits. I observe, before dealing with this, that on the basis of what Mr Widdup said, as summarised at [686] to [689] above, there is no apparent reason for the conversation to have been so "etched". 692Mr Widdup said that when he gave instructions for the April 2006 affidavit, he had given as full an account as he could of relevant events and had been "at pains" to recall everything that he could (T1629.15 -.22). 693Indeed, Mr Widdup asserted that the conversation was present in his mind in April and October 2006 (T1652.30- .37). The conversation was one which Mr Widdup appreciated was material to Mr Ballard's case (T1643.24-.32). Why, then, did it not appear in the affidavits of April or October 2006? 694It could be understood that something apparently insignificant in itself (as Mr Widdup might have thought the alleged conversation to be at the time when it is said to have occurred, because there was no wrongdoing in respect of which silence was important) might have been overlooked. But the emphatic statement of the quality of the recollection, coupled with the acknowledgement that Mr Widdup understood the conversation to be material, makes the later recollection and account of the conversation, in the October 2009, affidavit totally implausible. The "etched like titanium" expression is in my view a fabrication designed to bolster the credibility of this aspect of Mr Widdup's evidence. 695The evidence is not worthy of acceptance. For that reason, it cannot be regarded as providing any basis for acceptance of the submission that Mr Roberts was in some way conscious that Multiplex had done wrong to Mr Ballard, and was doing his best either to make reparation for that wrong or to hush the matter up.

The limitation defence 696It was common ground that Mr Ballard's cause of action arose, at the latest, in early 1997, and thus that the limitation period expired in early 2003. As I have said, Mr Ballard relied on s 55(1) of the Limitation Act. 697For the reasons that I have given at [89] to [107] above, I conclude that Mr Ballard has the onus of showing: (1) when it was that in fact he first discovered, or became aware of, the fraudulent concealment of facts relevant to his cause of action; (2) that he could not with reasonable diligence have discovered that fraudulent concealment earlier. 698It is clear that, by early 1997 (after the termination of discussions in relation to the Finger Wharf project), Mr Ballard had knowledge of all the matters that, in these proceedings, he characterised as overt acts. His argument, in respect of the limitation defence, is that he did not become aware of the crucial fact - the conspiracy meeting and the making of the conspiracy - until he met Mr Bates in 2007; and that this had been fraudulently concealed from him before that meeting. 699The defendants submit (perhaps I should note that it was Multiplex that made the running on this submission) that: (1) Mr Ballard's evidence generally was so lacking in credibility that I should not be satisfied that he first found out about the making of the conspiracy only when he met Mr Bates in 2007; (2) further, or alternatively, Mr Ballard had not discharged the onus of showing that he could not have discovered the fraudulent concealment of material facts earlier, through the exercise of reasonable diligence; and (3) again further or alternatively, Mr Ballard in fact had knowledge of sufficient facts to put him on inquiry by 2001 at the latest. 700In my view, the third submission, and therefore the second, have been made good. Although it is thus unnecessary to express an opinion on the first, I would if necessary accept it. For the reasons that follow, the whole of this part of Mr Ballard's evidence lacks credibility, and gives me no feeling of persuasion as to what he said was the time of actual discovery. 701One aspect of the defendants' submissions related to Mr Anthony, his statutory declaration and his asserted knowledge of the making of the conspiracy. Multiplex submitted that if Mr Anthony had been party to the conversation alleged in his statutory declaration, it was inconceivable that he would not have reported it to Mr Henwood and Mr Ballard. That submission, I think, is persuasive, at least at the level of principle. But since I have not accepted Mr Anthony's evidence, it fails at the level of fact. 702Multiplex placed heavy reliance on an undated document discovered by Mr Ballard. It was in his handwriting. Of particular significance, it contained the following statement: We were working for approximately two years and were owed a large amount of money with no dispute at all, and also Grace House in the City with no dispute, when Multiplex refused to pay us at Pitt Street Mall, and was [sic] told we would not get paid, because the union wanted us out of business. 703Mr Ballard was cross-examined at some length on this document (see, generally, T 370-386). Reading the whole of that cross-examination, I am left with the very strong impression that Mr Ballard was being deliberately evasive and non-responsive. It was put to him that this reflected his appreciation that the document was fatal to his s 55 argument. Although Mr Ballard did not accept the proposition, I think it is correct. 704So far as one can extract a coherent narrative from Mr Ballard's evidence on this point, it appears to be the case that he prepared the document because one of his legal advisers asked him to do so (T370.49-371.8). 705A little later, however, Mr Ballard was asked whether he wrote the document out "when [he] had one of [his] earlier solicitors", to which he replied that he could not recall when he wrote it out" (T373.12-.14). 706Mr Ballard was then asked whether he had sought to be truthful in writing out the document. He said he believed so, and that he "wrote down what [he] thought happened to the best of [his] ability" (T373.22). 707Mr Ballard was then taken to the particular statement which I have set out above, and gave the following evidence (T373.40-374.10): Q. "We were working for approximately two years and were owed a large amount of money with no dispute at all and also Grace House in the city with no dispute. When Multiplex refused to pay us at Pitt Street Mall and was told we would not get paid because the union wanted us out of business." See that? A. I can see it. Q. Who from Multiplex told you the union wanted you out of business? A. I can't recall. Q. But you can recall someone telling you at the time of the refusal to pay that the union wanted you out of business, can you, but you just can't recall who it was? A. I can't. As I say-- OBJECTION. Question withdrawn. Q. You recorded, "When Multiplex refused to pay us at Pitt Street Mall and was told we would not get paid because the union wanted us out of business." Do you see that? My question is who told you that you would not get paid because the union wanted you out of business? 708The cross-examination was interrupted until an argument as to admissibility could be resolved. When Mr Ballard returned to the witness box, he was asked further questions about the source of what he had been told (T375.5-.34): Q. Mr Ballard, you have recorded, and this is on the second page, "Multiplex refused to pay us at Pitt Street Mall and was told". Do you mean by that that you were told something? You have recorded there, Mr Ballard, have you not, that you were told something; correct? A. The word "told" is there, but I don't know-- Q. So you were recording there what you were told, weren't you? A. Well, I don't know whether that's quite right. Q. Well, what were you recording if you weren't recording something you were told? A. We didn't get paid. Q. You were recording that you were told that you would not get paid. Is that what you say? A. No. Q. I am sorry? A. I may have been told something. I don't know when this letter was written. Q. And you are also recording what you were told about the reason why you wouldn't get paid, weren't you? That's correct, isn't it? A. To the best of my knowledge it is. Q. So my question is who told you that you would not get paid because the union wanted you out of business? A. I'm not sure when this letter was written. Q. I'm sorry? A. I'm not sure when this was written. 709Mr Ballard asserted that "it was common knowledge" that he was not going to get paid because the union wanted him out of business (T375.36-376.25): Q. That's not my question. I am asking who told you that you would not get paid because the union wanted you out of business? A. I think it was common knowledge. Q. Common knowledge back in November '96? A. People knew, everyone had common knowledge - everybody knew the union were dirty on me after the fiasco after they tried to stand over me over at HMAS Waterhen on the labour site. Q. And did everyone know in November 1996 that Multiplex didn't pay you because the union wanted you out of business? A. Multiplex broke their agreement not to pay us and they didn't pay us. Q. But do you say that everyone knew in November 1996 that Multiplex didn't pay you because the union wanted you out of business? A. Can you ask me that question again, I am not quite-- Q. Do you say that everyone knew in November 1996 that Multiplex did not pay you because the union wanted you out of businesses? A. My answer to that question is everybody knew the union were behind it. Q. Just keep your voice up a bit. A. Everybody knew that the union were behind putting us out of business. Q. So in your words everybody knew in November 1996 that the union was behind putting you out of business. Is that your evidence? A. After the Pitt Street Mall, are you talking about? Q. Yes. A. Mr Bates certainly knew about it. Q. But according to your evidence a short time ago everyone knew? A. It's pretty common knowledge, I think, with the way they locked up all my machinery and refused to give us back any of our machinery and placed a Comanchero bikie gang around the building to lock me out. I think that's fairly well common knowledge, isn't it? Q. And you say that was because you knew the union wanted you out of business? A. I wasn't sure what happened. I was devastated. 