Holdsworth & Ellison v RSPCA [2015] VCC 653

3 On 8 August 2014, I handed down a very lengthy Judgment on the issue of liability and the number of cows involved. I found that the defendant was liable to the plaintiffs in respect of 131 animals (damages were being sought in relation to 311). These 131 animals consisted of 126 cows, 3 calves and 2 bulls.

4 On 11 December 2014 I handed down a lengthy Ruling in relation to a proposed Further Further Amended Statement of Claim, which would have had the potential effect of dramatically increasing the amount of damages sought. The plaintiffs were seeking leave to file such a document. The plaintiffs' application was unsuccessful. The amount claimed by the plaintiffs remained at $2,466,100, together with interest and costs. Proposed amendments directed towards aggravated and exemplary damages were not allowed. A proposed amendment effectively trebling the amount sought by the plaintiff met a similar fate. As I pointed out in that Ruling, $2,466,100 was the maximum quantum of the case which the defendant had arrived to fight, and that maximum quantum was a matter of consent. I would refer to the details set out in paragraph 74(xvi) of my Ruling of 11 December 2014. Thus, as stated, the maximum amount of damages which the plaintiffs can recover continues to be $2,466,100, together with interest and costs. The approach to be adopted in relation to interest remains contentious. Much depends upon the method of assessing damages which is adopted.

5 Two other matters by way of general background should be mentioned. Firstly, another issue to be determined as part of the case on quantum concerns the quality of the cattle involved and the use to which they would be put. There are various possibilities in this regard, but one basic question is whether they could properly be described as being stud cattle or commercial cattle. Certainly, in my Judgment of 8 August 2014, I referred to the animals as being stud cattle. However, as I pointed out in my Ruling of 29 January 2015, clearly I had not ruled that the animals were stud animals. I accepted that the plaintiffs believed them to be such animals. This in turn had the potential to impact upon certain issues concerning liability. My Ruling of 29 January 2015 deals with this issue in some detail. I need not repeat it here, save to say that the quality of the animals, being an issue which relates to quantum of damages, remains to be determined and the parties were well aware of this before the hearing on quantum commenced on 2 March last.

6 Secondly, I made it clear that all evidence in relation to quantum given prior to the splitting of the case on 8 April 2014 remained as valid evidence which could be considered. It was evidence given at a time when all issues were "on the table". It included evidence given by the plaintiffs' financial experts and by witnesses, including the plaintiffs, as to the breeding and quality of the animals. It included evidence as to artificial insemination. The evidence of all such witnesses had been tested at length in cross-examination. Some were recalled during the recent quantum hearing. However, all relevant evidence given prior to the splitting of the case and at a time when quantum was still very much in dispute remains as evidence which can properly be considered by me.

7 For the duration of the quantum hearing (some 13 days, not counting a considerable number of days upon which preliminary points and the like were argued) Mr S Langslow of counsel with Mr P Berman of counsel again appeared on behalf of the plaintiffs. Mr D Christie of counsel appeared on behalf of the defendant.

8 A very considerable number of documents were tendered. Oral evidence was received from the following witnesses:

(i) Mr William Henderson (a financial expert recalled by the plaintiffs);

(ii) Mr Peter Sutherland (a prominent breeder of Murray Grey cattle, also recalled by the plaintiffs);

(iii) Mr Matthew Tol (another financial expert recalled by the plaintiffs);

(iv) Dr Ian Byrne (a veterinary surgeon called by the defendant);

(v) Dr John Webb Ware (a veterinary surgeon and consultant called by the defendant); and

(vi) Mr Joe Dicks (a financial expert called by the defendant).

9 In addition, counsel for each party made detailed and lengthy addresses, in part speaking to written submissions.

10 I turn now to a discussion of the central issues to be determined. Given the way in which the evidence unfolded, this seems to me to be a more satisfactory approach than summarising the oral evidence of each witness and the documents tendered, particularly as the situation involves the revisiting of evidence received before the splitting of the case.

What was the essential quality and condition of the animals in question and for what purpose were they to be used?

11 I accept that the cattle which went to Framlingham were of the Murray Grey breed and were pure-bred. Whilst, in my Judgment of 8 August 2014, I referred to my opinion that the plaintiff, Ms Ellison, appeared to be involved emotionally in the case, I accept her evidence as to the background of the herd of which the cattle in question formed a part. I accept that she has a long history of being involved with Murray Grey cattle, including the breeding and showing of same. I also accept her evidence that her entering into the partnership (JA Heath Inland Holdings) with the other plaintiff, Mr Holdsworth, resulted in the merging of part of her herd with part of his and that each part traced back to what is known as the Cloverdale line. This also led to the purchasing of property in southern New South Wales where the partnership herd was to be located. These cattle were Ms Ellison's "pride and joy" - see Transcript (hereinafter referred to as "T") 1164.

12 I shall now deal with the evidence of a number of witnesses, which evidence deals with or touches upon the nature and quality of the animals in question and the purpose to which they would probably have been put. Henceforth, I shall refer to the cattle which were put down by the defendant at Framlingham, and for which it is responsible, as "the Framlingham cattle". One fact that does not seem to me to have been challenged by the defendant is that the Framlingham cattle were of the Murray Grey breed. Similarly, I can find no challenge to the proposition that they were pure-bred. Some question may exist as to whether the three calves which were put down were pure-bred. However, it seems to me probable that they were. Even if they were calves which were in fact born at Framlingham, their date of conception would have occurred prior to the herd arriving there. Thus, even if, despite the fencing that was put in place, there was some mingling of the plaintiffs' herd with other animals agisting at Framlingham, the three calves that were put down in late May 2003 could not have resulted from a mating which occurred at Framlingham. The plaintiffs' herd had arrived at Framlingham in late February. Even if some mating occurred as a result of some mingling of the plaintiffs' herd with other animals, no calves resulting therefrom could have formed part of the stock put down in late May. I am satisfied that, prior to the plaintiffs' herd going to Framlingham, they had been kept separate from other cattle and that includes during the period which, as shall be discussed, they were on the "long paddock". It follows that the calves in question must also have been pure-bred. However, whether they would have become registered as stud cattle or sold on a commercial basis is another matter. In any event, I find that the 131 animals in question were all pure-bred Murray Grey cattle.

13 I turn now to a summary of the evidence given as to the particular breeding, quality and condition of the Framlingham cattle. The question of condition essentially relates to recovery. In other words, had the intervention by the defendant not occurred, would the animals have recovered from the lean to very lean condition which at least some of them were in as at the date of that intervention? I say now that I am satisfied that they would have recovered and there will be some references to this in the discussion which follows. Another issue which shall receive some attention concerns whether there was some mingling of the plaintiffs' herd with other cattle at Framlingham and the effect of this. Again, there will be some discussion as to parts of the relevant evidence, but my conclusion will be that there was at least a risk of matings with bulls of other breeds. I say now that it seems to me that the effect of this would be that it is highly unlikely that calves born of cows that became pregnant at Framlingham could be registered as pure-bred stud animals. Bearing these matters in mind, I turn to a discussion of the evidence.

14 Ms Ellison stated that her cattle (as opposed to the partnership herd) were all registered with the Murray Grey Beef Cattle Society. They included cattle which had been successful at shows. When she first saw the cattle which Mr Holdsworth had, she became very excited because of the fact that the right genetics seemed to exist in the two herds - see T1156 and following pages. Whilst Ms Ellison and Mr Holdsworth kept some Murray Greys on the properties which they each owned, the herd at the purchased property at Carrathool in southern New South Wales was separate and had the specialised families in it - see T1163. She also stated that, after the drought and when the cattle which had been at Framlingham were taken back to Carrathool, they recovered to the extent that they fattened up and looked like cattle photographed before the drought. I accept this.

15 In her evidence-in-chief, Ms Ellison also described what is known as the "long paddock", being, in this instance, the land and grass alongside certain roads in southern New South Wales. The "long paddock" is also at times referred to as "the route". It is land used quite legally, particularly during droughts, upon which cattle can feed. However, compliance is required with certain conditions, including that the cattle are properly supervised, that they are moved a certain distance each day and the like. The partnership cattle were taken along the "long paddock" for a considerable period - in excess of a year - in 2001 and 2002. Ms Ellison emphasised how important it was to keep the best breeding stock going on the route, whilst selling off some other animals. Ms Ellison also stated that calves that had been born whilst the herd was on the "long paddock" were tagged in a different way. Another observation by Ms Ellison was that the lightness in weight of cows does not make any difference to their breeding capacity - see T1176. Indeed, Ms Ellison gave quite lengthy evidence about the valuable nature of the best animals in the herd and the lengths to which the partnership had gone to look after them and provide feed for them. She described the health of the animals as being fine at the time that the agistment proposal at Framlingham became available.

16 In relation to the arrangements at Framlingham, Ms Ellison described how approximately four kilometres of electric fencing was set up. I say now that the evidence of Ms Ellison in relation to the fencing seems to me to be in accordance with the evidence of other witnesses and I have no reason to doubt it. As there were four bulls with the cows, single sire mating could not be guaranteed and the purity of the blood lines could be compromised. That is apart from the risk of some mingling with other cattle that were not Murray Greys. I am also satisfied that there was no mingling with cows from other herds whilst the partnership animals were on the "long paddock", but there were the four bulls running with the cows and again single sire mating could not be guaranteed.

17 Ms Ellison stated that the cattle which were taken to Framlingham were the valuable ones - "we had to keep our families, we had to keep everyone together" - see T1187.

18 Ms Ellison asserted that, when she arrived at Framlingham after the intervention by the defendant, all the "good breeders" and weaners were gone. Of course, not all that were "gone" were the responsibility of the defendant. Ms Ellison claimed that "our studs had gone. We can't operate, we can't operate as we were operating before, we haven't got the females and we haven't got the bulls" - see T1218. The only income which the partnership now gets is essentially on the commercial market to "bring in a bit of income" - see T1219. Some very cheap replacement bulls had been bought, but the breeders were gone and it has subsequently been a situation of loss after loss. She repeated that they could no longer do the stud enterprise, and were being financially strangled. As I understand it, the commercial market involves the selling of cattle essentially for their meat value.

19 In cross-examination, Ms Ellison said that no heifers or bull calves went to Framlingham The four bulls that went to Framlingham were a continuation of the existing blood lines. At Framlingham, those bulls were left running with the cows.

20 Ms Ellison gave evidence that, as far as she knew, all cows and steers that went to Framlingham were ear-tagged, as were calves that went there. The last marking of calves had occurred in October 2002 at Corowa, apart from a couple marked prior to the trip to Framlingham. About 50 unmarked calves had been born at Framlingham. The calves born there were in good health. She also stated that the calves and their marking were recorded on a pad which she kept at Carrathool and which she used for the registration or records in relation to the calves. Ms Ellison said that they did not keep any bull calves. I might say that a considerable amount of time in cross-examination was spent in relation to the tagging system employed. Quite an amount of confusion resulted, this being at least in part contributed to by Ms Ellison's quite profound deafness.

21 Another piece of evidence given by Ms Ellison was that the partnership had spent three-quarters of a million dollars on keeping their herd of pure-bred cattle together - see T1293. She subsequently said that the cows which were recovered from Framlingham were used for breeding, but could not be used for stud work or work involving artificial insemination because "our stock were gone and they took our goods but they didn't take our debt" - see T1369. That the partnership had been left without any cows that were in the best breeding group was something that the witness mentioned several times. Ms Ellison also mentioned that calves, which I understood to be from Framlingham, fetched $600 when sold in November 2003. However, she could have been referring to calves that dropped subsequent to the intervention by the defendant and from the cows that had been retrieved.

22 Ms Ellison also gave evidence that one of the bulls in the photograph was either three or four years old in 2003. The other bulls were also approximately four years old. The bulls would have been registered as stud bulls - see T1385. The partnership brought pure blood line bulls that led back to "our progenies". Ms Ellison also repeated that there were a number of partnership bulls running with the cows when they were on the "long paddock". However, there were no bulls from her property at Bairnsdale, nor from that of Mr Holdsworth at Westmere. She identified one of the bulls in the photograph as being Thologolong Mile and, whilst it is not entirely clear, the other may well have been Thologolong Howzat. If this be so, these were two bulls sold to the partnership by Mr Peter Sutherland, to whose evidence I shall come shortly. Generally, I refer to the evidence of Ms Ellison at T2165 and following pages.

23 At T1405, Ms Ellison stated that their enterprise was not a commercial one. Vealers were used "for a fat market for a cash return", but the breeders were kept to be used for stud purposes, shows and field days. All the Framlingham cattle were stud cattle. She also said that, to do shows, cattle had to be registered and all the requisite information had been recorded for the purposes of registration. Calves that had arrived since the drought and when the cattle were on the route were not registered, and apparently there was no intention to register them (presumably because a number of bulls were running with the cows and single sire mating could not be established). However, had the drought not occurred, registration could have been arranged. This issue was discussed at T1410 and following pages. The calves resulting from mating which occurred on the route were kept as commercial stock. However, once the cows returned to Carrathool, individual matings, artificial insemination and the like could have been supervised, as had been planned.

24 It was only during the time of the severe drought that the partnership had to sell the calves, or sacrifice them, to employ the wording used by Ms Ellison. Similarly, the heifers that came off the route could not be registered as stud cattle, and the same could be said of calves born at Framlingham. None of the breeding cows were born on the route and the cows travelled only with the four bulls that went to Framlingham subsequently.

25 Ms Ellison said that there were other breeds of cattle at Framlingham and that was also why calves from the breeders at Framlingham were to be used as commercial calves. They could not be stud cattle if the cows were running with another breed. The procedure, after leaving Framlingham, would have been to set aside cows that were not pregnant. Calves dropped by the pregnant animals would have been sold commercially. There would be a delay until the pregnant cows were empty, and then the program concerning artificial insemination and single bull matings could commence. The cattle that had ultimately returned to Carrathool after Framlingham were not re-registered as stud cattle because "we never had our breeders" - see T1423. Further, the cattle that in fact returned not only were not the breeders, but had to be used for immediate income. The partnership had a lot of debt.

26 After the intervention at Framlingham, the partnership could not produce stud cattle, because every calf had to be dealt with on a commercial basis so as to get money in to pay bank interest. The opportunity was lost - see T1432. Ms Ellison also explained that, if registered cows run with a number of bulls, the offspring cannot be registered. However, if the cows are registered, they remain so registered. All of the partnership stud cattle are eligible for registration. A good percentage have actually been registered.

27 Ms Ellison stated that, but for the intervention by the defendant, she believed that the herd would have remained at Framlingham (not much longer than November 2003) - see T1476. Ms Ellison also said that the stud cows that went to Framlingham each had the potential of producing calves that could be used either for commercial purposes or for stud purposes. However, the calves and weaners at Framlingham could never have been stud cattle. Ms Ellison again acknowledged the presence of other cattle at Framlingham, but never saw other cattle actually mixing with partnership cattle.

28 She also said that the plan was to put the one-third top cows into the stud herd. The partnership did not sell stud females. The partnership does not buy any stock. (Except, as Mr Holdsworth, a couple of bulls).

29 Ms Ellison further said that the full breeding history of each animal in the herd, going back generations, could be established and that there was documentation in this regard up to May 2003. She referred to the tattooing or tagging system. Each heifer that was retained had to be mothered correctly in the yards, where the mother's ID was known. However, the partnership had been left with too few of their breeding animals to be able to carry on with the focus and formation of the partnership herd. She again referred to the necessity for selling after mid-2003 because of debt.

30 Since mid-2003, good stud calves which would have normally been kept have had to be sacrificed - that is, sold - see T1500 and following. Since 2003, female calves have not been kept for breeding purposes. Breeding from the cows returned from Framlingham has continued, but only in order to meet financial obligations. The youngest breeding cow that went to Framlingham would have been three years old at the time. Some female calves may have been retained. No cows have been purchased since mid-2003. However, some 30 of the mothers now have calves born at Carrathool - see T1503.

31 Ms Ellison also said that, in the financial year ending June 2003, because of the drought the partnership sustained a lot of loss and spent a lot of money saving cattle.

32 In re-examination, Ms Ellison confirmed that the stud cattle were earmarked by means of a tag in one ear and a tattoo in the other. Details would be written down on a pad. These would be later copied into a book. The calves that were to be retained and go back into stud were identified in the book. All those that were to be retained were heifers. Some later went to Bairnsdale. Some of the calves were later sold at Finley (presumably when the herd was on the route).

33 There was then considerable discussion concerning ear tags. Ms Ellison pointed out that calves born on the route were commercial calves and that the recording may not have been the same. She also confirmed that the drought had in fact broken during 2003 and things, at least at Carrathool, were then good.

34 In answer to a question of mine, Ms Ellison confirmed that, since 2003, the main purpose of the breeding program had been the commercial market. Numbers had to be built up in order to get more money because "we have lost everything" - see T1535.

35 The intention of the partners had been to build up the numbers in the herd to approximately 760. She also referred to the inability to purchase the property at Bairnsdale when it came on the market in 2004. That property would have been worked as a partnership asset.

36 I turn now to the evidence of the plaintiff, Mr Holdsworth, in relation to issues such as the quality of the animals and the objects of the partnership. The evidence of Mr Holdsworth was more substantially directed towards the issue of liability, but a modest amount of his evidence did relate to the issues now being considered.

37 Mr Holdsworth, a farmer all his working life, first went into Murray Grey cattle in approximately 1968. The stock that he then acquired included a bull called "Cloverdale Dan". Mr Holdsworth was also a long-standing member of the Murray Grey Beef Cattle Society. The aim of the partnership into which he entered with Ms Ellison was to improve the breeding and quality of the herd. When the property at Carrathool was obtained, the objective was to develop it and make it a selling ring for cattle.

38 By the time that a part of the herd was moved to Framlingham, the stud plans, including those for stud sales, had been partially completed. Probably, the commencement of the operation was approximately two years away as at the time - see T160. When the drought set in there was a culling of the herd, with some going on the "long paddock". Records were kept of the markings of the cattle during this time. Mr Holdsworth also described the tagging and tattooing process, along with the recording of the relevant details.

39 Mr Holdsworth described the fencing off of the relevant part of the Framlingham property. There were other cattle on the property. He also identified a document (Exhibit C) as being a receipt from the Murray Grey Beef Cattle Society in the sum of $11,184, being the registration fee for the cattle, the date of it being 3 April 1996.

40 Mr Holdsworth gave evidence concerning the unannounced arrival of the witness, Mr Richard Keys, at the time an Animal Health Officer employed by the Victorian Department of Primary Industries, at Mr Holdsworth's Westmere property in June 2003. I shall turn to the relevant parts of Mr Keys' evidence shortly. Those parts essentially relate to the condition of the surviving cattle brought from Framlingham to Westmere.

41 In relation to Mr Holdsworth's ambition of running a Murray Grey stud in conjunction with Ms Ellison, he stated that the effects of the destruction of the cattle was that they "Just can't do it" - see T241. The partnership had purchased some stud bulls after the cattle were moved back to Carrathool in October 2003, but they were not as good. In recent times, a very well-bred bull has been purchased, but it is a matter of waiting and seeing how the calves look.

