Blu Logistics SA Pty Ltd v Flogineering Pty Ltd

Federal Court of Australia (Full Court)|2023-07-04|Before: Logan JJ

Counsel for the appellants/cross-respondents: Mr G J Gibson QC and Mr S J Forrest

Solicitor for the appellants/cross-respondents: Rostron Carlyle Rojas Lawyers

Counsel for the respondent/cross-appellant: Mr N H Ferrett QC

BETWEEN: BLU LOGISTICS SA PTY LTD ACN 600 595 382 First Appellant

WASTELL MILK HAULAGE PTY LTD ACN 147 389 302 Second Appellant

WADENE PTY LIMITED ACN 010 248 307 (and others named in the Schedule) Third Appellant

AND: FLOGINEERING PTY LTD ACN 115 962 822 Respondent

AND BETWEEN: FLOGINEERING PTY LTD (ACN 115 962 822) Cross-Appellant

AND: BLU LOGISTICS SA PTY LTD ACN 600 595 382 (and others named in the Schedule) First Cross-Respondent

order made by: RARES, COLLIER AND LOGAN JJ DATE OF ORDER: 4 July 2023

The parties file draft orders giving effect to the Court's reasons for judgment delivered today on or before 6 July 2023 and if not agreed file a marked-up version with written submissions limited to 1 page. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 The appellants, Blu Logistics SA Pty Ltd, Wastell Milk Haulage Pty Ltd, Wadene Pty Ltd, JR Bulk Liquid Transport Pty Ltd and JURSS Robertson Pty Ltd (collectively, the hauliers), are road hauliers of products, including bulk fresh milk. After ordering the hearing of a separate issue, the primary judge delivered reasons on 28 September 2018 (the liability judgment) and on 24 October 2018 made two declarations reflecting his finding that the hauliers had contravened each of ss 18 and 29(1)(e) and (g) of the Australian Consumer Law (ACL) in Sch 2 of the Competition and Consumer Act 2010 (Cth), granted an injunction restraining the hauliers from continuing to engage in this contravening conduct and then made orders for a later hearing to assess the compensation under s 236(1) of the ACL, if any, to which the respondent, Flogineering Pty Ltd, was entitled in respect of the hauliers' contraventions of the ACL. 2 The hauliers' business involved them sending tankers on a daily basis to collect bulk milk from numerous dairy farmers and then delivering the milk so collected to milk processors, including Fonterra Ltd, Murray Goulburn Co-operative Co Ltd and Parmalat Australia Pty Ltd. 3 As explained below, the chief metrologist of the Commonwealth, under his powers in the National Measurement Regulations 1999 (Cth), made under the National Measurement Act 1960 (Cth) (the NM Act), issued or granted Flogineering a certificate of approval for its flow meter, as an approved instrument. The flow meter was used to measure the quantity of milk delivered by each dairy farmer to the haulier's tanker progressively, as it visited each farm before delivery of the combined load to the processor, and the total when the tanker discharged its load at the processor's premises. The terms of the approval current at the separate hearing required that approval number 5/6E/13A be applied to each flow meter only by a person whom Flogineering authorised to do so. Instead of using Flogineering's services, the hauliers engaged Byron Raddatz to apply the approval number to each of the flow meters on the 26 tankers. 4 In the first declaration, his Honour identified in precise, but technical, language the conduct in which the hauliers engaged to make a misrepresentation to dairy farmers and processors and in the second declaration he simply identified that this conduct contravened each of ss 18 and 29(1)(e) and (g) of the ACL. In essence, his Honour declared that the misrepresentation conveyed that 26 of the hauliers' tankers used to collect milk from farms and deliver it to the processors had a measurement instrument that had a current approval that complied with the conditions in Flogineering's approval, the NM Act and Regulations. 5 Thus, the two declarations established that, by having Mr Raddatz apply the approval number to the flow meters on the 26 tankers in a way that the NM Act and Regulations did not allow (because only a person authorised by Flogineering could do so), the hauliers had engaged in conduct that was misleading or deceptive or likely to mislead or deceive either milk processors or dairy farmers or both by misrepresenting that the approval number displayed on each tanker had been applied lawfully. 6 After a lengthy adjournment, in which Flogineering refined its claim for compensation, the primary judge heard that claim and, on 8 October 2021, delivered reasons (the damages judgment) for finding that Flogineering had suffered the loss of the opportunity to earn a gross profit of $606,636.00 because of the hauliers' contravening conduct. His Honour discounted that sum by 25% because he accepted the hauliers' argument that there was a possibility that they would have used an alternative instrument as a means of measuring the amount of milk that they carried that would not have involved the contraventions of the ACL. His Honour ordered the hauliers to pay Flogineering $456,477.00 plus agreed interest of $271,498.12. 7 The hauliers' appeal challenges the primary judge's reasoning in [177(15)] of the damages judgment. There, his Honour found that Flogineering had proved that it was more likely than not that one or more processors had checked to see whether one or more of the tankers actually had the approval number applied to its flow meter, and, thus, was entitled to any compensation. The hauliers contended that this finding was mere conjecture and not an available inference, because there was no direct evidence that anyone at a processor had ever looked at an approval number on the tankers, so that it was not open to his Honour to find that processors had relied on the misrepresentation, and therefore, Flogineering had failed to prove that it had suffered any loss or damage because of the misrepresentation (the reliance issue). 8 Flogineering's cross-appeal challenges his Honour's finding that discounted the compensation to which it was entitled by 25%. Flogineering contended that the hauliers' conduct, as found by the primary judge, demonstrated that throughout the time they were aware that Flogineering was asserting that their conduct was contravening, among other legislation, ss 18 and 29(1)(e) and (g) of the ACL, including during the proceeding up to the date of the liability judgment, they each chose to continue, rather than taking action to avoid further, contraventions of those provisions (the discount issue).

