Construction of contracts - General principles - Deed of release - Scope of general release - Whether bar to proceedings - Whether releasor aware of existence, character and extent of releasee's liability - Application of principles in Grant v John Grant & Sons Pty Ltd - Turns on own facts

1. Also, by no later than 27 December 2018, Mr Keogh entered into an agreement with Aqua Alluvial Pty Ltd (Aqua Alluvial) and FMR's then-Mill manager, Mr Christopher Burns, (Aqua Alluvial agreement) by which:

(1) Messrs Keogh and Burns would make the Stockpile available for processing, together with ore provided by Aqua Alluvial, as part of a combined milling campaign at the Mill (Aqua Alluvial campaign).

(2) The proceeds of the milling campaign would be divided such that Aqua Alluvial would receive 50%, and Messrs Keogh and Burns 25% each.

1. The Aqua Alluvial campaign occurred between about 28 December 2018 and 6 January 2019 and yielded approximately 16,931 tonnes of gold-bearing ore.
2. The gold-bearing ore was at least a mixture of ore provided by Aqua Alluvial and ore from the Stockpile which was used at Mr Keogh's direction.
3. On about 13 March 2019, Aqua Alluvial transferred $590,411 into Clintsoldmate's bank account. Mr Keogh then caused the same amount to be transferred from Clintsoldmate into a joint bank account in his and his wife's names. According to FMR, Aqua Alluvial also caused Mr Burns to be paid various amounts in 2019 and 2020 following the Aqua Alluvial campaign.
4. It was common ground that the matters referred to in [8] to [11] above were not disclosed to FMR.
5. On 25 March 2020, Mr Keogh's employment with FMR ended.
6. Mr Keogh's employment ended less than a week after he in writing disclosed to the Board that he had purchased two trucks for use in the Kalgoorlie area by Mr Robert Baker of Pekeri which were, relevantly, being used at FMR's sites intermittently and charged out at market rates (trucks disclosure).
7. Mr Keogh's employment also ended after Mr Bartlett had, shortly before, participated in a Board decision to terminate it.
8. Mr Keogh and FMR executed a deed containing mutual releases on the day Mr Keogh's employment ended (Deed).

(1) A declaration that Mr Keogh breached fiduciary duties he owed to FMR.

(2) Damages for breach by Mr Keogh of his employment contract with FMR.

(3) Damages for conversion in consequence of FMR having been allegedly wrongfully deprived of the Stockpile by Mr Keogh.

(4) Compensation orders pursuant to s 1317H of the Corporations Act 2001 (Cth) (Corporations Act) for contraventions by Mr Keogh of s 181, s 182 and s 183 of that Act.

(5) Equitable compensation for breach by Mr Keogh of his fiduciary duties.

(6) An account of profits.

(7) Interest and costs.

1. The relief sought by FMR does not concern the trucks disclosure. Rather, it concerns causes of action which FMR says accrue from conduct engaged in by Mr Keogh relating to:

(a) the 'project management fee' payments made by Pekeri to Clintsoldmate between 6 December 2017 and 4 December 2018; and

(b) the use of the Stockpile in the Aqua Alluvial campaign and payments subsequently made including to Clintsoldmate on 13 March 2019.

1. FMR says it knew nothing of the circumstances giving rise to its claims associated with these two issues when it executed the Deed on 25 March 2020.
2. Mr Keogh disputes this and says the Deed operates as a complete bar to FMR's pursuit of these proceedings. Mr Keogh also contends that even if FMR did not know of the circumstances giving rise to FMR's claims when it executed the Deed, the Deed nevertheless bars FMR from pursuing those claims on its proper construction and also on an application of other legal principles.
3. Regarding the payments by Pekeri to Clintsoldmate, Mr Keogh asserts Mr Bartlett, in September 2017, effectively authorised him to insert a 'project management fee' totalling $250,000 plus GST into an agreement between FMR and Pekeri (management fee authorisation).
4. In relation to the use of the Stockpile, Mr Keogh asserts Mr Bartlett, on 8 May 2013, effectively told him that he could 'have' the Stockpile (stockpile authorisation).
5. Mr Keogh says Mr Bartlett's knowledge of these matters was FMR's knowledge because Mr Bartlett was the sole shareholder and, effectively, the 'mind' of FMR.

1. Mr Keogh admits that he owed fiduciary duties to FMR not to place himself in a position where his own interest and his duty to FMR conflicted and not to obtain an unauthorised profit. Moreover, Mr Keogh accepts that he contravened s 181, s 182 and s 183 of the Corporations Act.
2. Mr Keogh also admits that FMR suffered damages resulting from those contraventions, within the meaning of s 1317 of the Corporations Act, in the sums referred to in [6] and [11] above. Further, Mr Keogh admits that FMR has suffered further damages arising from those contraventions if FMR proves that Mr Burns was paid certain amounts by Aqua Alluvial as pleaded in FMR's statement of claim.
3. In addition, FMR concedes that any cause of action arising in respect of the first three of the five invoices referred to in [7] (totalling $156,200 of the $288,200 sum referred to in [6]) above is time-barred.
4. The issues I must decide are, therefore:

(1) Whether Mr Bartlett gave the management fee authorisation (Issue 1).

(2) Whether Mr Bartlett gave the stockpile authorisation (Issue 2).

(3) Whether FMR was aware of the existence, character and extent of Mr Keogh's liability as alleged in the statement of claim when it executed the Deed (Issue 3).

(4) Whether the Deed releases Mr Keogh from any of the claims the subject of these proceedings (Issue 4).

(5) Whether Mr Keogh committed the tort of conversion in using the Stockpile as he did (Issue 5).

(6) Whether FMR has proved, on the balance of probabilities, that:

(a) between March 2019 and January 2020, Mr Burns was paid amounts totalling $290,000 by Aqua Alluvial, as pleaded by FMR; and

(b) those amounts were from the proceeds of the Aqua Alluvial milling campaign

(7) The relief, if any, to which FMR is entitled (Issue 7).

1. For the reasons which follow I am satisfied that:

(1) Mr Bartlett gave neither the management fee authorisation nor the stockpile authorisation.

(2) FMR was unaware of the circumstances giving rise to its claims in these proceedings when it executed the Deed.

(3) The Deed does not release Mr Keogh from any of FMR's claims.

(4) Mr Keogh committed the tort of conversion in using the Stockpile.

(5) FMR has not established both matters referred to in [27(6)] above.

(6) FMR is entitled to appropriate relief against Mr Keogh flowing from these conclusions.

1. Before proceeding further, it is convenient to record my findings about several background matters and my general impressions of the witnesses.

1. At all material times, the shareholders of FMR were Anthony Patrick Bartlett and Mr Bartlett in equal shares.
2. FMR owns the Mill and Mine and is the trustee of the FMR Unit Trust which trades as 'Gordon Sirdar' and 'Greenfields Mill'. The units in the FMR Unit Trust are held by various entities, including entities which are the corporate trustees for the Bartlett Family Trust and RG Sayers Family Trust.
3. However, Mr Bartlett was the only 'owner' with an active involvement in FMR's business.[1]
4. Through a private company, FMR at all relevant times maintained a formal and functioning board of directors led by its chairman and non-executive director, Mr Jonathan Young.
5. Mr Young gave unchallenged evidence that the Board had 'oversight of the proper running of the business, which includes corporate governance, finance and operational reporting, compliance, safety, strategic planning, budgeting, and so forth' and met monthly, with board papers prepared for each meeting by FMR's finance team with input from its operations team.[2]
6. Moreover, minutes of Board meetings were taken throughout, relevantly, the period January 2012 to March 2020. Mr Young also gave unchallenged evidence to the effect that his practice was to review and approve draft Board minutes before they were included in the Board pack for approval at the Board's next monthly meeting.
7. Having particular regard to the above matters, I am satisfied that FMR maintained, at all relevant times, a formal and functioning board of directors.
8. While I accept Mr Bartlett treated FMR as if it belonged to him and was effectively regarded by Board members as the boss of the company, I nonetheless consider the Board did not merely act as Mr Bartlett's puppet.
9. To this end, FMR submits, and I accept, that the evidence establishes that:

(a) Mr Bartlett considered that the Board made decisions about the removal and appointment of directors, and about staff remuneration, on Mr Bartlett's recommendation;

(b) although FMR's finance director (Mr Charles Watson) and general manager operations (Mr Keogh) were permitted to approve budgeted capital expenditure of up to $200,000, only the Board could approve unbudgeted capital expenditure and budgeted capital expenditure exceeding $200,000; and

(c) where urgent approval of capital expenditure was required, it was in practice sufficient for Mr Keogh to proceed if Mr Bartlett gave his approval. However, this would always be circulated to the Board.

1. I also accept that the evidence establishes that FMR paid bonuses to its employees from time to time, and that any decision to pay a bonus was made by the Board acting in accordance with Mr Bartlett's recommendation.

1. Mr Bartlett had known Mr Keogh's father for several decades, and Mr Keogh for some 20 years. Mr Keogh first started working at FMR (at the time Barminco) as an underground miner based in Kalgoorlie. After working for there for a period, Mr Keogh was appointed IT Manager.
2. Later in 2009, Mr Keogh was appointed FMR's operations manager. Mr Keogh's title was subsequently changed to general manager, but this did not materially alter the nature or scope of his employment. Although Mr Keogh was not 'really qualified' for the role of general manager, Mr Bartlett considered Mr Keogh 'had the ability to be that person'.[3]
3. Mr Keogh's employment contract described his role as an 'executive' position, and stipulated that he was required to report directly to Mr Bartlett.
4. Mr Bartlett and Mr Keogh developed a strong relationship, and Mr Bartlett treated him as a protégé. Mr Bartlett trusted Mr Keogh and had intended to train him to take over the running of FMR. The two also spoke almost daily, and spent time together outside of work including going fishing together a 'couple' of times a year.[4]
5. Mr Bartlett also rewarded Mr Keogh for his work including by giving him gifts. One of these gifts was Mr Bartlett's wife's second‑hand vehicle which he gave to Mr Keogh when Mr Bartlett's wife acquired a new vehicle. Mr Bartlett also flew Mr Keogh's parents, Mr Keogh and his wife to the Sanctuary Cove boat show on his plane on one occasion.[5]

1. Between the mid-1990s and 2012, Mr Bartlett often stored unrefined gold bars (gold doré) of varying levels of purity, as well as other gold‑bearing materials such as nuggets, at his home. By late‑2012, Mr Bartlett had accumulated approximately 100 kg to 120 kg of gold and gold-bearing materials at his home.
2. In November or December 2012, Mr Keogh transported this gold from his home to the Mill at Mr Bartlett's direction. This fell within the scope of Mr Keogh's ordinary responsibilities as the manager of operations at the Mill.
3. The gold doré was not recorded in FMR's accounts before December 2012. However, Mr Watson gave evidence that he was aware that this gold was stored at Mr Bartlett's home.

1. The Board terminated Mr Keogh's employment shortly after he made the trucks disclosure.
2. A flurry of email correspondence immediately followed.
3. Although Mr Barlett could not remember all the exchanges, he gave unchallenged evidence, which I accept, that there were two reasons why he joined in the Board's decision to terminate Mr Keogh's employment after the trucks disclosure: (a) Mr Keogh had engaged in a conflict of interest being a breach of his obligations to FMR as an employee; and (b) Mr Keogh would not answer to the Board, having only been willing to answer to Mr Bartlett himself.
4. I also infer from contemporaneous email correspondence exchanged prior to Mr Keogh's termination that Mr Bartlett not only considered Mr Keogh's purchase and use of the trucks to be a direct conflict, but was also disappointed in and angry with Mr Keogh when he learned of this.
5. More will be said about this correspondence later.

1. FMR called six witnesses at trial. Mr Keogh called one: himself. Each party also led evidence from a forensic technology expert.

1. Mr Bartlett's evidence was relevant to Issues 1, 2, 3, 4 and 5.
2. Mr Bartlett appeared to have difficulty in independently recalling many events; notably, a significant number of matters surrounding Mr Keogh's termination in March 2020. Despite this, I was not at any point concerned that Mr Bartlett was being deliberately evasive. Indeed, on several occasions Mr Bartlett properly accepted propositions put to him in cross-examination about the likelihood of certain events having occurred but clarified that he could not remember.
3. I have little reason to conclude that Mr Bartlett's evidence was not truthful or, to the extent he gave positive evidence, reliable. Accordingly, I accept Mr Bartlett's evidence.

1. Mr Young was at relevant times the chairman and a non-executive director of FMR's Board. His evidence is relevant to Issues 3 and 4.
2. Mr Young gave his evidence in a considered manner and attentively listened to each question before answering.
3. Mr Keogh contends that although Mr Young's recollection of events in March 2020 was not perfect, the court can and should accept it. I do so.

1. Mr Watson was at relevant times,FMR's finance director and an executive member of its Board and gave evidence relevant to Issues 3 and 4.
2. Mr Watson was a careful and impressive witness, and I have no reason to doubt his evidence was truthful and reliable. I accept his evidence.

1. Ms Romero was at relevant times FMR's general counsel and, at various times until December 2019, a member of its Board. Her evidence was also relevant to Issues 3 and 4.
2. Ms Romero was a careful, considered and impressive witness. Although Ms Romero had little independent recollection of the events of March 2020, there was an extensive contemporaneous documentary record from which she refreshed her memory.
3. I likewise have no reason to conclude that Ms Romero's evidence was anything but truthful and reliable. I accept her evidence.

1. Mr Baker's evidence was relevant to Issue 1.
2. Mr Baker's wife, Tamsyn, was the director and administrator of Pekeri, while Mr Baker was the day-to-day manager of the Pekeri business. He was also a casual employee of FMR. Through Pekeri, Mr Baker performed civil earthworks construction and small open pit mining including for FMR.
3. Mr Baker was a reserved and somewhat nervous witness. This was perhaps unsurprising; a material aspect of his evidence concerned interactions with Mr Keogh in 2017 which ultimately led to Mr Baker being charged with and convicted of seven counts of fraud for which he received a 18 month suspended term of imprisonment.
4. Whilst a previous conviction of this kind may well be relevant to an assessment of credibility, I am also mindful that Mr Baker pleaded guilty to the charges. This suggests to me that Mr Baker had little incentive to give false evidence about the interactions to which I have just alluded.
5. Despite his apparent reticence, Mr Baker's testimony about his interactions with Mr Keogh reflected a clear, independent and unwavering recollection of events. I have no reason to doubt Mr Baker's evidence was anything other than honest and reliable. I accordingly accept Mr Baker's evidence.

1. Ms Dombroski was an employee of FMR from 27 July 2014 until at least 18 January 2021; initially as a process technician and then as a mill foreman. She gave evidence that she reported to Mr Burns and was personally close to him.
2. Ms Dombroski's evidence related to a limited aspect of Issue 6.
3. As Mr Keogh correctly contends, Ms Dombroski's evidence has little, if any, relevance to the issues in dispute and can be accepted.

1. Mr Keogh gave evidence relevant to Issues 1, 2, 3, 4 and 5.
2. In my assessment, Mr Keogh was an unreliable and most unsatisfactory witness.
3. In important respects his evidence was internally contradictory, inconsistent with objective evidence and inherently implausible. Moreover, he appeared prone to speculation and often volunteered lengthy explanations that were non-responsive to clear questions put to him. He also presented as being selectively amnesic on certain occasions while possessed of a remarkable capacity for detailed recall on others. Indeed, I gained the distinct impression Mr Keogh was often willing to give any answer he perceived might aid his defence.
4. Save to the extent of admissions, or where his evidence was corroborated by that of another witness and/or contemporaneous documents, I do not accept Mr Keogh's evidence on any contentious matter.

1. The experts, Messrs Phillip Russo and Brendan Payne, gave their evidence concurrently.
2. Their evidence was focussed on the use of mobile phone account activity statements for the purpose of determining the location of mobile phone users, including:

(a) on 8 May 2013 (when the stockpile authorisation was allegedly given near the Mill in Coolgardie); and

(b) in or about September 2017 (when the management fee authorisation was allegedly given on a fishing boat off the Busselton coast).