710Mr Ballard was taken back to the topic of who it was had told him he would not get paid for the reason given, and sought, in my view, to evade the question (T376.27-.40): Q. Well, somebody told you at the time that you wouldn't get paid because the union wanted you out of business, didn't they? A. I'm not sure. Q. Well, that's what you have recorded in this document, isn't it? A. Maybe I put "told" a bit loosely, I don't know, but obviously people were telling me what happened. Q. You are not going to deny that you were told that Multiplex refused to pay because the union wanted you out of business, are you? A. I'm not going to deny anything, but I think that's why - I mean I'm just not sure how to address that one, but it was pretty common knowledge, wasn't it, when I had all my equipment locked away. Why did they lock my equipment away? 711After further argument as to admissibility, Mr Ballard was asked more questions about his state of knowledge (T378.39-379.38): Q. But you believed at the end of 1996 that the union was behind what happened to you on that job, didn't you? A. I'm not sure at that time what happened. Q. Well, you were told that, weren't you? A. I'm not sure what happened, whether I made an error in that "told" or what I believed. Q. You've recorded in your statement that Multiplex refused to pay you at Pitt Street Mall and you were told you would not get paid because the union wanted you out of business. That's what you were told, isn't it? A. Multiplex didn't pay me. Q. That is what you were told, isn't it? A. And I had-- HIS HONOUR Q. Mr Ballard, I wonder if you would just answer Mr Oslington's question, if you wouldn't mind. A. Lots of people have said different things. OSLINGTON Q. Mr Ballard, you are not answering my question. You were told what you have recorded you were told in this statement, weren't you? A. That the union put me out of business? Q. Yes. A. Multiplex and the union, I would say. Q. You were told that you would not get paid because the union wanted you out of business. Now, do you want to qualify that by saying you were told that you would not get paid because both Multiplex and the union wanted you out of business? A. Multiplex wouldn't pay me. Q. Well, you were told you wouldn't get paid, weren't you? A. No, we were told we were going to get paid and-- Q. Come back to the statement, please, Mr Ballard. A. We were told on the site we were going to get paid and then they just didn't pay us. Q. And then there was a refusal to pay you? A. No, they just never paid. Q. Why did you write this in your statement, Mr Ballard? A. I assume that someone has said write out a rough spreadsheet of what happened and I wrote it out quickly and if I have written something in there that's not right, well, I have, you know. 712Mr Ballard then sought to resile from the content of the document by saying it should have been put in a different context, and might not have been written out correctly (T380.17-.41): Q. My question is with reference to the last two lines on the second page and the first line on the third page of your written statement, and with reference to that part of your written statement do you claim that any part of it is incorrect? A. We didn't get paid. Q. Please answer my question, Mr Ballard, if you are able to. A. The letter probably should have been phrased in a different-- Q. Speak up, please. A. The letter probably should have been put in a different context. Q. Are you saying that any part of that section of your statement is incorrect? A. I'm not sure. Q. You are not sure? A. No. I'm not sure-- Q. Is that the full answer-- BANNON: He was finishing an answer and he was interrupted. OSLINGTON Q. You said you were not sure. Now have you firmed up on an answer? A. I'm not sure whether I wrote it out the right way. 713Smart AJ then asked Mr Ballard who it was that had given him the information in question. He appeared to suggest that it may have been Mr Young or Mr Murphy (T381.49-382.30): Q. First of all, could you tell me who told you that you would not get paid? A. I believe it to be Barry Young, co-director at the time. Q. Did anybody from Multiplex tell you that you would not get paid? A. When we - you mean when we didn't get paid, your Honour, or before that, or after? Q. Did anyone say to you at any stage - anyone from Multiplex say to you at any stage that you are not going to be paid? A. Ron Murphy told me that "There's money from Chatswood Chase" and I won't repeat what he said in front of the women, ripped it up in front of me, what looked to be a cheque, "There's your F-ing money". Q. Is that what you are relying on for that statement in your statement on the last line of page 2 of your statement? OSLINGTON: Is that question directed to me, your Honour? HIS HONOUR: No, I was asking Mr Ballard. Q. Because I have got a recollection of what he recalled he recounted Mr Murphy saying. I think that is in his affidavit. I think somewhere I have read it and it was as one would expect in the building industry a little bit ribald. BANNON: They don't use double negatives in the building industry. HIS HONOUR Q. Mr Ballard, are you saying that for your statement in this "And was told we would not get paid", you are relying on the activity of Mr Murphy that has been referred to earlier? Is that what you are saying? A. I believe so, your Honour. 714I note that Mr Ballard's response to Smart AJ was more direct, and less evasive, than were his responses to Mr Oslington. 715Mr Ballard gave further evasive evidence on this point (T383.45-384.34): Q. Are you claiming that you were told by Barry Young that you would not get paid because the union wanted you out of business? A. No. Q. You don't claim that? A. No. Q. Thank you. You record in your statement that you were told you would not get paid because the union wanted you out of business, haven't you? A. I was told by Ron Murphy I wouldn't-- Q. Answer my question, please, Mr Ballard. You have recorded in your statement-- A. Maybe I'm not-- Q. --and I quote "Was told we would not get paid because the union wanted us out of business". That is what is recorded in your statement, isn't it? A. It's - I'm probably not a good letter writer. Q. That is what is recorded in your statement, isn't it? A. That's what's written down, but I just said it may be-- Q. And is that true? A. No, Ron Murphy told me we weren't going to get paid "F off" and Barry Young-- Q. Well, Ron Murphy might have told you that, but I'm simply addressing what you have recorded in your statement. Is what you have recorded in that part of your statement true? A. Partly. Q. Partly true? A. Partly true, yes. Q. What part is true? A. I told you Ron Murphy said we would not get paid. Q. And what part is untrue? A. Well, it was common knowledge around the site that the union wanted us out of business. 716Taking into account both the content of the document and the fact that it was written out at a relatively early time (Mr Ballard placed its date prior to 2001), and looking at this aspect of Mr Ballard's evidence as a whole, I conclude that Mr Ballard had been told that Stoneglow was not paid by Multiplex at the behest of the unions, because the unions wanted Mr Ballard and Stoneglow out of business. 717Thus, the clear inference to be drawn from this part of the evidence is that, at some stage before 2001, Mr Ballard knew (or had, perhaps more accurately, had been given information which would lead him to think) that Stoneglow had not been paid, and it and he had been put out of business, as the result of concerted action between Multiplex and the unions. 718There is no reason why that information could not have been followed up between whenever it was that Mr Ballard acquired it and early 2003. There is no reason why no inquiries could not have been made (for example) of Mr Young, since he was apparently the one who told Mr Ballard the material in question. There is no reason why inquiries could not have been made of other people who, presumably, would have shared the "common knowledge" to which Mr Ballard referred repeatedly. 719So far as the evidence shows, no action was taken, either of the kind that I have indicated or at all, in relation to the information conveyed to Mr Ballard. Thus, it has not been shown that taking whatever steps were reasonably open as a result of that information would not have uncovered sufficient material (if the information itself did not go far enough) to point to the existence of the conspiracy now alleged, or to overcome the alleged fraudulent concealment of that conspiracy. 720For those reasons, I conclude that Mr Ballard has failed to discharge the onus laid upon him of showing that he could not discovered, through the exercise of reasonable diligence, the fraudulent concealment of material facts necessary to support his cause of action before the cause of action became statute barred early in 2003.