The legislative provisions 9 Relevantly, the ACL provided: 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 29 False or misleading representations about goods or services (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: … (e) make a false or misleading representation that purports to be a testimonial by any person relating to goods or services; or … (g) make a false or misleading representation that goods or services have … approval …; or 236 Actions for damages (1) If: (a) a person (the claimant) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention. (emphasis added)

Background 10 In 2004 the chief metrologist granted to Flogineering, and subsequently updated on 10 occasions, the approval to Flogineering for its flow meter (being a Diessel Model 12M-E DN50 G2 Milk Flowmetering System) that the hauliers had installed or came to install over the succeeding years on each of the 26 tankers. The conditions of the approval were (Flogineering being 'the submittor'): CONDITIONS OF APPROVAL General Instruments purporting to comply with this approval shall be marked with pattern approval number 'NMI 5/6E/13A' and only by persons authorised by the submittor. It is the submittor's responsibility to ensure that all instruments marked with this approval number are constructed as described in the documentation lodged with the National Measurement Institute (NMI) and with the relevant Certificate of Approval and Technical Schedule. Failure to comply with this Condition may attract penalties under Section 19B of the National Measurement Act and may result in cancellation or withdrawal of the approval, in accordance with document NMI P 106. Auxiliary devices used with this instrument shall comply with the requirements of General Supplementary Certificates No S1/0/A or No S1/0B. Signed by a person authorised by the Chief Metrologist to exercise their powers under Regulation 60 of the National Measurement Regulations 1999. (emphasis added) 11 The primary judge found that the dairy industry was highly regulated and that an essential legal requirement with which both the hauliers and the processors had to comply was that the approval number had to have been applied to the flow meter used on each tanker to measure the flow and volume of milk, to signify that the equipment had a certified National Measurement Institute (NMI) accreditation. NMI was a Division of the Department of Industry, Innovation and Science responsible for measurement in respect of quality and quantity used in trade in Australia. 12 The primary judge found that by applying (i.e. displaying) the approval number on each flow meter on their tankers, the hauliers conveyed that that approval number had been applied by a person whom Flogineering had authorised to do so. 13 The hauliers had engaged Mr Raddatz to affix the approval number to the flow meter on each tanker, despite him not being a person whom Flogineering had authorised for that purpose in accordance with the condition in the certificate. Thus, the hauliers' use of the approval conveyed the misrepresentation; in essence by representing that the instrument complied with the legal requirements governing the hauliers' ability to collect and deliver bulk milk. 14 In the liability reasons, the primary judge found that the hauliers' purpose for making the misrepresentation was to satisfy, at least, milk processors (to whom the hauliers' tankers delivered bulk milk that they collected from various dairy farms each day) that the flow meters had the approval and so complied with the strict regulatory regime governing, among other matters, exact measurement of milk collected from and delivered to the processor. 15 The primary judge saw and heard witnesses called by both parties, including Carey McMahon, the owner and managing director of Flogineering, and Antony Miller, a former senior executive of Fonterra, and the principals of each of the hauliers, including Timothy Jensen who was a director of Blu Logistics and JR Bulk, at the liability hearing and subsequently heard witnesses give other evidence at the damages hearing. 16 His Honour found that Mr Jensen had been aware for a very long time, and well before the commencement of the litigation in 2016, that Mr McMahon was unhappy that the hauliers were applying the approval number to the flow meters on their tankers without Flogineering's authority or consent. His Honour found that Mr Jensen was the person on behalf of the hauliers who had negotiated contracts with the processors that specified that each haulier would ensure that its tankers complied strictly with all regulatory requirements, which included the need for each tanker to have the approval number applied to its flow meter. In addition, his Honour found that, despite Mr Jensen's awareness of Mr McMahon's concerns, from at least the time of the commencement of the litigation, the hauliers had spent a lot of money on their defence of it up to the conclusion of the damages hearing. 17 After delivering the liability reasons, the primary judge set down a hearing as to damages. He required Flogineering to particularise how it put its claim to have suffered loss or damage, including pursuant to s 236 of the ACL, because of the hauliers' contraventions. Flogineering's further amended particulars of loss alleged that all processors, or a substantial number of them, to which the hauliers had delivered bulk milk using tankers displaying the contravening approval number applied to their flow meters, were aware of the content of the NM Act and Regulations and their need to comply with those requirements (including that an instrument the subject of an approval number, such as a flow meter, be marked as complying with the NM Act and Regulations by, or with the authority of, the person holding the certificate for it applying the approval number to the flow meter) and "would therefore, in the course of their efforts to comply with the [NM Act] and Regulations, have noticed if any example of the instrument used by [one of the hauliers] was not so marked". The particulars also alleged that: compliance with the NM Act and Regulations formed, or was likely to have formed, part of the contractual arrangements between each processor and the relevant hauliers; but for the misrepresentation, it was likely that one or more of the processors would have insisted that the relevant haulier use a flow meter that actually complied with the NM Act and Regulations, by being marked with an approval number, and that marking be made or applied by a person with the lawful right to do so, in the manner contemplated by the approval (viz: Flogineering); implicitly, the person who applied the approval number had not done so in accordance with all legal requirements; Flogineering had suffered loss and damage because each processor to whom the relevant haulier had delivered milk had relied on the misleading or deceptive conduct the subject of the misrepresentation and continued to engage that haulier to deliver milk to it from dairies; had a processor become aware of the misrepresentation, the relevant haulier would have had to purchase Flogineering's services, as the only person who could authorise the application of the approval number, to apply approval numbers to the flow meter on each of its tankers so as to maintain the haulier's contract with the processor. 18 The primary judge found that, under its contract with Blu Logistics, Fonterra had stipulated that each tanker used to collect and deliver milk be "fitted with accredited flow meter collection devices" that could measure and record the volumes of milk both collected from a dairy farm and unloaded at Fonterra's premises and Fonterra could inspect that equipment (including flow meters) to audit compliance with the requirements of, among others, the NM Act and Regulations ([98]-[103] in the damages reasons). Parmalat and other processors had similar expectations. The primary judge found that Mr Miller was responsible for the fleet of collection vehicles that Fonterra used to collect and deliver milk owned by both Fonterra and independent contractors, such as the hauliers. His Honour accepted Mr Miller's evidence in the liability reasons, which he set out again in the damages reasons (at [24]), that when working for Fonterra, he understood that anyone collecting milk from a dairy farm had to use a flow meter that complied with the NMI standards (scil: the NM Act and Regulations). He found in the liability reasons: 71 … Because the tolerance for error in measurement is small, flowmetering systems are much more accurate than earlier measures. Mr Miller says that in his experience farmers were however sceptical of the new flowmetering technology as inaccuracies in measurement had previously generally worked in their favour. He says that there was a lot of scrutiny over the technology and any questions from farmers or the processing facilities concerning volume were "escalated to me". Mr Miller says that in order to ensure that the Fonterra fleet complied with NMI "standards", Fonterra used the services of a company called CMV Truck and Bus Pty Ltd ("CMV") as a contractor to conduct annual calibrations on flowmetering systems used by the company. CMV was accredited by the NMI to conduct these calibrations. Mr Miller says that the flowmetering systems installed on the Fonterra fleet of trucks were purchased from Flogineering…. … 74 As to this question of the relationship (if at all) between the pattern approval number and the approval itself, Mr Miller was asked to explain his understanding of the role of "the number stated in the approval verses the approval itself". As to that, he said this (T, p 40, lns 24-28): My understanding would be that the two are integrally linked. The number was the reference that needed to be made during the calibration process of the flow meters. It was important to us to know which was the approval and that was - we would know that by the number that was assigned to it. … 76 Mr Miller says that when calibrated, the variations in measurement very rarely changed much more than +/- 0.1%. Mr Miller says that CMV would calibrate test vessels for him and certify the accuracy of the vessel. Mr Miller says that in his role at Fonterra he regularly looked at calibration records and any variation in accuracy recorded at each calibration. He also attended each depot to check the audited records. 