1. Both parties effectively accepted the experts were limited in their ability to express conclusive opinions as to the approximate locations of Mr Bartlett and Mr Keogh at these times. I agree. I therefore say no more about the expert evidence other than to record that I accept, as Mr Keogh contends, that Mr Bartlett and Mr Keogh both appear to have been present for several hours, on 8 May 2013, somewhere in the Goldfields region, and for several hours, on 13 September 2017, somewhere in the Busselton region.

Issue 1: Did Mr Bartlett give the management fee authorisation?

1. The alleged management fee authorisation is pleaded in Mr Keogh's defence as follows:

...in or around September 2017... [Mr] Bartlett said to [Mr Keogh] that in reward for [Mr Keogh's] efforts in managing the Greenfields Mill and Gordon Sirdar gold mine, [Mr Keogh] could insert a project management fee into an agreement between FMR and Pekeri in the amount of $250,000 plus GST...

...

[this] conversation occurred while [Mr Keogh] and [Mr] Bartlett were aboard [Mr] Bartlett's fishing boat off the coast of Busselton...[6]

(emphasis added)

1. According to Mr Keogh, only he and Mr Bartlett were present during this interaction. No contemporaneous written record was produced.

1. Mr Bartlett accepted he would occasionally go fishing with Mr Keogh. However, he emphatically denied ever saying to Mr Keogh that he could insert a project management fee into an agreement between FMR and Pekeri for Mr Keogh's own benefit. According to Mr Bartlett, he first heard about the alleged management fee authorisation from FMR's finance manager, Mr Dean Mills, at a Board meeting after Mr Keogh's termination.
2. Mr Keogh gave the following evidence in chief about this topic:

(1) While fishing off the coast of Busselton in mid to late 2017 on Mr Bartlett's boat with Mr Bartlett, he asked Mr Bartlett:[7]

if he [(Mr Bartlett)] was going to make good on his promise that I wouldn't have a mortgage if I got the operation sorted out, if I got [the Mine], [the Mill] and Eloise sorted out.

(3) He recalled Mr Bartlett's response as being 'Yes, fair enough', and that Mr Bartlett also said 'I can't ... just give you a bonus. The [B]oard will ... get the shits on'.[8]

(4) He instead suggested to Mr Bartlett that Mr Keogh 'insert a management fee into the CapEx for cells ... B and C at the [Mill], which would allow [Mr Keogh] to take a bonus and FMR - the board to, you know, not be aware of it'.[9]

1. Mr Keogh clarified that he had followed this suggestion with an explanation that even with inserting the management fee... the cost of tailings would still be within the mandated budget of $2.50 a tonne, based on the achieved tonnage of the lift'.[10] According to Mr Keogh, Mr Bartlett then said 'Yes. Okay,' like, 'All right. Fair enough'.[11]
2. Notably, Mr Keogh gave the evidence summarised in [83(1)] above in circumstances where:

(1) Nothing had been said his written defence about 'Eloise' in the context of the alleged management fee authorisation.

(2) There had also been no suggestion, by Mr Keogh's senior counsel in his cross-examination of Mr Bartlett, that Mr Keogh had in that context also mentioned to Mr Bartlett any work he had done in relation to 'Eloise'.

(1) Denied that his evidence about the alleged conversation with Mr Bartlett on the fishing boat was a fabrication.

(2) Recalled him and Mr Bartlett having multiple conversations about him (Mr Keogh) not having a mortgage, and about Mr Bartlett offering to give him the company, and noting Mr Bartlett had made such 'grandiose' offers regularly.[12]

(3) When asked if he could recall any conversation as to when and where it was said that if Mr Keogh 'sorted this out' he would not have a mortgage, responded:[13]

I remember sitting in [Mr Bartlett's] silver Holden Commodore ute driving into the east - into the Graham Farmer tunnel, and I remember having a conversation with him to attempt to buy a project that we could have fed in with the Gordon Sirdar material that stood to make us a good deal of money.

(4) Was, however, unable to recall the date of this earlier conversation, or to provide any explanation for why it had not been put to Mr Bartlett in cross-examination.

(5) Testified that before his conversation with Mr Bartlett on the fishing boat, he (Mr Keogh) had already concluded he could insert a $250,000 fee into the tailings dam Capex and still keep the tailings dam within its budgeted cost per tonne.

(6) Testified that, by September 2017, Pekeri had already been identified as the contractor (though a contract had not yet been entered into)[14] and that it had then been his intention to attempt to get a bonus of up to $250,000.

(7) Agreed that $250,000 was at the time roughly the same amount as his annual salary.

(a) he had received a letter dated 30 June 2016 from Mr Bartlett, on behalf of FMR, advising that an earlier offer to increase Mr Keogh's annual salary to $265,000 gross effective 1 June 2016 was being withdrawn, and that his annual salary would 'revert to $230,000 plus superannuation ...'.; [15]

(b) in September 2017 he knew the Board would not have approved a bonus to him in an amount approximating his full annual salary; and

(c) in December 2017 approximately three months after his alleged fishing boat conversation with Mr Bartlett, he received a bonus payment of $50,000 from FMR.

(9) Denied that he knew he had not had any prior conversation with Mr Bartlett in respect of getting a bonus of $250,000 when he received this $50,000 bonus.

[P]ursuant to the direction (sic) given by [Mr] Bartlett, [Mr Keogh] entered into an agreement with [Mr] Baker, on behalf of Pekeri, pursuant to which Pekeri would charge to [FMR] a daily management fee of $2,000 plus GST to the total value of $250,000 plus GST and Pekeri would pay the amounts received to Clintsoldmate...

...

[F]ollowing [Mr Keogh's conversation with Mr Bartlett on the fishing boat], in his capacity as general manager of [FMR], [Mr] Bartlett (sic) approved on behalf of [FMR] a capital purchase expenditure including the project management fee payable to Pekeri...[16]

(1) Around October 2017, FMR contracted Pekeri to undertake a lift to one of the cells of a tailing dam at the Mill (described as the 'TSF 3B/C Stage 2 lift') (2017 Works).

(2) The 2017 Works involved Pekeri supplying plant, labour and management for the purposes of the tailings dam job for FMR at the Mill. Mr Baker was the site project manager for the project and located on site.

(3) On 10 October 2017, Mr Keogh emailed the Board attaching a capital expenditure (Capex) request for the approval of the 2017 Works for $922,390 (excluding GST).

(4) The Capex request included an Excel spreadsheet reflecting an amount of $0 for 'Project Management'.

(5) Some time before 24 October 2017, FMR approved the Capex request.

(6) Pekeri commenced the 2017 Works around October 2017 and issued an invoice (Invoice 131) to FMR which did not include a management fee.

(7) Between 15 November and 31 December 2017, Pekeri issued four further invoices (Invoices 132, 134, 135 and 137) to FMR relating to the 2017 Works each of which did include a management fee.

(8) Mr Keogh, on behalf of FMR, authorised payment of each of those further invoices, and FMR made these payments on 6 December 2017 and 31 January 2018.

(9) On 6 December 2017, 5 January 2018 and 24 January 2018, Mr Keogh caused Clintsoldmate to issue three invoices (Invoices 30, 31 and 32) to Pekeri for 'Project Management', and Pekeri paid those invoices on 7 December 2017, 5 February 2018 and 5 March 2018, respectively.

(10) Around August 2018, FMR contracted Pekeri to undertake a lift to one of the cells of a tailing dam at the Mill (described as the 'TSF 3B/C Stage 3 lift') (2018 Works).

(11) On 1 August 2018, the Board approved a Capex request for the 2018 Works prepared by Mr Keogh for $1,312,485 (excluding GST).

(12) The Capex request included an Excel spreadsheet which included an amount of $240,000 for 'Project Management'.

(13) Pekeri commenced the 2018 Works in August 2018 and issued an invoice (Invoice 152) to FMR without a management fee.

(14) Between 30 September and 30 November 2018, Pekeri issued three further invoices (Invoices 153, 156 and 158) to FMR relating to the 2018 Works each of which did include a management fee.

(15) Mr Keogh, on behalf of FMR, authorised payment of each of those further invoices, and FMR made these payments on 31 October 2018, 30 November 2018 and 2 January 2019.

(16) On 6 November and 3 December 2018, Mr Keogh caused Clintsoldmate to issue two invoices (Invoices 33 and 34) to Pekeri for 'Project Management', and Pekeri paid those invoices on 7 November 2018 and 5 December 2018, respectively.

1. Mr Bartlett testified that he usually signed off on Capex requests approved by the Board. He also accepted that if Mr Keogh requested something affecting FMR's operations requiring urgent approval, he (Mr Bartlett) would provide such approval though would usually tell the Board afterwards.
2. The Capex request relating to the 2017 Works bore Mr Keogh's name as requesting officer, stated that Mr Bartlett was the approving manager, and was signed by Mr Keogh. The Capex request relating to the 2018 Works had the same features save that the Board was referred to as the approving manager.
3. According to Mr Baker, Pekeri initially proposed charging for this work on a labour and machine per hour basis only. No management fee was included in Pekeri's initial cost estimate.
4. Mr Baker also testified that a couple of months before the project started, he approached Mr Burns about the possibility of charging such a fee. Mr Burns responded that he (Mr Burns) would first need to speak to Mr Keogh about it.[17]
5. According to Mr Baker, Mr Keogh:

(1) Later visited the tailings dam unannounced, came into Mr Baker's office, pulled out a computer, opened a spreadsheet and 'just said' ... 'Regarding your management fee, Baker ...[and] put $2,000 into the sheet...'.[18]

(2) Then '...changed that $2,000 to a $4,000 figure',[19] and said 'Do you have a problem with that', to which Mr Baker responded 'No, I don't Paddy'.[20]

(3) Then said, 'I've been working for Bartlett for 10 years, I'm entitled to my fucking clip', and told Mr Baker to let him know when FMR paid the management fee.[21]

1. Mr Baker testified that he believed his conversation with Mr Keogh occurred about a month or two after the 2017 Works commenced.
2. Mr Baker also testified that:

(1) After his conversation with Mr Keogh, Pekeri in its invoices to FMR included a management fee at a rate of $4,000 per day worked on site.

(2) He would inform Mr Keogh when Pekeri was paid by FMR,[22] Mr Baker's wife would receive a corresponding invoice from Clintsoldmate shortly afterwards, and when this occurred Mr Baker would tell his wife to pay the invoice.

(3) The same management fee arrangement extended to the 2018 Works.

(4) Neither Mr Keogh nor Clintsoldmate, however, performed any project management or other work for Pekeri with respect to either the 2017 or 2018 Works.

1. Under cross-examination, senior counsel for Mr Keogh suggested to Mr Baker that Mr Keogh did not say the words recorded in [93(3)] above but instead said words to the effect that 'Bartlett has agreed to let me put a management fee into the CapEx for this job'.[23] Mr Baker denied this.
2. Although Mr Baker was unable to recall precisely what Mr Keogh had said or what they were discussing immediately before Mr Keogh pulled out the laptop, Mr Baker nonetheless rejected a suggestion that he had no independent recollection of his conversation with Mr Keogh.
3. Importantly, during the cross-examination of Mr Baker, there was no challenge to his evidence that Mr Keogh had told him to put $2,000 into the sheet, or to his evidence that Mr Keogh then changed the $2,000 to a figure of $4,000, or to his evidence that Pekeri had included a management fee in its invoices to FMR at a rate of $4,000 per day after their conversation.
4. In contrast, Mr Keogh in evidence in chief testified that:

(1) His conversation with Mr Baker at the Mill occurred in late 2017 the 2017 Works commenced.

(2) He told Mr Baker Mr Bartlett had authorised him (Mr Keogh) to include the management fee, Mr Baker agreed and 'that was the end of it'.[24]

(3) He recalled saying the following to Mr Baker:[25]

Rob, ... Peter has given me a bonus, but he doesn't want the [B]oard to know about it. He's going to let me put a project management fee into - into this Cap[e]x. I'm going to - I'm going to run it through Pekeri. Are you - are you on board with that?

(4) He recalled Mr Baker responding: 'Yes. Okay. Whatever you want, Paddy.'[26]

(1) Maintained that he told Mr Baker that Mr Bartlett authorised inserting a $2,000 management fee into the Capex and that he (Mr Keogh) 'would like to put it through Pekeri, because [Mr Bartlett] doesn't want the [B]oard to know'[27] (despite it having not been put to Mr Baker, in cross-examination, that Mr Keogh had said any of the emphasised words).

(2) Testified that nothing was discussed about a management fee for Mr Baker.

1. Relevant to the above matters, Mr Keogh under cross‑examination also denied that:

(1) During his conversation with Mr Baker at the Mill, he said words to the effect that 'Baker ... put $2,000 into the sheet...' and then changed that figure to $4,000.[28]

(2) He later approved a series of invoices issued by Pekeri whilst knowing that the rate of the management fee agreed, as between Mr Keogh and Mr Baker, was $4,000 per day and not $2,000 per day as alleged by Mr Keogh.[29]

1. Mr Keogh was then taken to an invoice issued by Pekeri to FMR dated 30 November 2018 showing a 'management fee' in an amount of $80,000.[30] The invoice was issued after Mr Baker had, on 4 December 2018, emailed a summary of calculations relating to charges for November 2018 to Mr Keogh. Less than two hours' later, Mr Keogh responded: 'All good rob, Submit that invoice'.[31]
2. Mr Baker's summary had included a 'fixed price' charge of $80,000 for a line item described as 'MANAGEMENT FEE QA/QC COMPLIANCE' for the period 1 to 12 November 2018.[32] When asked why he had approved calculations resulting in an $80,000 management fee without knowing exactly how many days had been worked during the 11‑day period, Mr Keogh responded he hadn't 'paid any attention to the invoice' when approving it.[33]
3. To similar effect, in answer to a subsequent question, Mr Keogh testified that he didn't 'remember seeing the $80,000 fixed fee in the ... spreadsheet'.[34]
4. Senior counsel for FMR then put to Mr Keogh that he had authorised Mr Baker to charge $80,000. Mr Keogh responded that he only 'authorised [Mr Baker] to charge $2,000 a day for the management fee that [Mr Bartlett] said I could take'.[35] Senior counsel then, again, put to Mr Keogh that he had 'told' Mr Baker 'to charge $80,000 on this invoice'.[36]
5. Mr Keogh adamantly denied this.[37]
6. Mr Keogh was then presented with a screenshot of an exchange of text messages between Mr Keogh and Mr Baker on 4 December 2018. The exchange commenced with the following message from Mr Keogh to Mr Baker (transmitted at approximately 10:13am): 'Invoice 80k'.[38]
7. After again being pressed that he had told Mr Baker to invoice $80,000 for the management fee, Mr Keogh responded: 'Based on that text message, yes'.[39]
8. Mr Keogh later appeared to accept that he had sent this text message a few days after an earlier text exchange with Mr Baker in which Mr Baker had said: 'Hi Paddy we stopped the TSF on the 12/11. R we invoicing a management fee for this period?' to which Mr Keogh responded 'Lemme check Monday'.[40]
9. Mr Keogh also initially testified he could not remember whether he had previously requested that the words 'QA/QC Compliance' (meaning 'Quality assurance, quality compliance') be added to an invoice issued by Pekeri to FMR.[41] However, after being confronted with an unambiguous email he had sent to Mr Baker on 21 November 2017,[42] Mr Keogh accepted it was he who was responsible for those words being added to Pekeri's invoices to FMR.
10. Mr Keogh also gave evidence that Mr Bartlett had authorised him to put a project management fee into the Capex in order to 'legitimise' it.[43]
11. Nonetheless, Mr Keogh ultimately accepted that:

(1) The words 'QA/QC Compliance' on Pekeri's invoices were intended to create 'a fiction that what was being charged was project management fees when no project management was being provided, and that the so-called management was QA QC compliant when [Mr Keogh] knew it wasn't'.[44]

(2) A Pekeri invoice shown to him containing the words 'QA/QC Compliance' was a 'deceptive document' and that he had intended to deceive the recipients of the invoice.[45]

1. Having heard the oral testimony of each of Messrs Bartlett, Baker and Keogh, and weighed the cogency and plausibility of their respective versions of events, I find that the alleged September 2017 fishing boat conversation never occurred.
2. In making this finding, I note the following.
3. First, permitting Mr Keogh to charge a 'management fee' in the context of work undertaken by an external contractor for FMR would have led to Mr Keogh deriving a significant personal financial benefit and given rise to an obvious conflict of interest.
4. Mr Bartlett's tellingly adverse reaction shortly after learning of Mr Keogh's activities relating to the trucks disclosure weighs strongly against an inference that Mr Bartlett would, nonetheless, have been favourably disposed to agreeing to the management fee authorisation some 18 months earlier.
5. Secondly, while I accept Mr Bartlett engaged in occasional acts of personal generosity towards Mr Keogh and his family, I consider it highly improbable Mr Bartlett would, on FMR's behalf, have sought to gift Mr Keogh a windfall roughly equating to Mr Keogh's entire annual salary; much less have allowed a mechanism self-evidently designed to deceive the body responsible for approving employee bonuses, i.e. the Board.
6. It is, in my view, even less likely that Mr Bartlett would have done so where:

(1) He had less than 18 months earlier personally withdrawn an offer, on behalf of FMR, to increase Mr Keogh's annual salary by roughly 14% ($35,000).

