Q. Can you explain how it is that you have a diary entry with a name similar to Jowett in it?
A. The only thing I can say is that I hadn't met Mr Jowett on any occasion before this. I had heard the names of Ron and Rod and Rob from Mr Perrin on a number of occasions. We considered that, you know, it was obviously quite difficult, when he was referring to Ron or whatever and Ron or Rob or whoever and I believe that that's who I had come across on site. There had been a number of visitors to the site from CJD, particularly the local branch, and I must have been wrong.
56 In cross-examination, Mr Jeffree accepted that, when he signed his statement, he could "put a face to Mr Jowett's name" and that he "knew who Mr Jowett was" (T151.11-.35). He believed that the conversation in question "was a significant one" (T152.46).
57 The explanation given by Mr Jeffree was in substance that he had not met Mr Jowett prior to 21 June 2002, and did not then know him. He said that he met a number of people from CJD, at Minto and elsewhere. Quite often, he could not pick up their names when he met them. In those circumstances, he said, it was his practice to put a series of dots in his diary. He said that in this case he had not picked up the name of the person whom he described as "Rob Jarrett": thus he put a series of dots in his diary; and he came back later and filled in the name, intending to refer to Mr Jowett (T152.35-.37, 153.35-.43). Although that explanation was challenged, I accept it. There is no doubt, when one examines the original of Mr Jeffree's diary for 21 June 2002, that there is a series of dots overwritten by the words "Rob Jarrett". There are other instances in that diary where the same practice has been followed. It is not surprising that, in the context of a busy meeting with several people, Mr Jeffree might not pick up the name of someone whom he had not previously met.
58 Thus, whilst the diary note is obviously incorrect insofar as it refers to "Rob Jarrett", and equally is incorrect insofar as it suggests that Mr Jowett was at the meeting in question, it does not follow that it is inaccurate insofar as it purports to record the substance of what was discussed at that meeting. Being mistaken as to the name of a person attending a meeting is one thing. Being mistaken as to, or more accurately being prepared to falsify a note as to, the substance of what was discussed at that meeting is something altogether different.
59 Further, although there was some confusion as to precisely when Mr Perrin attended the meeting and to whom (if not Mr Jowett or Mr Perrin) Mr Jeffree spoke, I do not find this surprising having regard to the passage of time. No doubt, when Mr Jeffree came to prepare his statement, he had regard to his diary (and to other contemporaneous documents). After all, one of the reasons for keeping a site diary is to record significant events relating to a construction project. Presumably, when he read the diary, he took the reference to "Rob Jarrett" not quite at face value, but as referring to Mr Jowett; and took it from that reference that Mr Jowett had been present at the meeting.
60 I do not regard the matters to which Mr Corsaro drew attention, in relation to the diary note or Mr Jeffree's evidence based upon it, as indicating dishonesty. On the contrary, in my view, the substance of the diary note ought be accepted as accurate. In brief, that is because it is quite clear that CJD through Mr Perrin was putting pressure on A&C through Mr Jeffree to reduce the thickness of the slabs; and that Mr Jeffree was concerned that slabs as thin as CJD wanted them would be inadequate for their duty. It is thus inherently likely that Mr Jeffree would have protested, as he said he did.
61 There were other areas of Mr Jeffree's evidence that were, to put it mildly, confusing. For example: he said that the thickness of the slab was reduced, to effect a substantial saving (of the order of $100,000.00 to $200,000.00). But when cross-examined on the documents prepared by him for the purpose of pricing up the works, he was unable to show where the saving had been achieved. Ms Olsson of Senior Counsel, who appeared with Mr Tanevski of counsel for A&C and Mr Jeffree, submitted that the saving was reflected in the quotation, because the quotation was based on the design prepared by Mr Murphy. That was in substance a design for slabs 180mm thick but with thickened edges, save for a small portion where heavy vehicles were to be unloaded, which was 310mm thick. Mr Corsaro disputed this explanation. However, the matter had not been pursued with Mr Jeffree in cross-examination (or, for that matter, in re-examination). Accordingly, I am not prepared to conclude that the confusion betrays unreliability; it is quite possible that, if asked to give an explanation (or if cross-examined on the explanation advanced in submissions), Mr Jeffree could have given satisfactory evidence.
62 Again, Mr Jeffree was cross-examined as to his evidence that the sealing of the joints between slabs was omitted at the express instruction of Mr Perrin, so as to achieve a further cost saving. However, when Mr Jeffree was taken to the documents prepared by him in pricing up the works, it was unclear that in fact any saving had been passed on to CJD. Indeed, so far as the evidence goes, the better explanation appears to be that no saving was passed on.
63 The effect of Mr Jeffree's evidence was that there were numerous changes made to the design, which had to be reflected in attempts to reprice the works. Whilst this is not of itself a satisfactory explanation for the apparent discrepancy between his oral evidence and the documents, I do not regard it as a matter reflecting so adversely on his credibility that it calls into question the totality of his evidence to the extent that it is in dispute.
64 Again, Mr Jeffree gave somewhat confused evidence as to whether there was or was not an edge beam spanning the piers beneath the steel structural members, and by which those structural members were supported. However, on analysis, the confusion in this aspect of Mr Jeffree's evidence seems to be more a misunderstanding, or confusion of terminology, between him and Mr Corsaro, rather than something indicating unreliability or worse. (See, generally, T165.44-169.13, 180.5-.12 and 183.30-184.41).