42 Mr Holdsworth subsequently repeated that they had not been able to recover from the loss of the animals in question. They had not been able to replace the genetics - see T399. The partnership had not been able to set up a stud operation from which sales could be run. They did not have the money or the cattle. Weaners had been sold to get some money. Some of the cows that had been retrieved from Framlingham had calves, which went with their mothers back up to New South Wales. In addition, one of the properties, "Piney Park", also in southern New South Wales, had to be sold.

43 Mr Holdsworth stated that the cattle at Framlingham were stud cattle. However, the last time that any had been registered was 1996. The headquarters of the Murray Grey Beef Cattle Society had moved from Albury. In addition, there was the dispute about Breedplan (which shall be discussed subsequently), of which the partnership and others did not approve - see T495. However, records had been kept. Further, Mr Holdsworth said that one is still able to get progeny of registered cows also registered, regardless of age. Once an animal is registered, it is registered for life. In 1996, all the cattle were registered. Once cattle are registered, it is up to the owner to keep a book of details. Registration of offspring can then occur subsequently. He repeated that all the Murray Grey registrations had been brought up-to-date in April 1996. Thereafter the partnership kept a record of the cattle that could be registered, also doing their own culling and the like. Accordingly, the relevant cattle were stud cattle - see T498.

44 From 1996 onwards, the partnership did not buy cows. Growth in the herd came from breeding and not purchasing - see T582. Bull calves were cut and ultimately sold. A few heifers, which were to become the breeders, were retained. Numbers were allocated to cows and calves and those numbers were recorded. Mr Holdsworth stated that the long-term plan of the partnership in relation to its herd was to produce the best line of cattle. He had been successful in competitions and Ms Ellison had done very well in shows - T656.

45 After the merging of the herds, the breeding of the cattle improved. His and her cattle "just sort of gelled together" and were exceptionally quiet animals. They would probably have shown the cattle, but first had to build the complex at Carrathool. Yards were being purchased from a neighbour. Of course, the drought intervened. At T672 details of the breeding of certain animals sold by Mr Holdsworth in 1996 were introduced into evidence. These were essentially extracted from an auctioneer's brochure and list the names of original sires and females. These were stud animals, including the Cloverdale line.

46 Mr Peter Sutherland is a farmer and breeder of Murray Grey cattle. His family were the foundation breeders of such cattle, commencing in 1905. He has continued farming on the same establishment in an area in north-eastern Victoria, such area being called Thologolong. He gave evidence before the splitting of the case and was subsequently recalled.

47 His evidence in relation to these issues before the splitting of the case could be summarised as follows.

48 Mr Sutherland gave evidence that he was on the first Board of the Murray Grey Beef Cattle Society, has shown cattle very successfully and has judged them at cattle shows, including Royal Shows. He was familiar with the partnership cattle and described them as top quality cattle, "back to the true Murray Grey type" - see T1913. He believed that this type of cattle would make top price. The Murray Grey Beef Cattle Society grew very quickly, so that by 1968 it had some 200 breeders. Mr Holdsworth was in fact the 200th breeder to be admitted into the Society.

49 Mr Sutherland said that Murray Grey cattle are very quiet, which is a big selling point. Also, they are animals which have very little calving trouble - see T1914 and following.

50 In relation to Breedplan and the move of the Murray Grey Beef Cattle Society from Albury to Armidale, there was then some decrease in the value of Murray Greys. However, subsequently the breed has been very successful, including sales overseas. Mr Sutherland also confirmed that, if the appropriate details were recorded, registration with the Society could be done.

51 Mr Sutherland was of the opinion that, whilst things had been more difficult because of a move towards cross-breed cattle, in the last two to three years there had been a dramatic return to original Murray Grey cattle. He believed that the perils of cross-breeding had emerged and were responsible for the swing back to the original Murray Grey cattle.

52 In relation to the Cloverdale line, Mr Sutherland said that this was one of the original herds shown in Melbourne. Their blood lines are still very much sought after in Australia. In answer to a question of mine, Mr Sutherland expressed the opinion that, on the basis of a recent sale at Casterton, Murray Greys were the highest selling of all breeds on a percentage basis. In addition, at a recent sale in Western Australia, female Murray Greys reached $4,500. He also went on to describe other successful lines of Murray Grey cattle which the plaintiffs had combined with the Cloverdale line. In relation to the combination of lines involved in the cattle owned by the plaintiffs and merged into the partnership, Mr Sutherland thought that both came out of very good herds of cattle. The partnership cattle were very saleable "all the time" - see T1922.

53 Mr Sutherland said that he had sold two bulls, namely Thologolong Mile and Thologolong Howzat, to the partnership for $3,000 each. A cheaper herd bull would cost $2,000. Those bulls should have lasted until they were 9 or 10 years old. It would seem that both were sold to the partnership in approximately 2000 as three year old bulls.

54 Mr Sutherland was recalled to give evidence as part of the hearing directed to the issue of quantum, his evidence concerning the quality of the animals being relevant to this. Essentially he confirmed his earlier evidence that the bulls in the herd were top quality and that the partnership bred top quality cattle going back to the true Murray Grey type. He agreed that two specific studs, namely The Glen and Williluka, had left the industry of Murray Grey breeding, one of them being defunct. He disagreed with the proposition which would be put by Dr Byrne that there was a lack of commercial demand for Murray Grey genetics, saying that the demand now is probably as good as it was 10 years ago. Sales records had been broken in the last month.

55 I should say that the essential purpose for the recall of Mr Sutherland was to allow him to comment upon reports prepared by Dr Byrne and Dr Webb Ware and made available since Mr Sutherland had last given evidence. Essentially his further evidence was permitted because of those reports and so that counsel could ensure compliance with the rule in Browne v Dunn. Discussion of that rule arose particularly as a consequence of the splitting of the case and the obtaining of further expert reports after such splitting.

56 Mr Sutherland also disagreed with an effectively unfavourable comparison made by Dr Byrne between the sale at Casterton where 27 Murray Grey bulls had been offered and sold and a much larger sale conducted at a stud which he described as being one of the leading Angus studs in Australia. Mr Sutherland believed that such a comparison was completely wrong. Other aspects of Dr Byrne's report were put to Mr Sutherland and essentially he disagreed with them. He disagreed that the sort of cattle that the partnership had was good 50 years ago, but that things, basically because of Breedplan, had changed. He strongly disagreed with the proposition that Angus animals have superior genetics to Murray Grey cattle.

57 Similarly, passages from the report of Dr Webb Ware dealing with Mr Sutherland's earlier evidence were put to him. None of this caused Mr Sutherland to alter his opinion.

(iv) Other plaintiffs' witnesses whose evidence only partially touched upon the issues of the quality of the animals, quantum and the like

58 The only significance of evidence given by Mr Keys in relation to quantum concerns the condition of the remaining cattle shortly after they had been removed from Framlingham to Westmere. As stated, Mr Keys, then an Animal Health Officer, made an unannounced visit to the Westmere property, this being at the request of Mr (then Inspector) Nicholls of the defendant. Whilst he was uncertain as to whether he had in fact seen the animals that had been at Framlingham, I found in my Judgment of 8 August 2014 that in fact he had seen them. I would refer to paragraphs 126 and 133 of that Judgment.

59 In essence, he found the condition of the cattle to be satisfactory and none were in such a condition that he was worried about them.

60 The point of this is that, had there not been the wrongful putting down of animals by the RSPCA, there is nothing to suggest that those animals could not otherwise have been in a satisfactory condition by the time of the visit of Mr Keys in June 2003. In other words, while some of the Framlingham cattle may have been in a lean condition at the time of the intervention by the defendant, there is no reason to think that they would not have recovered, as did those removed to the property at Westmere, some, or all, of which were later returned to Carrathool.

61 Mr Geoff Clark gave some evidence concerning the fact that various parts of the Framlingham Estate were fenced off. The possible relevance of this concerns whether or not the partnership herd in fact mixed with other cattle. However, because there were four bulls running with the cows in the partnership herd in any event, perhaps not a great deal of significance attaches to evidence concerning the fencing. In other words, single sire mating could not be established, so that offspring of cows which became pregnant at Framlingham could not be registered as stud cattle.

62 Mr Len Clark also gave evidence concerning the fencing, including the electric fence put up by Mr Holdsworth. The power for this came from Mr Clark's house. In relation to the last few cows that were found in the forest area of Framlingham by Mr Holdsworth and others and were taken to Mr Clark's property, he said that they were in excellent condition. This has some potential relevance to the rate of recovery of the animals.

63 Mr Robert Rentsch, who is an agricultural contractor, also gave some evidence concerning the fencing. He had been involved in the erecting of some fencing along the Forest Road and the closing of the gap at the southern end of it by the use of the electric fence. However, he was also aware that some 100 cows, not belonging to the plaintiffs, had at one stage escaped and got into the bush area where some of the plaintiffs' cows were. This seems to have occurred because of a gate being left open.

64 Only a small amount of the evidence of Dr Grant Kuseff, a veterinary surgeon, is relevant to the issues now under consideration. When shown a photograph of a herd of cattle (not the Framlingham cattle) which rated as between a "1" and a "2" on the rating system which had been described in evidence, Dr Kuseff stated that, if conditions changed, rain fell and grass grew, he would expect such drought-affected animals to recover perfectly well. It was also apparent that Dr Kuseff had previously examined the photographs and the video material and seemed to be of the view that the situation in relation to the Framlingham cattle was similar to that of the herd depicted in the other photograph which he saw.

65 In relation to the bull shown in photograph 35 of Exhibit H, Dr Kuseff said that what was shown was definitely not a prolapse of the penis. It is to be remembered that such photograph was amongst those taken of the livestock in the yards at Framlingham on the afternoon that cattle were put down. Thus, as no bulls were subsequently retrieved, it is highly likely that such bull was in fact put down and is an animal in relation to the destruction of which the plaintiffs now seek damages. I would refer to the evidence of Dr Kuseff at T1059.

66 Mr David Ellison is the son of the plaintiff, Ms Ellison. Whilst he is now a Customs Officer, he has lived with cattle, and particularly Murray Grey cattle, throughout his life. That work includes such things as husbandry, stud work, preparation for shows and the like. He stated that his mother had enjoyed "enormous success" at various shows, including the Sydney and Melbourne Shows - see T1122.

67 He attended at Framlingham after the defendant's intervention and assisted in rounding up the remainder of the cattle. He believes something in the order of 180 dry cows, weaners and calves were retrieved. He was present when they were ultimately loaded and taken to Westmere.

68 No other evidence of significance was called by the plaintiffs, either before or after the splitting of the case, in relation to the quality of the cattle and like issues.

Evidence called by the defendant in relation to the quality of the cattle and associated issues

69 Dr Byrne holds a Degree of Bachelor of Veterinary Science. He is a life member of the Australian Veterinary Association and has other memberships and accreditations. His evidence was given solely after the splitting of the case and a lengthy report prepared by Dr Byrne, such report being dated 20 February 2015, was placed in evidence (Exhibit D8). Dr Byrne has also had some first-hand experience as a stud master, in addition to conducting a veterinary practice involving some studs, essentially around the Albury area. It had been indicated that Dr Byrne's evidence was to be taken as solely relating to matters such as the quality of the animals and not accountancy matters.

70 In cross-examination, Dr Byrne was taken through his practical farming background, including an acrimonious split in the family partnership running the farm, this resulting in a Supreme Court Judgment. The possible relevance of this was whether the plaintiff had in fact been a farm manager or, as apparently described in the judgment, a farm hand. However, he maintained that he made the decisions.

71 Dr Byrne agreed that, in compiling his report, he had made searches on the internet, this being in the context of questions put to him concerning sales of cattle and addenda to his report. He supplied such material to the defendant's solicitors.

72 Dr Byrne was cross-examined at some length about consulting veterinary work which he had done in relation to cattle. He further said that the judging of animals at shows says nothing about their genetic worth. Animals at shows are judged purely on their appearance. Again, implicit in this statement is a comparison with Breedplan, which shall be discussed subsequently. The real economics of the situation involves the amount of meat that can be produced. In answer to a question of mine, Dr Byrne said that he had closer contacts with, and a greater interest in, sheep genetics.

73 Dr Byrne gave a description of how he had used an internet search in relation to the plaintiffs and the Murray Grey Beef Cattle Society. Details obtained were used in the preparation of his report.

74 Dr Byrne stated that he had never looked at the transcript of the evidence of Ms Ellison, but had looked at some notes. Essentially Dr Byrne could not challenge the evidence of Ms Ellison in relation to the quality of the cattle in question, in that he could say neither "yes" or "no" to what she had said. He stated that the quality of animals had improved dramatically since approximately 1980. Dr Byrne also conceded that he could not recall ever previously producing a written report in relation to cattle breeding. He had no experience of show judging. The present case is the only one in which he had prepared a written report in relation to the breeding of cattle, he adding that "I haven't been doing it for any length of time" - see T4309.

75 Dr Byrne was not able to say whether or not the relevant herd was comprised of animals which were pure-bred Murray Greys. He could not dispute that Ms Ellison and Mr Holdsworth had adopted a tattooing system which enabled them to identify each individual animal and its parentage. A considerable part of the evidence then given by Dr Byrne in relation to verification of parentage seems to have been based upon conversations which he had with others - see, for example, T4322. There was some discussion towards the end of cross-examination concerning whether or not the herd was free of Bovine Johne's Disease ("BJD"). That any of the relevant animals suffered from BJD is something that was not put to the plaintiffs. Ms Ellison gave evidence, in passing, that the herd was free of BJD (misspelt in the transcript) and there was no challenge to this. This does seem to me to be a Browne v Dunn situation. In the circumstances, the weight which I attribute to the possible existence of BJD, being a proposition that was not put to either plaintiff or to their witnesses, will not be great. Indeed, when the existence of this disease was mentioned in brief during evidence-in-chief of Ms Ellison, as I understand it she emphasised that the herd was free (not 3, as appears in the transcript) of BJD. Thus, they were very, very careful that their herd did not mix with other cattle.

76 In re-examination, Dr Byrne said that he had been on a steering committee of the Department of Agriculture in relation to the setting up of the Beef Improvement Association.

77 I have problems in accepting that Dr Byrne, as an expert witness, approached the giving of evidence with an impartial mind. I appreciate that he has firm beliefs in the merits of Breedplan and, as an expert, can give evidence as to why it represents the preferred approach to cattle breeding. However, his whole approach and demeanour was very much that of a zealot. He freely admitted that he was passionate about Breedplan and could speak all day about it. As stated, the dispute concerning Breedplan shall be discussed shortly. In addition, his qualifications in relation to cattle breeding seem to be somewhat limited - see, for example, paragraph 74 above. I might say that the conclusions of Dr Byrne in his very lengthy report of 20 February 2015 are basically consistent with his oral evidence. I would refer to page 4 of that report (Exhibit D8) at which his findings are summarised. In the body of the report, the same enthusiasm for Breedplan is evident.

78 Dr Webb Ware is a veterinary surgeon who has worked in private practice. He has also completed a master's degree, being a Master of Veterinary Studies. Having worked as a veterinary surgeon in South Australia, he is now at the University of Melbourne working with the MacKinnon Project, a consulting service based at the Faculty of Veterinary and Agricultural Science at Werribee. He consults with beef cattle and sheep producers in south-eastern Australia and does a little teaching. Essentially, he has been with the MacKinnon Project since 1987. He also has a mixed sheep and beef cattle farm just north of Melbourne.

79 Dr Webb Ware gave some evidence perhaps more related to quantum of damages rather than to the quality of livestock. He explained that the Eastern Young Cattle Indicator is a compilation of cattle prices taken from a variety of sale yards in eastern Australia and provides some sort of benchmark of average prices on the day of sale. Dr Webb Ware gave some evidence concerning BJD, to which, bearing in mind my earlier observations, I shall not return, save for the following. At T4482, Dr Webb Ware stated that the whole scheme concerning BJD was "a load of rubbish". However, he also referred to the Market Assurance Program. He regarded this as being an important issue, particularly in relation to the trading at the higher end of the market - see T4373.

80 Given the existence of the well-established studs, Dr Webb Ware was of the view that the business plan of the plaintiffs was very optimistic, particularly bearing in mind the competitive nature of the industry. In relation to the herd run by the plaintiffs, he considered a difficulty arose from the cattle being on the road and at Framlingham, where single mating might not be able to be established. This can create a restriction for a number of years.

81 Dr Webb Ware was also of the view that the relevant bulls were reasonably old. He stated that, in commercial herds, the working lifecycle of a bull averaged three and a half years. There is an increasing risk of a breakdown from all sorts of causes. The Breedplan statistics show some deterioration. In essence, he was also of the view that four bulls, sent with 270 cows to Framlingham, was an inadequate number. He raised the issue of the difficulty of tracking parentage and the level of record-keeping that is required. However, he said that it was hard to be categorical in this regard. He thought that there could be no confidence that, whilst the herd in question might be reasonable cattle, they could become amongst the elite of the industry. Dr Webb Ware believed that it would have been extremely difficult for the plaintiff to hold a stud sale in autumn, 2005, particularly bearing in mind the possibility of multiple matings. There was also the effect of the drought. Dr Webb Ware also stated that it is not reasonable to assume that all progeny would be sold at the level of stud quality. He also referred to the fact that, on the basis of statistics which he possessed, the number of registered cattle of the Murray Grey breed has reduced by about 34 per cent between 2003 and 2012. However, actual bull values from listed stud sales had increased by about 15 per cent. Bearing in mind other figures, the value of Murray Grey cattle had just kept pace with declining demand.

82 Dr Webb Ware was shown the picture of the bull with an apparently damaged penis - that is, photograph 35 of Exhibit H. He was of the view that what the photograph revealed was bruising of the prepuce, which was abnormal and raised a considerable concern in relation to the animal's future as a breeder. He stated that it was impossible to have a strong opinion from the photograph, but it was quite clear that there was some pathology present which was not normal. However, he repeated that the animal itself would have to be seen.

83 Dr Webb Ware agreed that there needed to be some turnover in the placement of bulls in herds so as to prevent inbreeding. Bulls can be kept for a longer period if the number of cows is considerable and parentage is tracked. Some bulls are kept longer, but the average would be kept for approximately three and a half years. A lot of bulls start to breakdown once they get to over five years of age. In relation to the bull with the damaged prepuce, Dr Webb Ware considered the prognosis for such an injury to be guarded.

84 Dr Webb Ware said that he worked full-time with the McKinnon Institute and also spent some hours working on his farm. He had gathered some information from the Murray Grey Beef Cattle Society website and also had a meeting with the defendant's solicitors. In addition, he made some enquiries from, and sent an email to, the Murray Grey Beef Cattle Society when trying to ascertain the value of stud cattle. On the Murray Grey Beef Cattle Society website, Dr Webb Ware researched some individual animals to which reference had been made.

85 Dr Webb Ware agreed that the Sutherland family were the originators of the Murray Grey breed and that Mr Peter Sutherland had, for a long time, been a show judge of cattle and exhibitor of cattle all over Australia. He also agreed that, at shows and the like, there were methods of testing involving the use of ultrasound. He agreed that, if the records retained were correct, the Framlingham cattle could have been registered with the Murray Grey Beef Cattle Society.

86 Dr Webb Ware was not able to comment on whether the animals in question were from a particularly good line of Murray Grey cattle. He had no personal, detailed knowledge of the lines in question.