(2) The Board had approved a bonus for Mr Keogh (of $50,000) merely three months' later.

1. Thirdly, even if contrary to the above analysis Mr Bartlett had been content for Mr Keogh to enjoy such a windfall, I consider it unlikely Mr Bartlett would have said words to Mr Keogh to the effect that he was unable to give Mr Keogh the bonus because the Board 'will get the shits on'.[46] At the end of the day, Mr Bartlett gave unchallenged evidence that the Board would act in accordance with his recommendations as to any decision to award a bonus and as to its amount.
2. Fourthly, Mr Keogh's admissions to the effect that he instructed Mr Baker to include the words 'QA/QC Compliance' in circumstances where he knew no project management was being provided, and thereby intended to deceive the recipient of at least one invoice (i.e. FMR), are of themselves powerful reasons to treat Mr Keogh's evidence with at least some circumspection.
3. Fifthly, Mr Keogh was a most unimpressive witness. A handful of examples will suffice:

(1) On several occasions a version of events emerged for the first time in circumstances where it had not been put to FMR's witnesses. The matters referred to in [85] and [100(1)] above illustrate the point. So does Mr Keogh's evidence that a management fee for Mr Baker was not discussed, and his denials that he knew that the management fee rate agreed with Mr Baker was $4,000 per day (when approving the invoices), in circumstances where Mr Baker had earlier given the unchallenged evidence referred to in [98] above.

(2) Relatedly, there is the unsatisfactory way Mr Keogh persisted in denying his agreement with Mr Baker despite:

(a) the sheer volume of occasions on which Mr Keogh received (and approved) documents from Mr Baker clearly stating a management fee at a daily rate of $4,000; and

(b) the fact that so many of Pekeri's invoices on their face showed a management fee which by simple arithmetic could only have been calculated by reference to an amount greater than $2,000 per day.

(3) Then, there were Mr Keogh's repeated denials in cross‑examination that he had approved the insertion of an $80,000 management fee in Pekeri's 30 November 2018 invoice which were ultimately exposed as being false.

1. Sixthly, noting the matters concerning Mr Baker to which I have referred in [67] and [68] above, and the unfavourable view I have generally formed of Mr Keogh's credibility, I accept Mr Baker's account as to what was (and was not) said during his interaction with Mr Keogh at the Mill regarding the 2017 Works.
2. In particular, I find that during the interaction Mr Keogh said 'I've been working for Bartlett for 10 years, I'm entitled to my fucking clip', and did not say words to the effect that Mr Bartlett had agreed to allow Mr Keogh to insert the management fee into the Capex.
3. In conclusion, I find that the management fee authorisation was never given.

Issue 2: Did Mr Bartlett give the stockpile authorisation?

1. Mr Keogh's defence pleads the alleged stockpile authorisation as follows:

[I]n a conversation with [Mr] Bartlett on 8 May 2013, whilst driving past the administration building and [the Stockpile], [Mr Keogh] verbally requested if he could have the [Stockpile] given everything he had recently done for [Mr] Bartlett at his request and for the benefit of [FMR] ...[47]

[Mr Bartlett responded verbally that [Mr Keogh] was being a bit cheeky but that yes, he consented to the request.[48]

(emphasis added)

1. The words 'on 8 May 2013' were inserted into Mr Keogh's defence less than three months before trial, having replaced the words 'in or around late 2012'.[49]
2. As with the alleged management fee authorisation, Mr Keogh also says Mr Bartlett verbally gave the alleged stockpile authorisation at a time when only the two of them were present. No contemporaneous written record was produced concerning this alleged interaction either.

1. Mr Bartlett denied telling Mr Keogh that he could have the Stockpile. Mr Bartlett testified that he was only made aware of Mr Keogh's allegation to this effect too after the latter's termination, having been told about it by detectives from the gold stealing detection unit.
2. Mr Bartlett maintained his denial under cross-examination. He also denied visiting the Mill with Mr Keogh on 8 May 2013.
3. With the benefit refreshing his memory from a contemporaneous flight manifest,[50] Mr Bartlett gave evidence that:

(1) His wife, Julie, accompanied him on a flight to Kalgoorlie on 8 May 2013 to deal with renovations at the Debernales Tavern in which business he and Mr Jeff Green were partners.

(2) Messrs Green and Keogh, and a Mr Brian Eaton (a consultant manager for FMR), and others accompanied Mr Bartlett on the flight.

1. Mr Bartlett also testified that upon arrival in Kalgoorlie Mr Keogh had a car waiting for him, while Mr Bartlett (and the others) borrowed another car and went to the tavern.
2. Having previously given evidence that he recalled visiting the Mill with Mr Keogh on 'one occasion', Mr Bartlett, in the above context, said he was 'sure' 8 May 2013 was not the date that he travelled with Mr Keogh to the Mill.[51] However, Mr Bartlett did later accept it was possible he had attended the Mill with Mr Keogh on two occasions, including once in July 2012.
3. In chief, Mr Keogh gave the following evidence relating to the alleged stockpile authorisation:

(1) He recalled attending the Mill twice with Mr Bartlett, in July 2012 and May 2013.

(2) The first visit was to speak to Mr Bartlett about the tailings storage facility and develop a strategy to underpin the next stage of tailings, while the second was to obtain Mr Bartlett's final sign-off on a plan that had been put together for the tailings dam.

(3) On the second occasion Mr Keogh travelled to Kalgoorlie on Mr Bartlett's plane. It was a morning flight which left Perth at 7.00 am and arrived in Kalgoorlie at around 8.00 am.

(4) They were met at the airport a Mr Alan Hahn who provided a Toyota Hilux vehicle which Mr Keogh drove to the Mill with Mr Bartlett also in the vehicle.

(5) Mr Keogh drove with Mr Bartlett around the plant at the Mill, towards the tailings dam.

(6) While doing so, Mr Keogh had a conversation with Mr Bartlett during which Mr Keogh asked Mr Bartlett 'for the mineralised waste pile'.[52]

(7) Mr Keogh said to Mr Bartlett: 'Pete, given everything I've been doing for you recently, can I have that?' while pointing to the Stockpile located on the right-hand side of the vehicle.[53]

(8) Mr Bartlett replied, 'You're a bit fucking cheeky, Paddy, but yes, okay'.[54]

(1) He had no plans for the Stockpile at the time of his conversation with Mr Bartlett.

(2) After the conversation, he and Mr Bartlett ran through the design, engineering and Mr Keogh's plans for the tailings dam and storage facility; being the construction at 'TSF3', which required Mr Bartlett's 'tick of approval'.[55]

(3) He was at the Mill with Mr Bartlett for '[n]ot long, [an] hour and a half, maybe'.[56]

(4) He did not specifically recall where he went or what he did afterwards.

1. When questioned why he had asked for the Stockpile, Mr Keogh responded that he understood there was 'value in that material'[57] considering it was 'an accumulation of rubbish and polluted ... gold‑bearing ore'.[58]
2. Mr Keogh was not asked what he meant when he had, on his version, used the words 'given everything I've been doing for you recently'. Nonetheless, I accept, as was common ground, that Mr Keogh had in late 2012 transported varying amounts of gold doré and other gold bearing materials from Mr Bartlett's home to the Mill at Mr Bartlett's direction.
3. Under cross-examination, Mr Keogh:[59]

(1) Confirmed he had approved the filing of an amendment to his defence changing the date of his alleged conversation with Mr Bartlett from 'in or around late 2012' to 'on 8 May 2013'.

(2) Said this change was made 'after he had reviewed the emails that were available', and that after spending a day with one of his solicitors he 'discovered the accurate timeline, having reviewed [his] emails in 2012 to 2013'.

(3) Testified there was an email chain which among other things demonstrated when his first visit with Mr Bartlett to the Mill had occurred and also showing that Mr Bartlett attended the site in 2013 with him to sign off on the CapEx for 'TSF3'.

(4) When asked where he had gotten the date 8 May from, testified that he had obtained it from the flight logs.

(5) Subsequently accepted, however, that:

(a) the likely cause of him reviewing the 'date line' was Mr Russo's expert report filed on behalf of FMR on 12 May 2025; and

(b) it was more probable than not that his solicitors had told him that, in Mr Russo's opinion, the only time when he and Mr Bartlett were both in Kalgoorlie during 2012 was in October of that year.

(6) Did not accept that it was the latter point which ultimately resulted in him changing the date of the alleged conversation to 8 May 2013, but rather that it 'started the process'.

(7) Later testified that he settled on 8 May 2013 by reference to a flight record, telephone logs and emails.

(8) After being reminded that emails did not disclose that date, accepted that his evidence was 'now' that he had gotten the date from a combination of flight and telephone records.

(9) In answer to further questions, then testified that he was not sure that he 'actually saw a document that said 8 May'.

(10) After again referring to emails and being asked where he got the date of 8 May 2013 from, testified '[f]rom the documentation sitting ... with my lawyers'.

(11) Following a further brief exchange, and after:

(a) again being asked, this time by the court, where he got the date of 8 May 2013 from, answered 'I don't know'; and

(b) being asked by the court whether the date had come from his lawyers also answered, 'I don't know'.

(12) Accepted that he had previously said, both in earlier criminal proceedings and until June 2025 in these proceedings, that he had travelled with Mr Bartlett to Kalgoorlie 'in late 2012 or early 2013'.

(13) Ultimately accepted that '8 May 2013' was inserted into his pleading either because he had read a report, or because he had been told by his solicitors, that there was no occasion in late 2012 or early 2013 where phone records put both him and Mr Bartlett in Kalgoorlie at the same time.

(14) Accepted that he had no recollection of telling Mr Burns or anyone else about his alleged conversation with Mr Bartlett relating to the Stockpile, and did not document the substance of his alleged conversation.

(15) Testified that he did not know if there was anyone else, other than Mr Bartlett, on the flight from Perth to Kalgoorlie on 8 May 2013, but accepted it was a small plane with nine seats and anyone on the plane would have been within his direct line of sight.

(16) Testified that he did not know whether any of Mrs Bartlett, Mr Eaton or Mr Green were on the plane despite being shown the flight manifest which contained various names and initials including 'JB', 'B Eaton' and 'Green',[60] though did not deny that Mrs Bartlett, and Messrs Eaton and Green were also on the plane '[i]f that's what the manifest says'.

(17) Testified that he had a 'clear memory' of getting off the plane with Mr Bartlett and getting a car from Mr Hahn.

(18) Denied having no recollection of when the plane left Perth that day, though subsequently accepted he had no independent recollection that the plane had left at 7.00 am and that he was basing his earlier evidence as to the flight time on the way things were 'usually' done.

(19) Accepted, after being told that the flight records established that the flight did not leave until 8.59 am and only arrived at Kalgoorlie Boulder airport at 9.57 am, that his earlier evidence in the criminal proceedings to the effect that his conversation with Mr Bartlett at the Mill had taken place at around 9.30 am or 10.00 am, must have been wrong.

(20) Testified that he was at the Mill with Mr Bartlett on 8 May 2013 for '[a]bout an hour' (despite having in his evidence in chief said an 'hour and a half, maybe'[61]), that he dropped Mr Bartlett in Kalgoorlie after their visit to the Mill, though could not remember where, that he could not recall if he saw Mr Bartlett again that day, and could also not remember what he did after dropping Mr Bartlett off.

(21) Accepted that the evidence he had given in chief about the purpose of his alleged visit to the Mill with Mr Bartlett was inconsistent with his evidence in the earlier criminal proceedings.

(22) Accepted that on 9 May 2013, the day after his flight to Kalgoorlie, he sent an email to the Board, with 'Developments at Greenfields Mill' as the subject line and in which he had, under the heading 'Tailings', among other things reported 'I looked over TSF2 at [the Mill] yesterday...'.[62]

(23) When asked why he referred to only himself and not to Mr Bartlett in his email, responded 'I wasn't writing an email on behalf of [Mr Bartlett]'.[63]

(24) Accepted that:

(a) later in the email he was telling the Board that he would put forward something to do with the construction of a new tailings storage facility but was not in a position to do so then; and

(b) this was inconsistent with his evidence in chief that he had met with Mr Bartlett at the Mill on 8 May 2013 to get Mr Bartlett's 'final sign-off'[64] on 'the plan that we put together for the tailings dam',[65] but nonetheless maintained that what he had said in chief was not inconsistent with Mr Bartlett having signed off on what Mr Keogh wanted to do on the tailings dam because Mr Bartlett 'would review everything'.

(25) Accepted that the Stockpile had grown between the time of his alleged conversation with Mr Bartlett in May 2013 and 2018 ‑ 2019.

(26) Accepted that he at no stage:

(a) asked Mr Bartlett whether he could put material in the Stockpile through the Mill in conjunction with 'some client's ore';

(b) sought Mr Bartlett's specific approval to put that material through the Mill together with ore belonging to Aqua Alluvial; or

(c) reminded Mr Bartlett of their earlier conversation and asked him 'is it okay if I have everything that is now on the [S]tockpile'.[66]

(27) Accepted that on 6 January 2019 (i.e. during the Aqua Alluvial campaign) he received an email from Mr Bartlett which read:[67]

Nah. Prospectors from kal. Simon gash, runs KBD mining and a bit of other, mix of pit dirt he had

Anton starts tomorrow. I had to get their crap off the rom to deal with all the dirt coming in

(28) Accepted that he could have used the opportunity presented by Mr Bartlett's query to tell Mr Bartlett 'the full story' but did not do so.