77 Mr Miller says that accuracy of flow meters is important throughout the dairy industry. It is the basis upon which farmers are paid and the basis upon which milk companies measure "inbound milk". He says that because it is common practice to collect milk from more than one farm on the same truck, accuracy of measurement when the milk is loaded onto the truck is essential. Mr Miller says that this requirement for accuracy of measurement of milk is "vital" in the industry as it is how farmers get paid and it is part of an integral system for the milk processors to control inbound milk volumes along with a process for control of fat, protein and quality measurement. (emphasis added) 19 His Honour arrived at his conclusions in his damages reasons after detailed consideration of all of the evidence in both hearings. Critically, his Honour set out his conclusions in [177] of his damages reasons in 23 subparagraphs, after having had regard to all of the evidence. The primary judge found that: each processor knew and understood that the conduct of a milk processing undertaking required it to exercise a high level of prescription or control over and in respect of the many regulatory requirements governing the provision of its services, particularly in relation to how persons such as the hauliers provided their bulk haulage services. The processors knew and understood that each flow meter on a tanker had to have NMI accreditation under the NM Act and Regulations, including through the application to it of an approval number, to certify that it was properly calibrated, in accordance with the regulatory specifications, to measure accurately the volume of milk that each of the various dairy farms had delivered to a tanker on each day and the total milk that that tanker delivered to the processor; the hauliers had given detailed attention to the need for regulatory compliance in their pre-contractual written presentations to various processors when seeking or tendering for work, and the provisions in agreements that they had with two of the processors, demonstrated the degree of prescription that processors required in relation to the hauliers' compliance with, among other matters, the NM Act and Regulations. accordingly, the processors knew that approvals, including the right to apply an approval number to a flow meter, under that legislation had to be made by a person authorised to do so; both Mr Jensen and Stephen Wastell, a director of Blu Logistics, Wastell and Wadene, understood the importance to a processor of the need for each of their tankers to have a flow meter that had an approval number applied to it; the hauliers thought that it was material and important, as well as a "selling point" for them, to apply an approval number to each of the flow meters on the tankers so as to be in a position to offer services to the processors that complied in all respects with the NM Act and Regulations, including by having NMI accreditation; Mr Jensen and Mr Wastell never informed any of the processors that the approval number on the hauliers' tankers had not been applied by or with the authority of Flogineering as the only person holding a certificate entitled to do so, but by someone (Mr Raddatz) who had no legal basis for applying it, because that would have put at risk their prospect of winning or holding a contract to supply their services to the processors; the hauliers knew that they had to, first, have NMI accreditation to be able to apply and, secondly, actually apply an approval number to a flow meter corresponding to that NMI accreditation; and the hauliers chose to apply Flogineering's approval number to their tankers' flow meters for the purpose of demonstrating that they complied with the NM Act and Regulations. 20 His Honour's findings in the damages reasons that were central to the reliance issue were as follows : (12) I accept that there is no direct evidence that a processor checked an instrument installed on any one of the [hauliers'] 26 trucks referred to in the schedule to Declaration 1 so as to note and be satisfied that an Approval Number was affixed to the instrument in apparent conformity with the relevant approval and that in doing so saw [Flogineering's] Approval Number affixed without authority and then took a step such as entering into a contract with one of the [hauliers]or took the step of continuing in an arrangement with one or more of the [hauliers]in reliance on the affixing of the Approval Number on an assumption that the Approval Number was lawfully applied, when it was not. (13) The [hauliers] say that that is the end of the matter so far as any case made in reliance upon s 236(1) of the ACL is concerned. (14) However, that is not so as the question of whether [Flogineering] has suffered loss because of the conduct of the [hauliers] in circumstances where the conduct contravenes ss 18 and 29 of the ACL (having regard to the two declarations made by the Court) must be determined having regard to the whole of the evidence, the nature of the relationship between the parties and the character of the undertaking in which they were participating, in light of the relevant conduct as found. (15) There can be no doubt, as the question is already the subject of findings and two declarations, that the [hauliers] misled the processors as an element of their trade in their bulk milk haulage services businesses. All aspects of the NMI accreditation were material to the processors. It is difficult to imagine a more central element of a milk processing undertaking (apart from the critical matter of food safety and hygiene standards and best practice) than confidence in the mind of the processors that bulk milk haulage companies can accurately measure the volume of milk collected from dairy farms and transferred to the processors, in complete conformity with approvals governing accreditation in relation to the measurement of milk volumes collected and transferred to the processors. I am willing to infer, based on the overwhelming evidence of foundation facts going to accreditation, that the processors relied on the affixing of the Approval number to instruments by the [hauliers]as a critical element of the provision of their services and I am willing to accept that it is more likely than not that from time to time producers took a step of checking to see whether an Approval number had been affixed to instruments. (16) I am satisfied that on the whole of the evidence, reliance is made out. (bold emphasis added; italic emphasis in original) 21 The primary judge set out the following findings in the damages reasons (at [177(17)-(23)]) for discounting by 25% the compensation to which Flogineering was entitled under s 236(1) of the ACL for the loss of gross profit that it sustained because of the hauliers' contraventions of ss 18 and 29(1)(e) and (g): (17) In relation to the question of the quantum of the loss, I accept the evidence of Mr Lytras and I accept that the gross profit in relation to the 26 trucks and tankers the subject of the schedule to the declaration amounts to $606,636.00. (18) However, a question arises in relation to the counterfactual for the purpose of determining the measure of loss. (19) The [hauliers] contend that had they understood that there was an issue as to the quality and character of their conduct in affixing [Flogineering's] Approval number to the relevant instruments, they would have transitioned to the THS-Piper system and would have done so as from the approval date of 10 December 2010. However, I do not accept that evidence. In the affidavits on this question, Mr Jensen and Mr Wastell put the position in black and white emphatic terms that had they known the true position about what was wrong or not in affixing [Flogineering's] Approval number to their instruments, they would have transitioned to the THS-Piper system from 10 December 2010. In that sense, those two deponents simply "swear the issue". (20) In cross-examination, the position was not as black and white or emphatic as that set out in the affidavits. In fact, the correct position seems to be that the [hauliers] relied upon the DME Mobicom and MTC system (software) as a "stepping stone" to the Smarta model. It is unlikely that they would have moved to the THS-Piper model from 10 December 2010 for all new acquisitions and then to the Smarta model once that model had been approved. In addition, the [hauliers] had emphasised to the producers throughout the period that they had invested substantially in the DME Mobicom system and the MTC system. It is more likely than not that they would have continued with the system with which they were familiar and in which they were heavily invested, until they found themselves in a position to transition to the Smarta model. In the documents, there are references by the [hauliers] to a new flowmetering system being developed by them. It emerges in 2015 but is not present in the 2016 or 2017 documents. It appears again in 2018. In addition, [Flogineering] makes the point that although the [hauliers] were confronted by [Flogineering] about the use of its Approval number, the [hauliers] nevertheless persevered in the defence of the litigation, contested the liability trial and did not transition until late in the chronology after having expended a significant sum on the litigation. That approach seems inconsistent with a ready willingness to transition to an entirely new flowmetering system for the purposes of the counterfactual hypothesis. (21) In making these remarks about the evidence of Mr Jensen and Mr Wastell, I do not mean to suggest that either witness sought to mislead the Court about these matters. Rather, each witness sought to assist the Court. However, in forming views about what the [hauliers] would have done in the postulated circumstances and swearing the issue in the way they did in their affidavits is simply an example of one of the well-known heuristics in the form of hindsight bias discussed extensively in the leading work of the Nobel Prize winning economist, Emeritus Professor Daniel Kahneman (discussed in Kahneman's work, Thinking Fast and Slow, Penguin Group, 2011 (first published in the United States by Farrar, Straus and Giroux, 2011); the academic work which led to the Nobel Prize on heuristics was undertaken by Kahneman together with Amos Tversky although Tversky was not awarded the Nobel Prize as he had died before it was awarded), which, understandably, has affected their view. (22) Nevertheless, the possibility that the [hauliers] may have turned to an alternative system cannot be excluded and in order to properly determine the quantum of the opportunity lost to suffered [Flogineering] because of the conduct, it is necessary to discount the amount of $606,636.00 to take account of that possibility. I discount the quantum by 25% with the result that the quantum of the loss is $454,977.00. (23) Having regard to all of these considerations, is [Flogineering] entitled to judgment in an amount of $454,977.00 together with interest for the period during which it has been held of the loss. [Flogineering] is also entitled to the costs of and incidental to the proceedings. Having regard to the evidence of Mr Jensen, Mr Wastell and Mr Robertson, judgment is to be entered for the full amount against all [hauliers] having regard to the joint participation in the totality of the conduct as reflected in the documents and the evidence.