87 In re-examination, Dr Webb Ware said that the fact that cattle can be registered with a society bears no resemblance to the commercial reality. He considered that selling animals at a price towards the higher end of the breed average, such animals having gone from unregistered to registered status, was "a very optimistic call" - see T4479. He said that it takes a long time for a stud to build a reputation. Registration is a start.

88 Whilst Dr Webb Ware did not dispute Mr Peter Sutherland's statement that these were A Grade Murray Grey cattle, in his opinion there are some caveats. A lot of hurdles have to be cleared after registration and before a large business exists.

Other witnesses of the defendant whose evidence might have touched upon these issues

89 Ms Heck is a health officer for the Department of Environment & Primary Industries, and was stationed in the Western District at the relevant time. As is apparent from her evidence commencing at T1996, she was present during the putting down of the relevant cattle. Her evidence largely was directed to the issue of liability. However, she was of the opinion that one, or possible two, Murray Grey bulls might have been put down, a recollection which in essence coincides with the finding which I have previously made. She was not asked to express an opinion about the photograph of the bull with the damaged prepuce. I mention this because she did give evidence concerning the cattle that were placed in the yards when the relevant livestock was put down. I am not suggesting that, in any way, she was in the position to give any expert evidence concerning the condition of the bull in photograph 35 of Exhibit H. Rather, it underlines that two bulls were amongst those gathered to be assessed and, if neither survived, it seems logical to assume that the one with the damaged prepuce was put down. Whilst not completely certain, Ms Heck confirmed in re-examination that she was reasonably confident that two bulls were put down.

90 Dr Irvine is a veterinary surgeon who was present at the putting down of the livestock. He asserted with some confidence that two bulls were put down. On balance, when the evidence of Ms Ellison is also taken into account, I see no reason to conclude that these were other than Thologolong Howzat and Thologolong Mile and that one of these was the bull shown in photograph 35 of Exhibit H - that is, the bull with the allegedly damaged or bruised prepuce.

91 Mr Nicholls could be described as the officer of the defendant who attended at Framlingham on 27, 28 and 29 May 2003. An Inspector, he was the officer "on the ground" who was in charge of and responsible for the defendant's actions in relation to the putting down of cattle. His evidence, given after the splitting of the case, was lengthy and very little of it was addressed to issues relating to quantum. Mr Nicholls did say that he saw no cattle other than Murray Greys on the property. Mr Nicholls also said that, from memory, he saw two bulls, one of which he thought had a prolapsed penis. Of course, it was not suggested that Mr Nicholls had veterinary qualifications, and it would appear that he was simply repeating something that he had heard - see T2553.

92 As a matter of interest, Mr Nicholls gave evidence that he had also made an unannounced trip to Mr Holdsworth's property at Westmere after the removal of the cattle from Framlingham and believed that he saw there some of the Framlingham cattle. This would tend to underline the conclusion that I have already reached to the effect that the cattle seen by Mr Keys included the animals from Framlingham.

93 Mr Nicholls also gave some evidence concerning the fact that the relevant cattle were fenced off. He also said later in his evidence, and this appears to be somewhat contradictory to what he had said earlier, that he did observe other cattle on the property that were not Murray Greys. It is also apparent that Mr Holdsworth had described the animals to Mr Nicholls as being stud cattle. Mr Holdsworth had also mentioned to Mr Nicholls the electric fencing. Mr Nicholls subsequently seems to have seen this - see T2655. He also gave further evidence as to other cattle, which he believed to be Herefords, on part of the property to which the partnership cattle did not have access.

94 Mr Kelly is a stock and station agent who attended at Framlingham on Thursday, 29 May 2003. He took part in the selection process as to which animals were going to be put down. I observed in my Judgment of 8 August 2014 on liability that, whilst I accepted some of Mr Kelly's evidence, I did not find him to be a particularly satisfactory witness - see, for example, paragraph 478. In any event, Mr Kelly identified the cattle in question as being Murray Greys - see T2983. He also stated that there were two bulls that were shot.

Conclusions as to the quality and condition of the relevant animals and associated matters

95 On the balance of probabilities, I have come to the following conclusions in relation to the matters which have been discussed above.

(i) All the relevant cattle were of the Murray Grey breed. That includes the three calves. They were pure-bred, with no cross-breeds amongst them.

(ii) Not only were they pure-bred, but they were bred along good lines. In this regard, I accept the evidence of Ms Ellison and Mr Peter Sutherland, although at times each appeared to be somewhat emotionally involved in the matter and their enthusiasm for Murray Grey cattle made it difficult to say that they were dispassionate about the case. I am leaving to one side for the moment the debate about Breedplan and the advantages and disadvantages of having cattle comply with it. I regard Ms Ellison's background, training and experience over the years with Murray Grey cattle as making her something of an authority in relation to the breed. Mr Peter Sutherland has a background which would also make him an authority. His family originated the breed. He was on the original Board of the Murray Grey Beef Cattle Society. He has bred them, shown them and judged them. Mr Sutherland described the partnership cattle as being of top quality, being of the true Murray Grey type and cattle that would make top price. Ms Ellison described the importance of the bloodlines which these cattle had. Even allowing for their enthusiasm, I accept that these were good quality Murray Grey cattle.

(iii) I accept that the cattle were not registered with the Murray Grey Beef Cattle Society after 1996. However, I also accept that, if proper records are kept, registration can be effected at any time. Once cattle are so registered, they remain so for life, regardless of subsequent matings. Thus, if the partnership kept proper records - and I am satisfied that it did - all cattle of which the parentage could be established could have been registered at any time. If the parentage was thus established, the cattle would be classified as stud cattle. This does not include the three calves to which reference has been made or calves the conception of which took place at Framlingham.

(iv) Whilst the cattle were on the "long paddock", there were four bulls running with them. I am satisfied that each was a Murray Grey bull, so that no issue of cross-breeding arises. However, because of the presence of four bulls, single sire mating could not have been established for calves conceived whilst the animals were on the "long paddock". Ms Ellison stated that calves resulting from such matings on the route were kept as commercial stock.

(v) Whilst this has to be taken into account, I accept that the female cattle sent to Framlingham were considered to be the best prospects as breeders. It is evident that the partnership spent a lot of money and put a lot of endeavour into trying to preserve them.

(vi) Overall, my conclusion is that the Framlingham cattle were pure-bred Murray Greys of good quality bloodlines. Sufficient records were kept to enable them to be registered with the Murray Grey Beef Cattle Society at any time. I leave to one side the Breedplan debate, which I shall now discuss. There were some immediate problems concerning calves conceived whilst the animals were on the "long paddock" and whilst they were at Framlingham, such problems being caused by the difficulty in establishing single sire mating and because of possible mingling of herds at Framlingham. Of course, these were difficulties which would exist for only a comparatively short period.

96 As the evidence unfolded, it became apparent that the introduction and operation of Breedplan has been something of a divisive issue, particularly in relation to the breeders and owners of Murray Grey cattle. If this case is any barometer of what is going on in the wider Murray Grey community, if not the cattle community generally, quite strong views are held by both proponents and adversaries of Breedplan. The system itself involves the collation of various statistics relating to individual animals, these statistics being provided by the owners or breeders of such cattle. Quite a number of these statistics concern cattle weight. A genetic evaluation system is employed and Estimated Breeding Values, referred to in the literature and on the website as EBVs, are estimated. Thus, it is alleged that prospective buyers can visit a website and obtain this data. The EBVs will then assist the prospective purchasers and indeed it was said by Dr Byrne that some buyers now do not even bother with a visual inspection of livestock. Rather, and whilst there was certainly not unanimous support for this proposition, they can purchase cattle unseen, relying entirely upon the EBVs and the Breedplan system.

97 As shall be discussed, an important and fundamental plank in the Breedplan system is a secret and somewhat mysterious algorithm. As I understand it, apart from being a key ingredient of Breedplan, it assists in the detection of any false or misleading information which is supplied by owners or breeders.

98 I should add that, another feature of it is that at least some information can be obtained in relation to certain animals, even if their owners have not registered them with Breedplan. Such information becomes available by reason of relatives of such animals being registered, although, as expected, the amount of information so available may well be less than that for registered livestock. Another aspect of Breedplan is that animals can be registered with it at any time. In other words, if an owner or breeder becomes a convert to Breedplan, the stock belonging to such person can be registered, even if the animals involved had not been registered since birth. However, whether complete data could be supplied in relation to such animals appears doubtful. The above is a brief summary of what is apparently a complicated and controversial system, which, as I understand it, began to achieve popularity in the 1990s.

99 Breedplan is potentially relevant in a number of ways. It is suggested that owners or breeders who have embraced the system have a financial advantage over those who have not, because the attributes of the individual animals can be readily assessed. It is said that the statistical approach is preferable to the showing and judging of cattle, as the latter practice involves the artificial "feeding up' or fattening of animals for show purposes. It has also been suggested that vendors of animals not registered with Breedplan are cutting themselves off from a portion of the market. There is also the suggestion that cattle that are not so registered are "yesterday's animals" and have been left behind commercially and, possibly, genetically.

100 There is also some strong opposition to such suggestions and to the scheme itself. Essentially the adversaries of Breedplan, such as Mr Peter Sutherland, argue that the show and judging system is the proven and acceptable method of evaluating livestock. It is argued that Breedplan depends upon the provision of accurate and honest statistics by owners, a requirement that may not always be met. This includes the recording of weights of animals at different times. Further, essentially it is argued that there is no substitute for visual inspection. It would seem that there is something of an "old school" versus "new school" aspect in relation to this whole debate.

101 I turn now to a summary of the evidence given by some important witnesses in relation to the Breedplan issue.

102 Ms Ellison is clearly not a supporter of the Breedplan program. It was when the Murray Grey Beef Cattle Society moved from Albury to Armidale and effectively adopted Breedplan that she and Mr Holdsworth ceased registering cattle with the Society.

103 Mr Holdsworth gave very little evidence concern Breedplan. He mentioned it in the context of no longer registering stock with the Murray Grey Beef Cattle Society when its headquarters moved to Armidale and when they "went into Breedplan ... which we didn't approve of, a lot of owners didn't too" - see T4945.

104 The Murray Grey Beef Cattle Society was based in Albury for some 25 years, before a majority vote caused it to move to Armidale. It was at about this time that the influence of Breedplan was felt. According to Mr Sutherland, only 25 per cent of Murray Grey breeders use Breedplan, but a subsidy is put on the remainder.

105 In the opinion of Mr Sutherland, the deficiency with Breedplan is that it is based upon figures relating to weights and measures. The accuracy of these depends upon the honesty of the owner of the animals.

106 Mr Sutherland also said of Breedplan that it is common knowledge that it is only about 60 per cent correct. He stated that he had studied Breedplan, but opted not to go into it. He spoke of his own practical experience. He was of the view that Breedplan did not supply the criteria in relation to animals being structurally correct, something which he considered to be the most important aspect of the industry. Breedplan is not used in the judging ring today.

107 Further, Mr Sutherland said that he would not accept that 70 per cent of cattle producers in southern Australia use Breedplan. He agreed that over 80 per cent of the larger herds might adopt some of the Breedplan program to a degree. However, the figure of 80 per cent was not confined to Murray Grey herds. Mr Sutherland was of the view that, in relation to Murray Grey herds, there would not be 40 per cent acceptance. Mr Sutherland would not accept the proposition advanced by Dr Webb Ware that Breedplan uses the world's most advanced genetic evolution system. He pointed out that the system used in America, where there was a much larger cattle population, was completely different and preferable. He also stated that genetics do not come from figures on paper, but "from the ancestries of those cattle generations back" - see T4005.

108 Very considerable portions of Dr Byrne's evidence and report involve Breedplan. As I made reasonably clear from the Bench in subsequent discussions, Dr Byrne struck me as being an advocate for Breedplan, and a zealous advocate at that. It is apparent that Breedplan has its adherents and its critics. Some on each side of the divide have strong views. Mr Peter Sutherland could be put in this category. Dr Byrne impressed me as having views that could be described as passionate, his approach bordering on fanaticism. In assessing the evidence, I shall bear this in mind.

109 Dr Byrne gave evidence concerning the advantages of Breedplan, as well as pointing to disadvantages of the long-standing system, which involves the showing of cattle and subsequent auctions. One such disadvantage to which he pointed was that owners would feed up the stud cattle to be paraded into extremely good condition, which did not reflect the true state of affairs. Breedplan depends upon various figures and the like being supplied and recorded, so purchasers can buy animals without even seeing them. The Breedplan system, according to Dr Byrne, is a better way of estimating the genetic worth of an animal. I might say that one of the criticisms of Breedplan by Mr Peter Sutherland was that false or erroneous data could be supplied. The supporters of Breedplan essentially say that such false information can, ultimately, be readily detected. Dr Byrne claimed that 95 per cent of stud animals that are registered with the various breed societies are in the Breedplan analysis. He referred to the American system as being "slightly different" - see T4221. It would appear that a basic or fundamental underpinning of the Breedplan system is an algorithm which, because of its commercial worth, is not revealed. However, access to the various assessments can be done through the websites of the different societies.

110 I have given a brief outline of Breedplan. I shall not go into the somewhat complex details referred to by Dr Byrne, but a discussion of this can be found at T4223 and following pages. It is interesting that, at T4229, Dr Byrne admitted that he was "quite passionate" about Breedplan. Dr Byrne also said that Breedplan does sort out cheats, presumably by means of the secret algorithm, but those operating it will not tell anyone how it happens, because they do not wish to give away information.

111 In relation to the almost fanatical devotion to the Breedplan system which Dr Byrne seems to have, at T4231 he stated that he could talk about Breedplan all day. I readily accept both this statement and his admission that he is quite passionate about it. I should add that Dr Byrne also said that he knows many people in Breedplan.

112 Dr Byrne said that it was erroneous to equate the partnership herd with the cattle at some of the leading Murray Grey studs. He thought that those that had been mentioned by the plaintiffs' financial experts in fact had vastly superior cattle compared with the plaintiffs' herd. However, at least in part, the reasoning for this seems to lead us back to Breedplan. He asserted that traditional breeding had been left completely behind by the users of Breedplan. Bloodlines were still important, but the only credible, objective measurement of the genetic worth of the animal in question was Breedplan. No importance attaches to the opinion of a show judge. There was considerably more cross-examination concerning Breedplan, with further references to the algorithm which has not been released. There was then even further cross-examination basically involving Breedplan and, if the questions did not involve Breedplan, many of the answers did. The bottom line is that, basically, Dr Byrne would not concede any weakness in the Breedplan system.

113 Dr Byrne also said that there was no information released by the breed societies that gave actual figures as to the percentage of the breeders involved that used Breedplan. He could only speak as to the number of calves that were registered for all breeds. Dr Byrne also stated that he was not prepared to reveal the source of the information that 95 per cent of calves of all breeds were in Breedplan.

114 Dr Webb Ware is also a believer in and advocate for Breedplan. However, his approach and presentation was markedly different to that of Dr Byrne. He did not present as a zealot. He made appropriate concessions. His evidence struck me as being far more balanced than that of Dr Byrne.

115 Dr Webb Ware described Breedplan as a means of specifically evaluating the genetic merit of an animal. He regards it as a very important tool to assist beef producers in the selection of livestock. It is a very good guide that has been used by significant players in the industry. He said that there was certainly a number of studs which use the show circuit as a means of promotion, some actually using it as the major component of the business of the stud. However, commercial producers do not rate the stud circuit very highly. I might add that this, perhaps, may underline the distinction between commercial herds and stud herds.

116 A point made by Dr Webb Ware which seemed to me to be logical was that owners who did not use Breedplan effectively removed a proportion of potential buyers of livestock who rely upon it. How great that proportion might be could be a matter of dispute, but it seems to me to be logical that, if there are some potential purchasers who use Breedplan as the exclusive means of assessing animals, that section of the community is removed from the list of potential buyers if the vendor's animals are not listed with Breedplan. Dr Webb Ware then gave some detailed and lengthy evidence concerning the operation of Breedplan. Incidentally, Dr Webb Ware described Breedplan as "a highly sophisticated project" - see T4364. It is certainly something the workings of which are not easy to understand, particularly if the algorithm which lies at its heart is secret.

117 Dr Webb Ware was also of the view that something in the order of 80 per cent of the top producers (all breeds) use Breedplan. However, there were still some who did not use it.

118 Dr Webb Ware also conceded quite fairly, the following propositions. Essentially all stud managers engage in some visual assessment of the relevant cattle. Personal assessment is an important part of the overall assessment. A proportion of the industry regard Breedplan as being of no great assistance. In relation to those not using Breedplan cutting themselves off from part of the potential market, there was nothing to stop them from starting to use Breedplan if this situation became apparent. However, he maintained that the advancement of breeds had been greater since the adoption of Breedplan.

119 Of the two expert witnesses called by the defendant, I far prefer the evidence given by Dr Webb Ware. Whilst he is a supporter of and advocate for Breedplan, as previously stated, his evidence was balanced. He seemed to me to make logical and proper concessions.

120 I also have no difficulty in accepting the thrust of the evidence of Mr Peter Sutherland. Whilst he may be more from the "old school" of Murray Grey owners and breeders, his knowledge of that particular breed and matters involving it seems to me to be very considerable. I accept his fundamental proposition that, particularly in relation to Murray Greys, there are those in the industry who prefer and adhere to the older system of visual inspections and the showing and judging of cattle. They prefer this as the more accurate indicator of the stock which they should purchase. Mr Sutherland stressed the vital importance of structural soundness, something which he felt could only be ascertained by visual assessment.

121 As stated, I see the logic in the proposition of Dr Webb Ware that cattle vendors whose stock is not registered with Breedplan are cutting themselves off from part of the market. Some strong Breedplan adherents may well ignore such cattle. For example, it is hard to imagine Dr Byrne purchasing animals that are not recorded in the Breedplan system. Whilst this is clearly a factor to be considered, there are two other aspects to be borne in mind. One is the concession by Dr Webb Ware that there is nothing to stop owners from starting to use Breedplan if it became apparent that such owners were suffering financially from not having their stock in the Breedplan system. How long it would take such owners to bring their herd up to date within the Breedplan system is another matter, given the statistics, including the weighing of animals at various stages of their development, that are to be provided.

122 The other is that I accept the evidence of Mr Peter Sutherland to the effect that there is still a market for top quality Murray Grey cattle which are not included in the Breedplan system. He gave evidence that in the last two to three years there had been a dramatic return to original Murray Grey cattle, although there did not seem to be any statistical basis for this assertion. He was of the opinion that the plaintiffs' cattle, with its combination of bloodlines including the Cloverdale line, were cattle which were very saleable "all the time". He also stated that demand for Murray Grey genetics was as good as it had been 10 years ago, with recent breaking of sales records. It may be that Mr Peter Sutherland, given his lifetime involvement with the Murray Grey breed, is viewing the situation through "rose-coloured glasses". However, I accept the overall proposition that some Murray Grey breeders have not registered their stock in the Breedplan system or are not enthusiastic about it and that there is still a market for good quality Murray Grey animals outside that system.

123 My ultimate conclusion in relation to what could be described as the Breedplan factor is as follows. Whilst there may have been a fluctuating market in relation to the demand for Murray Grey cattle and whilst some Murray Grey breeders and owners may not have placed their stock in the Breedplan system, there is still a market for well-bred, good quality Murray Grey animals. That market, which may be limited in the sense that strict Breedplan adherents are not part of it, exists regardless of whether the cattle in question are in Breedplan. Further, if owners such as the partnership came to the conclusion that the prices on offer for their cattle were suffering because of a failure to be a part of Breedplan, an attempt could be made to remedy the situation. How long it would take to do this and whether a full range of statistics could be supplied for existing stock are matters which are unclear.