1. Messrs Bartlett and Keogh's versions of events are, self-evidently, mutually destructive.
2. Either the two men travelled to the Mill together on 8 May 2013 after arriving in Kalgoorlie, and the alleged conversation occurred while they were alone in the vehicle, or they went their separate ways upon arrival and the alleged conversation never happened.
3. For the reasons which follow I find the latter.
4. First, as FMR correctly submits, it became apparent in cross‑examination that Mr Keogh's evidence concerning the date of his alleged conversation with Mr Bartlett was a reconstruction 'manufactured over time to try to fit with the documentary records as those documents came to his or his solicitor's attention'.[69]
5. Secondly, Mr Keogh's evidence concerning the purpose of his alleged visit to the Mill with Mr Bartlett was inconsistent with the evidence he had given in earlier criminal proceedings.
6. In this connection, in the earlier proceedings Mr Keogh had described the purpose being because he 'was a bit dumbfounded as to how to deal with [the tailings dam]. So [Mr Bartlett] and I went to ... [the Mill] to make a plan as to how to deal with that and what to do going forward'.[70] However, in his evidence in chief in these proceedings Mr Keogh said the visit was to get Mr Bartlett's 'final sign‑off on the plan that we had put together for the tailings dam'.[71]
7. Mr Keogh may well have been under considerable stress during his criminal trial. But I do not accept his explanation for this material inconsistency, even if it is also accepted that he did not then have the benefit of his stored emails during his criminal trial.
8. Thirdly, I have significant doubts as to the reliability of Mr Keogh's recollection about anything which may have occurred on 8 May 2013 given he was unable to remember, even with the benefit of the flight manifest, whether anyone other than Mr Bartlett was also on the plane to Kalgoorlie on 8 May 2013; where he dropped Mr Bartlett off in Kalgoorlie after their alleged visit to the Mill; what he did after dropping Mr Bartlett off; and whether he even saw Mr Bartlett again on that day.
9. Fourthly, the language adopted by Mr Keogh in report to the Board militates against an inference that Mr Bartlett had visited the Mill the previous day. Mr Bartlett was, after all, FMR's managing director, a member of the Board and, at least on Mr Keogh's revised account, at the Mill to give a 'final sign-off'. Yet Mr Keogh's email does not so much as hint that Mr Bartlett was also present with him at the Mill. Mr Keogh's explanation for adopting the first-person singular in his email is wholly implausible and I reject it.
10. Fifthly, a party comprising, among others, Mr and Mrs Bartlett, and Messrs Green, Eaton and Keogh, all flew to Kalgoorlie together as the contemporaneous flight manifest makes plain. Mr Bartlett's independent recollection of the events of 8 May 2013 was less than optimal. However, with the benefit of the manifest, he was at least able to recall why his wife and Mr Green accompanied him on the flight; namely, to attend to renovations at the Debernales Tavern.
11. The fact that Mr Bartlett also testified that he only travelled to the Mill every few years further supports an inference that Mr Barlett had cause to remember why his wife and Mr Green travelled with him to Kalgoorlie on this occasion. This aspect of Mr Bartlett's testimony was unchallenged, and his evidence that he and others travelled directly to the Debernales Tavern from the airport while Mr Keogh had a separate car is consistent with the focus of Mr Bartlett's visit being to deal with a matter concerning the tavern, not the Mill.
12. Sixthly, Mr Keogh could not recall telling anyone about his alleged conversation with Mr Bartlett on 8 May 2013; that is, even after the Aqua Alluvial campaign commenced in December 2018. I accept FMR's submission that Mr Keogh's silence for over five-and-a-half years tells against the alleged conversation having every occurred.
13. Seventhly, the email exchange between Mr Bartlett and Mr Keogh on 6 January 2019 similarly tells against Mr Keogh's version. Read in isolation, Mr Bartlett's email is brief and cryptic. However, Mr Keogh's response leaves little doubt that he understood the context of Mr Bartlett's question.
14. Mr Keogh's response is revealing not so much for what it says but, rather, for what it does not. Specifically, it fails to:

(1) Disclose that Mr [Simon] Gash was not merely using a 'mix of pit dirt he had' but was also using the Stockpile.[72]

(2) Disclose that Mr Keogh had, not long before, entered into an agreement with Aqua Alluvial and Mr Burns by which the Stockpile would be made available for processing, together with ore provided by Aqua Alluvial, as part of a combined milling campaign which was then underway.

(3) Say anything at all about the proceeds of the milling campaign being divided between Aqua Alluvial, Mr Keogh and Mr Burns.

1. Not only is Mr Keogh's email deceptive by omission for the above reasons, but it does not so much as hint at his alleged conversation more than five-and-a-half years earlier; let alone query whether it would also be acceptable to Mr Bartlett for Mr Keogh to have everything else that had been added to the Stockpile in the intervening years.
2. The inescapable inference is that when responding to Mr Bartlett's email Mr Keogh well knew he would personally soon be deriving a financial benefit from the Aqua Alluvial campaign and, accordingly, from the Stockpile which, as Mr Keogh himself accepted, had grown in size since their alleged conversation.
3. Indeed, if Mr Keogh's version of events is correct he would at that time also have known that at least some of the benefits that were about to flow to him were to be enjoyed courtesy of FMR's 'boss' having told him, years earlier, that he could 'have' the Stockpile in circumstances where no written confirmation of their conversation then existed.
4. To my mind both candour and common sense would suggest that the opportunity presented by Mr Bartlett's email would have been something to be seized upon by a reasonable person in Mr Keogh's position. However, the combined effect of Mr Keogh's silence regarding the stockpile authorisation, and the deceptive nature of his written response, not only renders his version about the stockpile authorisation implausible but also supports an inference that it was a fabrication.
5. In all the circumstances, I find that the stockpile authorisation was never given and that no conversation took place between Mr Keogh and Mr Bartlett at the Mill on 8 May 2013.

Issue 3: Was FMR aware of existence, character and extent of Mr Keogh's liability?

1. This issue is relevant to two related matters which will shortly be discussed in the context of Issue 4:

(1) Whether the claims the subject of these proceedings were within the contemplation of both parties at the time the Deed was executed.

(2) The third (equitable) principle in Grant v John Grant.[73]

1. Given my conclusions with respect to Issues 1 and 2, no question arises as to the attribution of Mr Bartlett's asserted knowledge of the alleged management fee authorisation or stockpile authorisation to FMR. It is therefore unnecessary for me to consider the so-called fraud exception.[74]
2. Mr Keogh does not contend that FMR otherwise had knowledge of any circumstances associated with the Aqua Alluvial agreement, or the distribution of payments following the Aqua Alluvial campaign, when FMR executed the Deed. Indeed, each senior officer of FMR who gave evidence effectively testified they knew nothing about these matters until long after Mr Keogh's employment had ceased. I accept this evidence. I also accept, as was common ground, that the matters referred to in [8] to [11] above were not disclosed to FMR.
3. Accordingly, I find that FMR was not aware of the existence, character and extent of Mr Keogh's liability with respect to FMR's claims in these proceedings relating to those matters when it executed the Deed.
4. Mr Keogh nonetheless argues that FMR did, at that time, have knowledge of (at least) the circumstances giving rise to the possibility of claims by FMR concerning the 'Pekeri project management fees'.[75]
5. To this end, Mr Keogh points to the following:

(1) A summary prepared by Mr Mills, no later than 20 March 2020, in the course of an inquiry into Mr Keogh's leasing of trucks to FMR through Pekeri.[76]

(2) Emails from Mr Mills to Messrs Young and Watson attaching Mr Mills's summary and two associated Capex forms.[77]

(3) Evidence given by Mr Watson under cross-examination.[78]

(4) An email from Kylie Crockett, FMR's HR manager, to Mr Mills dated 23 March 2020[79] attaching a spreadsheet relating to Mr Keogh's salary termination calculation.[80]

1. In his summary Mr Mills among other things stated that 'charges for project management were included in the [C]apex but it is not clear what it is for'.[81] Mr Mills then sent his summary to Messrs Young and Watson with two capital expenditure approval requests which had included a project management fee. Mr Mills stated, in his covering email, that the capital expenditure approval requests would be 'salient once you've read through'.[82]
2. Regarding Mr Watson's evidence, Mr Keogh contends Mr Watson:

(1) Could not specifically recall reading the documents provided by Mr Mills but accepted it is likely he would have done so.

(2) Had said the inclusion of a project management fee was 'a matter of interest in this type of arrangement', was 'material' and something '[Mr Bartlett] might take exception to'.[83]

(3) Could not recall whether there was any further investigation of the issue.

(4) Said he would have read the investigation report given it was a very important matter.

1. In relation Ms Crockett's email, Mr Keogh contends that:

(1) In calculating Mr Keogh's long service leave entitlements, Ms Crockett observed that 'some of the conduct relates to periods prior to accumulating the 10 years'.

(2) Given Mr Keogh commenced employment as operations manager on 16 May 2009,[84] it follows Mr Keogh would have accumulated 10 years' service on 16 May 2019; Ms Crockett's reference to conduct relating to periods 'prior to accumulating the 10 years' must be taken to mean conduct occurring prior to 16 May 2019; the reference could not have been to Mr Keogh's leasing of the trucks via Pekeri because Mr Keogh did not purchase the trucks until November 2019;[85] and it is thus reasonably open to infer that Ms Crockett was referring to conduct concerning the management fees identified by Mr Mills in the course of his investigations.

1. In my view, none of the above evidence is sufficient to ground an inference that FMR knew, when executing the Deed, there was an issue relating to management fees paid by Pekeri in relation to which a claim against Mr Keogh might arise; let alone of the existence, character or extent of Mr Keogh's potential liability arising from the claims now made by FMR in these proceedings relating to that matter.
2. In this regard, I make the following observations.
3. First, Mr Mills's summary on its face appears to address four discrete topics: 'Paddy', 'Rob Baker', 'Pekeri Contracting', and Gordon Sidar. The narrative under the heading 'Paddy' is confined to a discussion relating to Mr Keogh and the trucks disclosure. There is nothing alluding to the possibility that Mr Keogh may have benefitted from his role within FMR in any other manner let alone that he may have made a secret profit from any other activities.
4. Secondly, the words in the summary 'charges for project management were included in the [C]apex but it is not clear what it is for' appear as part of Mr Mills' discussion of the 'Pekeri Contracting' topic.
5. Thirdly, immediately after those words, Mr Mills in his summary goes on to say: 'it is calculated at $2000/day. I have since asked [Mr Keogh] to clarify, he was unaware and followed up with [Mr Baker]. [Mr Baker] advised it was agreed with Chris Burns to top up his pay as he's only on $60/hr'.[86]
6. Mr Mills' summary does not allude to the possibility that Mr Keogh (or Clintsoldmate) may have benefited from any portion of the 'management fees'. His summary also reveals that (following enquiry) Mr Keogh had disavowed any knowledge of what these 'fees' were for and had effectively informed Mr Mills that, after he (Mr Keogh) had followed up with Mr Baker, Mr Baker advised that the fees were to top up Mr Baker's own pay.
7. Indeed, as FMR correctly put it in closing 'it was Mr Keogh who threw Mr Mills off the scent'.[87]
8. Fourthly, neither the fact that a management fee arrangement may have been a 'matter of interest' to Mr Watson nor the fact that Mr Bartlett may have taken exception to it, in my view, detracts from a conclusion that there was nothing in Mr Mills's summary to support an inference that FMR knew of the existence, character or extent of Mr Keogh's liability in this connection.
9. Fifthly, there was in any event no challenge to the evidence of:

(1) Mr Watson that he first became aware Mr Keogh had received a portion of the management fee which FMR had paid to Pekeri '[w]ell after' the Deed was executed.[88]

(2) Mr Young to the effect that it was only after the 'police investigations' had begun that it came to his attention that Mr Keogh had received payments relating to an agreement between FMR and Pekeri,[89] Mr Young having shortly before indicated that the police had made contact '[l]ate in 2020'.[90] This was of course well after the Deed was executed.

1. Finally, as FMR correctly noted, Ms Crockett's email was tendered (by Mr Keogh) on the last day of evidence in circumstances where FMR had previously indicated it did not require Mr Mills for cross-examination and where the email was not put to any witness.
2. Given this, and the fact that Ms Crockett's email is in any event ambiguous, it would be a matter for speculation as to what she may have meant by the words 'some of the conduct relates to periods prior to accumulating the 10 years'. It would be inappropriate for me to speculate; let alone in circumstances where the evidence of Messrs Watson and Young regarding the above matters was unchallenged. I have no reason to doubt the accuracy of this unchallenged evidence and, as such, I accept it.
3. For completeness, I also accept the evidence of Mr Bartlett and Ms Romero to the effect that, while Mr Keogh was still an employee, they too knew nothing of the payments received by Mr Keogh from Pekeri by way of a share of a 'project management' fee.
4. In all the circumstances, I find that FMR was also unaware of the existence, character and extent of Mr Keogh's liability concerning these matters when it executed the Deed.

Issue 4: Does the Deed release Mr Keogh from the claims?

1. The answer to this question depends on a combination of a proper construction of the Deed and the application of established legal principles. However, it is convenient to first make some observations about the circumstances which preceded execution of the Deed.
2. As noted earlier, Mr Keogh's employment was terminated less than a week after the trucks disclosure. Mr Keogh made that disclosure in an email to the Board (copied to Mr Mills) on 19 March 2020 just before 6.00pm.[91]
3. The disclosure resulted in a flurry of emails: between Messrs Young and Watson,[92] between Messrs Bartlett and Keogh,[93] between Messrs Watson and Keogh,[94] and from Mr Keogh to Messrs Bartlett and Young.[95]
4. By the following afternoon, 20 March 2020, Mr Mills had already sent his summary and associated Capex forms to Messrs Watson and Young.[96] Some hours later, Mr Young forwarded these materials to Mr Bartlett.[97]
5. Mr Young's covering email to Mr Bartlett read as follows:[98]

Hi Pete

This is what [Mr Mills] put together for me and [Mr Watson] has reviewed.

You will probably get more from it than me but there are still are a number of questions to answer.

None of it is good though.

Besides being personally involved in the trucks hired through [Mr Baker's] company all of this has happened on [Mr Keogh's] watch and he is accountable.He has called me and apologised profusely but it still doesn't sit well. I have said we'll get the facts together and catch up with him next week.

Call me over the weekend if you want to discuss.

I'll make sure Bob [Colville, another FMR Board member][99] is across this.

We just need to nip this in the bud for good.

Unfortunately my trust is further diminished.

...

1. On 23 March 2020, following an intervening weekend, Ms Crockett sent two emails to Mr Mills relating to Mr Keogh's long service leave entitlements[100] and Mr Keogh's salary termination calculation.[101]
2. On 24 March 2020, Ms Romero emailed Mr Mills a draft deed of release. It contained various highlighted placeholders.[102] Mr Mills then emailed Ms Romero attaching a 'salary termination calculation' spreadsheet relating to Mr Keogh.[103] Later that afternoon, Ms Romero emailed Mr Mills a revised draft deed reflecting Mr Keogh's correct name and the placeholders having been removed.[104]
3. Numerous further emails relating to the draft deed and its proposed terms were then sent. In one email, Mr Mills recorded that he had 'discussed' (I infer a draft version of the Deed attached to the email) with Mr Keogh. In another email, sent by Mr Mills to the Board less than an hour later, it was recorded that Mr Keogh would have his resignation to Mr Mills 'by close of business', but that Mr Mills had not yet received it.[105]
4. Some of the emails also reveal that Mr Keogh had requested changes to the draft deed.[106] Many emails were exchanged between Mr Mills and Ms Romero on the evening of 24 March 2020 and the morning of 25 March 2020[107] and copied to Messrs Watson and Young.[108] Mr Young also provided some input into the draft deed amendment process,[109] and as to how the cessation of Mr Keogh's employment was to be communicated to others.[110]
5. Ultimately, at approximately 10.45 am on 25 March 2020, Ms Romero sent Mr Mills a final draft of the Deed incorporating certain changes requested by Mr Keogh. In her covering email, Ms Romero asked Mr Mills to 'just check and amend as necessary the figures for annual leave, [long service leave] etc'.[111]
6. Less than an hour later, Mr Keogh emailed his resignation to Mr Mills (copying Mr Bartlett)[112] and an executed version of the Deed was produced. Mr Keogh had signed the Deed on his own behalf, and Mr Watson on behalf of FMR, with both signatures witnessed by Mr Mills.[113]

1. The Deed, which is entitled 'Deed of Release', commences by identifying the parties: Mr Keogh as 'the Employee' and FMR as 'the Employer'. Immediately afterwards, there are recitals reflected in a section headed 'Background' which read:
   1. The Employee commenced Employment with the Employer on 16 May 2009 (the Employment); and
   2. Without making any admission as to liability, the parties have agreed to mutually end the employment relationship on the terms contained in this Deed.
2. Several clauses then follow. Given the nature of the controversy, it is only necessary to identify some of them: cl 2 ('Definitions'), cl 3 ('Release Arrangement and Condition Precedent'), cl 5 ('Mutual Release'), cl 6 (Mutual Non Disparagement'), cl 8 ('Bar to further proceedings'), cl 10 ('Employee's acknowledgements') and cl 11 ('General').

1. Clause 2 relevantly provides the following definitions (subject to context):

Claims means all actions, claims, demands, complaints, suits, proceedings, liabilities, sums of money, damages, costs or any legal administrative, governmental, arbitral or other proceedings or investigations, whether directly or indirectly, arising out of, related to or in connection with the Employment[115] but excluding any entitlement to workers' compensation that may exist pursuant to legislation.

...

Employee means [Mr Keogh] ...

Employer means [FMR] ...

Employment means the employment of the Employee by the Employer or its Related Bodies Corporate including negotiations with the Employer or any other person relating to the terms and conditions on which that employment would take place, since 16 May 2009.

Group means the Employer, all Related Bodies Corporate of the Employer, and all directors, officers, trustees, agents, contractors and employees of the Employer and Related Bodies Corporate of the Employer, jointly or severally.