Other defences 721Multiplex, the unions and Mr Ferguson raised a number of other defences. They are adequately outlined in the statement of real issues in dispute which is annexed to these reasons. 722I do not propose to deal with those alternative defences. In some cases, they do not require the resolution of any factual issue. In others, the resolution of the factual issue could only be undertaken on a hypothetical or "counter-factual" basis - that is, on the basis that what I have said earlier in these reasons is incorrect. To the extent that there are, nonetheless, questions of fact involved (for example, in relation to the submission that Mr Ferguson's acts should not be attributed the unions), the underlying facts appear to be in a narrow compass, and in themselves relatively uncontroversial.

The claim for damages 723Mr Ballard claims damages for loss of earnings from November 1996 to date, and continuing up to his 65th birthday (when, he says, he would have retired) in 2015. In addition, he claims general damages for psychological or psychiatric impairment, and aggravated and exemplary damages. 724Underlying the whole of the claim for damages is the contention that Mr Ballard suffered a severe depressive illness as a result of the execution of the conspiracy, including the termination of the subcontract, the lock-out and the seizure of Stoneglow's plant and equipment. He says that the effects of that depressive illness were and continue to be so substantial, chronic and pervasive that he has been prevented from undertaking gainful employment in the demolition industry. Alternatively, as I understand it, he says that he has in any event been prevented from doing so because of the unions' ongoing opposition. 725In my view, the factual basis for the claim for damages has not been made good. Further, in my view, the way in which damages for loss of earnings are calculated is fundamentally flawed. I shall deal, relatively briefly, with each of those matters in turn.

The alleged depressive illness Introduction 726Mr Ballard gave evidence of this in his affidavit sworn 10 November 2009 at para 73: 73. I could not get my head straight. My mood got worse. I felt as though my occupation and business had been stolen from me. I began to brood about what Multiplex had done to me. I became obsessed by it. I could not understand what had happened. I talked about it constantly. It took over my thoughts and my life. I kept badgering Janice about it. It got in the way of our marriage. Soon our marriage broke down. We were divorced in 1999, and Janice then ceased to have any interest in Wingrove. I could manage farm work. I found it comforting. But for years afterwards, I could not come at the thought of doing anything in the building industry. I could not see how I could manage demolition work. I had found demolition work very satisfying; it was the best work I had ever done, and while doing it I felt that I had found a new place and purpose in life to replace boxing. If I had not been driven out of demolition work, I can see no reason why I would not still be doing it, or why I would not go on doing so until I retired, which I had always planned to begin to think about when I was 65. Now, it was gone. 727Mr Ballard accepted (see para 74) that "[s]ome years ago [he] thought [he] felt well enough to begin to have a go at getting back into demolition in a small way". He approached Mr Corrado (known as Rick) Rech, of WorkCover. Mr Ballard's evidence in relation to that approach is in my view unacceptable, and is one of the matters that I have taken into account in forming my view of the overall credibility of his evidence. 728Mr Ballard called his first wife, Mrs Janice Ballard, to give evidence. In her affidavit sworn 2 November 2009, Mrs Ballard said (para 4) that towards the end of 1996, Mr Ballard came home from work "in a highly agitated state, flushed and angry". He told her that he had been locked out of the Pitt Street Mall Project site, and that "our" plant and equipment had been seized. 729Mrs Ballard then said (paras 5 to 9): 5. This day became a watershed in our lives. In the years leading up to it, David had become absorbed in his work with Stoneglow Pty Ltd ('Stoneglow'). For as long as I had known him, he was a hard working man. In the demolition work he did with Stoneglow he appeared to have found work that he understood and enjoyed. He seemed satisfied and fulfilled in his work. He threw himself into it, and lived and breathed demolition. He was bordering on being a workaholic, but was happier than I had ever known him. 6. Immediately after the event that I have described in paragraph 4, David's demeanour... [Rejected]... He talk about what Multiplex had done incessantly and repetitively. He seemed incapable of making up his mind about what to do. 7. After a short time, David's mood lowered. My observation was that he became flat and depressed. Once outgoing and confident, he became physically and emotionally isolated and uncommunicative. His former gregariousness and sociality was gone; now he shrank from his family and friends, and increasingly spent time on his own, usually at our farm at Laheys Creek. He seemed to find comfort in farm work. Otherwise, he seemed inactive and purposeless, without the relentless and good humoured energy which had always distinguished him. He fluctuated between short bursts of seemingly irrational optimism, and long periods of hopelessness and pessimism. 8. For as long as I had known David, he had had a remarkably straightforward and trusting character, but now he began to brood, and become suspicious. This tendency increased throughout 1997... [Rejected].... He often spoke about how Multiplex had 'shafted' him, and 'destroyed' and 'ruined' his life. Speaking about what Multiplex had done, he often said words to the same or similar effect as, "There's something more to this, but I can't get to the bottom of it. No one's talking." This became a constant theme in his conversation with me, to the point where he appeared to have become obsessed by it. Often he woke me in the middle of the night, when he talked about Multiplex's treatment of him and Stoneglow for hours, saying the same thing over and over until it was maddening, and I could hardly bear it. 9. I accept that David and I had not always had a perfect marriage, but we had been good partners. The changes in him that I have described in Paragraphs 6, 7 and 8 took a toll on our marriage. He became distant from me, and my affection for him was tested. I did not resist his obvious desire to spend time by himself, so that I could get some relief from his obsession with Multiplex. All of this inhibited our ability to work through problems in our marriage. 730Further, Mr Ballard called an expert witness, Dr Bruce Westmore (a psychiatrist) to give evidence. The conversation with Mr Rech 731According to Mr Ballard, the conversation with Mr Rech was to the following effect (affidavit sworn 10 November 2009, para 74): 74. Some years ago I thought I felt well enough to begin to have a go at getting back into demolition in a small way, although the idea made me nervous. I telephoned Mr Rick Reich (Reich)[sic], of the WorkCover Authority, to apply for a demolition licence. Our conversation including the following: Me: I would like to apply for a demolition licence for Sydney. Rick: I'm afraid I can't give you one. Andrew Ferguson doesn't want you back in Sydney. You can't work anywhere in Sydney. Me: But I can only work in Sydney. That's where all my clients and contracts are. Rick: Forget it mate. You'll never work in the CBD again. 732In the course of cross-examination, Mr Ballard suggested that this conversation occurred in 1997 (T400.22-.24) or in 1997 or 1998 (T401.17-.18). I do not regard the apparent inability to place a more precise time on the conversation as significant. 