65 Another major issue in relation to Mr Jeffree's evidence related to the letter dated 25 June 2002 that, he said, he wrote and gave to Mr Perrin. In substance, Mr Corsaro submitted that the letter was not prepared on the date it bears; was not given to Mr Perrin; and, on the contrary, was fabricated after the event to give credence to Mr Jeffree's evidence. For the reasons that I give below, in dealing with that issue of fact, I reject those criticisms of this aspect of Mr Jeffree's evidence.
66 In my view, Mr Jeffree did not give false evidence, and did not seek to mislead the Court. On the contrary, I thought that he sought to give accurate evidence as best his memory would permit. I have no doubt that there are defects in his memory. However, in general, I prefer Mr Jeffree's evidence to that of Mr Perrin. In particular, to the extent that Mr Jeffree's evidence is supported by contemporaneous records, or seems to me to accord with the probabilities objectively ascertained, I accept it.
Mr Murphy
67 Mr Murphy gave evidence by statement dated 29 September 2008. He was cross-examined. No attack was made on his credit. I accept Mr Murphy as a witness who sought to tell the truth to the best of his ability. Indeed, his honesty was reflected in answers that he gave that, as he must have appreciated, were adverse to his interest.
Mr Telford
68 Mr Telford gave evidence by statement dated 22 September 2008. He was not cross-examined. I accept his evidence, so far as it goes.
Mr Marcus
69 Mr Marcus gave evidence by way of an unsworn draft affidavit, prepared following a conference on 7 March 2008, admitted pursuant to s 67 of the Evidence Act 1995 (NSW). There was unchallenged medical evidence to the effect that Mr Marcus was, and at all material times from 13 August 2008 had been, physically and mentally incapable of attending to the litigation. For most if not all of that time his mental state was such that, to quote one of his treating medical practitioners, he was "not a suitable candidate for witness testimony… due to his cognitive decline".
70 Mr Marcus' draft affidavit was admitted with a reservation as to the weight (if any) to be given to it. There were some respects in which the draft affidavit is consistent with other evidence that, in my view, is reliable; and to the extent that there is such consistency, then I accept what Mr Marcus said. However, to the extent that what was said in the draft affidavit is not so corroborated, and does not otherwise correspond with the probabilities objectively ascertained, I conclude that it cannot be afforded substantial weight. Indeed, as can be seen, there are some apparent inconsistencies between what Mr Marcus said in the draft affidavit and other aspects of the evidence. Of course, I accept that if Mr Marcus had remained well, and able to focus on the litigation, it is at least possible that those apparent inconsistencies might have been reconciled.
Mr O'Hea
71 Ms Olsson submitted that Mr O'Hea's evidence should be rejected, on the basis that he was not an independent expert. His evidence (which comprised a number of statements, and was supplemented by a joint expert report to which he had contributed, some evidence in chief and extensive cross-examination) was admitted on the voir dire. In final submissions, I indicated that I proposed to admit the evidence, again with a reservation as to the weight to be accorded to it.
72 In essence, Ms Olsson's submission was that Mr O'Hea had become closely identified with CJD's case; that he had undertaken a substantial role, of an adversarial nature, in the preparation of the case; and that many of his opinions were expressed in the language of advocacy.
73 Mr O'Hea was first retained to advise CJD in 2005. The retainer was made directly with CJD (T303.28,304.25). He met CJD's solicitor, Dr David Doyle, at about that time.
74 Mr O'Hea carried out a number of tasks, and from time to time reported to Dr Doyle. In a memorandum dated 7 June 2006, Mr O'Hea reported on what he considered were defects that were evident in the Smeaton Grange premises and the responsibility that various entities (including the defendants in these proceedings and others) might have for those defects. One of the points raised by Mr O'Hea in that memorandum related to A&C's letter of 25 June 2002. He said that, by that letter, A&C was attempting "to globally disclaim all design responsibility…" and recommended that the letter "should be given further consideration". He stated that "[w]e need to be confident that this document is not damaging to our arguments". A little later in the same memorandum, he referred to "our own records", "us", and to what "we would need… for us to be successful". He explained the use of the first person plural pronouns as "[p]robably due to my ignorance" (T309.19).
75 At some later time, Mr O'Hea directed an undated document headed "Preliminary Thoughts" to Dr Doyle. That document discusses possible causes of differences in level over the floor of the Smeaton Grange premises. Again, it uses the first person plural pronouns "us", "our" and "we": for example, "[w]e will then probably need a geotechnical expert to help us".
76 In about February 2006, Mr O'Hea prepared some sort of report for Dr Doyle (its approximate date may be identified from a facsimile transmission note dated "03/02/2006"). It does not appear that, in preparing that report, Mr O'Hea considered that he was acting as an independent expert bound by UCPR r 31.23 and Schedule 7. It is however interesting that, in that report, Mr O'Hea effectively discounted moisture penetration through unsealed joints and openings between the exterior slab panels as a cause of moisture penetration through to the subgrade. On the contrary, he thought, "the most likely scenario" was that moisture was drawn up from a water table underneath the slab.
77 It became apparent that Mr O'Hea had been involved in the preparation of the "Statement of Claim". On 1 September 2006, he sent Dr Doyle "the log of hours worked on which" he had based an invoice for fees. That document included two meetings concerning the statement of claim and an attendance of an hour to "Review final Statement of Claim". Mr O'Hea was cross-examined on that document. In my view, he equivocated over it (T322.34-.53):
Q. And that not only have you assisted in making a case for A&C Constructions but you have been paid for assisting with the statement of claim?
A. I am note quite sure how I was paid to assist with the statement of claim.