Related Bodies Corporate has the meaning given to that term in the Corporations Act 2001 (Cth).

Release Arrangement means as set out at clause 3.

1. In earlier drafts of the Deed the definition of 'Claims' had read:

Claims means all actions, claims, demands, complaints, suits, proceedings, liabilities, sums of money, damages, costs or any legal administrative, governmental, arbitral or other proceedings or investigations, whether directly or indirectly, related to the Employment but excluding any entitlement to workers' compensation that may exist pursuant to legislation.[116]

(emphasis added)

1. However, the words 'arising out of, related to or in connection with the Employment'[117] were added following a request by Mr Keogh, conveyed to Ms Romero via Mr Mills, a few hours before the Deed's execution.[118]

Clause 3 (Release arrangements and condition precedent)

(a) On a confidential and without prejudice basis, the Employer has provided the Employee an offer on the terms set out in clause 3(d) to the Deed (the Offer).
>
> (b) The Offer is conditional on the Employee: > > 1. delivering a signed copy of this document to the Employer by 12 midday AWST on 25 March 2020, which delivery will constitute acceptance of the Offer; > 2. returning all property belonging to the Employer by 12 midday AWST on 25 March 2020, including vehicles, keys, mobile phone, [laptop] and any other item belonging to the Employer; and > 3. providing the odometer reading of the Employee's salary sacrificed vehicle as of 25 March 2020. > >
>
> (c) If the Employee does not comply with clause 3(b) above, the Offer will no longer be open for acceptance by the Employee.
>
> (d) The Employer will accept the Employee's termination as a resignation and will pay to the Employee the amount of $196,138.13 less any applicable tax and any sum required for the pay out of the Employee's salary sacrificed vehicle, with such funds to be directed to the Employee's nominated bank account. In addition to normal time salary up to and including the date of this Deed, this amount includes a notice period equivalent to three months; 520 hours of Long Service Leave, and 80.99 hours of annual leave, as set out in the calculation provided to the Employee on or about the date of this Deed.
>
> (e) The Release Arrangement at clause 3(d) will be provided to the Employee within 7 days of receipt by the Employer of a copy of this Deed signed by the Employee

(a) The Employee, Employer and the Group unconditionally release each other party from all Claims that party has or may have in connection with, arising from or touching on the Employment.
>
> (b) The Employee, Employer and the Group, agree not to make, take or institute any Claims against the other party.

1. Clause 6 reads:
   1. Mutual Non Disparagement

(a) make or publish any adverse, disparaging or other comments (including to the media or social media) that are intended to or otherwise have the effect of bringing the Employer and the Group, or any of its members, into disrepute; and

(b) in any way hold himself out or otherwise indicate to any third party as authorised to represent FMR in any capacity whatsoever.

The Employer agrees to use its best endeavours to ensure that its Employees or representatives will not make or publish any adverse, disparaging or other comments (including to the media or social media) which are related to the Employee's termination and that are intended to have the effect of bringing the Employee into disrepute.

1. Clause 8 reads:
   1. Bar to further proceedings

The Employee, Employer or the Group may plead this Deed as a bar to any Claim by the Employee arising out of or touching on or concerning the matters referred to or contained in this Deed.

(a) he has had the opportunity to seek independent advice about, and is aware of and understands the consequences of entering into this Deed, including the consequences of providing the release and indemnity at clause 9;

(a) This Deed contains the entire understanding of the parties about, and supersedes all previous communications on, the matters referred to or contained in this Deed.

1. The Deed is to be construed in accordance with the established principles applicable to the construction of written contracts generally.[119]
2. The principles, reflected in decisions of the High Court and outlined in many cases in the Court of Appeal, are as follows:[120]

(1) The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear.

(2) Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract.

(3) The instrument must be read as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed to have some operation.

(4) The general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation. Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is consistent with the commercial object of the agreement. However, it must also be borne in mind that business common sense may be a topic on which minds may differ.

(5) Definitions do not have substantive effect. A definition is not to be construed in isolation from the operative provision(s) in which the defined term is used. Rather, the operative provision is ordinarily to be read by inserting the definition into it.

1. Regarding the fourth point, as was noted in JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2]:[121]

(1) Although reasonable minds might differ on business common sense, it is nevertheless accepted that if the language is open to two possible constructions, the preferred construction will be that which 'will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, even though the construction adopted is not the most obvious, or the most grammatically accurate.[122]

(2) Where a constructional choice is available it is important to consider what a reasonable businessperson reading the relevant clause or agreement would understand it to mean.[123] It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purposes and objects to be achieved by it.

1. When it comes to construing a deed of release, the approach of the plurality of the High Court in Grant v John Grant & Sons Pty Ltd[124] applies.[125]
2. Three principles are to be discerned from this decision:[126]

First, as a matter of construction, wide general words in a release of obligations should be restrained by the particular occasion mentioned in any recitals.

Secondly, as a matter of construction, wide general words in a release of obligations may be limited by the matters that were in the contemplation of the parties when the release was given.

Thirdly, in equity, a releasee may not rely upon wide general words in a release of obligations as a mechanism for avoiding the fulfilment of obligations that fall outside 'the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor'.

(emphasis added)

1. The first two principles are common law principles of contractual interpretation, while the third is an equitable principle.[127]
2. In the context of any application of the third (equitable) principle, evidence is admissible as to the subjective state of knowledge of each party to a deed of release concerning the existence, character and extent of the liability in question, and as to the actual intention of the releasor.[128] That said, there is perhaps a debate as to how such evidence is to enter the analysis in that (limited) context.[129]
3. As FMR correctly points out, when the court is in equity to examine and consider the subjective knowledge of both parties to a deed of release, and the actual intention of the releasor, it is the knowledge and intention 'as to the subject matter on which the release would operate' which is relevant.[130]
4. However, as Buss JA also noted in Wright v Lemon:[131]

[N]otwithstanding the first and second principles [in Grant v John Grant & Sons Pty Ltd], it is possible for a release to extend to claims of which the releasor is unaware. Further, the third principle will not apply if it is plain that the parties intended that wide general words in a release of obligations should include all conceivable further disputes between them in relation to a particular subject matter or generally, whether or not the facts underpinning the further disputes were in existence or known to one or both of the parties when the release was given.[132]

(emphasis added)

1. Finally, in circumstances where it is Mr Keogh who seeks to rely upon the release in cl 5(a) of the Deed, it is he who must plead and prove:[133]

(1) The material facts that establish that the release applies.

(2) The material facts leading to the legal conclusion that FMR's claims in these proceedings existed at the time the Deed was executed.

(3) That those claims were at that time within the parties' contemplation.

1. It is convenient first to examine whether it is 'plain'[134] that the parties intended (i.e. objectively and on a proper construction of the Deed)[135] for the release in cl 5(a) to extend to FMR's claims in these proceedings.
2. In my view, it is far from obvious that the parties in this case had any such intention.
3. Although both the definition of 'Claims' in the Deed and the formulation of cl 5(a) are wide, they are not of themselves 'plainly' so wide as to extend to claims of which either party was unaware at the date of its execution.[136]
4. In this regard, I note that:

(1) Neither the definition of 'Claims' nor cl 5(a), for example, contained:

(a) express words of the kind reflected in cl 5.10 of the instrument considered by Buss JA in Wright v Lemon; namely, 'whether or not the parties are aware of such claims or action at the date of signing this Document';[137] or

(b) language as extensive as that forming part of cl 4.2 of the deed of release considered by the Queensland Court of Appeal in Wichman v Dormway; namely, 'all causes of action, actions, suits, arbitrations, claims, demands, costs, debts, damages, expenses and legal proceedings whatsoever arising out of or in any way connected with ... [t]he Employment ...'[138]

(2) Even with the more extensive language deployed in Wichman v Dormway, the provision there was still considered to lack 'specific words' and to be insufficient to demonstrate that it was plainly the parties' intention to afford a release from, relevantly, acts of fraud.[139]

1. In short, neither the definition of 'Claims' in the Deed, nor cl 5(a), in my view contains sufficiently 'clear' (or 'appropriate') language to make plain an intention to extend the release to claims on which either FMG or Mr Keogh was unaware when executing the Deed.[140]
2. Nor in my view does any other language in the Deed do so.
3. Whilst it may be accepted that the express terms of the Deed evince an intention to end Mr Keogh's employment, to ensure neither party disparaged the other, and to achieve 'finality',[141] I do not consider that the instrument, properly construed, makes it 'plain' that 'finality' was also to be achieved with respect to any future claims arising from facts which were then unknown to FMR; let alone to claims based on allegations of dishonesty or fraud.[142]
4. Moreover, while the parties may be taken to have known, when entering into the Deed, that Mr Keogh's employment had ended in the context of the trucks disclosure, there was no suggestion that Mr Keogh had acted dishonestly or fraudulently in this connection.
5. It follows that there no impediment to the operation of the third principle in Grant v John Grant in this case (assuming it is necessary to consider that principle).

The first and second principles in Grant v John Grant

1. In my view, the releases afforded by cl 5(a) of the Deed are, as a matter of construction, in any event insufficiently wide to release Mr Keogh from any of the claims the subject of these proceedings on an application of the first and second principles in Grant v John Grant.
2. I have come to this view for the following reasons.
3. First, regarding the first principle in Grant v John Grant, the 'particular occasion' mentioned in the two recitals forming part of 'Background' of the Deed is the mutual ending of Mr Keogh and FMR's employment relationship without any admission as to liability.
4. It is in this context that the 'wide general words' reflected in cl 5(a) are to be construed.
5. Secondly, although the recitals do not refer to any specific dispute or claim, this does not detract from the need to apply the first principle. As the plurality in Grant v John Grant observed, there is a 'prima facie canon of construction qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument'.[143]
6. Their Honours made this observation having earlier noted that the principle upon which the plaintiff there relied had been:[144]

adopted by the common law long ago for the restriction of wide general words in a release of obligations, viz. that the general words of a release should be restrained by the particular occasion: Knight v. Cole [1797] EngR 165; (1690) 3 Lev 273 (83 ER 686) . Thus the general words of a release are to be restrained by the particular recital: Payler v. Homersham [1815] EngR 1083; (1815) 4 M & S 423 (105 ER 890). As it is concisely expressed by Best J. in Lampon v. Corke (1822) 5 B & Ald 606, at p 611 (106 ER 1312, at p 1314): 'If there be introductory matter, that will qualify the general words of the release.' (at p123)

(emphasis added)

1. Thirdly, regarding the second principle in Grant v John Grant, I infer from the Deed, read as a whole, that the matters in the parties' contemplation at the time of execution were, relevantly, confined to:

(1) A mutual ending of Mr Keogh and FMR's employment relationship without any admission as to liability.[145]

(2) Affording a 'Release Arrangement' to Mr Keogh; being a settlement sum of $196,138.13,[146] being an amount calculated to include his normal time salary up to and including the date of the Deed, a notice period equivalent to three months, 520 hours of Long Service Leave, and 80.99 hours of annual leave.[147]

(3) The fact that both parties would benefit from mutual releases,[148] a mutual non-disparagement provision,[149] a confidentiality provision,[150] a bar to further proceedings provision,[151] and an indemnity against any loss, cost, damage or expense in the event of any breach of the Deed.[152]

(4) The fact that FMR would otherwise derive no benefit from the Deed (with the possible exception of any advantage flowing from the cessation of Mr Keogh's employment).

1. Fourthly, when executing the Deed both parties also knew that Mr Keogh's employment was ending in a context where he had shortly before made the trucks disclosure, but there had been no suggestion he had acted dishonestly or fraudulently in that connection.
2. Accordingly, and cognisant of my conclusion on Issue 3, Mr Keogh has failed to prove that any future claim arising from the matters the subject of these proceedings were within the parties' contemplation when the Deed was executed.
3. It follows that cl 5(a) cannot be construed as to release Mr Keogh from claims arising from facts not known to FMR at that time; let alone from claims based on allegations of dishonest or fraudulent conduct which would, in any event, have fallen outside the lawful scope of Mr Keogh's employment with FMR and, thus, outside the meaning of 'Employment' as defined in cl 1 of the Deed.[153]
4. For completeness, the same conclusion applies, for the same reasons, regarding the proper construction of cl 5(b) and cl 8 of the Deed.

1. Given my conclusions with respect to the operation in the first and second principles in Grant v John Grant, it is strictly unnecessary to consider whether the third principle is also engaged.
2. However, in case I am wrong, I make the following further observations.

FMR's actual intentions (if any) at time of Deed

1. As FMR correctly contends, aside from a handful of internal emails exchanged on 24 and 25 March 2020, there was no evidence of any discussion between any of Messrs Bartlett, Young or Watson, or Ms Romero, about FMR's entry into the Deed. Indeed, Mr Bartlett did not recall seeing a copy of the Deed before these proceedings, and was not involved either in drafting the Deed or in the decision to enter into it.
2. In addition, Mr Watson gave evidence to the effect that the Deed:[154]

was prepared as a fairly routine requirement of a departing executive ... forefront in [his] mind was ... the anti-disparagement element of it. He won't say bad things about us; we won't say bad things about him. And this was also a document that had been used with past departures.

1. Mr Watson also testified that he did not recall having had input in drafting the Deed or in any discussions about its terms.
2. Mr Young relevantly gave evidence that he had:[155]

(1) Turned his mind to two aspects of the deed 'but given this was a reasonably standard business practice and what I thought was a standard release was the two things that were most important to me commercially was, the non-disclosure aspects, and then, quite simply, the agreement and calculation of [Mr Keogh's] employment entitlements. So there was no further claim in relation to those, a quantum, if you like'.

(2) Not turned his mind to the effect of the release clause.

1. Mr Young gave this evidence in re-examination having, under cross-examination, relevantly answered 'yes' to the following questions: 'you wanted to ensure that FMR was released from any claims that Mr Keogh may have against it as part of the deed?';[156] '[y]ou wanted to ensure that those releases were as comprehensive as they could possibly be?';[157] and '[y]ou understood in reviewing the terms of the draft deed, that the releases that FMR was receiving from Mr Keogh were the same as the releases FMR was giving to Mr Keogh...?'.[158] However, after objection was taken to a follow-up question arising from the last question, Mr Young was asked whether he understood that the 'deed containing a term providing that each party released the other from claims'. He responded 'I don't recall that. It's a legal document. I've got to be quite clear that I'm not a lawyer, so some of this terminology doesn't mean much to me'.[159]
2. Considering the above, I am not satisfied Mr Keogh has demonstrated that FMR actually intended for cl 5(a) of the Deed to operate so as to release him from the claims the subject of these proceedings.
3. In any event, as FMR correctly submits, it was not put to any of FMR's relevant witnesses that they had intended for the provision so to operate.

1. The effect of my findings in the context of Issue 3 is that FMR was unaware of the existence, character and extent of Mr Keogh's liability the subject of these proceedings when the Deed was executed.
2. However, the same cannot be said for Mr Keogh; at least so far as existence and character are concerned.
3. In these respects, the inference in my view is irresistible that at the time the Deed was executed, Mr Keogh must have known that:

(1) FMR had not given him permission to use the Stockpile for his own purposes.

(2) Despite having no permission to do so he had, in the circumstances recorded in [8] above:

(a) directed that gold-bearing ore from the Stockpile be used as part of the Aqua Alluvial milling campaign;

(b) following that campaign, together with his wife, been the ultimate beneficiary of a $590,411 payment from Aqua Alluvial.

(3) He had made no relevant disclosure concerning those matters to FMR before FMR executed the Deed.

(4) FMR had not consented to him obtaining a profit from its contracts with Pekeri relating to the 2017 Works or the 2018 Works.

(5) Despite this, Mr Keogh's company, Clintsoldmate, had in that context received amounts totalling $288,200 from Pekeri in the circumstances recorded in [7] above.

(6) He had made no relevant disclosure concerning those matters to FMR before FMR executed the Deed.

(7) The Deed was being executed in the context of the trucks disclosure alone.

1. Noting Mr Keogh's knowledge of the above matters, and the limited state of FMR's knowledge, at the relevant time, and the fact that Mr Keogh's conduct involving the Stockpile and Pekeri 'management fees' essentially amounted to unauthorised acts of brazen entitlement, it would in my view be unconscientious for Mr Keogh to be permitted to rely on the wide general words reflected in cl 5(a) as a mechanism for escaping liability for the claims the subject of these proceedings.
2. The third principle in Grant v John Grant is accordingly engaged in any event.