733Mr Rech gave evidence by affidavit, and was cross-examined. He said that he had had two conversations with Mr Ballard, not one. Mr Rech said that the first conversation was to the following effect (affidavit sworn 19 April 2010, paras 11 to 13): 11. My recollection of the first occasion is that a male person telephoned. The caller began the conversation by introducing himself as "Charkey Ramon". That name meant nothing to me and I replied in words to the effect: "I don't think I know you." The caller then said to me words to the effect: "You probably remember me being associated with Stoneglow and you'd probably know me from the Pitt Street Multiplex job." 12. I did recall the name Stoneglow from the Pitt Street Multiplex project but did not really have any knowledge of the name Charkey Ramon. However, I said something to the effect: "I know of Stoneglow." The caller then said to me words to the effect: "As you know Stoneglow has been placed in receivership. Stoneglow has been mistreated by Multiplex and they owe me money for the jobs that we've done for them including a job at Chatswood and the Pitt Street Mall project. As well, my partner Barry Young has ripped me off along with Multiplex. Barry has already got his new license and I should have mine." 13. I replied in words to the effect: "Well, that's a commercial issue [at which point I was referring to Stoneglow going into receivership]. However, we don't have a problem with granting you a licence. You will need to put in a CV and do the TAFE course, after which you can lodge your application and it will be processed in the ordinary way." The caller then responded in words to the effect: "Well, I don't need to." It is possible that he said at this point: "Don't want to", rather than "don't need to". The caller remained polite and did not raise his voice but the tone of his voice on the telephone suggested to me that he was unhappy about having to go through that process in order to secure a license. I said to him words to the effect. "No new licenses will be issued unless there's a TAFE course accredited to support it." 734Thereafter, Mr Rech said "Charkey Ramon" called again, and said that he wanted a demolition licence, in response to which Mr Rech gave a similar reply to that which he had given earlier. 735Mr Rech specifically denied that he had said words to the effect: I'm afraid I can't give you one [a demolition licence] Andrew Ferguson doesn't want you back in Sydney. You can't work anywhere in Sydney. ... Forget it mate you'll never work in the CBD again. 736As to this, Mr Rech said (para 16): I understand that this allegation is a serious one involving as I then was, a middle-level State Government official. I am and was then aware of the Independent Commission Against Corruption... and in my position for the WorkCover Authority I had undergone training to ensure that my dealings with members of the public involved no perception of dishonesty or preferential dealing in my functions as an officer of a NSW public authority. 737Although Mr Ballard swore two further affidavits after Mr Rech's affidavit had been sworn and filed, he did not deny that Mr Rech had said words to the effect of: However, we don't have a problem with granting you a licence. You will need to put in a CV and do the TAFE course. After which you can lodge your application and it will be processed in the ordinary way. 738Nor, in those further affidavits, did Mr Ballard deal with the proposition that there had been two telephone calls, not one. That matter was however raised in cross-examination. When it was, Mr Ballard said that he could recall having had two conversations with Mr Rech. It was in the second of those conversations, he said, that Mr Rech had said that Mr Ferguson did not want him back in Sydney. 739Significantly, Mr Ballard said that he had asked his second (and present) wife, Mrs Sharon Ballard, to listen into the second conversation (T407.34-.40, 408.14-.23). Mrs Sharon Ballard was not called to give evidence, although she had sworn an affidavit which was served, and (it was said without contradiction) was in court for almost every day of the hearing. I do not know if this is or is not factually correct, but I did observe that a woman who appeared to be closely associated with Mr Ballard was present with him in court during most, if not all, of the submissions. 740Mr Rech was cross-examined. It was not put to him directly that his account of either of the telephone conversations was incorrect. Further, in the course of cross-examination, he said that he did not recall ever having a conversation with Mr Ferguson about Stoneglow or any other company (T4694.26-.27). 741A challenge was made to the credibility of Mr Rech's evidence, in relation to an earlier event. Mr Rech had said in his affidavit (para 6) that he did not have any involvement with, or know of, the role of Mr Ballard in relation to Stoneglow. That arose because Mr Rech had assessed Stoneglow's application for a demolition licence in 1996. 742As it turned out, Mr Rech had dealt with an application for an unrestricted demolition licence made by Mr Ballard on 27 July 1996. He said, in a report made at that time, that he had observed Mr Ballard's work and that "his on the job performance is better than his assessment". 743Mr Rech was cross-examined on that obvious discrepancy. It was submitted (PS 749) that his response was "dishonest" and that it was only "eventually" that he "made a begrudging concession". 744It is difficult to assess this submission, not having heard the evidence. However, the transcript does not seem to me to read in the manner that was put. And it may be noted, in addition, that the concession said to be "plainly necessary" was made on more than one occasion, including on one occasion prior to that referred to in submissions. 745I not accept Mr Ballard's evidence of his conversation or conversations with Mr Rech. It involves a very serious allegation of dereliction of duty against a public official. Mr Ballard's recollection of the alleged conversation is clearly deficient. He said in his affidavit that there was one conversation in which reference was made to Mr Ferguson's role, but agreed in cross-examination that there were two, and that it was in the second of them that the reference was made. 746Mr Rech's account of what he had said was not denied in any affidavit evidence and was not squarely challenged in cross-examination. If Mr Rech did say (as I find he did) that "we don't have a problem with granting you a licence", and thereafter told Mr Ballard what could be done so that the application could "be processed in the ordinary way", it is completely inconsistent with the proposition that, thereafter, he used the words, relating to Mr Ferguson, attributed to him. 747There is no evidence to suggest how knowledge of Mr Ferguson's alleged attitude might have come to Mr Rech's attention. It is, I think, more than a little far-fetched to suggest that Mr Ferguson would have contacted every officer of WorkCover to inform them of the unions' alleged position in relation to Mr Ballard. 748Further, and tellingly, Mrs Sharon Ballard was not called to give evidence, although according to Mr Ballard she had listened in on the relevant telephone conversation. The proper inference to draw from that is that her evidence would not have assisted Mr Ballard on the point under consideration. It was not suggested that, for any reason, Mrs Sharon Ballard was unable or unwilling to give evidence. 749I find, as is uncontroversial, that in 1997 or 1998, Mr Ballard did turn his mind to getting back into the demolition industry, and for that purpose approached Mr Rech. That of itself suggests that Mr Ballard was not so severely incapacitated, by depression, as to be unable to work. The submission was put that this was some kind of interval of calm, in which Mr Ballard was able to deal with the exigencies of life. Even if that submission were to be accepted (and no factual basis for it was suggested), it is not consistent with the proposition that the depression was chronic, pervasive and incapacitating. 750Further, I find, there was no impediment (apart from obtaining the necessary training and certification) that would have prevented Mr Ballard's being granted the necessary licence to recommence demolition work. 751Before I leave the Rech conversation, I wish to make it clear (if I have not done so already) that I regard this aspect of Mr Ballard's evidence as entirely unacceptable. In my view, whether fabricated consciously in an attempt to shore up his case, or unconsciously, as a result of his obsession with the alleged conspiracy and the harm done to him as a result, it is a potent demonstration of the unreliability of Mr Ballard as a witness. I have not overlooked the submission put, that there was no need for Mr Ballard to have invented a false conversation because to do so would merely invite yet another rebuttal. I do not think that this is a powerful consideration. First, it does not deal with the undoubted fact that Mr Ballard is obsessed by his view of what has happened and the wrong done to him. Secondly, it must have been appreciated that there was at least a likelihood that Mr Ballard's attempts to get back into the demolition industry would be ascertained, and that damage could be done to his case unless he dealt with it in chief. The evidence of Mrs Janice Ballard 752The picture that Mrs Janice Ballard gave, of Mr Ballard's state of mind and demeanour prior to late 1996, is one of a happy, hardworking and satisfied man, who "was happier than I had ever known him". That picture of Mr Ballard, whether deliberately or not, was highly misleading. 