BWK Elders Australia Pty Ltd v Westgate Wool Company Pty Ltd

Federal Court of Australia|2004-06-25|Before: North J

Oral evidence of Mr McLearie. [4] See Defence para 3 and Cross Claim para 93 where admissions are made. See also Affidavit of Andrew Woolfe 26 July 2001, paragraph 4(d) and Exhibit AW 1, being results of Company search and Affidavit of Andrew Woolfe 24 June 2002 paragraph 8.

Oral evidence of Mr Hullick.

Evidence of Mr Hullick.

Evidence of Mr Jackson.

Evidence of Mr Hullick.

Exhibit A1 tendered through Mr Hullick.

Exhibit A2, tendered through Mr McLearie.

Exhibit A3, tendered through Mr McLearie.

Exhibit A4 tendered through Mr McLearie.

Evidence of Mr Hullick and Mr McLearie.

Evidence of Mr McLearie and affidavit of Mario Ferrerati.

Evidence of Mr McLearie.

Exhibit A5, tendered through Mr Jackson. [18] Exhibit A17 (CB 4665, 4668), tendered through Mr McLearie - being letters dated 26 June 2001 and 2 August 2001 to Don McLearie from Western Wool Brokers. [19] Exhibit A6 - Parkes blind test AWTA Test Certificates, tendered through Mr Jackson.

The test results in respect of each lot are set out in Summary 1.

Exhibit A10 (CB 4821-4823), tendered through Mr Jackson.

Evidence of Mr Jackson. [23] The 92 bales of Marzotto wool which were still in the bales and had not been processed at the time the problem with the Westgate wool was discovered were removed from the affected batches, re-cored and tested: see Exhibit A8, in particular the AWTA certificates at CB 5185 - 5235. See also the test results set out in Summary One. No loss is claimed in respect of those lots of wool, however the Applicant relies on these test results as further evidence of the consistently coarser results obtained on re-testing of the Westgate wool.

Exhibit A8, tendered through Mr Jackson. [25]Exhibit A18 (CB 5241), tendered through Mr McLearie - being a letter dated 4 September 2001 from an Australian Wool Handlers employee to Lara Wiggin of BWKE. . [26] Exhibit A10 (CB 671-760) Core Test Request and Weight Record Forms completed by Mr Buchanan in relation to the Italian, United States and some of the Marzotto wool, tendered through Mr Jackson . [27] Exhibit A8, tendered through Mr Jackson.

Oral evidence of Mr Jackson.

Exhibit A7 and A8, tendered through Mr Jackson.

Exhibit A1 - BWKE purchase header sheets - tendered through Mr Hullick. [31] In relation to the Marzotto wool, see Affidavit of Maslin at paragraphs 56 - 93, Affidavit of Ferrerati at paragraphs 66 - 83 and the following documents tendered: (i) Batch IG0 541 - Exhibit A41 (packing specification); Exhibit A56.5 (Order); CB 5235(certificate of analysis) - attached to Affidavit of Pellezzari; (ii) Batch IG0 533 - Exhibit A42 (packing specification); Exhibit A56.6 (Order); CB 5371 (certificate of analysis) - attached to Affidavit of Pellizzari. In relation to the Biella wool, see Affidavit of Maslin paragraphs 94 - 118, Affidavit of Ferrerati at paragraphs 39 - 65 and the following documents tendered: (i) TL 5795/ 5777 - Exhibit RBM 26 to the Affidavit of Maslin (packing specification) Exhibit MR 3 to the Affidavit of Ferrerati / Exhibit SAF 15 to the Affidavit of Favretto production order; CB 1992 (certificate of analysis) - attached to Affidavit of Federici. (ii) TL 5790 - Exhibit A44 (packing specification); Exhibit MF 2 to the Affidavit of Ferrerati / Exhibit SAF 12 to the Affidavit of Favretto (production order); CB 1947 (certificate of analysis) - attached to Affidavit of Mentone; (iii) TXL 5811W - Exhibit A43 (packing specification); Exhibit MF 1 to the Affidavit of Ferrerati / Exhibit SAF 10 to the Affidavit of Favretto (production order); CB 1780 (certificate of analysis) - attached to Affidavit of Federici.

Exhibit A5 - AWTA Pre-sale Test Certificates - tendered through Mr Jackson. [33] Exhibit A22 (AWTA combined certificate for Marzotto Wool IG0 541) and Exhibit A24 (AWTA combined certificate for Marzotto IG0 533, tendered through Mr Jackson. [34] See Exhibits A19 (Core / estimated results for TXL Biella Wool); Exhibit A20 (Core / estimated result for TXL 5811 Biella); Exhibit A21 (Core / estimated results for TXL 5795 Biella Wool); Exhibit A23 (Core/ estimated results for Marzotto IG0 541); Exhibit A25 (Core / estimate results for Marzotto IGO 533), tendered through Mr McLearie.