1. For the foregoing reasons, I find that the Deed does not release Mr Keogh from the claims the subject of these proceedings.

Issue 5: Did Mr Keogh commit the tort of conversion?

1. In West Australian Newspapers Ltd v Bond,[160] Buss JA described the tort of conversion in the following terms:[161]

Conversion is a common law action in tort which imposes strict liability for a wrongful interference with the right to possession of a chattel. A person may sue for conversion if he or she had either actual possession or an immediate legal right to possession of the chattel at the time of conversion. Proof of ownership is unnecessary. There must be an intentional dealing with the chattel and the dealing must impair the plaintiff's rights to or in respect of the chattel. It is unnecessary, however, to prove that the defendant intended to impair the plaintiff's rights.

1. As Master Russell recently observed:[162]

Not every physical taking of a chattel (moveable personal property) will amount to conversion. For example, merely removing such property from one place to another without any intent to assume possession or control of it, and where no damage is done to the personal property, will not amount to conversion.[163] Also, mere or minor damage will be insufficient.[164] The property must have been taken (or dealt with) without lawful justification, and with an intention to exercise dominion (control) over it.[165]

1. Accordingly, and consistent with the learned Master's observations,[166] FMR must prove the material facts relied upon to establish that:

(1) FMR was in possession of or had an immediate right to possession of the Stockpile at the time of the alleged conversion.

(2) Mr Keogh:

(a) dealt with the Stockpile in a way that interfered with or deprived FMR of its use and possession of it;

(b) had no justification for doing so; and

(c) did so with the intention of exercising control over the Stockpile.

(3) FMR has suffered loss and damage as a result.

1. I am satisfied that FMR has established each of these requirements.
2. As to the first element, the Stockpile was located at the Mill and the Mill was at all material times both owned and operated by FMR. I accordingly infer that, at the time of the Aqua Alluvial campaign, FMR had either possession or an immediate right to possession of the Stockpile
3. Regarding the second element, Mr Keogh directed that gold‑bearing ore from the Stockpile be used as part of the Aqua Alluvial campaign. The Aqua Alluvial campaign involved the use of (at least) a mixture of gold-bearing ore provided by Aqua Alluvial and from the Stockpile. I infer that by giving his direction, Mr Keogh dealt with the Stockpile in a way that interfered with or deprived FMR of its use and possession which direction, moreover, evinced an intention to exercise control over the Stockpile.
4. Mr Bartlett never gave the stockpile authorisation. In any event, as Mr Keogh accepted the Stockpile accumulated over time, and there was no suggestion that Mr Keogh ever sought or obtained permission to use the augmented part of the Stockpile.
5. Accordingly, I infer that Mr Keogh had no justification for using the Stockpile.
6. As to the third element, the Stockpile was gold-bearing. I infer from this fact alone that the Stockpile had more than negligible value. The inference is further supported by the terms of the Aqua Alluvial agreement. As was common ground, pursuant to that agreement Messrs Keogh and Burns were together to receive 50% of the proceeds of a milling campaign which would involve use of, amongst other material, gold bearing ore from the Stockpile. Moreover, implementation of the agreement ultimately led to an amount of over $590,000 finding its way into a bank account held jointly by Mr Keogh and his wife.
7. In all the circumstances, I infer that the subsequent use of the gold-bearing ore from the Stockpile as part of the Aqua Alluvial campaign resulted in FMR being deprived of possession of an asset which had more than negligible value and that FMR has suffered damage which could not be described as 'minor'.

1. For the above reasons, I find that Mr Keogh committed the act of conversion.

Issue 6: Has FMR proved Mr Burns was paid $290,000 from milling campaign?

(1) Whether Aqua Alluvial paid amounts totalling $290,000 to Mr Burns between March 2019 and January 2020 as pleaded by FMR.

(2) Whether those amounts were paid from the proceeds of the Aqua Alluvial campaign.

1. At the conclusion of the trial, Mr Keogh effectively contended that FMR failed to discharge its onus of proving these matters.

1. The amount of $290,000 comprises the total of the following four sums:

(1) A cash amount of $90,000 allegedly given by Mr Gash and Mr Russell Holden to Ms Dombroski on 13 or 14 March 2019.

(2) A cash amount of $100,000 allegedly delivered by a Ms Bonnie Spilsbury to Mr Burns on or about 21 or 22 September 2019.

(3) An amount of $52,130 allegedly transferred from a Commonwealth Bank account in the name of Eazyoz Resources Pty Ltd (Eazyoz) into a Westpac bank account in the name of Mr Burns and his wife on or about 1 October 2019 (Burns Westpac account).

(4) An amount of $47,870 allegedly transferred from a Commonwealth Bank account in the name of Aqua Alluvial into the Burns Westpac account on 24 January 2020.

1. For the purposes of proving all four payments, FMR relies among other things upon a video recording of a police interview with Mr Burns on 5 January 2021 at the Busselton police station (police recording)[167] and a portion of a transcript (dated 8 March 2023) of a District Court trial, in which Mr Burns, Mr Keogh, Ms Dombroski, Mr Gash and Mr Holden were all co-accused, recording formal admissions (District Court transcript).[168] FMR sought to introduce these materials pursuant to s 79C(1) of the Evidence Act 1906 (WA) (Evidence Act).

Evidence Act, s 79C and s 79D

1. Section 79C(1) of the Evidence Act in broad terms permits, in certain circumstances, the reception into evidence of any 'statement' in a 'document' which tends to establish a fact or opinion where direct oral evidence of the fact or opinion would be admissible.[169]
2. FMR relies on s 79C(1) on the basis that:

(1) The police recording and District Court transcript contained 'statements' directly or indirectly reproduced, or derived from, information in one or more 'statements' made by a 'qualified person'; namely, Mr Burns.

(2) Mr Burns was a 'qualified person' because, at the time he made the statements, he either had or may reasonably be supposed to have had personal knowledge of the matters dealt with by the 'statements'.[170]

1. Mr Burns was not required to be called as a witness as he was deceased by the time of the trial before me.[171]
2. There was no objection to the tender of the police recording and District Court transcript. Nonetheless, as Mr Keogh correctly pointed out, in estimating the weight (if any) to be attached to any statement by Mr Burns I was, in accordance with s 79D of the Evidence Act, required to have regard to all the circumstances from which any inference could reasonably be drawn as to the accuracy or otherwise of the statement.
3. As will be appreciated, two essential steps must be taken in determining if anything said by Mr Burns, either to the police or by way of formal admission in the District Court, assists in establishing:

(a) any of the alleged payments were made to Mr Burns (or anyone else at his direction); and

(b) that any such payment was made from the proceeds of the Aqua Alluvial milling campaign in late 2018 / early 2019.

1. The first step is to identify, for the purposes of s 79C(1), whether Mr Burns made a 'statement' which tends to establish a fact or opinion relevant to either (a) or (b) above.
2. The second step is to estimate, in accordance with s 79D, the weight (if any) to be attached to any such statement.
3. According to the Macquarie Dictionary,[172] the word 'statement' relevantly means:

1. something stated.
2. a communication or declaration in speech or writing setting forth facts, particulars, etc.

1. For the purposes of s 79C, 'statement' also includes 'any representation of fact or opinion whether made in words or otherwise'.

1. As is apparent from this recording, the police interview followed Mr Burns's arrest on suspicion of stealing gold ore.
2. The interview appears to have run for just under two hours with at least one short break.
3. However, there are gaps in the police recording. There are several occasions where the video 'skips'; including for intervals of approximately 57 seconds, 27 seconds, 13 seconds, 39 seconds and 173 seconds (i.e. nearly three minutes).
4. Despite these gaps, there was no challenge to the accuracy or reliability of the police recording.
5. It is apparent from the recording that topics canvassed during the interview included matters pertaining to: Mr Burns's role at the Mill; the processing of 'piles of dirt'; Mr Keogh; a person referred to as 'Morgan Greenhill'; certain documents shown to Mr Burns during the interview; Aqua Alluvial; Eazyoz; Simon Gash; and certain amounts of money received by Mr Burns.
6. It is also in my view apparent from the recording, that 'Morgan Greenhill' is later referred to as 'Morgan Dombroski', and also 'Morgs', in the context of an amount of $90,000 being paid (or potentially being paid) to her. I infer that all three expressions were intended to refer to the same person; namely, Ms Dombroski.

1. Mr Burns's formal admissions in the District Court proceedings were made pursuant to s 32 of the Evidence Act.
2. The admissions were read into the District Court record on behalf of Mr Burns by his then senior counsel; evidently from a document which was then formally tendered as an exhibit. The exhibit was not tendered in this court, although an extract was.
3. The extract relevantly records the following:[1]

(1) Between 20 May 2013 and at least 17 January 2019, Christopher Robert Burns was employed by FMR Investments Proprietary Limited.

(2) He was employed as a mill manager, Greenfields Mill, during that period.

(3) It's also admitted that between 27 December 2018 and 7 January 2019, a quantity of gold-bearing ore, which we refer to as the relevant ore, was processed at the Greenfields Mill Coolgardie.

(4) The total relevant amount of ore processed was 16,931 tonnes.

(5) The ore processed was a mixture of ore provided by Aqua Alluvial Proprietary Limited and a quantity of mineralised waste that had accumulated at the Greenfields Mill near a tailings dam.

(6) The milling campaign relating to the relevant ore resulted in the - in the production of 1881.868 ounces of gold. FMR Investments Proprietary Limited, the owner of Greenfields Mill, was paid $838,084.50 for the processing of the relevant ore.

(7) On 13 March 2019 to 14 March 2019, Mr Burns arranged for Simon Leslie Gash to deliver $90,000 to Morgan Whitney Dombroski.

(8) On 21 or 22 September, Mr Burns collected $100,000 from a woman named Bonnie.

(9) On 1 October 2019, $52,130 was transferred from a Commonwealth Bank account ... the name of Eazyoz Resources Proprietary Limited to a Westpac account ... in the name Christopher Robert Burns and Kate Francis Burns' account. Kate, of course, being his wife.

(10) Further admitted ... that on 24 January 2020, $47,870 was transferred from a Commonwealth Bank account ... in the name of Aqua Alluvial Proprietary Limited, to the Burns account ...

Uncontroversial matters relating to Messrs Holden and Gash

1. It was common ground that Mr Holden is the sole director of Aqua Alluvial, has been a director of that company since July 2002 and, has, since October 2008, also been a director of Eazyoz.
2. It was also common ground that Mr Gash has been, since September 2011, a director of Eazyoz. As noted earlier, Mr Keogh identified Mr Gash, in his email exchange with Mr Bartlett of 6 January 2019, in answer to Mr Bartlett's question: '[W]ho is [A]qua [A]lluvial[?]'.[173]
3. There was also no challenge to the reception into evidence of email correspondence, from Anna Mills (FMR's management accountant) dated 11 January 2019 to Mr Gash attaching an FMR invoice relating to the 'recent milling campaign'.[174]

1. In seeking to prove this alleged payment, and its linkage to the proceeds of the Aqua Alluvial campaign, FMR relied on the viva voce evidence of Ms Dombroski and on 'statements' allegedly made by Mr Burns during his police interview and by way of formal admission in the District Court.

1. Ms Dombroski testified that she knew both Mr Gash and Mr Holden to be associated with Aqua Alluvial from 'another campaign years ago' where Mr Gash's trucks were used to 'haul in dirt'.[175] Her evidence was also that while she was not on site during the Aqua Alluvial campaign, Mr Burns had told her that Aqua Alluvial were going to 'mill some of their dirt'[176] and that it would be an 'Aqua Alluvial and FMR joint venture'.[177]
2. Ms Dombroski went on to testify that in about March 2019, she received a call from Mr Burns who told her that Messrs Gash and Holden were to attend the Mill and needed to give her something. According to Ms Dombroski, Messrs Gash and Holden pulled up outside her office, gave her a cardboard box (about 20cm by 10cm deep) and asked her to give it to Mr Burns. Ms Dombroski says she did not look in the box, and gave it to Mr Burns two or three weeks later when he visited her house, but they did not discuss what was in the box.
3. Ms Dombroski also testified that at a social event two nights later, Mr Burns gave her a yellow envelope and told her there was money in the envelope for her. According to Ms Dombroski, Mr Burns said the money was part of a bet they had made, and 'more so just a bonus ... money that I deserved that I didn't get from FMR'.[178] Ms Dombroski says she put the money in her safe at home which she estimated to be no more than $10,000.
4. Ms Dombroski was only asked one question in cross-examination: if she knew, at the time, where Mr Burns had gotten the money from. Ms Dombroski answered in the negative. She was also unable to say, in answer to a question posed in re-examination, if she now knew the provenance of that money.

1. In seeking to prove the alleged $90,000 cash payment to Ms Dombroski, FMR relies upon four exchanges between the police interviewers and Mr Burns.
2. The exchanges are reflected in Annexure A to these reasons.
3. Regarding the second exchange, FMR submitted that the documents there being discussed were two documents subsequently tendered in these proceedings as exhibits; namely Exhibit 278 (the 'email') and Exhibit 279 (the 'xlsx document').
4. On its face, Exhibit 278 was sent by Mr Burns to Mr Gash on 23 January 2019 at 5.43 am and attached Exhibit 279 (an Excel spreadsheet).
5. Exhibit 278 reads:

From: [Mr Burns]

Sent: Wednesday, 23 January 2019 5:43 AM

To: [Mr Gash]

Attachments: Aqua Calcs.xlsx

Simon,

See the attached spreadsheet.

PK and I paid a higher rate, it was our site dirt that gave us the issues; I am happy with that.

You will see your costs have been included in the overall costs.

Cheers,

Chris.

1. FMR submitted that I could infer that the documents discussed as part of the second exchange were Exhibits 278 and 279 in circumstances where:

(1) The documents had been exhibits tendered by the State in the District Court proceedings and were produced in these proceedings under subpoena addressed to the Director of Public Prosecutions.

(2) The contents of Exhibits 278 and 279 correspond substantially with how the documents were described by the police interviewers during the second exchange.

1. Mr Keogh advanced no submission to the contrary, and I draw the inference sought.
2. In addition, I note that during the police interview the following exchange also occurred:

[1:24:53]

[INTERVIEWER]: The next day on the 14th of March, 2019 you've texted Simon and said 'Mate, are you able to come up? Are you able to organise that $90,000 for Morgs before next Tuesday? If not, will do when she gets back in April.' Simon's then replied one minute later -

BURNS: Yep.

[INTERVIEWER]: - and said 'Yes, I can get it off today if you want'. You've then replied around 50 minutes later and said, 'I'd appreciate it if you could', and then Simon has sent one word to you 'Delivered', that's it.

BURNS: Yep.

[INTERVIEWER]: What can you tell me about that?

BURNS: I mean, I think other than what's in here, I mean, I certainly don't recall the message in detail but if it's there that's what I've said.

[INTERVIEWER]: So that $90,000 comes off your amount, or?

BURNS: Yes.

[1:25:45]

(emphasis added)

1. I understand FMR relies upon the extract from the transcript reflected in [278(7)] in seeking to prove the alleged $90,000 cash payment to Ms Dombroski.

1. Having regard to the ordinary meaning of the word 'statement' and its definition in s 79B, I am satisfied that during his police interview Mr Burns made a 'statement' to the effect that a cash amount of $90,000 was given to Ms Dombroski for him in March 2019.
2. I am so satisfied based on the exchange recorded at [295] above, from which I infer that Mr Burns effectively admitted that he had exchanged text messages with Mr Gash on 14 March 2019 and directed Mr Gash to organise an amount of $90,000 to be given to Ms Dombroski.
3. Nonetheless, I am not satisfied that the police recording also reveals that Mr Burns made any 'statement' to the effect that this amount of $90,000 was from the proceeds of the Aqua Alluvial milling campaign.
4. I say this at least because it is in my view nowhere apparent from the police recording that Mr Burns affirmed the following matters that were common ground in these proceedings:

(1) That by no later than 27 December 2018, he and Mr Keogh entered into an agreement with Aqua Alluvial.