The hauliers' submissions 22 The hauliers argued that, based on the primary judge's findings in [177(12)] that there was no direct evidence that any processor actually checked to see if an approval number appeared on any of the flow meters on their tankers, his Honour's inference (in [177(15)]) that this occurred was mere conjecture. That is because, they contended, in effect, there was no evidence that the misrepresentation was made to any processor. They submitted that without evidence that an individual acting for a processor had relied on the misrepresentation, Flogineering could not make out that it had suffered any loss or damage because of the contravening conduct. The hauliers argued that the evidence established no more than a possibility that a processor had seen or relied on an approval number applied to a flow meter as conveying the misrepresentation. Accordingly, they asserted, the evidence was insufficient to give rise to a reasonable and definite inference, as opposed to a possibility of conflicting inferences of equal degrees of probability, relying on Luxton v Vines (1952) 85 CLR 352 at 358; Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278 at 292 [34]. 23 The hauliers argued that only 1 of 14 contractual or proposal documents to which they or one of their related companies were party and that the primary judge had discussed in the damages reasons contained a contractual term that entitled a processor to inspect equipment. That was the transport agreement dated 21 August 2015 between a subsidiary of Fonterra and Blu Logistics Solutions Pty Ltd, being a related party to Blu Logistics. The hauliers argued that there was no document in evidence that recorded any inspection by Fonterra or any other processor of any flow meter on any of the 26 tankers or any approval number applied to it. 24 The hauliers noted that Flogineering had led evidence from Mr Miller, who had been a senior employee of Fonterra and responsible for Fonterra's fleet of 60 tankers. The hauliers contended that his evidence did not support a finding that he or anyone else, to his knowledge, had ever inspected any flow meters. They submitted that his evidence was limited to his understanding that Fonterra only inspected calibration records and audited records on a regular basis. They argued that the failure of Flogineering to adduce any evidence from Mr Miller of inspections of any flow meter warranted the inference that any evidence he could have given on that subject would not have assisted Flogineering's case. 25 The hauliers argued that Flogineering had not put to any of their witnesses that such an inspection had ever occurred. The hauliers contended that it was not clear how his Honour arrived at the critical finding in [177(15)] of the damages reasons and whether he did so on the basis of the Fonterra contract that gave it a right to inspect equipment which, they said, only raised the possibility that such an inspection ever could take place. They submitted that a mere right to inspect did not entitle the primary judge to draw an inference that, in fact, a processor had inspected to check if an approval number was applied to any flow meter on any of the hauliers' tankers. 26 They argued that none of his Honour's findings in [177] prior to (15) assisted in the resolution of the issue because those findings only related to his conclusion that compliance with the regulatory and accreditation requirements was material to the processors and that, although plausible, the primary judge's critical finding that such an inspection had occurred was no more than a credible possibility. They asserted that the first sentence in [177(15)] was a conclusory statement, not a step in the process of reasoning that led to the critical finding. The hauliers contended that [177(15)] in the damages reasons was inaccurate, to the extent that it suggested that his Honour had made findings in the liability judgment, or that the declarations had resolved, whether any processors had been misled. That was because, they submitted, there was no such finding made in the liability judgment and the declarations were not to that effect. They argued that if that issue had been resolved by the liability judgment and declarations, most of the discussion in the damages judgment would have been unnecessary.