Evidence of Mr McLearie and affidavit of Ferrerati paras 16-17.

Affidavit of Ferrerati paras 15 to 16 and Evidence of McLearie.

See Summary Two and Exhibit A8, tendered through Mr Jackson.

Affidavit of Ferrerati at paras 17, 54 - 55 and evidence of Mr McLearie.

Evidence of Mr Jackson. [40] Exhibit A15 (CB5041-5094), tendered through Mr Jackson.

Exhibit A16 (CB 5095 - 5134), tendered through Mr Jackson.

See table CB5124 - part of exhibit A16.

See Exhibit A15 - IWTO Core Test Regulations Table 7 at CB 5087

Exhibit A10 (CB 4821 - 4823), tendered through Mr Jackson.

The evidence of Mr Jackson was that while Westgate was issued some B class certificates prior to 1999, none were issued from 1999 until 2001, until after the execution of the Anton Piller order.

See Affidavit of Mr Spencer, paragraph 43 and Exhibit LS 9 which lists the brands registered by Westgate as its Classing House brands.

See Summary Four and Exhibits A12 and A13, tendered through Mr Jackson. [48] See Australian Wool Exchange Limited Code of Practice for the AWEX Quality System - Preparation of Australian Wool Clips 1998 (Exhibit LS 6 to the Affidavit of Mr Spencer) and Australian Wool Exchange Limited Code of Practice for the AWEX Quality System - Preparation of Australian Wool Clips 2001 - 2003 (Exhibit LS 7 to the Affidavit of Mr Spencer); see also the Affidavit of Mr Spencer at para 37. [49] Exhibit A14 (CB 4676 - 4680), tendered through Mr McLearie.

Affidavit of Lindsay Spencer, paras 14 - 22 and see Rules for Wool classer Registration 1998 - 2000 (Exhibit LS 2 to the Affidavit of Mr Spencer) and Rules for Wool classer Registration 2001 - 2003 (Exhibit LS 3 to the Affidavit of Mr Spencer).

Affidavit of Mr Spencer para 16; Exhibits LS2 and LS3 Rule 1.1 in each.

Affidavit of Mr Spencer paragraph 18; Rule 5.3 (Exhibit LS 2), Rule 5.2 (Exhibit LS 3).

Affidavit of Mr Spencer para 19; (Exhibit LS 2 Rule 4.1; Exhibit LS 3 Rule 3.3.3). . [54] Affidavit of Mr Spencer para 20 ( Exhibit LS 2 Rule 4.1, Exhibit LS 3 Rule 4.1), paras 32 to 38 and see the Code of Practice for the AWEX Quality System - Preparation of Australian Wool Clips 1998 (Exhibit LS 6) and Code of Practice for the AWEX Quality System - Preparation of Australian Wool Clips 2001 - 2003 (CB 4929 - 4970) (Exhibit LS 7), especially at page 5 / CB 4932, page 8 - 10 / CB 4934 - 4935, page 17 / CB 4938. [55] Affidavit of Lindsay Spencer paras 44 to 47.

Affidavit of Mr Spencer para 42 and see Exhibit LS 8. [57] Exhibit A11 (CB 671 - 760) , tendered through Mr Jackson, being the weight notes prepared by Mr Buchanan when conducting core sampling of wool in the USA and Italy.

See Exhibit A17 and Exhibit A 18, tendered through Mr McLearie. [59] For example, paragraph 10.3 Amended Statement of Claim in respect of the Parkes wool, and corresponding paragraphs in respect of the other wool. [60] For example, paragraph 10.12 of the Amended Statement of Claim in respect of the Parkes wool, and corresponding paragraphs in respect of the other wool. [61] See Defence para 3 and Cross Claim para 93 where admissions are made. See also Affidavit of Andrew Woolfe 26 July 2001, paragraph 4(d) and Exhibit AW 1, being results of Company search and Affidavit of Andrew Woolfe 24 June 2002 paragraph 8.

Exhibits A26, A27 and A28. [63] See TPC v Australia Meat Holdings Pty Ltd (1988) ATPR 40 - 876, per Wilcox J at 49,512 quoting the Full Court of the Supreme Court of Western Australia in Ashbury v Reid (1961) WAR 49 at 51: "The question which a court should ask itself … is whether on the facts it can reasonably be said that the act… shown to have been done… by the defendant does in truth implicate or involve him in the offence, whether it does show a practical connection between him and the offence".

Oral evidence of Mr McLearie.

Favretto Affidavit paras 38-51

Favretto affidavit paras 23-36

Favretto affidavit paras 52-68

Favretto affidavit paras 81-132 and see Ferrerati Affidavit at 108 - 111.

Favretto affidavit paras 108 - 117.

Favretto affidavit paras 69-80.

Favretto affidavit paras 133-159.

Trade Practices Act 1975(Cth)

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