124 I might add that I can appreciate that, particularly in the case of some of the long-time breeders of Murray Greys, such as Mr Peter Sutherland, their fears that Breedplan is open to cheating or the provision of inaccurate information are hardly assuaged by reference to a secret algorithm.

125 Whilst argument about Breedplan consumed a considerable amount of time, ultimately it does not seem to me to be a decisive factor fatal to the case of the plaintiffs. I will take into account the fact that the partnership, by not having its stock in Breedplan, may be cutting itself off from part of the market. However, the fact remains that there is still a market for good quality Murray Grey cattle not registered with Breedplan. That part of the overall market may be lost to the plaintiffs is a discounting factor, although perhaps not one of overwhelming magnitude.

Are the plaintiffs entitled to any damages in respect of losses relating to artificial insemination?

126 Another area of very considerable dispute in this matter concerns the question of whether the plaintiffs are entitled to any, and if so what, damages by reason of loss of profits from a foreshadowed artificial insemination enterprise. It could be said that the options in this regard range from the artificial insemination project being almost a pipedream to the massive losses calculated by one of the plaintiffs' financial experts, Mr Tol.

127 I turn now to a summary of the evidence focussing on the issue of whether such a project was a realistic option and whether it had been treated by the plaintiffs as such.

128 Prior to the partnership coming into existence, Ms Ellison had been involved in semen collection from her bulls. She maintained a semen tank at her Bairnsdale property. It is transportable. Ms Ellison gave a description of the method of collecting semen. She said that the same sort of activity was engaged in at the Carrathool property owned by the partnership, although some uncertainty seems to exist in this regard and certainly as to the extent of any such operation. In relation to artificial insemination, she stated that the semen had already been gathered to use over the line of cattle when they returned from Framlingham Forest. This was semen collected before 1996, when the partnership commenced. The semen had been gathered from bulls which came from a line of ribbon winners. No semen had been collected from the four bulls that went to Framlingham, but it would have been when they returned after the drought. The semen in the tank had been preserved for the very top females. The semen had been obtained from champion bulls owned by Ms Ellison. Thus, no semen was required after 1996 because "we didn't need to" - see T1418. Some semen was used on partnership cows that were at Ms Ellison's property at Bairnsdale, but none was used at Carrathool. The appropriate yards and the like had not been built there "because of other circumstances". I might say that some of Ms Ellison's evidence in relation to the quality of the cows that actually returned from Framlingham, as opposed to those that were put down, is not entirely clear. At times there also seemed some confusion as to whether any semen was obtained at Carrathool, the partnership property. Whilst his evidence was also a little confused, Mr Holdsworth seemed to be of the view that some had been gathered - see T437. My overall impression was that, if any semen had been collected after 1996 from partnership bulls, it was no great amount.

129 Ms Ellison said that semen had been collected from six or seven bulls, this being done before the commencement of the partnership, and was very, very valuable. In fact, between 1996 and 2003 only two or three cows had been inseminated with the semen. The semen was too valuable to use other than on the partnership project. The use of semen by the partnership was limited in this way. However, Ms Ellison went on to say that no cattle owned by the partnership had been so impregnated in between 1996 and 2003. The program was going to start on the return of the breeders to Carrathool after a period of agistment at Framlingham. The bulls that went to Framlingham were registered with the Murray Grey Beef Cattle Society.

130 Ms Ellison replied in the negative to the proposition that, for artificial insemination, it was necessary to be able to ensure blood lines through DNA testing. She also stated that, in 1996, she had something approaching 900 straws of semen in the tank. However, these had now been destroyed because she had been away too long to replenish the liquid nitrogen which kept them frozen.

131 Ms Ellison stated that it was her belief that Mr Tol has knowledge in relation to artificial insemination. She referred to his broad spectrum of knowledge in relation to accountancy, which covered artificial insemination.

132 Mr Holdsworth said that they had lost their breeders, their stud, the bulls and the sperm bank. They lost the sperm bank because they lost the bulls which supplied the sperm.

133 In relation to artificial insemination, Mr Sutherland referred to a sale in February 2014 where Murray Grey semen was sold for up to $120 a straw. However, he thought that, for commercial semen, the charge was usually $30-$40 a straw. Sometimes the straws are sold into other breeds. Mr Sutherland referred to the sale of 27,000 straws which he had carried out, these being at $15-$20 a straw commercially. He believed that he could have sold many more straws. Whilst he had sold some of the straws for stud breeding, the majority were sold "into the carcass world" - see T1918. He referred to successes which his establishment had achieved in relation to carcass meat.

134 Mr Sutherland also stressed the importance of retaining the semen of the old breeds. He referred to the value of Murray Grey semen in Europe. He also referred to developments in China, although there seemed to be a considerable distance to go before Murray Greys were well-established there. Some straws of Murray Grey semen had been ordered in North America in the last six months. Mr Sutherland was also very optimistic about the long-term future of Murray Greys in South America.

135 He identified the type of certificate that was issued by the Murray Grey Beef Cattle Society in relation to pedigrees, breeders and the like. He identified the breeding certificate in relation to a bull purchased by Ms Ellison in relation to which he said that the semen straws were purchased at $365 per straw, this being a record. It was claimed that this was one of the bulls that went to Framlingham. The name of that bull was "Thologolong Mile", and a similar registration certificate in relation to "Thologolong Howzat" was also tendered. Mr Sutherland also referred to another famous bull that was purchased by the plaintiffs. The partnership acquired him in 1999.

136 In cross-examination, Mr Sutherland said that there were no Murray Grey cattle being exported at the moment - only semen and embryos. He said that there were 2,000-3,000 stud straws of Murray Grey semen sold per year. He said that a lot of the straws were being banked in anticipation of future demand. I might say that it was not entirely clear, in relation to the 2,000-3,000 straws, whether Mr Sutherland was referring to export sales or sales generally. He had been discussing the export market. Given that he had been referring to such matters as his sale of 27,000 straws and given other evidence in the case, it seems to me safe to assume that either this was some sort of error on his part or that he was referring to the export market. Even then, that very low figure does not fit with other evidence.

137 A further proposition from the report of Dr Byrne, effectively doubting the evidence previously given by Mr Sutherland in relation to the demand for semen straws, and in particularly in relation to a bull which was part of Mr Sutherland's herd, was put to him - see T3985. Mr Sutherland disagreed with the observations of Dr Byrne. He stated that there was commercial demand for semen from the Thologolong herd.

138 Whilst Mr Klint Wagstaff was working in what seems to have been a labouring capacity for Tesbury Meats at the relevant time, he is now the Regional Manager for ABS Australia, an artificial insemination company. His background is that he worked on dairy farms and also worked for another artificial breeding company, before working for his present employer. He was present on the day of the intervention by the RSPCA in his capacity as a "jack of all trades" employed by Tesbury Meats, and his primary evidence was directed to issues concerning liability. However, he has undertaken courses in relation to artificial insemination and also worked for some four years as a stock agent.

139 Whilst an Order 44 statement had not been served, in my Ruling of 11 March 2014, I permitted Mr Wagstaff to give evidence in relation to some matters which were arguably akin to expert evidence. I did this for the reasons set out in my Ruling of that date. Mr Wagstaff's evidence was that the price of Murray Grey beef bull semen ranged from between $5 to $100 per straw, but the average price commonly used in beef herds, and based on his experience in sales, would be around $15-$20, the lowest being $10 - see T969 and following. At least seven individual companies sell a range of semen from beef and dairy cattle.

140 He also stated that the average collection per week is somewhere between 1,000 and 1,500 straws. Factors such as the health and temperament of the bulls in question also influence the number of units per week. These straws are frozen and stored in liquid nitrogen.

141 In cross-examination, Mr Wagstaff gave further evidence concerning the method of collection of semen at professional centres and the fact that it has a lifespan of something in the order of 24 to 36 hours unless frozen. Mr Wagstaff also said that the value of semen in the period 2003-2005 was about the same as it is now. He stated that the minimum price per unit had been consistently in the order of $10 and the maximum for a Murray Grey bull, as sold by him, had been $25. Essentially the range of $10-$25 was what was applicable to Murray Grey cattle.

142 Mr Wagstaff also agreed that there is what is called a semen fertility ratio and that there are some bulls which are unable to impregnate the entire herd. He was not able to say how long it would take a bull to recover if it had been in drought conditions, but thought that some recovery would be necessary. The ideal preparation for a bull would be to not go through a drought prior to the serving season.

143 In the artificial insemination industry, semen would not be collected from a drought-affected animal until it had recovered and was healthy. He could not give evidence as to what effect the drought would have had upon any bulls that were present at Framlingham - see T985. Mr Wagstaff did not think that the drought-affected cattle at Framlingham differed in appearance from other drought-affected cattle.

144 Stud bulls that are going to be used in relation to semen sales have to be registered and assessed. Mr Wagstaff also agreed that the bull shown in photograph 35 of Exhibit H did not look as if it was destined for a great stud career. However, he was not familiar with the term "prolapsed penis".

145 In answer to a question of mine concerning the production of 1,000 to 1,500 units of usable semen per week, Mr Wagstaff said that the period for which this continued depended upon the health of the animal and its willingness to work. Some bulls, especially dairy bulls, might work three times a week for 10 months straight, whereas others might work for two months and then have a two month layoff. He thought that the average Murray Grey bull would be capable of producing for possibly six months of the year.

146 Mr David Ellison was familiar with the fact that his mother had conducted artificial insemination of cattle at the Bairnsdale property and had a tank and equipment there. He described the procedure as being almost "veterinary" in nature.

147 Dr Byrne has stated, in his report of 20 February 2015, that, in his opinion, it is most unlikely that the plaintiffs would have been able to develop a highly profitable semen business. He also considered that the fact that two leading Murray Grey studs in Australia are no longer so operating would suggest that there are very small amounts of money to be made in owning bulls for semen sales. He felt that high prices reported in the present stud sales were used for advertising purposes.

148 Dr Webb Ware said that, in relation to semen production, there is a higher likelihood that an older bull starts to produce poor quality semen which cannot be frozen. However, this is very much an average situation. There is a gradual decline in performance with advancing years.

149 Dr Webb Ware said that the semen of older bulls might be difficult to sell in large quantities. No central register in relation to such matters is kept. He thought that it was incredibly optimistic to be able to say that selling semen from these particular bulls was a proposition. Whilst it was possible with the advancing genetic merit of animals, it was optimistic to think that semen could be stored and sold in the future. He also said that export sales of semen for the year 2012/13 totalled in value $1,500,000, this being from all breeds including dairy cattle. The Murray Grey breed probably only has about four per cent of that total, and the average sale price per straw is $10 (reviewing Dr Webb Ware's evidence, this seems to be the average price for all breeds on the international market). Dr Webb Ware added that, unfortunately, there is not a breakdown available of the share of the different breeds on the international market. Further, Dr Webb Ware stated that, in relation to the artificial insemination industry, very large sales of semen would not just occur overnight. There are occasional large sales of semen from one particular bull, Mr Peter Sutherland having apparently possessed one such animal. However, generally there has to be promotion, advertising and the like. Dr Webb Ware had stated in his report that the likelihood of the plaintiffs first using bulls from which semen might be produced was, at the earliest, 2007.

150 Dr Webb Ware also agreed that there were cases where people wanted semen from older bulls, but as a general rule there was not a high demand for such. There are some which are very popular, such as that referred to by Mr Peter Sutherland, but that is not the norm. Studs often use the best of their own bulls, occasionally buy bulls and occasionally buy semen from another source. Dr Webb Ware's attention was then brought to a document which seemed to indicate that semen from a particular bull born in 1984 was being advertised for sale on a website at $50 a straw. He stated that the first place that people go to when enquiring about prices for semen straws is to what is advertised on websites. They would then attempt to negotiate a price. A typical price advertised for semen was $25 a straw, although the export price is only about $10. His attention was drawn to a website concerning a bull born in 1990 where the asking price for semen straws was $50. Another entry, from the same stud, had prices ranging from $20 to $30, depending upon the number bought. The bull in question was born in September 1988. The attention of Dr Webb Ware was also drawn to other such examples.

Conclusions as to the possible viability of the partnership conducting an artificial insemination business

151 I am satisfied that there is a market for Murray Grey semen straws. In this regard, I accept the evidence of Mr Peter Sutherland, who is directly involved in such a business, to the effect that such a market exists

152 I also accept the evidence of Mr Wagstaff. In my Judgment of 8 August 2014, I stated that I found Mr Wagstaff to be a particularly impressive witness and that I had no difficulty in accepting his evidence as being accurate, reliable, honest and unbiased. Whilst he was not recalled after the splitting of the case, his evidence had been the subject of cross-examination. He was not shaken in it. My impression of him as being a particularly impressive and reliable witness remains.

153 Having undertaken courses in relation to artificial insemination, worked as a stock agent and with dairy cattle, and having worked for an artificial breeding company before obtaining his present employment as a regional manager for such a company, it seems to me that he is particularly well-placed to give evidence concerning the artificial insemination business. I accept that it is a viable industry with, as stated by Mr Wagstaff, at least seven separate companies selling a range of semen from beef and dairy cattle.

154 When the evidence of Mr Wagstaff is combined with that of Mr Peter Sutherland, I have every reason to believe that opportunities exist for the sale of suitable Murray Grey semen. Further, I accept the evidence of Mr Sutherland that, given the bloodlines of the partnership cattle, there would be a market and prospective purchasers for semen straws from the partnership bulls. However, his evidence concerning the size of that market was confusing and my overall impression, bearing in mind the evidence of Dr Webb Ware, is that the export market is not particularly large. Further, the evidence of Mr Wagstaff concerning the normal price range for the sale of straws struck me as a more likely scenario than some of the very high prices that may have been obtained for straws from some of Mr Sutherland's prize animals.

155 In my view this was not just some "pie in the sky" notion. As a starting point, some consideration should be given to the fact that it was the intention of the partners to take the partnership into the business of artificial insemination and that the loss of stock resulting from the intervention by the defendant has had at least an inhibiting effect upon this intention, if not destroying it, at least in the short term.

156 As stated by Mr Holdsworth, the partnership had lost its breeders, its stud, two bulls and, effectively, its sperm bank. Such a statement may be too sweeping, and the fact that one of the two bulls may have been damaged must be borne in mind. However, as stated, in my view the concept of an entitlement to damages for losses associated with the proposed artificial insemination business is not one which can simply be dismissed out of hand. It requires consideration as part of the assessment of damages process.

157 Another aspect of damages relating to artificial insemination concerns the plans of Ms Ellison to use the stored semen from the bulls at Bairnsdale. Thus, she would argue, damages are attracted by reason of the putting down of the best breeders, which were then unavailable to receive that stored semen. This is a project that was going to commence upon the return of the breeders to Carrathool after agistment at Framlingham.

158 This seems to me to be a little more nebulous. As I understand it, after the best breeders had returned from agistment, the stored semen would have been used in order to produce high quality offspring. However, it was also Ms Ellison's evidence that the straws of semen to which she had been referring were destroyed because she had been away too long to replenish the liquid nitrogen in the storage tank - see T1488. I am uncertain as to precisely what was meant by this. I can appreciate that the partnership, and Ms Ellison in particular, had plans to use the stored semen for impregnating some of the best breeders. However, the impression created by Ms Ellison is that this stored semen has been destroyed for reasons associated with her absence for a lengthy period, but whether that was in turn associated with the three day intervention by the defendant at Framlingham is unclear. I have found that some of the best breeders were wrongfully put down at Framlingham by the defendant. Whether any loss resulting from the inability of the partnership or Ms Ellison to use the stored semen to impregnate the Framlingham cattle has been established is another matter. I am not persuaded that this particular element of damages associated with artificial insemination has been made out.

159 In conclusion in relation to artificial insemination, it seems to me that the concept of damages arising from loss associated with an artificial insemination program is something which requires consideration. I shall return to it in my Ruling on the actual quantum of loss. The overall impression which I have gained is that, if some semen had been collected at Carrathool after 1996, it was not a great amount. It has not been established that loss associated with the stored semen at Bairnsdale can be seen as resulting from the tortious behaviour of the defendant.

The differing methods of assessing damages and the evidence of the financial experts

160 Four financial experts gave evidence. Mr William Henderson gave evidence on behalf of the plaintiffs before the splitting of the case and was subsequently recalled. His partner, Mr Nigel McGuckian, also gave evidence before the splitting of the case, but was not required to give further evidence. Mr Matthew Tol was called by the plaintiffs to give evidence both before and after the splitting of the case. The defendant called Mr Joe Dicks, this being after the splitting of the case. I shall now summarise the evidence of these witnesses. This will include the different approaches to the assessment of damages.

161 However, before summarising this evidence, there are two preliminary points which should be made. Firstly, it was made clear by Mr Christie that Dr Byrne and Dr Webb Ware were not called as financial experts. Mr Dicks was the financial expert upon whom the defendant would be relying. Essentially, Dr Byrne and Dr Webb Ware were called to give evidence about the quality of the animals - see, for example, T3770-71. Accordingly, any calculations in their reports which are more in the nature of loss assessments or pertaining to any financial expertise are to be disregarded.

162 Secondly, on 31 March 2014 I ruled that the report of the late Mr John Sykes was admissible. Mr Sykes could be considered to have been a financial expert. It is a report to which references appear in the reports of other financial experts. It was later stated by Mr Christie that the defendant still intended to rely upon his report. However, my staff and I have checked on this and it would seem that no report from Mr Sykes was ever tendered. Furthermore, essentially no reference to it appeared in the closing submissions, written or oral, of either party. I can only assume that those advising the defendant had a change of mind and opted not to tender it. Accordingly, any reference to it will be only in the context of comments made in other reports, which in turn may assist in understanding a particular point of view or approach. I turn now to a summary of the evidence of the financial experts.

163 Mr McGuckian is an agricultural consultant who has the degree of a Bachelor of Agricultural Science. He is not an accountant. He has been with the firm of RMCG for a period in excess of 25 years, and is a Senior Fellow in that firm. He has analysed the profitability of various farming and grazing businesses. He has acted as an expert witness in the Horsham bushfire case and has prepared a range of loss assessments for agricultural businesses. Mr McGuckian was also appointed an independent loss assessor in relation to the Beechworth bushfire. The firm has engaged in a number of bushfire loss assessments relating to livestock. In relation to the present case, he was the project supervisor, whilst Mr Henderson did the majority of the work.

164 Mr McGuckian explained the method of calculation based upon individual Dry Sheep Equivalents ("DSEs"). The loss calculated by Mr McGuckian and Mr Henderson, applying this method, was $2,119,492 - see T2321. It is to be remembered that the evidence of Mr McGuckian was given prior to my determining that the number of cattle for which the defendant is responsible was 131 and a considerably larger herd was being considered at that time. As I understand it, this particular method of calculation in DSEs was either not applied in full or was subsequently adjusted.