Consideration 27 We are of opinion that the declarations resolved the issue that the hauliers had made the misrepresentation and that it was misleading or deceptive or likely to mislead or deceive processors and dairy farmers. A representation cannot be made in the air. It must be made, as with a publication, as a bilateral act between a representor and a representee. 28 In Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45 at 85 [99] and 85 [102]-[103], Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ discussed the principles applicable to whether conduct directed to a class of persons can found a contravention of analogues of ss 18(1) and 236(1) of the ACL. Their Honours held that, first, a contravention of the norm of conduct in s 18(1) of the ACL and its analogues of itself does not give rise to any liability. Rather, other provisions of the legislation, such as s 236(1), provide for the consequences of a contravention of ss 18(1) and 29(1)(e) and (g) of the ACL (at 84 [99]). Secondly, in considering whether the public or a class of persons to whom a representation is made would be or would be likely to be misled or deceived by conduct, such as the making of a representation, in contravention of s 18(1), the court is concerned to assess the effect of the conduct complained of on reasonable members of the class, that is, persons who would take reasonable care of their own interests (at 85 [102]-[103]). 29 In the liability judgment, his Honour found, first, that the hauliers had engaged in conduct that contravened ss 18(1) and 29(1)(e) and (g) of the ACL by conveying the misrepresentation to the class of processors and dairy farmers and secondly, the declarations and injunction should be made to reflect those findings. The hauliers did not appeal against the making of the declarations of their contravention of the ACL or the injunction that his Honour ordered.

Was the inference that the misrepresentation was conveyed to processors mere conjecture? 30 Relevantly, for present purposes, the finding his Honour made in [177(15)] was by reference to his anterior finding in the declarations that the hauliers had made the misrepresentation to dairy farmers and processors. In the damages reasons, his Honour was satisfied that, having had regard to all of the evidence, the misrepresentation had been made to, and relied on by, processors. To do so, the primary judge assessed all of the oral and written evidence before arriving at his finding in [177(15)] that the hauliers impugned as mere conjecture. 31 An appellate court must review such a finding in the manner that Bell, Gageler, Nettle and Edelman JJ explained in Lee v Lee (2019) 266 CLR 129 at 148-149 [55]: A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge". (emphasis added; footnotes omitted) 32 As the hauliers noted in their submissions on the cross-appeal (citing Bell P, with whom Bathurst CJ and Basten JA agreed in Searle v Commonwealth of Australia (2019) 100 NSWLR 55 at 99 [202]-[205]) in support of the primary judge's finding that there should be a discount in the award of compensation, Flogineering's claim was one for the loss of a commercial opportunity. 33 The principles for ascertaining the value of a loss of a commercial opportunity are settled. Bell, Keane and Nettle JJ held in Berry v CCL Secure Pty Ltd (2020) 271 CLR 151 at 171 [32] that, where a claimant establishes on the balance of probabilities that misleading or deceptive conduct in contravention of s 18(1) of the ACL or its analogues has caused the claimant the loss of a commercial opportunity of some (not negligible) value, the court must assess the value of that lost opportunity "by reference to hypotheses and possibilities which, though they were speculative and therefore not capable of proof on the balance of probabilities, could be evaluated as a matter of informed estimation". 34 The hypothesis on which Flogineering had sought to recover damages was that if a processor in the course of complying with its obligations under the NM Act and Regulations noticed that a flow meter was marked with the approval number that only Flogineering could apply, and which the hauliers knew that Flogineering had not applied, because they used Mr Raddatz to do so instead, the processor then would have relied on the misrepresentation that the approval number had been applied in accordance with the NM Act and Regulations. 35 His Honour's finding at [177(15)] that it was more likely than not that a processor had taken the step of checking to see whether an approval number had been affixed to the instrument was common sense. Moreover, his Honour had a wealth of evidence on which he was entitled to draw such a conclusion. As Dixon, Williams, Webb, Fullagar and Kitto JJ said in Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5, that Dixon, Fullagar and Kitto JJ applied in Luxton 85 CLR at 358: The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence while the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort where direct proof is not available it is enough in the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then though the conclusion may fall short of certainty it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678. (emphasis added) 36 Their Honours held that "very meagre and unsatisfactory" evidence can raise an inference that is not mere conjecture. Here, there was cogent circumstantial evidence entitling the primary judge to make the challenged finding in [177(15)] of the damages reasons. 37 The hauliers had taken the step of taking the approval process into their own hands by eschewing using Flogineering to apply the approval number to the 26 tankers' flow meters because they were dissatisfied with its prices and service but wished to continue their business and needed the approval number to be applied by someone to their flow meters in order to do so. That conduct demonstrated the obvious commercial imperative that, as they understood, their business depended upon having approval numbers applied on each flow meter in a manner that made that instrument appear to be lawfully able to measure the milk collected from each farm and delivered to a processor in order to satisfy the requirements of both the processors and dairy farmers that the hauliers' tankers complied strictly with all regulatory requirements in the event that anyone checked. 38 The hauliers' conduct involved them, first, expending money and effort to deprive Flogineering of the commercial benefit of its entitlement to apply the approval to each of the flow meters on the 26 tankers and, secondly, doing so in a way calculated to mislead or deceive anyone who looked at any such instrument into the belief that the displayed approval number on it had been applied lawfully in accordance with the requirements of the NM Act and Regulations. As the primary judge found, this was a very serious misrepresentation in the context of the industry for the supply of milk, which was a highly regulated product within a class of foodstuffs for human consumption. The misrepresentation was not accidental. It was made by the hauliers to address the real risk that, unless they so acted, a processor or dairy farmer would perceive that their flow meters did not comply with the NM Act or Regulations and, therefore, they were not entitled to perform the services from which they were earning their no doubt considerable income over many years. 39 Indeed, given his Honour's rejection of some of the evidence of Mr Jensen and Mr Wastell, as found in [177(19)], the obvious question is why would the hauliers have gone to the trouble of causing Mr Raddatz to apply the approval number to the flow meters on their 26 tankers, without paying or engaging Flogineering to do so, if they did not believe that first, this was critical to their ability to carry on their business and, secondly, processors would check that each such instrument complied in all respects with the regulatory regime? 40 The primary judge's findings based on Mr Miller's evidence, set out at [18], included that Fonterra used CMV Truck and Bus Pty Ltd to conduct calibrations of the flow meters sourced from Flogineering in the fleet of trucks that Fonterra used for milk collection. The other evidence showed that the hauliers' trucks formed part of that fleet. The role of CMV appeared to include checking the flow meters and their calibration for regulatory compliance. 41 The misrepresentation was that the flow meters on the 26 tankers complied with the NM Act and Regulations. The primary judge's finding that individuals within a processor would have checked this was a matter of ordinary common sense. 42 Accordingly, I reject the hauliers' argument that his Honour's finding at [177(15)] was "mere … conjecture" and not an inference open to be drawn on all of the evidence. It was a finding of secondary fact, based on a combination of the impressions and other inferences from primary facts, that was compelling, as the primary judge found: Lee 266 CLR at 148-149 [55]; Bradshaw 217 ALR at 5; Luxton 85 CLR at 358.