(2) That Mr Burns and Mr Keogh would, in terms of that agreement, make the Stockpile available for processing, together with ore provided by Aqua Alluvial, as part of a combined milling campaign.

(3) That the proceeds of the milling campaign would be divided such that Aqua Alluvial would receive 50%, and him and Mr Keogh 25% each.

(4) That the milling campaign took place at the Mill between about 28 December 2018 and 6 February 2019.

1. In reaching this view, I have not overlooked the fact that during the interview Mr Burns provided a series of largely monosyllabic responses to some questions which might (perhaps) have related to an investigation into one or more of the above matters.
2. However, it would to me seem wrong to permit a priori assumptions based on information derived in the course of the current proceedings (which were only commenced in August 2023) to influence a proper understanding of the true content of any of the exchanges between Mr Burns and his police interviewers more than two years earlier.
3. In my view, once the police recording is stripped of all subsequently acquired knowledge, any potentially relevant statements by Mr Burns dissolve into near‑complete opacity.
4. It follows that when viewed through the exclusive prism of their own historical content, none of Mr Burns's responses relied upon by FMR are sufficiently coherent, clear or complete to ground an inference that Mr Burns was actually admitting any of the critical facts recorded in [300] above.
5. Without such clear admissions, there can be no 'link' between anything said by Mr Burns to the police, relating to the $90,000 allegedly given to Ms Dombroski in March 2019 and the proceeds of the Aqua Alluvial campaign.
6. Even if I am wrong in this respect, I would in any event have attached little if any weight to those responses for the purposes of s 79D of the Evidence Act. As noted, there were many gaps in the video, and the exchanges occurred during a police interview which, as Mr Keogh correctly observed, not a context in which one would necessarily expect absolute frankness and complete honesty.
7. With respect to what is recorded in the District Court transcript, Mr Burns's admission was not that Aqua Alluvial gave Ms Dombroski a box containing cash. Rather, it was to the effect that he arranged for Mr Gash to do so. There was no admission that the $90,000 was part of proceeds of the Aqua Alluvial campaign, and no context to the admission.
8. It follows, in my view, that Mr Burns made no admission in the District Court proceedings sufficient to permit this court to infer that he accepted that the $90,000 payment to Ms Dombroski was from Mr Burns's portion of the proceeds from that campaign.
9. Nor do I consider Ms Dombroski's viva voce evidence provides any assistance in establishing the requisite 'link'. On Ms Dombroski's account, while she did pick up a package from Mr Gash, she did not keep it, did not open it and was unable to confirm its contents. Nor was she the recipient of $90,000 as appears to be suggested by Mr Burn's statement. On Ms Dombroski's evidence she received no more than $10,000 from Mr Burns.
10. In any event, Ms Dombroski was unable to say where the money had come from.
11. For the foregoing reasons, FMR has failed to prove that the contents of the box given to Ms Dombroski by Messrs Gash and Holden in about March 2019 (or for that matter the cash in an envelope subsequently given to her by Mr Burns) had formed part of Mr Burns's share of the proceeds of the Aqua Alluvial campaign.

1. In seeking to prove this alleged payment, and its linkage to the proceeds of the Aqua Alluvial campaign, FMR similarly relies both on 'statements' allegedly made by Mr Burns during his police interview and by way of formal admission in the District Court.
2. Regarding the police recording, FMR relies upon the first, second and third exchanges reflected in Annexure A.
3. As will be seen, none of those extracts record anything about $100,000 cash delivery to Ms Spilsbury.
4. That said, I note another exchange of possible relevance to this topic also occurred not long after the exchange set out in [295] above.
5. That other exchange is reflected in Annexure B to these reasons.
6. However, given the words there emphasised I am not satisfied that Mr Burns made a 'statement' to the police either to the effect that a cash amount of $100,000 was delivered to Ms Spilsbury in September 2019 or to the effect that Mr Burns received that amount from her.
7. Moreover:

(1) For the reasons expressed in [300] to [304] above, I am in any event not satisfied that anything that may have been said by Mr Burns during his police interview would have been sufficient to establish a link between the proceeds from the Aqua Alluvial campaign and any such payment.

(2) Even if I am wrong in that respect I would, for the reasons expressed in [306] above, in any event have attached little if any weight to Mr Burns's responses to the police for the purposes of s 79D of the Evidence Act.

1. Regarding the District Court transcript, I note that Mr Burns formally admitted that:[179]

On 21 or 22 September, Mr Burns collected $100,000 from a woman named Bonnie.

1. I infer that the admission was intended to relate to the year 2019 given what is recorded in the transcript immediately before and afterwards.
2. I am satisfied that this admission is a 'statement', for the purposes of s 79C, to the effect that Mr Burns collected $100,000 on 21 or 22 September 2019 from a woman named 'Bonnie'.
3. I am also prepared to infer, based on one of Mr Burns's responses during the police interview, that it is probable that the reference to 'Bonnie', in the District Court transcript, was intended as a reference to Ms Spilsbury.
4. However, even so, there is in my view nothing in the District Court transcript amounting to a 'statement' by Mr Burns admitting any critical fact set out in [300] above.
5. It follows that no link has been established between Mr Burns's formal admission, in the District Court proceedings, relating to his collection of an amount of $100,000 from 'Bonnie' and the proceeds of the Aqua Alluvial campaign.
6. In circumstances where FMR did not suggest there was any other material from which I might infer such a link, I find that FMR has not discharged the burden of establishing it.

1. In seeking to prove this alleged payment, and its linkage to the proceeds of the Aqua Alluvial campaign, FMR relies not only on 'statements' allegedly made by Mr Burns during his police interview, and by way of formal admission in the District Court, but also upon:

(1) An email from Mr Burns to Mr Gash dated 23 September 2019 (Exhibit 280) attaching an undated invoice from 'Eastern Highlands Goldfields Pty Ltd' to Eazyoz in an amount of $52,130 (Exhibit 281).[180]

(2) An email from Mr Gash to 'KBD Haulage' dated 1 October 2019 effectively directing that the above payment be made 'out of Eazyoz' (Exhibit 280).

(3) A record, produced under subpoena by the Commonwealth Bank, of a payment, on 1 October 2019, of a sum of $52,130 from a Commonwealth Bank account in the name of Eazyoz into the Burns Westpac account.[181]

1. Given the unambiguous nature of these three pieces of unchallenged contemporaneous documentary evidence, I find that on 1 October 2019 Eazyoz transferred an amount of $52,130 into an account jointly held by Mr Burns.
2. I am, moreover, satisfied that Mr Burns made a 'statement' (within the meaning of s 79C of the Evidence Act) to the above effect in the District Court proceedings having regard to the terms of the formal admission reflected in [278(9)] above.
3. However, once again, there nothing in the District Court transcript which is tantamount to a 'statement' affirming any of the critical facts summarised in [300] above.
4. Regarding the police recording, FMR relies upon the following exchanges between the interviewers and Mr Burns:

[1:03:52]

[INTERVIEWER]: So, how much money do you think you've received that you can remember?

BURNS: Well, I don't - a 100 grand?

[INTERVIEWER]: That was one lump, a 100 grand?

BURNS: No, the cheque.

[INTERVIEWER]: Yeah, that was the cheque. Yep.

BURNS: Yep. And obviously, that $47,000, although I don't recall it, but - and some cash, but I'm not -

[INTERVIEWER]: And the $52,000?

BURNS: Yeah.

[INTERVIEWER]: Which is the one you wrote the invoice up for?

BURNS: Yeah.

[INTERVIEWER]: Yep.

BURNS: And some cash. It wasn't a lot, but I can't - I'm not 100% sure how much it was.

[INTERVIEWER]: Who's keeping track of how much you've been paid? Like, who is-

BURNS: Probably those guys.

[INTERVIEWER]: And you trust them to do that?

BURNS: Yeah. [nods] Yeah.

[INTERVIEWER]: Alright.

BURNS: I mean, like, they're good guys. Well, from my point. Maybe they're not, I don't know. But I can only say that they've always been good to me in terms of - you know, over the years, bloody - a few times they've helped me out.

[Video skips 39 seconds at this point]

BURNS: I don't - yeah, I mean, just - yeah, I forget the guy selling, but yeah -

[INTERVIEWER]: But with - so, with you receiving a couple hundred thousand dollars -

BURNS: - Yep. -

[INTERVIEWER]: - and cash -

BURNS: - Yep. -

[INTERVIEWER]: - a parcel of cash, with that whole - this whole milling campaign that went off at 16,900 tonnes, -

BURNS: Yep.

[INTERVIEWER]: - it was FMR's - half of that was FMR's dirt.

BURNS: Yep.

[1:05:10]

(emphasis added)

(a) a portion of the fourth exchange extracted in Annexure A, where Mr Burns appeared to accept that two 'other amounts' had been identified, one of which was 'around 52,000'; and

(b) a portion of the following exchange from which FMR submits I should infer Mr Burns admitted an undated invoice he emailed to Mr Gash on 23 September 2019[182] was a fabrication and generated so as to allow Mr Burns to be paid his share of the Aqua Alluvial campaign out of a 'parcel' of 16,900 tonnes of ore:

[INTERVIEWER]: Okay, so moving on, we've got an invoice here. You've invoiced a company called Eazyoz Resources -

[INTERVIEWER]: Yeah. So, this is an invoice which has got your address at the top, Eastern 45 Highlands Goldfields Party, -

[INTERVIEWER]: Okay, and that's the consultancy company?

[INTERVIEWER]: So, you've listed some monetary amounts here. 15

[INTERVIEWER]: It says work carried out and travel for the month of July 2019.

[INTERVIEWER]: Work carried out and travel for the month of August 2019, -

[INTERVIEWER]: - $22,130. And work carried out and travel for the month of September 2019, $10,350.

BURNS: That would have been, I did some work for those guys, but part of the deal was that I always wanted to do some work. But the fact that they would be able to pay me out of that parcel over whatever years it took.

[INTERVIEWER]: Yep. So, that's an invoice, but that's just to allow you to get the money from that parcel?

BURNS: Yep, Yep. I did do some - I did do some, I did go into Yilgangi.

BURNS: Don't know how many times, but, and I certainly spoke to them about their little plan.

[INTERVIEWER]: Wouldn't be $52,130. So, that's just an invoice done up -

[INTERVIEWER]: So, that isn't a legitimate invoice?

[INTERVIEWER]: Yeah, that's got nothing to do with Eazyoz, does it?

[INTERVIEWER]: So, you've generated pretty well a false invoice -

[INTERVIEWER]: That parcel of 16,900 tonnes of ore at the process.

BURNS: Yeah, and that's probably true, and it's probably some benefit for those guys, I guess.

1. Given Exhibit 281 was produced under subpoena by the Director of Public Prosecutions, and its contents correspond substantially with the description of the 'invoice' given by the police interviewer in the first part of the exchange immediately above, I am satisfied that Mr Burns made a 'statement' (within the meaning of s 79C of the Evidence Act) during his police interview to the effect that he sent the undated invoice to Mr Gash totalling $52,130.
2. That said, the conclusions reflected in [318] above apply with equal force in the context of this transfer too. Nothing in the further exchanges extracted in [330] and [331] detracts from either conclusion.
3. Nor am I satisfied that any of the documentary evidence summarised in [326] above establishes the requisite link between the proceeds from the Aqua Alluvial campaign and the $52,130 Easyoz transfer. That is at least so in circumstances where the alleged payment was made in October 2019, some nine months after the campaign had concluded.
4. In circumstances where FMR did not suggest there was any other material from which I might infer such a link, I find that FMR has not discharged the burden of establishing such a link.

1. In seeking to prove this alleged payment, and its linkage to the proceeds of the Aqua Alluvial campaign, FMR similarly relies on 'statements' allegedly made by Mr Burns during his police interview, and by way of formal admission in the District Court.
2. FMR also relies upon a record of a payment, for $47,870 made on 24 January 2020 from a Commonwealth Bank account in the name of Aqua Alluvial into the Burns Westpac account.[183]
3. Given the unambiguous nature of this unchallenged contemporaneous banking record, I find that on 24 January 2020 Aqua Alluvial transferred an amount of $47,870 into an account jointly held by Mr Burns.
4. I am, moreover, also satisfied that Mr Burns made a 'statement' (within the meaning of s 79C of the Evidence Act) to the above effect in the District Court proceedings having regard to the terms of the formal admission reflected in [278(10)] above, though, again, there nothing in the District Court transcript which is tantamount to a 'statement' affirming any of the critical facts summarised in [300].
5. Regarding the police recording, FMR also invites my attention to a portion of the exchange reflected in [330] above, and to a portion of the fourth exchange extracted in Annexure A to these reasons. In this connection, FMR makes the point that extracts refer, respectively, to a payment of '$47,000' or '47,000'.
6. However, as with the other three payments previously discussed, I am for the reasons expressed earlier also not satisfied that anything which may have been said by Mr Burns during his police interview was sufficient to establish a link between this transfer and the proceeds from the Aqua Alluvial campaign.
7. Nor would I, for the purposes of s 79D of the Evidence Act, in any event have attached any weight to Mr Burns's responses for the reasons expressed earlier.
8. I am also not satisfied that the payment record mentioned in [337] above establishes the requisite link, let alone in circumstances where the transfer was made more than a year after the Aqua Alluvial campaign concluded.
9. Accordingly, FMR has not discharged the burden of establishing the required link with respect to this payment either.

1. For the foregoing reasons, I find that FMR has not established a link between any of the alleged payments to Mr Burns and the proceeds of the Aqua Alluvial campaign. It has accordingly failed to prove both of the matters referred to in [257] above on the balance of probabilities.

1. FMR initially sought the following relief against Mr Keogh:

(1) A declaration pursuant to s 1317E of the Corporations Act that Mr Keogh has contravened s 181, s 182 and s 183 of the same Act.

(2) A declaration that Mr Keogh has breached:

(a) his implied duties of honesty and faithfulness arising pursuant to his contract of employment with FMR dated 16 May 2009; and

(b) fiduciary duties he owed to FMR.

(3) Damages for breach by Mr Keogh of his contract of employment.

(4) Compensation orders pursuant to s 1317H of the Corporations Act for Mr Keogh's contraventions of s 181, s 182 and s 183.

(5) Equitable compensation for Mr Keogh's breach of his fiduciary duties.

(6) A declaration that Mr Keogh holds on constructive trust for FMR property acquired by him by his breach of his fiduciary duties.

(7) An account of profits.

1. In closing, FMR informed the court that it no longer sought any of the declarations referred to in [346(1)], [346(2)(a)] or [346(6)] above.[184]
2. Mr Keogh relevantly admits that:

(1) He owed fiduciary duties to FMR not to place himself in a position where his personal interests and his duties to FMR conflicted, and not to obtain an unauthorised profit.

(2) He breached those duties both in the context of his use of the Stockpile and in the project management payments made to Clintsoldmate.

1. Given these admissions, my findings in the context of Issues 1 and 2, and the fact that FMR has foreshadowed making an election, it is appropriate that a declaration be made in the terms referred to in [346(2)(b)] above.
2. Whether FMR should be granted either of those equitable remedies is a matter for further submission.
3. Mr Keogh also admitted that:

(1) He contravened s 181, s 182 and s 183 of the Corporations Act.

(2) FMR suffered damages resulting from those contraventions, within the meaning of s 1317 of the same Act, in the sums of $288,200[185] and $590,411.[186]

1. Noting these admissions, and my findings in the context of Issues 1, 2, 3 and 4, I am satisfied that:

(1) Mr Keogh contravened s 181, s 182 and s 183 of the Corporations Act.

(2) FMR is entitled to compensation orders against Mr Keogh in the sums of $288,200 and $590,311 pursuant to s 1317H of the same Act.

1. By reason of my findings in the context of Issue 6, I do not consider that FMR would also be entitled to such relief in consequence of any of the payments said to have been made to (or for the benefit of) Mr Burns.

1. None of the foregoing remarks are intended to reflect exhaustively the full extent of the relief to which FMR may or may not be entitled consequent upon my findings in the context of Issues 1 to 6.
2. I say this particularly in circumstances where neither party made fulsome submissions at trial concerning the question of remedies and where FMR, in any event, foreshadowed making an election.
3. Accordingly, I propose hearing further from the parties on these matters, as to the terms of the final orders required to give effect to my findings, and on the question of costs.