165 Mr McGuckian was asked as to whether a proper method of calculation of the loss was one based upon the replacement value of the animals. Whilst that could be done, Mr McGuckian (and Mr Henderson) also approached the assessment on the basis of looking at the profitability of the enterprise with the loss of cattle and the profitability without such loss, the difference then being calculated.

166 I shall not go into details of the "replacement value" option. Ultimately, in the circumstances of the present case, it was not the preferred option of any financial expert. It was not contended for by either party. It is not the method of assessing damages which I have chosen.

167 The second model, to which Mr McGuckian was referring and which is set out in the report of 8 June 2012, is based upon the present value of lost business profit. Again, the calculations are complicated. The end result in terms of present value as at June 2012 was a loss of $1,681,628. In the second report, this was adjusted to $1,425,030.

168 Mr McGuckian said that he believed that the opinion expressed by himself and Mr Henderson in their report was correct. He said they had tried to be conservative in their modelling and used reasonable figures. He said that both methodologies referred to by them are standard methods. He repeated that the rates adopted by Mr Henderson and himself were very conservative. In relation to the second approach (the "with" and "without" method), a view as realistic as possible was taken. The appropriate figure was thought by Mr McGuckian to be $1,425,030, as contained in the revised report of himself and Mr Henderson. It should be added that RMCG (Mr McGuckian and Mr Henderson) had calculations based upon the cattle having a commercial value only and, additionally, on the basis of average stud prices.

169 As at the time that Mr McGuckian was giving his evidence, the number of animals (if any at that stage) for which the defendant was liable had not been fixed. As a result, the number of cattle which formed the basis of the calculations contained in the RMCG report of 8 June 2012 was 311. Even at that stage, the total number of cattle for which the defendant might be responsible was fluctuating with the evidence. Given that the total number of animals in question was ultimately determined by me to be 131, clearly the calculations would have had to be adjusted and indeed they were. However, the alternative methodologies described by Mr McGuckian remain relevant. Also, whilst he did not give further evidence after the judgment as to the number of cattle for which the defendant was responsible, Mr Henderson did. RMCG had prepared a further report based upon my Judgment. I would add that it is apparent that Mr McGuckian also had input into, and was the project supervisor of, that report of RMCG of 28 October 2014. I shall return to this when the evidence of Mr Henderson is discussed, but again emphasise that the evidence of appropriate methodologies given by Mr McGuckian remains relevant and, of course, he was subject to cross-examination at a time when all issues were alive.

170 I turn now to a summary of the relevant parts of that cross-examination. Mr McGuckian had "skimmed" through the reports of Mr Tol, also a financial expert for the plaintiff. He noted that the figures arrived at by Mr Tol were a lot higher than those of RMCG. Mr McGuckian said that he and Mr Henderson had deliberately not read the reports of Mr Tol prior to compiling their own report so that they started with "a clean sheet". Mr McGuckian repeated that they had used reasonably conservative estimates of profitability in preparing the reports. Further, agricultural businesses are affected by a variety of external factors, which RMCG had tried to factor in. The loss had not been assessed by reference to past performance. RMCG had used a mixture of industry standards and reference to a number of tax returns which were available. However, the tax material was limited in nature. Mr McGuckian stated that he did not feel hamstrung when preparing the report by the absence of particular tax returns. The assessment of profitability is a combination of some understanding of the past and reasonable assessments of the future.

171 In answer to a question of mine, Mr McGuckian stated that he understood that there had been a hold-up because of the cattle being on the road due to the drought. He said that a situation such as that is approached by using a mixture of industry standards, having some conversations with the people involved, making some assumptions and always remaining conservative in relation to projections. In further cross-examination, Mr McGuckian agreed that he was "light on" for past taxation returns. In relation to agistment expenses, he and Mr Henderson decided to use the real situation, rather than a more hypothetical one. He also said that the assumption used was that the sale of stud cattle by the partnership would not begin until 2005. Before that, it was assumed that cattle were sold at commercial prices. The assumption used was that, in 2005, almost all heifers would have been sold at stud prices, along with eight bulls per year.

172 A further assumption was that cattle would have been transported back from Framlingham to Carrathool and that the registration of the stud would have been completed. As the situation was understood, the animals were of high quality and had previously sold for good prices. That situation would be reestablished. Mr McGuckian was proceeding on the basis that the animals in question were of the same blood lines as those which had previously been successful in winning ribbons and the like. The assumptions made by himself and Mr Henderson were that the partnership was selling stud cattle and had good quality cattle which could be converted into stud cattle. He also pointed out that, in making certain assessments, they had included both stud cattle costs and stud cattle prices. He also said that he believed that he and Mr Henderson had thought carefully about the assumptions made and validated them against industry standards. They also relied upon some source documents.

173 Mr McGuckian struck me as an impressive witness, particularly well qualified in relation to the methods of assessment of livestock losses. The approach adopted in the reports overseen by him seems to me to be reasonable and logically based. Of course, as stated, the cattle figures forming the basis of the calculations contained in the reports turned out to be erroneous, but this situation was later remedied.

174 Mr Henderson is an economist who works with RMCG as a senior consultant. Mr Henderson has qualifications as a Bachelor of Sociology and a Master of Economics, having also obtained a Graduate Diploma in Economics. He worked as an economist and senior analyst at the Economic Policy Unit for the Northern Territory government, as well as doing research work for the United Nations in Indonesia. His work has involved him in analysis of agricultural productivity, regional planning and the like. As with Mr McGuckian, there was no challenge to his standing as an expert witness or his independence.

175 As stated, Mr Henderson gave evidence both before and after the judgment in relation to liability and the number of cattle involved. In his earlier evidence, he confirmed that two methods of calculating loss had initially been used. Given that the earlier calculations, which have already been described, were based upon what turned out to be an incorrect number of cattle, there is no need for me to go through them. Essentially, he described the method of calculation concerning which evidence was given by Mr McGuckian. A further report from RMCG of 28 September 2012 was placed in evidence (Exhibit HH). Mr Henderson stated that, whilst calculations had been made on the basis of the partnership operating as a stud cattle business from 2005, the sale of semen from stud bulls had not been included.

176 In cross-examination, Mr Henderson explained why a discount rate of 10 per cent was applied, saying that the Productivity Commission had, in a paper, implied a nominal rate of 11-12 per cent, but an analysis by the Australian Government used a scale of 10 per cent, which was adopted in the present case. There was some argument as to whether the term "discount rate" could be applied to a calculation which was, in fact, "grossing up" a figure. However it be described, the rate applied by RMCG is 10 per cent.

177 In answer to a question of mine, Mr Henderson confirmed that the charts contained in the revised report of 28 September 2012 at pages 13 and 14 of Exhibit HH (referred to in the transcript at pages 229-230) were based on the premise that the herd was being assessed as a commercial one. The resulting valuation would be affected if the ultimate conclusion was that some of the missing or slaughtered stock were stud animals - see T1858.

178 Mr Henderson also said that interest awarded by the Court would either entirely or in part off-set the calculation as to the loss of value of animals, as a figure of 10 per cent per annum had been applied to such loss up to 2012. In relation to loss after 2012, being the time of the reports, this is allowed for in the sense that enough money is allowed from the calculations to replace the cattle and then restore the partnership to where it would have been absent the loss of animals which had occurred. There would be no additional future loss because the plaintiffs would have been restored to the position in which they had been without the intervention of the defendant. The calculations would include future loss in the sense that, if the herd had been sold as at the date of the report, there would have been profits taken as well as the building of an asset. In each approach adopted by RMCG, the sale of the asset has been estimated and the difference included. When the asset is known to have been sold, the assumption is made that the present value is the same as the stream of income that would have been provided from the asset in future years. The assessment is placed upon a notional sale in 2012, being the year in which the reports were produced.

179 Mr Henderson said that, in preparing the report, he and Mr McGuckian had taken into account varying costs, based on climatic conditions, and also varying prices. Overheads, which also vary, are not taken into account in relation to the net figure. The general approach taken by RMCG accorded with that taken by Mr Tol - that is, a year by year comparison between what has occurred as a result of the intervention by the defendant and what might have occurred had there been no intervention.

180 In cross-examination, Mr Henderson said that the same assumptions had been used for both scenarios - that is, both the "with" and "without" intervention. He also said that costs had been established from the partnership's profit and loss statements, together with instructions. The sales receipts provided by the partnership and which were used were receipts from stud cattle. The sales involved were before the intervention by the defendant. Mr Henderson agreed that an assumption had been made that the cattle were in good condition and able to return a fair price upon sale.

181 In the second or revised report, it had been assumed that the partnership was producing commercial cattle, until it upgraded to stud cattle in 2005. Mr Henderson repeated that the second report was prepared on the basis of the partnership engaging only in commercial operations for the first two years after the loss before conducting its business as a stud operation. He also agreed that, in the second report, the model was that the herd remained stable after 2003 by increasing to 80 per cent the number of heifers sold each year. He also agreed that what had been adopted was the average stud prices from several Murray Grey breeders as at 2003. Various documents were referred to in this regard.

182 It would also appear that the commercial cattle prices used were those contained in the report of the late Dr John Sykes. That report had been prepared for the defendant, but RMCG had been given access to it. Given the later report from RMCG and the evidence of Mr Henderson given subsequent to my Judgment of 8 August 2014, perhaps a closer examination of the pricing in the earlier reports, as opposed to the methodology adopted, is unnecessary.

183 In any event, the prices used by RMCG are based on industry averages, as are the costs. Mr Henderson also thought that it would be expected that costs would be higher in a drought year. He also agreed that he had not had personal experience in relation to cattle breeding and had not come into this particular assignment with any background information. He had done the calculations in the present case based on a combination of evidence and assumptions, having also worked with other people, including some in his office. However, the value of the cattle was based on industry standards. Some of the evidence gathered was from publicly available sources.

184 In re-examination, Mr Henderson said that he had worked on the report with Mr McGuckian, who had experience with cattle businesses. Information concerning rainfall and drought years had been obtained from the Bureau of Meteorology. In this regard, localised rainfall data is available. Evidence from the plaintiffs concerning particular sales had not been taken into account - see T1903.

185 Mr Henderson also explained that the 10 per cent discount rate which had been used embraced inflation. The initial dollar value, for example in 2003, is taken and increased to allow for inflation and interest. In answer to a question of mine, Mr Henderson said that if, for example, the rate allowed by RMCG was 10 per cent and this coincided with the interest rate applied by the Court, no adjustment need be made to the figures.

186 I turn now to the evidence given by Mr Henderson on 2 and 3 March 2015, commencing at T3796 - that is, the evidence, including lengthy cross-examination, which was presented in the quantum hearing.

187 Mr Henderson said that, in collaboration with Mr McGuckian, a further report dated 27 October 2014 (Exhibit DA) was prepared. In this report, a further set of figures was included. The same methodology was employed, but there was also shown prices based on some sales data that had been received from the plaintiffs, as opposed to stud averages. The data received from the plaintiffs showed prices received for cattle in the years preceding the loss. Of course, the calculations were now based upon the 131 animals which I found to be the responsibility of the defendant.

188 Mr Henderson gave evidence as to the manner in which the figures had been adjusted so as to take into account the fact that the loss of stock figure was 131 animals. In looking at prices, certain evidence of Mr Peter Sutherland had also been taken into account.

189 Mr Henderson further stated that the profit and loss method, which could also be described as the loss of the business profit method, is more appropriate than the alternative method of simply taking the market value of the relevant cattle in 2003 and inflating this to the present day, using the 10 per cent interest rate. The profit and loss method more accurately reflects what would have happened. Bearing in mind the evidence of Mr Peter Sutherland, stud prices were used, rather than commercial prices.

190 In relation to the value of the lost business profit, the same method was used as in the earlier reports. Again, calculations were made based both on the basis of average stud prices and on the basis of prices supplied by the plaintiffs. The value of semen and cattle embryos was not included.

191 In answer to a question of mine, Mr Henderson said that, because the number of cattle being considered had dropped by approximately 40 per cent by reason of the liability judgment, this did not mean that the estimate of the lost business profit automatically dropped by the same percentage.

192 In cross-examination, Mr Henderson agreed that he had no accounting qualifications as such, but had engaged in financial analysis. When cross-examined about the extent to which risk had been factored into the calculations, Mr Henderson pointed out that, for example, the impact of drought on business profits was taken into account. The assumption was made for the purposes of the modelling that the partnership would be required to buy feed and the costs were increased accordingly.

193 Other risks associated with a business had not been taken into account. In relation to lost profits, if someone had a sum of money, they would expect to earn somewhere around 10 per cent upon it over recent decades. Given the method being adopted, Mr Henderson did not think that there should be included a discount in case the cash flow did not eventuate.

194 Mr Henderson repeated that the method which he was using, essentially being an averaging one, already has the factor of risk built into it - see T3825. He said that his model did not provide for re-establishing the herd to the size and quality which it was before the intervention by the defendant. Previously, in relation to the loss scenario, the assumption had been made that the plaintiffs were unable to re-establish the herd and would have to sell some of the cattle for cash flow. That fitted in with material supplied by the plaintiffs. The same set of likely costs was used in the two scenarios.

195 Mr Henderson said that, following the liability judgment, he was aware that the defendant was not liable for the 183 cattle that went missing, but any difficulty created by the absence of those cattle was not taken into account in the calculations. I might say, there was some confusion concerning this - see T3838. However, the bottom line is that the number of missing cattle was not one of the considerations taken into account in the most recent report of RMCG.

196 Mr Henderson also agreed that the loss scenario did not allow for the re-establishment of the herd and, in this regard, this was because of instructions that the plaintiffs could not afford so to do. I might say that this was also the evidence on behalf of the plaintiffs. He disagreed that such a factual consideration was irrelevant to the "hypothetical" which should have been performed. He agreed that, in essence, what had been produced was a hybrid containing some hypothetical and some factual considerations. This is a topic to which I shall return subsequently, but I will say at this stage that I see nothing wrong in having some factual elements contained in the workings of the loss assessments. Indeed, it might be thought that the closer to reality, the better. I note that each financial expert, including Mr Dicks, called on behalf of the defendant, introduced factual occurrences into the hypothetical assessments.

197 In any event, Mr Henderson was of the view that the introduction of actual elements makes the loss assessing models more accurate and realistic.

198 In relation to artificial insemination forecasting, Mr Henderson stated that this had not been included in the RMCG report, because he understood it to be a topic being covered by another expert. That expert was Mr Tol. It had been stated in one of the earlier reports that there was insufficient instructions to make any assessment as to profitability or otherwise of an artificial insemination business. No additional evidence was later sought or provided.

199 Mr Henderson said that he and Mr McGuckian did not agree with the proposition that a herd of 700 was required in order for it to be viable. He and Mr McGuckian were of the belief that the herd in the "without loss" proposition was already at a viable size.

200 Mr Henderson also agreed that, what had been done in the report of 27 October 2014 (the third report) was the reducing of the number of animals to 131 and the bringing up-to-date or "grossing up" of the figures from 2012 to 2014. Following a subsequent meeting with the plaintiffs' legal advisers, yet another calculation was made on the basis of the plaintiffs' sale of stock figures, such calculation being included in the final version of the report. Further, the evidence of Mr Peter Sutherland as to the quality of the cattle was discussed at the meeting. Mr Henderson emphasised that he and Mr McGuckian had tried to give an unbiased estimate of the loss - see T3861. Further, they regarded the use of industry prices as being a more reliable and conservative approach than the plaintiffs' figures.

201 Mr Henderson and Mr McGuckian compared what Mr Peter Sutherland said about the prices being achieved for Murray Grey cattle with the prices mentioned by the plaintiffs, and found them to be similar. Mr Henderson took these to be high prices. He made no direct enquiries concerning the sales referred to by Mr Sutherland. Mr Sutherland's figures were significantly higher than stud prices obtained from other reputable, known Murray Grey studs. However, Mr McGuckian and Mr Henderson retained the industry averages. Mr Henderson agreed that the methodology in the earlier reports was relevant, but actual numbers contained in the earlier reports had been replaced. This was in part because of the ruling in relation to the number of cattle involved.

202 Mr Henderson detected an apparent error in relation to the "with loss" figures in relation to the price for bulls. Accidentally, the plaintiffs' prices for bulls, as opposed to the average prices, had been included on one spreadsheet. However, a certain amount of confusion arose in relation to this and the conclusion of Mr Henderson was that the impact on the overall figure "is almost nothing" - see T3907. The overall difference to the figures when comparing the "with loss case" to the "without loss case" would be about $10,000, at the most $20,000. The total assessment would be too high by such an amount.

203 Mr Henderson had some instructions from the plaintiffs as to what had actually happened to the business. In relation to the "with case", he and Mr McGuckian had tried to use what actually happened, as far as they could.

204 The hypothetical situation of the plaintiffs actually retaining the cattle until the herd was replenished to its original size was put to Mr Henderson. As he pointed out, that is not what would have happened but for the loss. In actual fact, the plaintiffs were not able to restore the herd and were forced to make sales. I might say that this particular argument again goes to the question of the desirability of taking into account actual occurrences in real situations.

205 Mr Henderson agreed that, in the methodology employed by himself and Mr McGuckian, in both the "with loss" and "without loss" cases, the comparison was taken through to the date of the preparation of the report in 2012. Then the "with" and "without" herds were notionally sold off, so that a comparison of the assets could be made as at that time. In other words, the business then stops at the selected time. Retaining the cattle between 2003 and 2012 would have meant less income in that period. The alternative proposition advanced by Mr Dicks was put to Mr Henderson in relation to replenishing the herd until it reaches the point where there is no longer any loss. Mr Henderson repeated that some actual facts can be introduced into the "with loss" scenario. The plaintiffs needed to sell cattle to maintain their cash flow. Stock is sold to make ends meet. Mr Henderson clearly did not agree with the approach adopted by Mr Dicks, as described to him. Indeed, he suggested that the methodology of Mr Dicks was "bizarre" - see T3937. Mr Henderson also explained that, in order to bring the 2012 figure up to date, he had simply applied the 10 per cent discount figure (or "grossing up" figure) for another two years. This increased the figure of $943,588 in 2012 to $1,141,742 by the time of the 2014 report. He did this to keep the most recent report consistent with the earlier ones and for reasons of simplicity. He was also of the view that this may have resulted in a smaller number than if he had continued with the process which had been used up until 2012. He repeated that 10 per cent was chosen because it was commonly used and is around the average investment return for the last 20 or 30 years.

206 It was put to Mr Henderson that the modelling process selected by him involving the "with loss" and "without loss" comparison was flawed, because of the arbitrariness of the date chosen to bring the comparison to an end. There was considerable further questioning concerning the methodology and the approach adopted by Mr Henderson of using the 10 per cent rate for the two years following the 2012 figures. A hypothetical question was put to him concerning the liquidating of the herd taking place in 2016, as opposed to the dates selected by him. Mr Henderson said that it was not a question of arbitrariness of the date selected for the liquidation of the herd. The 2016 figure would be greater, because there are more years of loss. He denied that the plaintiffs were benefiting by having a later court case, again pointing out that there was more loss to be restored.