Did Flogineering suffer loss or damage because of the misrepresentation? 43 For the purpose of assessing the amount of any compensation under s 236(1) of the ACL, the issue was what loss or damage was suffered by Flogineering because of the hauliers' contravention of ss 18 and 29(1)(e) and (g), as found in the declarations, from their misrepresentation to dairy farmers and processors. The only sensible understanding of the loss and damage as claimed was the loss of Flogineering's opportunity to sell its exclusive right to apply the approval number to the flow meters on the hauliers' tankers, which they had determined to eschew on and from the time they subverted the regulatory regime by using Mr Raddatz to apply those approval numbers instead of Flogineering or a person authorised by it. 44 It is important to focus on the statutory test for causation entitling a person to recover compensation under s 236(1) of the ACL. As Rares, Burley and Anastassiou JJ held in Wyzenbeek v Australasian Marine Imports Pty Ltd (in Liq) (2019) 272 FCR 373 at 392-393 [74]-[76]: The High Court has repeatedly denied that the loss or damage recoverable under ss 82 and 87 for a contravention of s 52 of the TPA and their analogues is constrained by analogies to remedies available under the general law. In particular, since the decision in Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494, in an appropriate case, a person may recover loss or damage that is causally connected to a contravention of the statutory norm of conduct expressed in s 52: see e.g. Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 at 459-461 [123]-[129] per Kirby and Callinan JJ with whom Gummow J agreed on this point at 449 [93]; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at 121-122 [33] per Gleeson CJ; at 128-129 [58] per Gaudron, Gummow and Hayne JJ; at 142-144 [106]-[110] per McHugh J; 179-180 [220] per Callinan J. In I & L Securities 210 CLR at 130 [62] Gaudron, Gummow and Hayne JJ said (see too at 128 [57]; and also at 121 [33] per Gleeson CJ; at 135-138 [84]-[93] per McHugh J; and at 175 [210] per Callinan J): As was recognised in Henville v Walker [(2001) 206 CLR 459 at 474 [35], per Gleeson CJ; at 481-483 [65]-[72], per Gaudron J; at 493 [106], per McHugh J; at 507 [153], per Gummow J; at 510 [166], per Hayne J], there may be cases where it will be possible to say that some of the damage suffered by a person following contravention of the Act was not caused by the contravention. But because the relevant question is whether the contravention was a cause of (in the sense of materially contributed to) the loss, cases in which it will be necessary and appropriate to divide up the loss that has been suffered and attribute parts of the loss to particular causative events are likely to be rare. Further, it is only in a case where it is found that the alleged contravention did not materially contribute to some part of the loss claimed that it will be useful to speak of what caused that separate part of the loss as being "independent" of the contravention. Gleeson CJ identified the reason that it is sufficient to attract the remedial provisions in ss 82 and 87 if the misleading conduct in contravention of s 52 is a cause of the injured party's loss or damage in I & L Securities 210 CLR at 121-122 [33] (and see too at 129-130 [60]-[61] per Gaudron, Gummow and Hayne JJ; 138 [91]-[92] per McHugh JJ; and 179-180 [220] per Callinan J) as follows: The relevant purpose of the statute was to proscribe misleading and deceptive conduct in circumstances which included those of the present case. In aid of that purpose, the statute provided for compensation, by an award of damages, to a victim of such conduct. The measure of damages stipulated was the loss or damage of which the conduct was a cause. It was not limited to loss or damage of which such conduct was the sole cause. In most business transactions resulting in financial loss there are multiple causes of the loss. The statutory purpose would be defeated if the remedy under s 82 were restricted to loss of which the contravening conduct was the sole cause. (bold emphasis added; underline emphasis in original) 45 It was not essential for Flogineering to establish that one or more individuals acting for a processor (or dairy farmer) actually had inspected an approval number on one of the 26 tankers in order to prove that it had suffered loss of the gross profit that it would have earned had the hauliers used and paid Flogineering to apply the required approval numbers to their tankers' flow meters. This was a matter capable of being inferred in all of the circumstances in the evidence as his Honour did in [177(15)] of the damages reasons. In the damages reasons, the primary judge discussed and also rejected the hauliers' argument. He said (at [56]) that "unless the processor is shown to have acted on the [misrepresentation], it is difficult to see how [Flogineering] had suffered loss because of the conduct of the [hauliers]. But the question becomes one of what conduct constitutes acting on the representation?". In [177] of the damages reasons, his Honour answered that question. 46 Here, as the primary judge found, the hauliers needed to demonstrate to anyone who might check that each of the 26 tankers had an NMI accreditation that complied in every respect with the NM Act and Regulations, including that its flow meter had an approval number that had been lawfully applied. Unless each of the tankers displayed an approval number on its flow meter that appeared on its face to comply with the regulatory requirements, the hauliers could not win or maintain the contracts with the processors, as the hauliers' proposals and contractual arrangements with the processors made pellucid. 47 The primary judge's inference that processors took the step, from time to time, of checking that the hauliers' tankers delivering milk to them had a flow meter to which an approval number had been applied in accordance with the NM Act, Regulations and the regulatory requirements governing the conduct of their business, was part of his Honour's process of determining, as a matter of common sense, whether Flogineering suffered loss because of the hauliers' contravening conduct in making the misrepresentation.

