(g) in letters written on 24 December 1999 and March 2000, Mr Tucker was asserting to Mr Harvey that contact had been made with the CDC in Canberra which was assessing the application - in March 2000, Mr Forrest, Mr Harvey's solicitor, contacted the CDC and was told that they had never heard of the Hill End Project or Mr Harvey - this ought to have caused a serious red light to flash in Mr Harvey's face, and certainly in the mind of a reasonable person confronted with such a state of affairs - Mr Tucker told Mr Harvey that Mr Moroney from the CDC would deny that contact had occurred and that the CDC, in truth, knew of the proposal but that it could not be approved unless reference to Jariah Productions was removed from the proposal and, in its place, reference was made to a "philanthropic entity" - by this stage, it ought to have been apparent to Mr Harvey, and to a reasonable person, that fraudulent conduct was being proposed by Mr Tucker to Mr Harvey as a means of progressing a proposal which the CDC denied knowledge of.
186 All of these steps provide strong support for the Defendant's submission that Mr Harvey, blinded by an element of financial desperation, was prepared to take any step to try and advance the project which he had been advancing for some years, unsuccessfully, through World Vision Australia and other bodies.
187 On this analysis, although Mr Tucker was telling clear untruths to Mr Harvey and this was being done on DAA letterhead and whilst Mr Tucker was in employment with the DAA, reasonable reliance could not be placed on what Mr Tucker was saying so that the Plaintiffs are not entitled to recover upon the basis of such representations. This applies to both a claim based on negligent misstatement and a claim under the Fair Trading Act 1987.
188 I do not have difficulty in accepting Mr Harvey's evidence with respect to a number of primary issues concerning his dealings with Mr Tucker and the things which Mr Tucker was saying to him. After all, Mr Tucker was saying these things in writing in facsimiles and emails.
189 A key area where Mr Harvey's evidence strains credulity is where he seeks to explain his actions in pressing on with the project despite clear danger signals emanating from Mr Tucker's conduct. I am conscious that I have the advantage of viewing events through the prism of hindsight: Rosenberg v Percival (2001) 205 CLR 434 at 441 [16]. In examining the evidence, I have approached events in chronological order with a view to examining the reasonableness of Mr Harvey's response to events which, I accept, placed him on inquiry.
190 On the face of it, this was a substantial grant application where Mr Harvey's point of contact was an officer within a State government department. I do not consider to be persuasive explanations based upon so-called "protocols" in dealing with the indigenous community. Certainly, I do not think this explanation, to the extent that it is available at all, operates to assist Mr Harvey.
191 The absence of any meetings with Mr Tucker's superiors, or regular meetings at the DAA offices, and the approach taken by Mr Tucker without a detailed brief being provided to him by Mr Harvey all sound warning bells in the mind of the reasonable person. Added to this was Mr Tucker's early declaration that his partner, Suzanne Ingram, and her company, Jariah Productions Pty Limited, would have an interest in the process. The reasonable person would be concerned with respect to conflict of interest and that concern would not be quelled by a form of oral assurance from Mr Tucker.
192 Added to this, were the curious features of Mr Tucker whereby, on the one hand, he claimed to be the beneficiary of a $14.5 million trust whilst, at the same time, obtaining small loans from Mr Harvey. By this stage, the reasonable person may well consider that there was something of a "Walter Mitty" flavour to Mr Tucker.
193 To be added to this was Mr Tucker's direction to Mr Harvey that Mr Betts, Mr Harvey's accountant, ought be excluded from the process. The reasonable person would agree with Mr Betts' characterisation that there was "something fishy" about this development. If all was above board, there would be no need for Mr Tucker to advise Mr Harvey to exclude his own financial advisor who was asking questions concerning the arrangement.
194 An examination of the ongoing communications between Mr Tucker and Mr Harvey reveals actual doubts and concerns experienced along the way by Mr Harvey, supported by his own accounting advisor, Mr Betts. Mr Harvey entertained concerns about conflict of interest and Mr Tucker's desire to exclude Mr Betts from the process. The explanation offered by Mr Harvey for the latter step, being a "protocol" or way in which indigenous groups conduct business, is objectively unconvincing.
195 In my opinion, the combination of factors which had commenced to accumulate in August 1999 and certainly those present by December 1999, would have led any reasonable person to conclude that Mr Tucker's conduct did not appear to be proper and above board, and that further enquiry and investigation would be necessary before any reasonable person would consider that Mr Tucker was acting, in some way, on behalf of the DAA and the State of New South Wales.
196 In short, Mr Tucker's actions appeared to be too good to be true. I am satisfied that Mr Harvey pressed on without making any inquiry or check, in the desperate hope that all would work out well in the end.
197 It is noteworthy that Mr Tucker's letters did not state that the DAA was involved in the process. Rather, it was stated that Mr Tucker and Ms Ingram had communicated with the Elders. It was stated that it was intended that an application would be made to the CDC, a Commonwealth entity, and later that such an application had been made. It was stated that the CDC and Commonwealth officers were actively considering and had approved the application. At no point, was it said that an officer of the DAA, or the DAA itself, had approved the process or was involved in it.
198 In reality, the only link with the DAA arose from Mr Tucker's use of DAA letterhead for his correspondence and a limited number of meetings at the DAA office. Even then, most meetings appear to have taken place in restaurants and coffee shops away from the DAA premises.
199 An accumulation of these objective factors, taken with the actual concerns harboured by Mr Harvey and Mr Betts, undermines fundamentally the Plaintiffs' claims in these proceedings.
200 I am satisfied that a reasonable person would have been put on inquiry in such a way that sole reliance upon Mr Tucker would be neither wise nor appropriate. I conclude that Mr Harvey did not act reasonably in pressing on with the project discussions with Mr Tucker despite a series of amber, if not red, lights flashing clearly in his face.
201 Applying the test in Northside Developments Pty Limited v Registrar General referred to earlier (at paragraph 57), the Plaintiffs' claim based upon ostensible authority is rejected on the ground that the circumstances of the case are such as to put the party who makes the claim on inquiry to ascertain the actual state of affairs.
202 If the Plaintiffs had demonstrated the element of ostensible or apparent authority with respect to Mr Tucker, I would have rejected this part of their claim in any event upon the basis that Mr Harvey did not act reasonably in the face of objective circumstances which clearly placed him on inquiry with respect to his dealings with Mr Tucker.