207 Mr Henderson also described the manner in which operating costs were shown as increasing in drought years. No allowance had been made for decreased revenue as a result of poorer stock, because increased costs for the purchase of food, so as to maintain the condition of the stock, had been allowed. Similarly, and for the same reason, no adjustment was made in relation to the calculation of the weaning rate, it being presumed that there would be adequate food purchased and increased costs as a result. Mr Henderson also said that a cull rate of stock of eight per cent was the standard rate. For the same reason, he also disagreed that there should have been an allowance for increased agistment expenses in the drought years. Interestingly, at T3965 and following, Mr Christie in essence asserted that Mr Dicks, in doing his calculations, brought real droughts into his analysis. When I put it to him that the comparisons of Mr Dicks were not "all hypotheticals", the answer was "Of course not". This was an interesting assertion, given what had previously been put to the witness concerning purely hypothetical comparisons.

208 Mr Henderson agreed that, in dealing with hypothetical profits for the "with loss" and "without loss" cases, there had been no discounting back to 2003 and then indexing up. Mr Henderson stated that they had tried to use average values where possible and those averages contained some risk. The variables which he had used had risk already built into them. Average figures were used. Some businesses would have done better, some worse. No allowance had been made for risk relating to the plaintiffs being unable to get their stud up and operating by 2005. He referred to the fact that there was some evidence that the plaintiffs had already sold animals at stud prices prior to 2003. At the time of the loss they were running a commercial cattle operation, and intended to return to stud operations in 2005.

209 In re-examination, Mr Henderson said that he had attempted to bring some reality into the comparison through the modelling of the livestock schedule and based on the evidence that the partnership had to sell cattle to make ends meet. In addition, he included some of their actual costs. The price obtained by the plaintiffs for some animals demonstrated that their value was higher than average. Mr Peter Sutherland's evidence was also a basis for including those higher prices. This was used more in relation to calculating the figures based on the plaintiffs' actual prices than on the basis of average prices. Mr Henderson repeated that the calculations made by Mr Dicks, by not taking into account the genetics of the animals or the financial position of the plaintiffs, did not seem realistic. Bearing in mind birth and culling rates, the use of average figures in fact disadvantaged the plaintiffs. The assumption made by Mr McGuckian and Mr Henderson in relation to culling was based on the proposition that this would occur more or less automatically at a particular age of the cows.

210 Mr Tol is a chartered accounted. He has a commerce degree. He is a Fellow of the Taxation Institution of Australia and a Chartered Tax Adviser. He is the principal of a firm called mta optima. He has provided a number of reports in this matter, three of them before my Judgment as to liability and the number of cows. He gave evidence before the splitting of the case and was cross-examined at length. He was recalled during the quantum hearing and was again the subject of long and detailed cross-examination.

211 Prior to the splitting of the case, it was foreshadowed that there would be an objection to his giving evidence, essentially on the basis of his lack of independence and as to compliance with the Expert Witness Code of Conduct. Ultimately Mr Tol gave his evidence and the objection was not pursued to a conclusion prior to the splitting of the case or to my Judgment on 8 August 2014.

212 However, this objection was revived and pursued in relation to his report of 24 October 2014 - a report on quantum prepared in the light of my Judgment of 8 August 2014.

213 Ultimately, in a ruling of 5 March 2015 (revised 18 March 2015) I ruled that the further evidence of Mr Tol (both written and oral) was admissible. However, without in any way ruling upon it, I foreshadowed the probability that issues of the weight to be attributed to Mr Tol's evidence were likely to arise.

214 That is indeed the situation. Mr Christie argued, in his closing submissions on behalf of the defendant, that Mr Tol was not independent and was hopelessly conflicted. His evidence, said Mr Christie, should be viewed in this light.

215 I agree substantially with Mr Christie. In my Ruling of 5 March 2015 I set out some eight bases upon which the independence of Mr Tol was compromised. They are effectively common ground and they are as follows:

(1) When a university student, Mr Tol had worked at Mr Holdsworth's farm. He had met Ms Ellison. He had become a friend of the Holdsworth family. He became accountant for the Holdsworth family in 2009.

(2) At the relevant times, Mr Tol was the accountant for the plaintiffs' partnership, JA Heath Inland Holdings. He may also have been the accountant for both partners individually, although that is not entirely clear.

(3) Mr Tol is still owed something in the range of $20,000 to $30,000 for accounting work so performed.

(4) According to his oral evidence and his affidavit of 29 October 2011, Mr Tol's brother advanced to Mr Holdsworth the sum of $12,000 as a loan for the payment of water rates or the like. Repayment of that loan has not occurred.

(5) Mr Tol originally took instructions from Mr Holdsworth and Ms Ellison personally and not from their solicitors. Of his own initiative, he also visited Mr Murray Sutherland, the brother of the witness, Mr Peter Sutherland, and apparently a Murray Grey expert. This visit caused Mr Tol to drive for some 4½ hours from Ballarat, where he is based, to north eastern Victoria. He there met Mr Holdsworth and Ms Ellison. He had obtained Mr Murray Sutherland's name from them. Mr Tol also carried out on his own initiative some internet research concerning Mr Murray Sutherland. As stated, all of this activity arose as a result of direct and personal contact between Mr Tol and the plaintiffs and seems to have preceded any direct contact from the plaintiffs' solicitors.

(6) In a report of 23 April 2012, Mr Tol stated, in essence, that he had not been able to prove that the plaintiffs' area of operation concerning artificial insemination was at a commercial stage and removed this from his evaluation. However, in his subsequent reports, he included this extremely sizeable item after receiving an email from the plaintiffs' solicitors. He admitted that, in so doing, he was following instructions to assess any loss associated with artificial insemination.

(7) It would appear that Mr Tol's subsequent evaluations were based upon preparing estimates of the worth of each semen straw without his having obtained or having available further expert evidence in this regard.

(8) By an open letter dated 25 June 2012, the solicitors for the plaintiffs advised the then solicitors for the defendant to the effect that they would not be putting forward the report of Mr Tol as being an expert report, because he had been the accountant for JA Heath Inland Holdings and was not independent.

216 The above factors seem to me to point to the almost irresistible conclusion that Mr Tol cannot be viewed as an independent expert witness. That does not mean that his evidence is to be totally ignored. However, and bearing in mind that his estimate of the loss suffered by the partnership exceeds by a massive amount the figures advanced by RMCG and by the defendant's expert, Mr Dicks, the weight to be attached to his evidence seems to me to be greatly reduced. That is particularly so in relation to the estimate of quantum at which he has arrived. The impact upon his choice of methodology is not so severe. Indeed, it has similarities to that used by Mr Dicks.

217 The end result is that I am not going to spend a great deal of time summarising the very lengthy evidence and reports of Mr Tol. However, I would also point out that, in his most recent report of 24 October 2014, Mr Tol, obviously having been provided with a copy of my Judgment of 8 August 2014, on three occasions wrongly attributed to me observations concerning the high quality of the partnership herd. What I was doing (and I would have thought that it was quite clear) was summarising the evidence of Ms Ellison, rather than expressing any conclusions of my own.

218 In his report of 24 October 2014, Mr Tol assessed the loss of profit from artificial insemination at $6,223,701. I simply do not accept this. Some assumptions which underlie it seem to me to be dubious at best. For example, in his report Mr Tol stated that he had considered the production and sales capacity to extend beyond Australia. The evidence of Mr Peter Sutherland, to whom there were a number of references in Mr Tol's report, and whilst it was not entirely clear, seems to be to the effect that the total number of semen straws sold on the export market per year is in the order of 2,000-3,000. Given that Mr Wagstaff, whose evidence I accept, was that the average price based on his experience was in the order of $15-$20 per straw, this, when combined with the evidence of Mr Sutherland, would mean that total export sales only amount to something in the order of $40,000-$60,000 per annum (presumably as far as Murray Grey cattle are concerned). This seems consistent with the evidence of Dr Webb Ware that, for the 2012/13 year, export sales of semen totalled in value $1,500,000 for all breeds, with the Murray Grey breed probably account for only about 4 per cent of that total. It seems to me that the export market for Murray Grey semen is limited indeed. That is just one example, but the overall impression which I have gained is that the projections by Mr Tol in relation to artificial insemination are optimistic in the extreme, again bearing in mind that, in his report of 23 April 2012, Mr Tol removed from his valuation any figure related to artificial insemination. Neither RMCG nor Mr Dicks made any allowance for this item, although RMCG seemed to have left the topic alone on the basis that another expert (Mr Tol) was attending to it, whilst Mr Dicks made no great reference to it. I might add that Mr Tol's belief that there is an international market for Murray Grey semen straws may have come from a conversation with Mr Murray Sutherland (who did not give evidence) - see T1716.

219 The figure ultimately arrived at by Mr Tol for loss of operational profits is $1,610,130. The methodology employed by Mr Tol, at least in one aspect, would seem to be similar to that of Mr Dicks. He has followed the "replenishment of herd" path, bringing such regeneration to a conclusion in 2012 and allowing no loss thereafter. As previously discussed, this is in contrast to the approach of RMCG, which allows for the sale of animals over the years and the ultimate evaluation of the herd on a certain date. I should add that, whilst, in broad terms, Mr Tol may have used the same methodology as Mr Dicks, the figure at which he has arrived in relation to loss of profits is about three and three quarter times greater.

220 Given the view which I have formed, I would make only the following further points in relation to Mr Tol's evidence.

• It would seem that the discount rate applied by Mr Tol was 10 per cent, which is in line with the rate applied by RMCG and Mr Dicks.

• Mr Tol did allow for a two year gap from 2003 to 2005 when stock would have been sold on a commercial basis because of the difficulties associated with establishing single sire mating.

• In doing his artificial insemination calculations, Mr Tol seems to have adopted the price per straw mentioned by Mr Wagstaff. As I previously indicated, it is by adding the very large amount calculated by him in relation to artificial insemination losses that Mr Tol's assessment has far exceeded that of others.

• The amount of financial information which Mr Tol had available to him in relation to the partnership's artificial insemination endeavours seems to have been minimal. He also seems to have been uninformed as to the amount of demand for Murray Grey semen straws, particularly on the international market.

• Mr Tol seems to have laboured under a misapprehension that the cattle that went to Framlingham were going to be left there until approximately 2010 - see T1738. This may have been the result of options to extend the agistment period. Mr Tol's evidence as to whether the cattle were to stay at Framlingham until 2010 or until the drought broke was far from persuasive.

• Mr Tol said that it was an "inadvertent error" that he left in his calculations cattle that were already dead prior to the defendant's intervention - see T1777.

• Mr Tol confirmed that, in his estimate, all calves born on the road, at Framlingham, or upon the return of the cattle to Westmere were treated as commercial stock - see T1786.

• Prior to his report of 2014, Mr Tol had made no allowance for supplementary feed to cattle between 2003 and 2010. This was related to Mr Tol's initial erroneous assumption that the cattle would have remained at Framlingham until 2010.

• At T1807, Mr Tol confirmed that, in his report of April 2012, he had stated that the claim in relation to artificial insemination was not able to be fully substantiated and that it could not be proved that any of the activities in that area of operation were at a commercial stage. He claimed that he only became acquainted later with information concerning the acquisition of crushes, yards and the like. He was not aware that there had been no previous sales of semen from partnership bulls.

• Mr Tol confirmed that the basis of his evaluation had been on an "intervention", as compared with a "no intervention", basis.

• Mr Tol stated that he knew from the partnership tax returns and accounts that it is now in "a parlous state" - see T1818.

• Mr Tol essentially agreed with the proposition that some actual figures to do with matters such as sales should be included in the modelling exercise - see T1821 and following. This is of relevance to the argument concerning the use of purely hypothetical figures, as opposed to some addition of realism.

• When recalled on 4 March 2015, Mr Tol gave evidence concerning the very high figure at which he had arrived for loss of profit from artificial insemination. This seems to have been based entirely upon semen production as opposed to market demand.

• Apparently the price which Mr Tol quoted for semen straws was at least partly obtained from contacting people that he knew in the stock and station industry in the Ballarat area. He agreed that there was no reference to these people in his reports. Mr Tol subsequently altered the rate to $25-$35, having previously based his assessment on $10 per straw.

• Mr Tol asserted that he had maintained his independence and advised the plaintiffs of that, although agreeing that he went from a position of reporting that artificial insemination losses were not recoverable to one where a very substantial amount was allowed.

• Mr Tol was of the opinion that the stock prices in the RMCG report were somewhat understated, given the way that the plaintiffs operated their business.

• Mr Tol confirmed that his methodology involved the herd having regenerated by 2012, by which time it was back to the number it would have been had there been no intervention. This marked the end of loss of profit. He agreed that this coincided with the approach adopted by Mr Dicks, but differed from that of RMCG.

• The methodology adopted by Mr Tol differed to that of Mr Dicks in one respect. Mr Dicks had looked at net present value as at 2003. Mr Tol had looked at future value from that date. Mr Tol explained that, whether the rate be described as a "grossing up" rate or a discount rate where figures were brought forward from 2003 to the total regeneration of the herd in 2012, that 10 per cent "grossing up" rate already had risk built into it because it was an average. He agreed that his methodology did not involve firstly discounting later figures back to the 2003 numbers and then grossing them up again, as done by Mr Dicks. Mr Tol disagreed with this approach, whilst conceding that it was another valid option.

• In doing projections as to stud sales, on a "without intervention or loss" basis, Mr Tol had these commencing in 2005. On the "with intervention or loss" basis, he had them commencing in 2009. He believed that the plaintiffs had a plan in place and, but for the intervention, stud sales would have commenced in 2005. He selected 2009 for the commencement of stud sales following the intervention, because it was then that the herd would have been of such a size as to permit this.

• It would seem likely that, in assessing the "without intervention" figures, Mr Tol included the animals that had gone missing at Framlingham, but for which the defendant is not responsible - see T4142. This contrasts with the approach of RMCG. However, Mr Tol seemed to think that the end result of excluding the missing cows would be that the ultimate loss would be larger, because of building up from a smaller base. It is interesting that Mr Christie, cross-examining, effectively put to the witness that the method of approach by RMCG and Mr Dicks was to try and hypothesize as close as possible to the actual facts, an approach which may be seen to be not consistent with a purely hypothetical approach.

• In selecting figures for the value of cattle, Mr Tol used an amalgam of information, including some obtained from the plaintiffs and their earlier operations, some from other studs, and the evidence of Mr Peter Sutherland. Information obtained from Mr Murray Sutherland also seems to have played a role.

• In re-examination, Mr Tol explained how, if the missing cows had been excluded from the "without intervention" model, the size of the herd would have been reduced accordingly and it would have taken longer for it to regenerate - thus, presumably, increasing the size of the loss. He also repeated that a 10 per cent discount rate was conservative and actually favoured the position of the defendant.

• Mr Tol was further recalled so that there could be additional cross-examination and re-examination in relation to any matters that arose out of the delayed production of material from his file.

• In relation to a figure of $900,100 in relation to loss of profits referred to in a draft of the report prepared by Mr Tol after the liability judgment, he said that the draft report was a work in progress at that stage. That figure was an early calculation based on incomplete data in relation to cattle numbers and the like. The spreadsheet was incomplete at the time that such figure was in it. The document was not one that was ever sent to the solicitors for the plaintiffs.

• Mr Tol was also cross-examined at some length about the figures in the draft report relating to artificial insemination losses and in relation to the figure ultimately produced. This particularly related to the apparent abandonment of a 70 per cent allowance in relation to the sale of semen straws and an increase to 100 per cent. He stated that this was because, in considering information given to him by Mr Murray Sutherland, he realised that an allowance in relation to non-sales was already built in. He denied that there had been any recent invention.

• In relation to differences such as those referred to above between what was shown in a draft of 23 October 2014 and what was shown in the final report of the following day, Mr Tol said that he had done a final logic check - see T4676.

• I then directed questions to Mr Tol along the same lines as those I directed to Mr Dicks in relation to the option of simply looking at the loss of the asset at the time that it occurred as if there had been a court hearing at that time and thereafter applying the penalty interest rate. Mr Tol agreed that this was an option. However, like Mr Dicks, it was not his preferred option. He referred to the fact that, following the intervention, the balancing of the herd made recovery very difficult for the plaintiffs. He stated that the difference was the loss of profit, also referring to the underlying good will related to the quality of the herd. However, he stated that the method concerning which I enquired was an option.

221 Mr Dicks gave evidence, including the tendering of reports, of behalf the defendant. He is a chartered accountant and a partner in the firm of PPB Advisory. He has prepared numerous reports in relation to quantum claims for courts. He is also a registered auditor and a member of a number of Institutes.

222 I shall turn to a summary of the evidence of Mr Dicks shortly, but I will preface that with the following observations. Firstly, it is apparent that quite an amount of the input into the PPB Advisory material came not from Mr Dicks, but from the Brisbane office of the same firm. Mr Dicks has a partner there, Mr David Leigh, whose stated experience includes involvement with large beef cattle enterprises and rural and regional markets. No such experience is claimed in the curriculum vitae of Mr Dicks. Mr Leigh is a signatory to the initial report of PPB Advisory (Exhibit D10), but not to the supplementary reports (Exhibits D11 and D12). Indeed, it is specifically stated in the initial report of 20 February 2015 that Mr Leigh was responsible for providing opinion and commentary on input variables used in calculating the loss, this including commentary on matters such as the purchase price of cattle at various stages, costs of maintaining cattle, birthing rates and the like. Mr Leigh did not give evidence.

223 I appreciate that the RMCG reports were, in a sense, jointly authored by Mr McGuckian and Mr Henderson. However, there are differences between that situation and the situation pertaining to at least the initial PPB Advisory report. Firstly, both Mr McGuckian and Mr Henderson gave evidence. Both were available for cross-examination, and indeed were cross-examined at length. Secondly, the method of operation of RMCG is that there is in place a project supervisor. Thus, Mr Henderson did the majority of the work whilst Mr McGuckian, as project supervisor, engaged in various discussions and the like, ultimately also signing off on the reports. With the PPB Advisory reports, it is not exactly clear who did what work. The impression given is that a significant amount of input emanated from the Brisbane office. It is also apparent that persons, not always identified, in the Brisbane office pursued enquiries with other persons who were not named. Certainly it would appear that Mr Leigh, in the Brisbane office, has been involved, but whether he in turn delegated the work to others or caused others to make enquiries is not clear. The situation in relation to the PPB Advisory reports was the subject of criticism in Mr Langslow's closing address and it seems to me that such criticism has some merit to it.

224 Another matter which shook my confidence to some extent in relation to PPB Advisory was the number of mistakes that seem to have occurred, one of them being very substantial. I shall return to this, but the total claim for lost profits was initially put in the report of 20 February 2015 at $194,340. When a couple of significant errors in the basis for calculation were pointed out during cross-examination, a revised report by Mr Dicks (not signed-off by Mr Leigh) more than doubled that figure. Because of a further adjustment that had to be made by reason of an earlier error, a further amount in the region of $40,000 had to be added. Thus, as I understand it, the ultimate calculation of loss of profit by PPB Advisory is $436,966. I shall return to this, but the conceding of errors of this magnitude, and the major error not being appreciated until cross-examination, does not create a particularly favourable impression.

225 I turn now to my summary of the evidence of Mr Dicks. When tendering material at the outset, in addition to the original report of 20 February 2015, a supplementary report of 6 March 2015 was tendered. This was said to be necessary in order to correct a few minor mathematical errors in the original report. As stated earlier, the loss in that first report was said to be $194,340. After accounting for the "minor errors" discovered, that figure was amended to $216,207.