Was the inference necessary to support the award of compensation? 48 Moreover, in any event, we are of opinion that once his Honour made the declarations it was not necessary for Flogineering to prove, in the damages hearing, that it was more likely than not that any processor had looked at any of the flow meters to see if the approval number was applied to it in order for Flogineering to be entitled to an award of compensation under s 236(1) of the ACL for the loss of the commercial opportunity to charge the hauliers for using the approval number instead of them engaging in their conduct of making the misrepresentation that his Honour found. As Mason CJ, Dawson, Toohey and Gaudron JJ held in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355: [T]he general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable. The conclusion which we have reached on this question finds support in other considerations. The approach results in fair compensation whereas the all or nothing outcome produced by the civil standard of proof would result in the vast majority of cases in over-compensation or under-compensation to an applicant who has been deprived of a commercial opportunity. (bold emphasis added; italic emphasis in original) 49 Flogineering proved that it sustained some loss or damage because the primary judge was satisfied that the declarations ought to be made and the hauliers enjoined from continuing to make the misrepresentation that had enabled them to use, for several years, Mr Raddatz's acts of applying Flogineering's approval number to the flow meters so as to put themselves forward as complying with the NM Act and Regulations and having NMI accreditation, when they were not prepared to pay Flogineering for the use of its rights to do this. 50 Indeed, the declarations and injunction constituted at least an issue estoppel that the misrepresentation had been made to "either milk processors or dairy farmers or both" in contravention of ss 18(1) and 29(1)(e) and (g) of the ACL. In Blair v Curran (1939) 62 CLR 464 at 531-532, Dixon J said: A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. (emphasis added) 51 It was legally indispensable to the making of the declarations and the injunction that one or more of a processor or a dairy farmer had been misled or deceived, or would have been likely to have been misled or deceived, by the misrepresentation. The declarations as made and the injunction as ordered settled once for all the issue of fact and law that, even if no one looked at the approval numbers that Mr Raddatz had applied, the misrepresentation was likely to mislead or deceive by enabling the hauliers to present themselves to the class of dairy farmers and processors as compliant in every respect with the legal requirements governing the industry, including that each flow meter complied with the NM Act and Regulations and had NMI accreditation. Because of that conduct, the hauliers avoided having to pay Flogineering to put them in that position, hence its entitlement to compensation for the loss of the gross profit to do so. 52 The legal foundation or justification for the declarations and the injunction was that Flogineering had proved, as found in the liability judgment, that, first, the hauliers had made the misrepresentation, secondly, they had contravened each of ss 18(1) and 29(1)(e) and (g) of the ACL and, thirdly, Flogineering was entitled to orders reflecting those findings. 53 Persons in the processors' position would have needed to satisfy themselves of their own compliance obligations, and it was likely, if not inevitable, that they would do so by checking that the hauliers' tankers, including flow meters, complied with the NM Act and Regulations. Whether or not any processor, by an employee, looked at the flow meters is not to the point. It is simply that, unless the hauliers made the misrepresentation that their business was being conducted lawfully, the hauliers would not have been able or entitled to collect or deliver milk. Therefore, by necessary implication, they were representing to the persons with whom they dealt that the 26 tankers and the equipment on them, including the flow meters, complied strictly with the NM Act and Regulations. The hauliers' contraventions of ss 18(1) and 29(1)(e) and (g) of the ACL were a cause of Flogineering losing the opportunity to sell its services, including the legal entitlement to apply the approval number to the hauliers' flow meters. 54 That was the import of his Honour's declarations and the reason that his Honour granted the injunction. It beggars common sense to think that a person in Flogineering's position also had to prove that someone actually looked at one or more flow meters to perceive the misrepresentation which was implicit in the conduct of the hauliers' business, within the highly-regulated industry of supplying a foodstuff that was subject to very strict regulatory requirements.

Conclusion 55 For those reasons, in our opinion, the appeal must be dismissed.