753The true state of affairs, as disclosed by the evidence, is that Mr Ballard's life had been extremely unhappy for some three to four years (at least) prior to the events of October and November 1996. 754In 1993, he had been convicted (on a plea of guilty) of giving false testimony to the Cole Royal Commission. In 1994, he was admitted to Evesham Clinic for treatment for major depression, and remained there for some 17 days. That major depression appeared to have been the result of a relationship that Mr Ballard had formed with another woman. Mrs Janice Ballard said, in cross-examination, that "of course it wasn't a happy time" (T1917.41-1918.11) and that, as a result of the other relationship, Mr Ballard "was extremely remorseful, sad" (T1897.41). She agreed that the situation "affected him very badly (T1905.23-.26). 755There are two consequences, in terms of Mrs Janice Ballard's evidence. The first is that the picture painted by her in para 5 of her affidavit cannot be accepted. The second is that it becomes extremely difficult to disentangle the pre-existing depressive illness from the depression said to have affected Mr Ballard following the effects of October and November 1996. 756What is apparent from Mrs Janice Ballard's evidence (and is supported by Mr Ballard's evidence in cross-examination) is that when Mr Ballard was affected by a depressive illness in about 1994, he sought medical treatment for it and was hospitalised. The treatment appears to have been successful, at least to the extent that he was able to return to work and carry out his part in the business of Stoneglow. 757By contrast, there is no evidence that Mr Ballard sought any medical treatment for depression (or for any other psychiatric or psychological impairment) between late 1996 and some 11 years later, November 2007. Mr Ballard then consulted a Dr Clarke, apparently on two occasions. Dr Clarke was not called to give evidence. 758Given that Mr Ballard had suffered from depression prior to the events of October and November 1996, and had sought medical advice and treatment, it is in my view likely that, if he had become depressed once more as a result of the events of October and November 1996, he would have sought medical help and treatment again. It is difficult to accept that, knowing (as he must have known) that help was available for depression, he nonetheless failed to seek it. The evidence of Dr Westmore 759Dr Westmore was retained for the purpose of giving expert evidence in the proceedings. He saw Mr Ballard twice, and had a telephone conversation with him. The consultations may have been each of about an hour's length. There was no evidence as to the duration of the telephone conversation. 760Dr Westmore accepted, entirely properly, that it was "very problematic" to express an opinion about the effect of the events of 1996 on Mr Ballard (T2483.6-.11): Q. Would you accept from me that expressing an opinion about the effect of a 1996 incident on someone who had suffered severe depression in 1994 requiring hospitalisation and who hadn't been referred to a psychiatrist for ten years after the November 1996 incident, and seeing that person only once, an opinion about that person's capacity for work is a very problematic opinion? A. Yes. 761Further, Dr Westmore accepted (and again entirely properly) that his opinion depended heavily on the history that he had been given. One of the matters that he understood from Mr Ballard (report dated 31 December 2008, page 2): He said the following morning he was locked out of the site. All his machinery however was still on the site. He stated, "I didn't know what to do, I couldn't believe it. I had all these good people come to me and I couldn't pay them. He said he had good workers, he had always paid his bills. He said he had accumulated a good team. He said the people who owed him money advised him that he would need to go to the police if he wanted to get paid. He went to the police but was advised by them that it was a civil matter. He said that he went to the farm, he lay in bed. He stated, "I went to bed for weeks. I couldn't think, my mind shut down. I couldn't work out what they owed me." He then went to a firm who assessed what he was owed. He said that it was determined that he was owed $1.496 million. He said that he had lost about $700,000.00 in profit on the particular project. 762The defendants suggest that the conversation set out in the last paragraph of that quotation occurred "immediately after the termination of the Subcontract" (MS para 600(ii)). That is challenged. However, the "firm who assessed what he was owed" was Evans and Peck. It appears to be Mr Ballard's evidence that he consulted Evans and Peck in November 1996 (see, generally, T 776-777; the chronology is somewhat confused). 763If that is so, then it was correct, by inference, to say that the relevant words attributed to Mr Ballard must relate to a state of affairs that occurred "immediately after the termination of the Subcontract". 764That is significant, because the evidence shows that in the days following the termination of the subcontract, Mr Ballard attended numerous meetings, agreed in the appointment of Mr Hammond to assist Stoneglow and to work out what was owed, assisted Mr Hammond in that activity, dealt with the opinion with Mr Hammond and negotiated with Multiplex over it. Having done that, he retained Evans and Peck to advise. Dr Westmore accepted that these characteristics of cognition, attention to detail, decision-making and the like were "radically different" to the picture portrayed by Mr Ballard (T2497.36-2498.14). 765There were other matters in the history given by Mr Ballard to Dr Westmore that were challenged. It is not necessary to go in detail to them. 766Whilst I accept that Dr Westmore was doing his best to give a picture of Mr Ballard's position, it is clear that he had very limited material to work with, and that, with the benefit of more consultations and a much more detailed and accurate history, he would have been better placed to express a considered view. 767For those reasons, I conclude that Dr Westmore's evidence should not be accepted as proving that Mr Ballard did suffer from severe and ongoing depression as a result of the events of October and November 1996. Quite apart from anything else, it does not appear that Dr Westmore was referred to the dealings with Mr Rech, as showing that Mr Ballard had a desire to return to work in 1997 or 1998. 768The submissions for Mr Ballard made much of the fact that the defendants had qualified a psychiatrist but had not called him. If there were reason to accept Dr Westmore's opinion as reliable, then the failure to adduce expert evidence in reply might be significant. But where, as I think, there are very significant limitations on the validity of Dr Westmore's opinion, such as to render it incapable of supporting the case that is put, the failure to call evidence in reply is not of any great moment. Other matters 769Mr Ballard went back into business, in the construction industry, in about 2003. He did so through a company in which he and his solicitor (or former solicitor), Mr Russell Byrnes, had shares. The company was known as Danvick Constructions Pty Limited. Mr Ballard appears to have been involved in it at some time around 2004 or 2005, although in fairness he was not "a 100% sure" and could say no more than "it could be about that time" (T443.28-.36). 