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.