The discount issue 56 For its part, Flogineering cross-appealed on the basis that the primary judge erred in finding at [177(22)] that its damages should be discounted by 25%. Flogineering argued that there was no reasonable basis warranting a discount of that or any magnitude beyond 1%, given his Honour's findings at [177(19)-(21)]. 57 The hauliers argued that his Honour's discount was correct. The hauliers contended that Flogineering had relied on a counterfactual that, but for the misrepresentation, it was likely that one or more processors would have insisted that the hauliers' flow meters on the 26 tankers actually complied with the NM Act and Regulations by having the approval number applied by a person with the right to do so (viz: Flogineering). They noted that the counterfactual proceeded on the basis that the hauliers would have engaged Flogineering and not adopted the alternative THS-Piper or DME Mobicom and MTC system to which the primary judge referred at [177(19)-(20)] of the damages reasons. The hauliers submitted that the evidence entitled his Honour to apply the discount which he used.

Consideration 58 The cross-appeal must be allowed. 59 A wrongdoer may plead and seek to prove, in mitigation of damages, a counterfactual scenario that he, she or it, or the innocent party, would have chosen to pursue had the wrongful conduct not occurred: Berry 271 CLR at 167-168 [27] per Bell, Keane and Nettle JJ, 189-190 [69]-[72] per Gageler and Edelman JJ. The primary judge found, in relation to the hauliers' counterfactual (at [153] of the damages reasons): Mr Jensen accepted that the statement that Jurss Group had invested substantially in research and development to both install and maintain the DME metering system operating the MTC System was true and correct and that it would be "no small thing to give up on it and change to another system". However, Mr Jensen said that he had definitely considered doing so. 60 His Honour found that the counterfactual propounded by the hauliers was not made out because he did not accept their evidence that they would have taken steps to transition to the THS-Piper system. Indeed, their conduct demonstrated that they were not prepared to take other steps but continued to pursue the much cheaper alternative of engaging in the misleading and deceptive conduct that his Honour found. That is why, since 2010, they had engaged continuously in that conduct by having Mr Raddatz apply the approval to the flow meters on the 26 tankers so that they could conduct their business, without making an alternative investment in new equipment or paying Flogineering to apply the approval number under its exclusive right. 61 As his Honour found, based on the hauliers' conduct from 2015 until 2018, the hauliers were not prepared to move to an alternative metering system in 2010 or later, even when confronted with Flogineering taking and pursuing the proceeding against them. Instead of acting differently, they persisted in their defence of the litigation and did not change their method of operation (in [177(20)]). 62 Given their actual conduct, the proposition that, somehow, an hypothesis that the hauliers would have acted differently had they known something (what is entirely unclear) lacks an evidentiary, let alone credible, foundation. His Honour's findings were that the counterfactual on which the hauliers relied was simply a resort to the benefit of hindsight unsustained by the evidence. The hauliers, as wrongdoers, cannot rely on an assumption or counterfactual that they would have cut off their noses to spite their faces by controlling such events so as to reduce their legal obligation to Flogineering by incurring greater costs to themselves, as Diplock LJ observed in Lavarack v Woods of Colchester Ltd [1967] 1 QB 278 at 295-296, in a passage that Bell, Keane and Nettle JJ adopted in Berry 271 CLR at 176 [38]. Their actions spoke louder than words. 63 In that context, there was no basis on which his Honour could find without explanation that "the possibility that the [hauliers] may have turned to an alternative system cannot be excluded". The fact is, the hauliers knew what they were doing and they did not turn to a different system, even when sued. Rather, they continued to engage in their misleading and deceptive conduct so as not to pay Flogineering the amounts that it would have been entitled to receive, had the hauliers not persisted in making the misrepresentation. In that context, the evidence led only one way - that the evidence excluded the hauliers' counterfactual entirely because of the way in which they acted, with knowledge of all the circumstances. 64 It is objectively glaringly improbable that the hauliers would have acted any differently than they did until, as happened on 24 October 2018, his Honour ordered that they be enjoined from making the misrepresentation thenceforth. The hauliers' own conduct in persisting in their contraventions of ss 18 and 29(1)(e) and (g) of the ACL until they were found liable and the injunction was granted showed that they regarded it to be in their interests not to adopt a different course and to take the risk that Flogineering could succeed in enforcing its legal rights. 65 Accordingly, no discount of Flogineering's compensation was appropriate and his Honour erred in allowing such a significant one: Berry 271 CLR at 175-177 [37]-[38], 185 [54]-[55].

Conclusion 66 For these reasons, we are of opinion that the cross-appeal should be allowed. 67 Given that Flogineering submitted that his Honour should only have allowed a discount of 1% on its loss of gross profit, it is appropriate to substitute a judgment sum of $600,000 plus interest: cf: Generic Health Pty Ltd v Bayer Pharma Aktiengesellschaft (2018) 267 FCR 428 at 480 [229] per Allsop CJ, Yates and Beach JJ, which was, however, decided before Berry 271 CLR 151. But for Flogineering's concession that a nominal discount was appropriate, we would have allowed its claim in full as in Berry 271 CLR 151.

Disposition 68 The parties agreed at the hearing of the appeal that, if as has occurred, the appeal were dismissed and cross-appeal allowed, then the hauliers should be ordered to pay the costs of both. 69 Accordingly, the appeal must be dismissed, the cross appeal must be allowed and the hauliers must play Flogineering's costs. The parties should bring in draft orders by 6 July 2023 to give effect to these reasons by calculating interest on the compensation of $600,000 which the hauliers must pay. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, Collier and Logan.

SCHEDULE OF PARTIES QUD 366 of 2021 Appellants Fourth Appellant: JR BULK LIQUID TRANSPORT PTY LTD ACN 143 639 276 Fifth Appellant: JURSS ROBERTSON PTY LTD ACN 114 767 734 Cross-Defendants Second Cross- Respondent WASTELL MILK HAULAGE PTY LTD ACN 147 389 302 Third Cross-Respondent WADENE PTY LIMITED ACN 010 248 307 Fourth Cross-Respondent JR BULK LIQUID TRANSPORT PTY LTD ACN 143 639 276 Fifth Cross-Respondent JURSS ROBERTSON PTY LTD ACN 114 767 734

Australian Consumer Law (ACL) in Competition and Consumer Act 2010(Cth)

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