770The company worked, "putting up louvre bond or a company like that, putting up facades and stuff" (T409.19-.20). Mr Ballard said that he worked in that business for a few months, and that he stopped because the carpenter who did a lot of the work was an alcoholic (T409.42-.48). He said that (T410.1-.20): A. ... I pulled out because I was frightened something was going to go wrong. I just said to Russell "I don't want the shares any more, any money in the account keep it yourself and I'm out". Q. But you gave it a go for a number of months? A. I gave it a go yeah, but I wasn't good at it. Q. That was the physical skills, correct? A. Well, it wasn't physical. You had to know what you're doing, putting that up on the front of buildings. You have to be precise and some of them are cut in angles and I'm not that sort of a person. I've never had any experience at it and I couldn't do it on my own. If I was on my own nobody would employ me. Q. So it was the lack of carpentry skills really that put you out of that business? A. Yes, I think so. Q. Lack of carpentry skills and the person in the company having the carpentry skills was on the bottle too much? A. Yes, that was it, yes. 771There is no suggestion in any of this evidence that Mr Ballard was incapacitated, or even inhibited, from working in this business because of depression. On the contrary, he appears to have been sufficiently on top of things to recognise the danger of working with an alcoholic carpenter. 772Another, and striking, feature of the evidence for Mr Ballard, on the question of depression, is that although the depression is said to have set in after the events of November 1996 and following, and to have persisted thereafter (apparently with some intervals when Mr Ballard felt able to think about returning to work), there was no evidence called from any member of Mr Ballard's family who could speak to his condition after he and Mrs Janice Ballard separated, which appears to have been in about 1997. 773Mr Ballard's relationship with his current wife, Mrs Sharon Ballard, appears to have commenced in 1997. One would expect that she would have been able to give evidence of his condition, based on her observations of him over the intervening years. But she was not called to give evidence, and no explanation was given as to this. I repeat that Mrs Sharon Ballard had sworn an affidavit, which was filed and served, and that, apparently, she was present for most if not all of the hearing before Smart AJ. 774In my view, the proper inference to draw from the unexplained failure to call Mrs Sharon Ballard, given that she must have had the capacity to give evidence of her observations of Mr Ballard over many years, whilst he was said to have been incapacitated by depression, is that her evidence would not have assisted this aspect of his case. 775Further, Mr Ballard had two sons by his first marriage. One at least of those sons (and maybe both) worked with him in Stoneglow. It might be thought that his sons, too, would have had an opportunity of observing their father over the years, and of giving evidence about his condition. They were not called. 776I regard the unexplained failure to call witnesses, who one would think were capable of giving relevant and possibly persuasive evidence, as damaging to this aspect of Mr Ballard's case. 777Another matter to consider, although it does not relate so much to the question of depression as to the question of Mr Ballard's evidence of unemployability generally, is the failure to call anyone from the building and construction industry to support this aspect of his case. Mr Ballard had given a lengthy list of former contractors for whom Stoneglow had performed demolition work over the years 1992 to 1996. No one was called, from that formidable list of industry participants, to say that they wished to give Mr Ballard work after 1996, but were prevented from doing so either because he was regarded as a pariah in the industry, by reason of his notorious (according to Mr Ballard) falling out with the unions; or because his mental state was such as to render him a danger rather than an asset in the performance of any demolition work. 778Reliance was placed on a short passage in the evidence of Mr Gary Windred (PS 752-756). Mr Windred was called to explain how it was that Mr Ballard had been put in touch with Mr Bates in 2007. That meeting had been facilitated by Mr Windred. 779Mr Windred gave evidence in his affidavit, of a "grapevine" in the construction industry "through which gossip, rumours and information freely circulate" (affidavit sworn 22 October 2009, para 11). 780When Mr Windred was called to give evidence, he (by leave) supplemented what he had said in his affidavit. To understand this, it is necessary to understand that although Mr Windred had been a union organiser, he later became employed by the substantial building and construction company then known as Baulderstone Hornibrook Pty Limited. He gave the following evidence (T676.14-.39): Q. Did you have any role with Baulderstone Hornibrook on the question as to whether new contractors should or should not be taken on by the company? A. If we were looking for outside our normal contract market, if any new contractors came in I would have questioned, yes. Q. If Mr Ballard or a company associated with him had sought to undertake-- HIS HONOUR Q. Do I take it from that that if one of the usual demolition contractors were used you wouldn't consult? A. If we knew them and they had worked for us before, no, not normally. BANNON Q. If Mr Ballard or a company associated with him had sought to undertake work with Baulderstone Hornibrook after what you heard about the Multiplex Central Plaza project, what view would you have taken as to whether or not he should be taken on or his company should be taken on by Baulderstone Hornibrook? A. We would normally do some research on the company. Knowing they were in dispute at the time from HMAS Waterhen and the Sydney plaza project, we probably wouldn't have engaged him. Q. Why is that? A. You wouldn't want to inherit a problem on your own project. 781That was the full extent, so far as the submissions suggest, of the evidence as to Mr Ballard's unemployability (by reason of his being a pariah) following the events of 1975 and 1976. 782I do not regard Mr Windred's evidence on this point as having any probative weight. He accepted, in the course of cross-examination, that decisions about which subcontractors to use on a particular project were based on research and appropriate checks, not on grapevine rumours. He agreed that price was often an important determinant (T709.9-.47): Q. You gave some evidence about the practice if Baulderstone were taking on a new contractor. A. Yep. Q. There would be a variety of factors which you would look at in the ordinary course? A. Normal checks, yes. Q. One past history? A. Correct. Q. One price? A. Of course. Q. That's a very important variable, isn't it? A. To a building company, yeah. Q. Because the less the head contractor has to pay in subbies, the more the profit for the contract? A. The more for the builder, yeah. Q. And if a decent price was being offered to Baulderstone Hornibrook by a particular contractor, you wouldn't say no to that contractor on the basis of rumour and grapevine, would you? A. They would probably look at the price and then they would check him out. Q. Price is most important, you agree? A. I wouldn't say, particularly Baulderstone's case, that that was always the case. I think that, you know, if it was under their budget they would have a look, but if they were on budget without a reputation who worked before we would probable go with the contractor we knew, rather than a new one. If the budget was way under price we would have to have a look at it. Q. And important decisions about who was taken on a particular project aren't based on grapevine rumours, they are based on a level of research and due diligence, aren't they? A. Yes, that's true. As I said before, if you have got someone close and we narrowed it down to two or three and were going to engage a new contractor, we would engage David Hicks & Associates for our audits. 783That evidence seems to me first to have the ring of truth to it, and secondly to undercut the evidence in chief on which Mr Bannon relied. 784It is also apparent that Mr Windred's understanding was that Mr Ballard had not been "kicked off" the Pitt Street Mall project, but off the Waterhen project (T703.29-.47). In fairness to Mr Windred, he said it was "probably right" that it was the Waterhen site that Mr Ballard "was kicked off"; but it is clear that, whatever the weight to be attributed to grapevine rumours, the position in this case is either that the grapevine rumour was hopelessly confused or that Mr Windred's recollection of it was defective. 785It is, to put it mildly, passing strange that the only evidence that could be obtained, as to Mr Ballard's unemployability, was that adduced in the way that I have just indicated from Mr Windred, rather than from people with a proper level of decision-making authority in the numerous other organisations for which Stoneglow had worked.