226 Mr Dicks stated that many of the reports which he had done over the years had involved the agricultural area, including loss of earnings claims by farmers who had suffered some form of personal injury. He had also done work for banks in relation to the funding of agricultural enterprises.

227 In the opinion of Mr Dicks, the method to be adopted is firstly to look at the past loss period from the date of intervention to the present time or date of judgment. Then, if necessary, consideration can be given to any future loss period. Any losses of profit have to be calculated in relation to two scenarios, one on the basis of the intervention not occurring and the other on the basis of the intervention occurring. In the present case, the loss period was restricted to the past.

228 In the present case, actual past loss figures were not available. Therefore, it was a matter of comparing two hypothetical scenarios for the past loss period. An assumption was made of a herd rebuilding program, predominantly through retention of offspring. The RMCG approach does not include such a strategy and thus the loss period if infinite. Mr Dicks described his method as putting someone acting reasonably back into the position that such person would have been in before intervention.

229 In relation to the "without intervention" scenario, Mr Dicks proceeded on the basis that cattle that went missing at Framlingham were not taken into account. Thus, that the missing cattle were not present was assumed under both scenarios. Mr Tol had assumed that they were present. Mr Dicks was of the view that this was not a fundamental issue but "You've got to start your model as close to reality as possible" - see T4495. This is an interesting observation, given the argument advanced that the preferable comparison is one between purely hypothetical situations.

230 Mr Dicks also explained his methodology in relation to bringing past loss back to the date of intervention and the use of hypothetical cash flows accordingly. A far lower risk discount rate is used in relation to past losses as opposed to future cash flows. He had used a discount rate of 10 per cent. Thus, Mr Dicks estimated the cumulative gross profits for the plaintiffs' business under each scenario for the period 2003 to 2014 and then discounted the figures, using a 10 per cent rate, back to 2003 dollar terms. Thus, he arrived at the present value of the loss in 2003 dollar terms. The plaintiffs would then have had the benefit of at least reinvesting that money. Accordingly, an average interest rate over the period of 11 per cent was applied. A slight error in relation to the pre-judgment interest rate used was detected, and that was why there was a supplementary report increasing the total loss figure. He disagreed with the methodology used in this regard by RMCG and Mr Tol.

231 Mr Dicks claimed that there were two errors in the RMCG approach, one of which was in relation to negative gross profit which, he claimed, should not have been a scenario and which understated the lost opportunity claim. The other problem was ignoring the risk factor and the fact that the figures should have been discounted back to 2003 in the first place. In relation to the use of industry average figures as done by RMCG, Mr Dicks said that the problem with this was that risk extends beyond the averages. Risks may include droughts, farm management and the like. However, in answer to a question of mine, Mr Dicks said that the approach adopted by RMCG was a possible, alternative approach. Whilst he had no difficulty with the RMCG methodology, he thought that risk had either been ignored or insufficient consideration allowed for it. He also disagreed with the "selling of the herd" approach, as this did not bring the plaintiffs back as early as possible into the position that they would have been in but for the intervention. He was also critical of the manner in which Mr Tol had applied the 10 per cent rate.

232 Mr Dicks referred to the Eastern Young Cattle Indicator (the EYCI) as being a very well accepted benchmark in eastern Australia in relation to average prices. It has been used by PPB Advisory, whereas it would seem that RMCG may have used data from Meat and Livestock Australia. Mr Dicks also pointed out that a reason why some of RMCG's figures are higher than his is that the RMCG figures were based on an assumption that the herd was slowly but surely moving towards a stud herd where the prices were higher, whereas the assumption of Mr Dicks was that the herd would be retained as a commercial herd - see T4527. However, the fundamental differences remain discounting and the application of the pre-judgment interest.

233 In cross-examination, and when taken to spreadsheets annexed to the reports, Mr Dicks said that the model had been developed by "some staff of ours in Brisbane" - see T4529. However, he had viewed the spreadsheets and was accountable for any errors. He also confirmed that he had been asked to deal with the animals as being commercial and not stud animals, or stock that could become stud animals. He agreed that stud animals, or potential stud animals, would have a higher value than commercial cattle. In relation to the RMCG approach and a consideration of stud cattle risks, pricing and the like, Mr Dicks said "Reality does enter the equation" - see T4534.

234 Mr Dicks stated that the retention rate prior to 2012 which he had allowed was 90 per cent of heifers. Therefore, during that period, the partnership could not have been selling a large number of heifers, because they would have been required to retain them. He agreed that the loss compensation was going to be higher on the presumption of herd retention. He agreed that his approach was a hypothetical scenario which, by default, may be different to reality. However, in other areas some reality and actual prices had been used.

235 Cross-examination then moved to the number of retained cows forming the basis of Mr Dicks' calculations. He said that he had been given instructions that, after the defendant's intervention, the plaintiffs retained possession of 183 cattle - 90 cows, 93 calves and no bulls. It was put to him that, if that figure was wrong, the figures in relation to the whole question of annual profit and rebuilding of the herd would be out. The numbers were then gone through again. Mr Dicks said that he would have to double-check the figures (with the gentleman responsible for that detail) - see T4549.

236 The topic of the numbers and the accuracy of the calculations was put to one side for the moment and cross-examination turned to the EYCI. Mr Dicks agreed that this was an index of prices based on averages. He further agreed that, associated with the sale of cattle at cattle yards, there are certain expenses. These include the stock agent's commission, transport costs and the like. It was then put to him that, in his model, in the first year no money resulting from sales was allowed, but a lot of selling expenses were shown. Mr Dicks agreed, that, on face value, that would be patently ridiculous. He said that this would have to be double-checked, as well as the cattle numbers forming the basis of the calculations. This was in the "without intervention" model. It was the put to him that the actual sales for the 2003 year produced $180,000. Mr Dicks' response was that he was doing a hypothetical scenario. He said that further information would be needed concerning matters such as whether the sales in question related to the actual herd. Mr Dicks said that he had not had in front of him a profit and loss statement of the partnership showing a total income of $251,824 for the period July 2000 to May 2001. Again, his answer was that, in dealing with the prospect of future income, he would need more information. He claimed that the other financial experts also proceeded on the basis of hypothetical cash flows. Mr Dicks argued that, in the circumstances, he was left with no option but to do hypothetical cash flows.

237 Mr Dicks agreed that using a 90 per cent retention rate of stock held notional income down. However, this meant that the herd was being rebuilt. He also agreed with the proposition that the EYCI index did not take into account the circumstances in which the plaintiffs may have topped the market when they sent animals for sale. He could not say whether or not sale yards at Forbes and Finley were included in the EYCI data.

238 Mr Dicks also stated that the costs shown for agistment in his tables were hypothetical and not based upon the evidence in this particular case. He said that some figures had come from industry averages and that "One of my colleagues in Brisbane spoke to some stock agents and got those prices" - see T4566. He did not know who the agents were, but said that he could obtain such information. He was unaware of the agistment properties that were in fact available to the plaintiffs. He also said that his staff in Brisbane had spoken to stock agents in the area where the plaintiffs' farm was, but Mr Dicks could not say who those people were.

239 Mr Langslow also pointed out to Mr Dicks that, in his "without intervention" worksheet, he had shown the plaintiffs purchasing four bulls at a price of $4,500 each in May 2003, but selling them in 2005 for $992 each. I might say that this was part of an ongoing attack in the cross-examination of Mr Dicks on the basis that his figures loaded up expenses and played down income. In any event, he agreed that such a sale price of bulls would indicate that they were being sold as beef only. It became apparent from more cross-examination that what the model of Mr Dicks was in fact doing was selling two of the four bulls purchased for $4,500 for $992 two years later and purchasing another two bulls for $4,500. He disagreed with the proposition that this was bleeding profit from the plaintiffs. He agreed that the particular strategy in question was an assumption that he had adopted, but that others may not do this.

240 In addition, the birth rate of 87 per cent was one taken from industry averages. He was given no information regarding the actual drop rates for the plaintiffs' herd. For below average rainfall years, he assumed a birth rate of 30 per cent. This came from the partnership's actual tax returns. I might say that there appeared, on the face of it, to be another mathematical error in relation to the birth rate shown and this was a further matter which Mr Dicks said that he would double-check. In answer to a question from Mr Langslow directed towards what could be described as the reality, rather than hypothetical, approach, Mr Dicks said that he adopted real figures if he thought he could rely upon them. I might say that, as part of this general discussion, I asked Mr Dicks to check on yet another calculation which seemed to be mathematically erroneous.

241 When asked about the source of information concerning the weaning rates for the area where the partnership's farm is located, Mr Dicks again stated that his staff in Brisbane had made enquiries and had spoken to relevant people in the area. He was not able to say who these people were. Indeed, he said that he would have to double-check on whether the area referred to meant the whole of New South Wales or just the area in the vicinity of the partnership's farm. Mr Dicks also agreed that, in essence, if a retention rate of heifers of 30 per cent was adopted (this being the intention of the plaintiffs) rather than 90 per cent, the numbers would run on for a longer period - see T4581. Once the herd settled down, the cull rate would be 50 per cent.

242 I briefly returned to the cattle figures which formed the basis of the calculations relied on by Mr Dicks. I pointed out that, in the 2003 calendar year figures calculated by PPB Advisory, some 96 calves seemed to be missing. This was yet another matter which he said would have to be clarified. Mr Christie very fairly pointed out that an allowance for two bulls should probably also have been made in the figures of PPB Advisory.

243 Mr Dicks subsequently returned with revised figures. It would appear that he had corrected the error of having sales expenses in 2003 when there had been no sales. Generally, the effect of some of the changes mean that, for example, almost every figure in the 2003 column was now different. Significantly, the base figure for the number of animals on the "without intervention" basis altered substantially. This then affected the number of offspring involved, the purchase of bulls and other factors. Without going through all the calculations and the adjustment of other less significant errors, the revised claim for loss of profits changed from $194,340 to $216,207 to $397,240. Mr Dicks made it clear that there was still some further small arithmetic inaccuracies to be corrected.

244 Mr Dicks said that he had asked the defendant's solicitors for financial statements relating to the plaintiffs' operation for the period up to 2014, but was only given documentation that covered certain specified years. Thus, whilst there may have been some guidelines available as to expenses and the like in some years, it was difficult, for example, to get any accurate idea as to the actual number of stock sold. In relation to what Mr Langslow described as the fundamental error concerning animal numbers, ultimately Mr Dicks agreed that the original numbers given to him in relation to the animals that arrived at Framlingham had in fact not changed - see T4611. Ultimately he stated that, if "we" had gone through and reassessed instructions more carefully and with the benefit of hindsight, the error would not have occurred. He also stated that his instructions made reference to the age of the agisted cattle, but not to the quality. He agreed that, if he had been asked to perform a similar exercise to that which he had done, but in relation to stud animals, it could have been done.

245 Mr Dicks also stated that he was not an expert in relation to stud cattle and, if he had been required to perform a similar financial exercise in relation to stud cattle, he would have sought assistance from experts within his firm. However, he approached it on the basis of commercial cattle and, in answer to a question of mine, said that he could not take things much further in relation to stud cattle. When pressed as to the identity of the experts from whom he would have sought assistance, Mr Dicks simply said that there were staff in Brisbane that specialised in cattle. Such people would have been able to provide assessments in relation to establishing a reasonable value for stud animals. It would also appear that, if it had been a stud herd, the associated risks would increase. There was further debate as to whether Mr Henderson had accounted for risk in his calculations.

246 Mr Dicks was also pressed as to why, for the year 2003, a zero had been inserted for sales when the financial documents revealed that the actual figure was $180,000. His initial answer was that his instructing solicitors had given him an incomplete set of financials. He then said that the figures would have been the same with or without intervention. When it was put to him that there would have been "an enormous difference" in relation to calculation of losses in the following years, he stated that he would have to "run the numbers" and get absolute clarification on the make-up of the herd - see T4627. He said that, because he had no "absolute clear information at the time", he had no option but to adopt hypothetical cash flows for both scenarios. Ultimately, he conceded that, if he had been given the information, he had "absolutely no doubt" but that he would have relied on the actual starting numbers.

247 As part of re-examination, Mr Dicks produced further revised figures to correct mathematical errors. He agreed that he had previously revised the loss upwards from $194,340 to $397,240 as a result of the major error previously discovered (although it seems to me that such revision was done in two steps in essence involving two errors) - see paragraphs 224 and 242. He now produced a revised supplementary report (Exhibit D12). This adjusted an arithmetical error in the original spreadsheets. This further revision took the loss from the earlier revised figure of $397,240 to $436,966, this being the fourth total loss provided. He had also done various calculations based on the RMCG figures and approaching them in different ways. However, Mr Dicks confirmed that his assessment of the loss was now $436,966. When asked further questions by Mr Langslow, Mr Dicks said that he had spoken to colleagues about the risks associated with stud herds. When pressed, he said that these people were Mr Ben Mason and Mr Reid Lester. He could not recall verbatim what Mr Mason had said to him. These turned out to be people that Mr Dicks had spoken to before he gave his evidence generally and he had also spoken to them following the major mathematical problem associated with the first report.

248 In some additional re-examination by Mr Christie, Mr Dicks described why he thought that a 30 per cent risk allowance should be made in relation to the transitioning of a commercial herd into a stud herd. Again, there was some reference to discussions in which he had engaged with colleagues. In answer to a question of mine, Mr Dicks said that another option in assessing the loss was to fix it as at the date of such loss and thereafter simply apply the appropriate interest rates - that is, assess the replacement value of the relevant cattle as at 2003 and apply either the interest rate of the Court or another appropriate interest rate thereafter. Whilst allowing this to be an option, Mr Dicks still preferred to approach the problem on the basis of cash flow generating ability, discounting and the like. Adopting an approach which largely relied upon realism and what had actually happened, Mr Dicks pointed out that the partnership had not ceased operating on the day of the intervention and had continued to the present time. However, he agreed that there were a number of ways of approaching the problem in the present case.

249 I would point out that a further mistake in the revised tables of Mr Dicks was found. However, this had no impact upon what could be described as the last revised loss assessment - see T4649.

250 The positions and potential arguments on behalf of the parties are probably at least in part apparent from the above summary of the evidence. However, I shall now give a résumé of the closing addresses and I shall give this in the order in which such addresses were made. I should add that counsel spoke to well-prepared and very helpful written submissions.

(i) The closing submissions on behalf of the defendant

251 The oral and written submission of Mr Christie on behalf of the defendant could be summarised as follows.

252 The question of the quality of the cattle really becomes a question of the value of the particular animals. They may have been bred from the Cloverdale line, but they only had the potential to be used as the basis of a commercial operation. The calves dropped in 2002 and 2003 could not have been stud quality cattle, because the herd had been on the "long paddock" for something in the order of 18 months. They had then gone to Framlingham. Calves dropped in 2003 and 2004 could not be regarded as stud cattle, as there was no basis upon which to identify the sires. The earliest that identifiable stud calves could be dropped was 2005, which meant that such animals, if female, could be sold as heifers in 2006 or later. Even then there were problems.

253 Dr Webb Ware stated that the earliest date on which the plaintiffs may have been able to get a stud operation running was in the late 2000s. Prior to 2003 the plaintiffs had never run a stud cattle operation as a partnership. That partnership was not a registered member of the Murray Grey Beef Cattle Society. The cattle had not been so registered.

254 Further, it is unclear which of the four bulls that went to Framlingham were destroyed by the defendant and which simply went missing.

255 In addition, it is evident that, by not subscribing to Breedplan, the plaintiffs were removing themselves from a significant part of the market. This affects cattle value. All this suggests that the herd was in fact commercial. There is no evidence of any cattle being sold on a stud basis since the commencement of the partnership in 1996.

256 In relation to the calculations done in the ultimate RMCG report and said to be of a high average price, there is no evidence to support this proposition. What has been described as the plaintiffs' prices should be disregarded. Further, the plaintiffs' records are inadequate. The cattle in question failed to meet the definition of "stud cattle" as advanced by the plaintiffs. Other indicia of the animals being stud cattle are missing, these including such things as them being registered with the Market Assurance Program. (I might say that, at least to an extent, this relates to Bovine Johne's Disease and is a proposition that was not put in cross-examination to any witness prior to the splitting of the case.) In short, there is no evidence that the plaintiffs were selling their animals as stud cattle.

257 There is the further issue of the low genetic merit of the cattle and reference is made to the evidence of Dr Webb Ware. In the opinion of Dr Webb Ware, potential registration of the animals bears no resemblance to the commercial reality.

258 The Court should be satisfied as to the benefits and acceptance of Breedplan, as explained by Dr Webb Ware.

259 The evidence of Mr Peter Sutherland should be viewed with reservations. The observations that he made about the quality of the cattle were very general. He had no specific knowledge concerning individual animals under consideration. If it was an attempt at expert evidence, Mr Sutherland had not been properly so qualified. Questions must arise about his level of impartiality. Mr Sutherland's evidence concerning high prices brought by certain Murray Grey cattle should be viewed in a similar light. There are many factors that are unknown. In general, the evidence about the sale of cattle was unsatisfactory.

260 Little weight ought to be given to the letters from various studs or farms which had been relied upon by RMCG. The valuation evidence was vague and the defendant was not given the opportunity of cross-examining those who supplied it. In essence, the plaintiffs had no sales evidence upon which reliance can be placed and it is the EYCI which should be adopted.

261 Reference is made to the decision in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd [2012] VSC 99. This is particularly applicable to the evidence of Mr Tol who, for example, displayed no reasoning as to his fluctuating evidence concerning the proposed artificial insemination program. It is admitted that there was no objection to the expert evidence of Mr Tol when his reports were first tendered. However, the question of weight remains.

262 Reliance upon data provided by the EYCI is entirely reasonable and various authorities are referred to in this regard. Such evidence is of the type that comes from an independent and reputable source. In relation to the methodology of assessment of loss, reference is made to Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; [1991] 174 CLR 64. All experts have agreed that the loss of business profit methodology is preferable to the replacement value methodology. The latter should not be adopted, because no party contends for it.

263 Next, because of the absence of essential evidence, the situation is necessarily one of measuring hypothesis against hypothesis. Damages should be assessed at the time of the breach. Neither Mr Tol nor Mr Henderson have done this. They assessed damages at the time that they came to the task.

264 Reference is made to the decision in Haviv Holdings Pty Ltd & Anor v Howard's Storage World Pty Ltd [2009] FCA 242. In that case the date for assessment of damages was, in essence, when the loss commenced. Reference is also made to the discussion of discount rates contained in that decision. Further, reference is made to the decision of Kigetzis v Roche [2014] VSC 657. In that decision, reference was made to Malec v JC Hutton Pty Ltd (1990) 69 CLR 638. A discount should be used to take into account contingencies or exigencies which reflect the degree of probability. Rush J in Kigetzis went on to say that a Court may take a global approach in the awarding of some payment, but the value of a lost opportunity must be determined on a sound and reasonable basis and is not a matter of a lump sum being "plucked from the air".

265 The comparisons with other established studs effectively provide a wrong input into the models. The approach by RMCG involving the sale of the herd at the end of 2012 is also a problem. This was a purely arbitrary date, coinciding with when the RMCG report was being done. In addition, with this approach, the plaintiffs still retain the herd. They will be rewarded with the sale of a herd which they still possess. The RMCG approach involves double counting. By way of comparison, Mr Tol's method involves regeneration of the herd, which is in fact what the plaintiffs would have done. (In this regard, I would point out that, if some realism is to be introduced, there is no evidence that, following the intervention, the plaintiffs have in fact regenerated the herd. The opposite appears to be the case.)