[INTERVIEWER]: Okay. Just to put it in perspective with FMR, because if someone else watches this tape, they've probably got no idea what we're referring to here. So, at Greenfields Mill, they do 'toll processing'.

[INTERVIEWER]: You process dirt from other mine sites.

[INTERVIEWER]: So, they come in and they'll dump a big pile on the 'ROM Pad', as you call it.

[INTERVIEWER]: So, everyone will have their own piles of dirt.

[INTERVIEWER]: You take from that, go through the processing plant.

[INTERVIEWER]: So, if you do a cleanup, that is accumulation of -

[INTERVIEWER]: - leftover dirt from other mine sites?

BURNS: Yeah, bits and pieces that people have probably, you know, there's stuff being left behind. Yeah, I mean, sometimes any material that was around, we'd just push it around on the ROM and try to make the ROM a bit easier to drive on in wet weather.

[INTERVIEWER]: So, when Andy asked you about that email where you said it was 'our site' that gave us the problems- I just wanted to clarify- that dirt you're talking about is stuff that has been scraped up from around the FMR processing mill site?

[INTERVIEWER]: Alright. Was any of it come from particular piles of ore body from other mines, or was it just the cleanup around the site?

BURNS: No, I mean- the metallurgists- I mean, they're very conscious of normally when we put a stockpile through from anybody, any parcel through for a client. In the latter years, I think there was clients that had a few metallurgists. So on most occasions, particularly if we're treating, say, material from Northern Star, they might have, three or four metallurgists might come in during the week, so they normally inspected the ROM when their parcel was finished, checked all the areas around, and then signed off the-

[INTERVIEWER]: All right. Gotcha. So, for stuff to be thrown out into the tails dam - which is essentially, for purposes of this interview, it's like the rubbish area for a mine site, I guess, for the waste product - what grade is considered acceptable to throw away to the tails dam?

BURNS: Well, I mean, some materials might even be 0.8, 0.9 of a gram, but metallurgically they mightn't be recoverable. I think we had- that's not an average number- I think a lot of dirts were probably, solids 0.2. Solution's a different story.

Yeah, I mean, and a few times, I think - we never... sometimes when there's a quiet period in the plant between two clients, we might have put some stuff through that went for the same sort of material, and a few times, because of the nature of the material - fine and plastic and shit - you couldn't get a good throughput rate, so it would be actually not cost effective to put it through.

[INTERVIEWER]: Okay. So, it costs more to actually process it than what it's worth to et the 5 money.

[INTERVIEWER]: Yeah. So, it'd go to the tails dam.

[INTERVIEWER]: - just to recap, where you talk about there's an attachment called 'Aquacalcs' -

[INTERVIEWER]: So, I've got, I've got that document here.

[INTERVIEWER]: What can you tell me about this all of this? This is what you've sent to Simon.

BURNS: [reading document] Obviously that's the total tonnage. [reading document] Yeah.

[INTERVIEWER]: Yep. And then we've got down the side, we've got Aqua.

[INTERVIEWER]: Yep, and that's- whose company is that?

[INTERVIEWER]: Yep. So next to Aqua it says at 43 and above it says tonnes so that's 43.

[INTERVIEWER]: And what are these figures here? What do they represent?

BURNS: They obviously would have been the cost per tonne times the tonnes.

[INTERVIEWER]: Yep. And then we've got up the top we've got total ounces produced -

[INTERVIEWER]: And then there's a total for gold sales -

[INTERVIEWER]: And then what's this down here with the costings here? So, it's split up 20 into Aqua, PK and CB.

[INTERVIEWER]: With monetary amounts. What does that refer to?

[INTERVIEWER]: So, you've got another column here -

[INTERVIEWER]: which is the same amount as you get -

[INTERVIEWER]: So, you sent this document to Simon.

BURNS: Yep. Yeah, I'm not- I'm not- well, that's obviously- it must be...that must be the value after cost taken out of the project.

[INTERVIEWER]: Yep. Yep, that's what it appears to us.

[INTERVIEWER]: So those costs that are taken out -

[INTERVIEWER]: - whose costs are they? Who gets those costs?

[INTERVIEWER]: That's the cost for FMR to process-

[INTERVIEWER]: So, then, this is what's left after FMR costs are out?

[INTERVIEWER]: So, explain that to me, because you've said you are CB, -

BURNS: Yep. Well, that would have been- that would have been revenue to Aqua, PK and CB.

[INTERVIEWER]: Okay. So why were you getting money from this?

BURNS: I got some cash. I'm not- I don't really recall how much it was but I mean, I trust those guys and the plan was that probably for the coming years I would probably do a little bit of work for them and they would pay me, I would claim enough money so below the taxable income because I'm not on a pension.

BURNS: I mean, I guess, I didn't get that 100k cheque till late last year.

[INTERVIEWER]: Yeah, I do. I want to just explain as well. So, you saw a transaction there to Clintsoldmate, -

[INTERVIEWER]: So why - that's obviously gone out for 590 grand, right?

[INTERVIEWER]: So why are you getting paid in instalments? Because that's gone to Paddy. Paddy got Paddy's money straight away. And they're making you wait for yours.

[OTHER INTERVIEWER]: Clintsoldmate is Paddy Keogh.

[INTERVIEWER]: Yep. So, they paid him really quickly after that money, and they're making you wait for yours.

BURNS: Well, I suppose from my point, it was always - but I would get - I mean, I would get my money over a period of time so that I didn't have to go on the pension, and I could get enough money that was below the threshold, or even around the threshold, whatever it is, the mining. And that was always the plan.

BURNS: And I never had any issues, because it was me, actually, that asked them to do that.

[INTERVIEWER]: All right. Are you happy if I sum up?

[INTERVIEWER]: Alright. So, in relation to what's occurred, -

[INTERVIEWER]: - obviously with this, the clean-up material -

[INTERVIEWER]: -that's been put with the dirt from Simon -

[INTERVIEWER]: The tolling costs have been taken out by FMR.

[INTERVIEWER]: The money goes into Simon's company bank account.

[INTERVIEWER]: And so, Morgan gets 90k out of it.

[INTERVIEWER]: And the monetary amount for you and Paddy is around 590 each.

[INTERVIEWER]: You said that some of it's been a bank transfer -

[INTERVIEWER]: Then we've identified two other amounts around 52,000 and 47,000, -

[INTERVIEWER]: - which were paid into your Westpac account as well.

[INTERVIEWER]: We've also talked about cash amounts that have been collected.

[INTERVIEWER]: You're unsure of what those cash amounts are.

[INTERVIEWER]: So, one of them has been in Kalgoorlie, -

[INTERVIEWER]: Yeah? You don't know the amount. The other one was collected from an address in [REDACTED], -

[INTERVIEWER]: - from somebody called Bonney, but you're not sure of the amount.

[INTERVIEWER]: But there is references to 100k or 96k afterwards.

[INTERVIEWER]: But we don't know what that amount is.

[INTERVIEWER]: And you said that you're not keeping track of the balance owing.

[INTERVIEWER]: That's being kept track of by Simon Gash.

[INTERVIEWER]: Okay. How much do you estimate you think you would have left to come?

BURNS: Maybe, I mean, I think probably somewhere 200, 250 grand.

[INTERVIEWER]: Bonnie Jo. 'Give Bonnie a call', Simon sent you a contact with the name Bonnie on it, and a phone number.

[INTERVIEWER]: So, he sends you a contact with the name Bonnie on it.

[INTERVIEWER]: And then shortly - he says 'Give Bonnie a call to make sure she is home.

[INTERVIEWER]: Cheers'. That's on the 20th of the 9th, 2019 at 5:56 and the 22nd, so the next day, at 6:20 in the morning, you say, 'Hey Simon, picked up the package. Cheers and thanks'.

[INTERVIEWER]: Have you ever been to [REDACTED] to pick up any cash?

[INTERVIEWER]: So, Bonnie Jo, I think is Bonnie Spilsbury and she's [REDACTED]-years-old. Does that sound about right?

[INTERVIEWER]: So, after you said you picked up the package, -

[INTERVIEWER]: - Simon has said, 'We'll sort the invoice tomorrow, please send the invoice to Eazyoz Resources. -

[INTERVIEWER]: And you've said, 'I thought only 96k?'. And then Simon said, '100k, it should have been a little more but we didn't get what we thought as you know. But we did put some of the Coolgardie dirt in, so it's not much but it evens it up. Cheers, Simon'. So, did you pick up 100k from Bonnie?

BURNS: I didn't, no, no, I don't think it was that much but-

[INTERVIEWER]: And how did you get to [REDACTED] to pick this up?

[INTERVIEWER]: Why did this Bonnie have money? Who is she to Simon?

[INTERVIEWER]: Okay. So, after you've picked up this package on the 22nd of the 9th of 2019 at 7:58, you've said, 'Much appreciated. I will look after your next campaign at no cost to you or us'. What does that mean?

BURNS: From memory, I think they are looking at another campaign through - they couldn't get one through FMR through Greenfields, so I think they were going to tread some more through, uh gold [indistinct], I think. And I just said if they were interested there's a - that I can to look after their campaign and be there for their run if they wanted.

[INTERVIEWER]: You said 'at no cost to you or us' for free or?

To make it there on a daily basis. Check what was going through, look at the tonnes, look at the assays, all that sort of stuff.

[INTERVIEWER]: And why are you offering that for free?

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[14] It was common ground that this only occurred in October 2017.

[18] ts 373 (Mr Baker). Emphasis added.

[29] ts 508 - 521, 574 - 579 (Mr Keogh).

[32] Exhibit 355, ts 583 - 584 (Mr Keogh).

[47] Defence [12(c)]. Emphasis added.

[49] First defendant's defence filed 13 October 2023 [12(c)]. Cf. First defendant's defence filed 13 October 2023 [12(c)].

[69] FMR's closing submissions dated 3 September 2025 [42].

[70] Exhibit 325, p 982; ts 562 (Mr Keogh). Emphasis added.

[71] ts 461 (Mr Keogh). Emphasis added.

[73] Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112, 129 - 130 (Dixon CJ, Fullagar, Kitto and Taylor JJ). See also Wright v Lemon [2024] WASCA 19 [565] (Buss P, Hall JA agreeing).

[74] See, eg, Beach Petroleum NL v Johnson [1993] FCA 283; (1993) 43 FCT 1, 31 - 32 [22.34]; Grimaldi v Chameleon Mining NL [2012] FCAFC 6; (2012) 200 FCR 296 [282] - [286]; Aidzan Pty Ltd (in liq) v K&A Laird (NSW) Pty Ltd (in liq) [2024] NSWCA 185 [1] (Ward P) [5], [68] - [70] (Meagher JA), [132] - [133] (Adamson JA).

[75] Cf. First defendant's closing submissions filed 3 September 2025 [187].

[107] Eg. Exhibit 303 - 308, 310 - 313.

[108] Eg. Exhibit 303 - 308, 310 - 313.

[119]Cf. Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109 (Gibbs J); Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45 [22] ‑ [40] (Gleeson CJ, Gaudron, McHugh, Gummow & Hayne JJ); Wright v Lemon [2024] WASCA 19 (Buss P, Hall JA agreeing) [535].

[120] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 162 [59]. See also eg Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42], JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 [67] - [72] and Electricity Generation and Retail Corporation trading as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3 [230] ‑ [234].

[121] JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 [70] - [71] (Buss P & Vaughan JA, Beech JA agreeing at [244]). Citations omitted.

[122] Their Honours referring to Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109.

[123] Their Honours referring to Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 [298].

[124] Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112 (Dixon CJ, Fullagar, Kitto & Taylor JJ).

[125] Butler v St John of God Healthcare Inc [2008] WASCA 174 [3], [6] (Buss JA, McLure JA agreeing).

[126] Wright v Lemon [2024] WASCA 19 [565] (Buss P, Vaughan JA agreeing at [1218], [1221], [1223] and Hall JA at [1229]). Citations omitted.

[127] Burness v Hill [2019] VSCA 94 [71] (Kaye, McLeish & Hargrave JJA).

[128] See also Wright v Lemon [564] and the authorities there cited; Redbubble v Hells Angels Motorcycle Corporation (Australia) Pty Ltd [2024] FCAFC 15 [38] (Perram, Nicholas, Burley, Rofe & Downes JJ); Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190; (2018) 365 ALR 15 [21] (Rares, Markovic & Bromwich JJ).

[129] Redbubble v Hells Angels Motorcycle Corporation (Australia) Pty Ltd [38].

[130] Sarina v Fairfax Media Publications Pty Ltd [21].

[131] Wright v Lemon [565] (Vaughan JA agreeing at [1218], [1221] & [1223] and Hall JA at [1229]). Citations omitted.

[132] As to the latter see Doggett v Commonwealth Bank of Australia (2015) 47 VR 302; [2015] VSCA 351 [63] (Whelan JA). See also Wichmann v Dormway Pty Ltd [2019] QCA 31 [9] (Sofronoff P, Gotterson & Morrison JJA agreeing).

[133] Cf. Wichmann v Dormway Pty Ltd [2019] QCA 31 [13] (Sofronoff P, Gotterson & Morrison JJA agreeing).

[134] Or 'clear' (Doggett v Commonwealth Bank of Australia (2015) 47 VR 302; [2015] VSCA 351, [63] (Whelan JA)).

[135] See the approach of Buss JA in Wright v Lemon [566] - [588] particularly at [586] and [587] (Vaughan JA agreeing at [1218], [1221] & [1223] and Hall JA at [1229]). See also Protheroe v Protheroe [2023] NSWCA 328 [40] ‑ [41] (Meagher JA, Mitchelmore JA & Basten AJA agreeing).

[136] Cf. Dormway Pty Ltd & anor v Wichmann [2018] QSC 277 [38] (Atkinson J).

[137] Wright v Lemon [586(d)] and [587(a)].

[138] Wichmann v Dormway Pty Ltd [3].

[139] Dormway Pty Ltd & Anor v Wichmann [38] (upheld in Wichmann v Dormway Pty Ltd)

[140] Cf. Bank of Credit and Commerce International SA (in liquidation) v Ali [No 1] [2001] UKHL 8; [2002] 1 AC 251 [9] (Lord Bingham); IBM Australia Pty Ltd v State of Queensland [2015] QSC 342 [47] (Martin J).

[141] Defendant's written closing submissions [162].

[142] Statement of claim [48] (Stockpile) and [87] (Pekeri management fees).

[143] Grant v John Grant & Sons Pty Ltd, 131 (Dixon CJ, Fullagar, Kitto & Taylor JJ). Emphasis added.

[144] Grant v John Grant & Sons Pty Ltd, 123 (Dixon CJ, Fullagar, Kitto & Taylor JJ).

[146] Less any applicable tax and any sum required to pay out Mr Keogh's salary sacrificed vehicle.

[147] Cl 3(d) read with cl 3(e) and cl 2 (definition of 'Release Arrangement').

[153] Cf. Dormway Pty Ltd & anor v Wichmann [32].

[160] West Australian Newspapers Ltd v Bond [2009] WASCA 127.

[161] West Australian Newspapers Ltd v Bond [40] (Buss JA, Owen & Wheeler JJA agreeing).

[162] Golden Mile Milling Pty Ltd v Lakewood Mining Pty Ltd [2026] WASC 10 [37].

[163] Referring to Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 1084 [41] - [42].

[164] Referring to Fleming's The Law of Torts (11th ed, 2024) (Fleming's Law of Torts) [4.110].

[165] Referring to Penfold Wines Pty Ltd v Elliott [1946] HCA 45; (1946) 74 CLR 204, 219 (Latham CJ), 229 (Dixon J).

[166] Golden Mile Milling Pty Ltd v Lakewood Mining Pty Ltd [2026] WASC 10 [41].

[169] See Evidence Act, s 79B, definition of 'document' and definition of 'statement'.

[170] Evidence Act, s 79C(1) read with definition of 'qualified person' in Evidence Act, s 79B.

[171] Evidence Act, s 79C(2)(a).

[180] I infer from the stamps appended to these exhibits, and the electronic file names, that they were tendered by the State in the District Court proceedings and, likewise, obtained under subpoena from the DPP.

[181] Exhibit 352 read with Exhibit 351.

[183] Exhibit 353 read with Exhibit 351.