The claim for economic loss 786The calculation of loss of earnings was undertaking by Mr AB (Tony) Samuel. Mr Samuel provided several reports. One, in chief, dated 13 November 2009, set out his methodology and calculations. Another, dated 4 May 2011, was updated to reflect, so far as possible, the input of accurate information. 787It appears that Mr Samuel prepared other reports. Further, the defendants retained an expert, Mr Dicks of PPB. Mr Samuel and Mr Dicks prepared a joint report. Since Mr Dicks was not called, the joint report was not tendered. 788Mr Samuel's methodology, on his preferred "scenario", involved the following elements: (1) he calculated what he called "the estimated earnings of Stoneglow, Wingrove [Mr Ballard's service company] and David Ballard for the year ended 30 June 1997"; (2) he projected those earnings forward year by year until 30 June 2015, by using what he thought was an appropriate indicator to measure growth in the demolition industry; (3) he made calculations of the tax payable on that income, and of superannuation contributions that would have been made had Mr Ballard organised his affairs in the most efficient way, and calculated a net income figure for Mr Ballard accordingly; (4) for each year of notional income so calculated up to the present time, he added interest from year end until the date of calculation; (5) for each year after the present time, he discounted the figure back to the date of calculation; (6) he added what he regarded as Mr Ballard's share of the lost earnings of Stoneglow for the year ended 30 June 1997; and (7) he produced, accordingly, a figure for damages as at the date of calculation. 789Mr Samuel's methodology was based on a number of assumptions which were expressed in his first report and teased out, and challenged, in the course of cross-examination. Some of those assumptions in my view were not made good on the evidence. It follows that, to the extent that the assumptions were not made good, there is a major difficulty in accepting Mr Samuel's conclusions. 790There is however a fundamental problem with Mr Samuel's methodology, which I should deal with before moving, briefly, to the issues as to the assumptions on which his opinions were based. 791What Mr Ballard is suing for is characterised as the lost earnings that he would have made but for the conspiracy, its execution and the consequences. He is seeking damages for loss of the opportunity to make earnings that otherwise he would, or might, have derived. 792Damages are generally assessed at the date of breach: Johnson v Perez (1988) 166 CLR 351. In that case, a solicitor failed to prosecute his client's action appropriately. It was dismissed for want of prosecution. The court held that damages crystallised at the date the action was so dismissed, and that the damages were the loss of the opportunity to succeed in that action had it been prosecuted with appropriate despatch. Thus, among other things, damages were to be assessed by reference to what might have been awarded at the time the action should have been heard, and not by reference to the range of damages applicable to such actions at the time the case against the solicitor was heard. 793In this case, orthodox principle insists that Mr Ballard's loss should be calculated at the date of the (hypothetical) wrong. It is not necessary to be too precise. Damages could be assessed, in deference to that principle, as at (say) 30 June 1997, on the basis that, by then, Stoneglow had gone into liquidation and Mr Ballard was out of the industry. 794What Mr Ballard is entitled to be compensated for is loss of the opportunity to make earnings thereafter. It may be appropriate to calculate what earnings could have been made from year to year. But the appropriate measure of damages is the value of those earnings, discounted back to the date of assessment and, thereafter, augmented by the award of interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). The discount rate should reflect, among other things, the uncertainties attendant upon earning a living in the demolition industry, and, more generally, the vicissitudes of life (including, for example, the prospect that Mr Ballard might not have been able to work until 30 June 2015 by reason of some supervening event for which none of the defendants were liable). 795In my view, to calculate, as damages, earnings year on year, and then to add interest to bring them forward to a conclusion assessed in effect at the present time, is inconsistent with principle. Thus, I conclude, the methodology employed by Mr Samuel is fundamentally flawed. It follows, in my view, that if one were to come to the question of damages, his reports and conclusions provide no basis for making any assessment: let alone, for an award calculated in accordance with any of his scenarios. 796In theory, perhaps, if Mr Samuel's calculations of lost earnings were regarded as accurate, they could be discounted back, and interest could then be calculated. But there is no guidance in the evidence as to what might be an appropriate discount rate. For example, there is nothing to suggest what were the probabilities that a "Stoneglow II" would survive and prosper from 1997 until 2015. 797There is perhaps another problem, although of a more minor nature, in the calculation. One of the elements that Mr Samuel includes (see at [789(6)] above) is an allowance for Mr Ballard's "share" of the earnings that Stoneglow might have made had the Sydney Central Plaza project proceeded to completion, and had it been paid all that was due under that and the other projects. On orthodox principle, it seems to me, those losses are losses of Stoneglow and are not recoverable at the suit of Mr Ballard. See Prudential Assurance Co Limited v Newman Industries Limited (No.2) [1982] Ch 204; Johnson v Gore Wood and Co (A Firm) [2002] 2 AC 1. 798Lord Bingham of Cornhill said in the latter case, at 35-36, that a shareholder may recover for a loss that is separate and distinct from that suffered by the company caused by breach of a duty independently owed to the shareholder, but not for a loss which is merely consequential upon or derivative from loss suffered by the company. Lord Millet made a similar point at 62. 799In this case, if there were a breach of contract on the part of Multiplex that resulted in loss to Stoneglow, that loss would have been recoverable by Stoneglow alone. But even if Stoneglow were now to be revived and sue for it, nothing could be recovered because - leaving aside the obvious limitation problem - Multiplex and Stoneglow have entered into a deed of release, by which Stoneglow is bound. 800Mr Ballard has no independent claim for that breach of contract. The "share" of the profits of which, on Mr Samuel's analysis, Stoneglow was deprived is derivative upon what would have been Stoneglow's claim. 801I turn to some of the asserted flaws in the assumptions on which Mr Samuel based his report. One of those assumptions was that Stoneglow would have finished all work under the Pitt Street Mall project by the end of January 1997, and would have continued to undertake profitable work thereafter up until 30 June 1997. That assumption was fundamental to Mr Samuel's "calculation" of Stoneglow's earnings for the year ended 30 June 1997, which was the basis for the "calculation" of lost earnings by Mr Ballard then and thereafter. 802However, the evidence is otherwise. As I have already noted, there was to be a substantial gap between stages one and two of the demolition work. That gap was necessary so that the trading business of the Myer department store could be relocated into the area where the stage 1 demolition work had been carried out. It would take some time for the necessary fitout and other works to be completed. It is likely that stage two works would not have been commenced until about March 1997. That was not, as Mr Bannon appeared to submit, merely some programming problem for which Multiplex or the principal was responsible. It was a necessary incident of the subcontract, bearing in mind that the department store was always to continue operating whilst the works were being carried out. Thus, there was to be a substantial gap during which Stoneglow would have earned no income from the Pitt Street Mall project. There was no evidence that Mr Ballard (or Mr Young) had arranged for other work to be undertaken to fill that gap. Nor is there evidence that, even if the Pitt Street Mall project demolition work had been completed before 30 June 1997, any steps had been taken to move immediately to another contract. 803Thus, in my view, a fundamental assumption underpinning the calculation of base revenue is inherently flawed. 804It was also inherent in Mr Samuel's methodology that Stoneglow had the financial capacity to complete the project, that it would remain a going concern, and that it would make a profit on the Pitt Street Mall project. In my view, none of those assumptions is made good on the facts. I have already dealt with the financial position of Stoneglow, as it can be derived from the RATA. Stoneglow was hopelessly insolvent, and would have been insolvent even if Multiplex, in an unlikely fit of corporate philanthropy, had paid Stoneglow the entire amount of its ambit claim. 805The very fact that Stoneglow was in such a parlous financial position at the time of the termination of the subcontract suggests one of at least two things. One is that the subcontract had not been, to that time, profitable. The (or an) other is that cash had been siphoned out of the business in such a way as to impair its performance radically. 806Mr Bannon submitted that the subcontract was profitable. He relied on evidence give by Mr Stagg (which I accept) that the subcontract price was negotiated with the intent that there would be a profit in it for the successful tenderer. But it does not follow that, because Multiplex intended this to happen, it would be achieved. In particular, achieving the profit would depend on prompt and efficient performance of the work. The material to which I have referred, and other material in evidence, suggests that Stoneglow's performance could not be so described. 807Thus, as I have said, this group of assumptions is also fundamentally flawed. 808Mr Samuel assumed, also, that the Stoneglow business would continue ("Stoneglow II") with Mr Ballard and Mr Young in de facto partnership. On the evidence, that was unlikely to have happened. It is clear that each had become somewhat disenchanted with the other. There is no need to go into detail. The likelihood is that (as indeed happened) they would have gone their separate ways. Mr Young returned to the demolition business, not with Mr Ballard, shortly after Stoneglow was put into liquidation. 809However, whilst this assumption might be factually inaccurate, its impact on the assessment of loss carried out by Samuel is more problematic. The loss of Mr Young would have been significant, because it is clear that much of the business expertise and management skill (to the extent that there was any) came from him. It is open to doubt whether Mr Ballard had the necessary skills to manage a similar business on his own. If he were required to employ, or contract, assistance in managing Stoneglow II, then of course the profitability would be affected accordingly. Mr Samuel's calculations did not make any allowance for that possibility. Further, because he did not apply any discount rate to his calculated earnings figures, there is no other way in which this (and other matters) could be said to have been taken into account indirectly. 810Mr Samuel assumed, further, that Stoneglow II would have been able to compete in the market for demolition business after 30 June 1997, and that it would have obtained sufficient business to derive the earnings that, he projected (based on the year ended 30 June 1997) could have been derived. There was no factual basis shown for that assumption, except such as could be drawn from the fact that Stoneglow had successfully carried on business for some four or so years up to 30 June 1996. It should be noted, however, that the Pitt Street Mall project was fundamentally more substantial, as to size and complexity, than others undertaken by Stoneglow. That is no doubt why, as Mr Ballard conceded, Stoneglow had allowed its tender price to be negotiated down substantially, so that it could be seen as a competitor to the major players in the demolition industry (see, generally, T 632-633). In addition, there is Mr Stagg's unchallenged evidence that he did not think that Stoneglow had the ability to do the demolition work for the Finger Wharf project. 811There are other difficulties in Mr Samuel's calculation. One of them, harking back to what I said about the assumption as to profitability, is of an 18% profit margin. That was based on a reworking of the figures for the four years leading up to 30 June 1996. Stoneglow's actual profitability for those years (according to its financial statements) was adversely affected because Mr Young and Mr Ballard, through their respective companies, had taken out "management fees". Those management fees were brought to account in striking the profit or loss for each year. Mr Samuel added those management fees back, but made no other allowance for management time and skill. In my view, that is conceptually incorrect. The net profit of a business must necessarily bring to account the cost of all inputs. Those inputs include management time and skill. To add the management fees back, but not to make any other allowance for the cost of management, is artificial. Mr Samuel suggested that he had no information which would enable him to determine what would be an appropriate allowance for the cost of management. That may be so; but it does not justify making no allowance. 812For those reasons, as I have said, I do not accept that Mr Samuel's report provides any guidance on which the court could rely in attempting to calculate damages for loss of the opportunity to earn income, even if, contrary to my findings on liability, it was necessary to perform that assessment.

Conclusion and orders 813The claim fails. I make the following orders: (1) Order that the proceedings be dismissed. (2) Direct entry of judgment in favour of each defendant on the plaintiff's claim. (3) Subject to order (4), order the plaintiff to pay each defendant's costs of the action. (4) Reserve liberty to any party to apply for a different or special order as to costs. (5) Any application pursuant to the liberty reserved by order (4) is to be made by notice of motion, supported by affidavit, filed and served no later than 25 May 2012. There is to be filed and served with any such notice of motion and affidavit a brief summary of the reasons why the different or special order as to costs is sought. (6) Direct that the exhibits be returned.

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