266 Returning to Mr Christie's submissions, Mr Tol was not independent. His evidence should be ignored. Reference is made to the decision in Linquirtz Ltd v 2 Elizabeth Bay Road [2007] NSWSC 457. I might say that I will not set out Mr Christie's argument in relation to Mr Tol, as I consider it to be well-founded. The only remaining question is what weight, if any, should be attributed to Mr Tol's evidence.

267 Returning to the submissions of Mr Christie, Mr Tol was also the only supporter of any allowance being made for the artificial insemination project. In so doing, he was relying considerably upon the evidence of Mr Murray Sutherland, the basis of this being gathered in private conversations. The evidence in support of it is negligible. No semen had ever been extracted for a commercial venture. There was no business plan or the like.

268 In relation to the probability of the success of such a scheme, reference is made to the decision in Hall v Hall [2014] TASSC 37. Reference is also made to Wachmer v Jaksic [2007] WASC 313. In that latter decision, Newnes J referred to what is known as "Sunday morning punting" - that is, you choose the horse you would bet on only after the results are in. The claim for loss of artificial insemination profits in the present case is speculative.

269 The approach adopted by Mr Dicks ought be adopted. It is based upon the herd being commercial, although, interestingly, his assessment was lower if it was a stud herd, given the bigger discount rate and greater risk factor applicable.

270 In fact, Ms Ellison said very little about the stud quality of the cattle. She did say that they went back to the Cloverdale line, and the defendant accepts that. She also conceded that the calves born at Framlingham and on the "long paddock" were of commercial, not stud, value. She had never operated an artificial insemination business and Mr Holdsworth had no experience in relation to it. Their animals had no proven genetic quality. There is no evidence of the partnership being involved in stud sales in the preceding years. Their cattle did not meet their own definition of stud cattle.

271 In relation to the evidence of Mr Wagstaff, he said that the drought-affected bulls would need time to recover in order to produce the optimal amount of semen and that any such bull would have to be registered and assessed. He also seemed not to have heard of the method of collecting semen which the plaintiffs may have described. Further, he appeared to be in agreement with Dr Webb Ware concerning the damage to the bull displayed in photograph 35 of Exhibit H.

272 In relation to interest, s60 of the Supreme Court Act 1986 prohibits interest on interest. By way of comparison, s58 deals with a debt or a sum certain. It has no application.

273 In the plaintiffs' submissions, there seems to be an attempt to average loss of profit value, having no regard to whether the methodology is right or wrong. It appears to be an attempt to add up the figures of the experts and divide by the number of such experts. Further, the defendant does not agree with the method of applying interest which seems to have been adopted. In relation to any dispute as to the popularity of Murray Grey animals, the evidence of Dr Byrne and Dr Webb Ware should be preferred to that of Mr Peter Sutherland, who had no empirical data to support his proposition.

274 In relation to Mr Dicks, Mr Christie submitted that he had made an error in relation to the year 2003, where he put down zero income for sales, but expenditure associated with sales. He accepted that he was wrong, and fixed this up. However, that is a different matter from whether he should have used certain actual sale figures for the years 2002 and 2003 in his analysis. Neither RMCG or Mr Tol have included the true sales figures for 2002 and 2003 in their analyses. Further, reference is made to the decision in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2008] FCA 1364. This decision supports the proposition that the evidence of Mr Tol should be given little or no weight.

275 I have already set out my views as to the Breedplan debate and shall return to them in my Ruling. Accordingly, I have not included any submissions which Mr Christie may have made relating to Breedplan in this summary. It does not mean that I have not taken them into account.

276 Mr Christie concluded that the Court should find that the plaintiffs' animals were of commercial, and not of stud quality, and award damages of $436,966, with interest from June 2014. Alternatively, if the cattle were of stud quality, given the higher risk discount, damages should be $257,225 with similar interest.

(ii) The submissions on behalf of the plaintiffs

277 The submissions of Mr Langslow and Mr Berman on behalf of the plaintiffs, delivered by Mr Langslow, could be summarised as follows.

278 Mr Dicks gave evidence that it is better to use actual figures if such are available. Therefore, he should have used the actual figures contained in documents such as the partnership's pre-intervention tax returns. There are also some actual figures available after the intervention. In relation to Mr Tol's evidence, he was having regard to the heifers that were selectively bred and did not fall within the category of animals that had been sired or conceived on the road. The selectively bred heifers included some that went to Bairnsdale. Mr Tol's starting figure was higher because he was dealing with the plaintiffs' business as a whole and therefore the replenishment of the herd could start earlier. This supports the proposition that, at the time that the intervention occurred, the plaintiffs had their affairs organised, including the borrowing of money. The plaintiffs were left with largely dry cows following the intervention. Thus, there was immediate strain on the business and its capacity to operate.

279 As a further preliminary point, in his submissions Mr Christie did not take the Court to the case of Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351. In that case, Dawson J stated at page 386 that a person injured by another's wrongdoing ought, insofar as it can be done by the payment of money, be restored to his or her former position. That involves reparation not only for the wrongful act itself, but also for its natural and direct consequences. However, his Honour went on to say that damages are no longer to always be measured by reference to the position of a plaintiff at the date when the damage was suffered. His Honour referred to various departures from any rule crystalising the plaintiff's loss at the time of the wrong. There is reference to the advantage of being able to be aware of actual facts, rather than prophecies, if damages are measured at the date of judgment. The approach taken by Mr Dicks is wrong.

280 The plaintiffs lost both annual profits and value in their asset. The quality of their herd was so reduced that the intended stud activities, including semen sales, were lost to them. The evidence is contrary to the assertion that this was a commercial herd of cattle, below average in merit. In particular, the evidence and experience of Ms Ellison should be borne in mind. Reference is also made to the evidence of Mr Peter Sutherland.

281 In relation to the registration of stud animals, this relates to regulations concerning the showing of them. Matters such as registration, Breedplan and the like may affect marketing, but do not affect the question of whether the animals are of stud quality. In any event, neither Ms Ellison nor Mr Holdsworth said that they would never register animals with Breedplan. What they said was that they believed their personal judgment was better than relying on figures, as in Breedplan. Ms Ellison also gave considerable evidence about the plans to sell semen and her previous experience in this regard.

282 In addition, reference is made to the evidence of Ms Ellison concerning the combining of the herds and what an ideal combination this was. She described it as being like "winning Tattslotto". The evidence given by Ms Ellison and Mr Holdsworth, given their experience, comes from a far stronger base than that of Dr Webb Ware and Dr Byrne. Ms Ellison also gave evidence concerning the property, "The Willows", that was purchased effectively for the combined herd. This property, at Carrathool, was where the animals from the specialised families were run. It is pointed out that Ms Ellison also gave evidence concerning how the best breeders were looked after when they were on the "long paddock".

283 The plaintiffs went to an enormous amount of trouble and expense (in the vicinity of three quarters of a million dollars) to preserve these particular animals and get them through the drought. It would have been easier to sell them, but the partners did not, because they would have lost the genetics and, as Ms Ellison said, once that is lost, it can never be recovered. She also gave evidence that the animals which were selected to go to Framlingham contained the necessary genetic core. They were very carefully assessed as part of this selection process. After Framlingham, all the top breeders and weaners were gone. The partnership was left in the position of going into the commercial market in order to bring in a bit of income. This resulted in a loss situation, year after year. She also gave evidence concerning the quality of the bulls from which the semen that had been earlier collected was obtained. (It is conceded by Mr Langslow that the spoiling of the collected semen had nothing to do with the defendant - see T4836.)

284 Further, the plans of the partnership for running a stud property and an artificial insemination process were in place, even if they had not been completed. Yards had been purchased. Mr Holdsworth gave evidence that he had expected that stud sales could have been held in 2005.

285 The evidence generally concerning the amount of expense involved and the trouble to which the plaintiffs went demonstrates that the cattle concerned were stud animals with a value far above average. There are always some animals, such as steers, which are commercial in any stud herd. They are commercial because they are sold on the meat market. However, the use of the EYCI in estimating the value of the animals in question does the plaintiffs a serious injustice.

286 As Mr Dicks was specifically instructed to value the cattle on a commercial basis and not as stud animals, his evaluation essentially should be ignored. The EYCI does not have proper application to this case.

287 Registration with the Murray Grey Beef Cattle Society is not the determinant of whether or not an animal is a stud animal. It is the selective breeding practice and recording of the parentage which determines whether an animal can be so registered. There was such adequate recording in the present case. In relation to what is a fair price for stud bulls, Mr Dicks selected a figure of $4,500 as the basis of his calculations and there is no evidence from the defence to say that this is not a fair price. Mr Peter Sutherland put the average price at $4,900.

288 The EYCI relates to the meat market, rather than to the stud cattle market. It is also an averaging process, with no indication of the top prices obtained. Even Mr Henderson's figures are very conservative.

289 Mr Dicks had assumed a high level of risk in relation to stud animals, but he has a lack of knowledge in this regard. In his evidence, he made it clear that he did not know the quality of the herd and had no idea as to the age of the cattle, the condition, the propensity to breed within the first year, how badly they were impacted upon by the drought and the like. He also made assumptions about rainfall in New South Wales that may not have applied to the Carrathool property. Further, he had no idea as to the ability of the plaintiffs to manage a farm. His ignorance of these matters cannot justify his applying a much higher discount rate than Mr Tol or RMCG. His opinions are based on insufficient data. Further, his model was largely produced not by him, but by people in the Brisbane office. This makes it of doubtful value - see Citrus Queensland.

290 The concept of discounting as performed by Mr Dicks is entirely artificial in the circumstances of the case. The plaintiffs had to increase their indebtedness. It is more than just a lost opportunity case. Assessment on the basis of their continuing to farm is essentially what Mr Henderson did and this approach should be adopted. It is closer to the actuality of what happened, rather than hypothetical farming with hypothetical expenses.

291 Reference was made to the decision of the Court of Appeal in BHP Billiton & Anor v Steuler Services [2014] VSCA 338. Essentially, the likelihood of alleged hypothetical past situations and of alleged future events occurring requires an evaluation of possibilities, as opposed to the balance of probabilities being the relevant test in relation to events that are alleged to have actually occurred in the past. The risk factor selected by Mr Dicks is something that has been "plucked from the air".

292 Mr Dicks has also selected 2005 as being the year when stud sales would have commenced "without intervention", but selected 2009 for "with intervention". Further, Mr Dicks is not as well-qualified as Mr Henderson. An economist such as Mr Henderson may well have a better idea of future loss matters than does an accountant. The mathematics produced by Mr Henderson in his model have not been challenged. Further, Mr Dicks conceded that he had no expertise in relation to stud cattle.

293 Both plaintiffs were cross-examined for days. It is now effectively too late to criticise them for not producing sufficient records of their financial position so as to enable a hypothetical versus actual assessment to be undertaken. Further, on the basis of the evidence given by the plaintiffs, the breeding of these particular cattle was such that there was no reason to think that they would not have achieved prices equivalent to the other studs that have been mentioned. In relation to artificial insemination losses, RMCG may not have included them, but Mr Henderson gave evidence to the effect that it was something concerning which an expert (Mr Tol) was dealing.

294 Criticism of the RMCG material on the basis that no risk factor was allowed for the prospect of the partnership not being able to establish a stud herd is misplaced. Mr Henderson's evidence was that the risk factor was inherent in the interest rate chosen. The approach adopted by RMCG with its notional liquidation of the herd at a point in time is entirely logical. Both loss of income and loss of value should be included. Mr Tol is in a far better position than Mr Dicks, because of his knowledge of the plaintiffs' affairs and their tax returns.

295 In his calculations, Mr Dicks has unfairly calculated agistment and fodder costs, so as to increase them. Further, the agistment and like figures were obtained by somebody in the Brisbane office of Mr Dicks' firm talking to some unnamed person or persons in New South Wales. Criticism is also levelled at his figures for fodder and at the expenses that he has allowed in relation to changing bulls every two years.

296 The impact of these problems is that the calculations of Mr Dicks should be ignored. He has included improper and illegitimate figures in his calculations and it is very difficult to work out what the end result would be had he used proper figures or figures from the tax documents. The complexity resulting from his errors is such that the whole of his evidence should be rejected.

297 It is to be remembered that Mr Wagstaff gave evidence that the price of Murray Grey semen has been consistent at between $10 and $25 per straw. That is not far from the figures used as a basis for the calculations made by Mr Tol.

298 In relation to interest, compound interest should be allowed and s58 of the Supreme Court Act applied. The plaintiffs had to borrow money in order to get by. There is then further interest involved. The "grossing up" that has been done in various calculations is not interest within the meaning of the Supreme Court Act.

299 In relation to Dr Byrne, he is not really an expert. He is a Breedplan fanatic. He has had little to do with Murray Grey cattle. The evidence of someone such as Mr Peter Sutherland should be preferred. It was very much a realistic possibility that the partnership would have operated the stud farm as planned, together with the artificial insemination business, but could not do so because of the intervention. Reference is again made to the decision in Steuler Services.

300 In conclusion, the loss suffered by the plaintiffs is greater than the agreed limit put on damages in this case. Therefore, they are entitled to receive an award of damages for that limit, together with interest.

301 Mr Christie was allowed a brief reply. It could be summarised as follows.

302 Further reference is made to the decision in Steuler Services. It was there said, at paragraph 675, that, to support a claim based on loss of opportunity, it was necessary, on the balance of probabilities, to prove what commercial opportunity would have arisen but for the contravening conduct and that, as a result, some loss or damage was sustained. Quantification of the loss would then be by reference to degrees of probability or possibility.

303 The calculations of Mr Dicks, which gross up 2003 values to 30 June 2014, effectively include interest to that date. The other experts did the same thing, save that they applied a flat 10 per cent as opposed to the penalty interest rate.

304 It was never put to Mr Dicks that he, in essence, invented expenses. He was never given a chance to explain about his method of calculating fodder expenses and the like. This is a clear contravention of the rule in Browne v Dunn. The same could be said in relation to the criticism of the figure selected for bull purchases and their regularity. In relation to correcting the errors or miscalculations of expenses and the like and the effects thereof, the situation is a hypothetical analysis of the "without intervention" and "with intervention" circumstances and Mr Dicks has included the expenses in both. Reference is made to a number of decisions referred to in the written submissions as to the fact that the general rule is that damages for tort and the breach of contract are assessed at the date of the breach. Courts have frequently applied Johnson v Perez and there is nothing to suggest that it is anything but the general rule.

305 The plaintiffs bear the onus in relation to quantum or value. It has been argued that they have proved prices by attaching letters to an expert report, whilst not calling the authors of the letters. Effectively, the plaintiffs are saying that the defendant should have done so. It appears to be an attempt to reverse the onus.

306 The fact that the plaintiffs continued to trade after the commencement of the loss does not mean that damages are assessed at a later time. In this regard, reference is made to the decision in Haviv Holdings.

307 I would make the following preliminary remarks before dealing with my findings in relation to individual items and my ultimate quantification of the claim.

308 Firstly, whilst, effectively, I have already made clear my thoughts on some of these issues, I will make further definite findings, even if some are repetitive.

309 Secondly, it seems to me that the standard of proof required in loss of profit cases where past and future hypothetical events are to be considered is that set out in Steuler Services at paragraph 667, where reference is made to the well-known case of Malec v JC Hutton Pty Ltd [1990] HCA 20.

310 What was said in paragraph 667 of Steuler Services in relation to hypothetical questions was as follows:

"(1) In the assessment of damages the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;

(2) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;

(3) The court must form an estimate of the likelihood of the possibility of alleged future events occurring;

(4) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on the balance of probabilities."

311 The method of assessing damages in a claim for loss of opportunity is discussed in decisions such as Bakers Investment Group (Aust) Pty Ltd v Caason Investments Pty Ltd (No 2) [2014] VSC 598 and Sensis Pty Ltd v McMaster-Fay [2005] NSWCA 163. Damages must be quantified or reduced by reference to the degree of likelihood of the relevant opportunity materialising. As was said in Bakers Investment:

"In undertaking this exercise, a court typically discounts the damages or compensation awarded by reference to a percentage of probabilities. While such an approach is not compulsory in the sense that the court is entitled to take a much more global approach in awarding a lump sum payment, the value of a lost opportunity must be determined on a sound and reasoned basis. It is not a matter of a lump sum being 'plucked from the air'."

312 A similar approach was followed in Sensis, where it was said that there must be some reasoned assessment of the value of the lost opportunity and the judge at first instance was criticised for having "plucked from the air" a figure that was no more than a guess. It was said that, even on the basis of possibility rather than probability, that assessment could not stand.

313 Reference was made in Sensis to the decision in Daniels v Anderson (1995) 37 NSWLR 438, where it was determined that the issue of causation should be approached upon the basis of proof upon the balance of probabilities, with the qualification that an assessment of whether the chance which is said to have been lost had a value is to be made upon the possibilities or probabilities of the case. Thus, initially, the question of whether a chance was lost as a consequence of the breach of duty is considered. If there is an affirmative answer to that, there is then the question of the value issue which should be dealt with in determining whether, and if so what, damages are payable.

314 An example of this type of approach to assessment being carried out can be found in Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187. In that case, the New South Wales Court of Appeal considered various authorities. The Court then made several interesting observations. I would refer in particular to paragraphs 595 and 596 of the judgment. Reference is made to vicissitudes and hypotheses. Their Honours then went on as follows:

"There may be many such factors on both sides of the ledger. In Norris v Blake [No 2] there was the chance that but for the plaintiff's injury he would have become an international film star. But such contingencies cannot be translated into numbers or percentages of any precision. The mathematical expression 'percentage' is used so that the amount of damages for future economic loss can be quantified in a way which allows for vicissitudes. Percentage is simply a useful way of expressing the allowance so as to enable an adjustment to be made.

...The base chosen was the best estimate of how many restaurants would be opened or how many franchisees would be introduced in the years in question. The degree of the decision-maker's confidence in that best estimate will be reflected in the discount for contingencies. But without that estimate, the calculation cannot proceed. Moreover, whatever figure is chosen, an allowance must be made for the possibility that it is too low or too high. None of this is scientific but it is the best that the Court can do. There is a danger in using mathematical calculations which may give a false impression that the result is scientifically arrived at or necessarily precise."

315 Observations of a similar nature were made by the New South Wales Court of Appeal in R.T. & W.E. Falls Investments Pty Ltd v State of New South Wales [2007] NSWCA 18. Interestingly, that case is the only one which I could find where, inter alia, a superior court was assessing damages for the loss of livestock and particularly cattle. Apart from the trial which led to the appeal in question, in the same matter there had been an earlier trial at first instance and an appeal. It is a case to which I shall return, but I note the remarks in relation to damages contained in the Judgment of Ipp JA and the method adopted by him. I should add that Beazley JA and Hodgson JA simply concurred with Ipp JA.

316 Ipp JA pointed out that the onus was on the plaintiff to prove the case in relation to all aspects relating to damages. He then looked at a discount relating to possible infection of the herd. He looked at some calculations in relation to the number of agisting cattle and also made an allowance in relation to publicity attendant on the loss of the home herd.

317 His Honour then commenced an assessment of damages with the words, "Adopting a broad brush approach (which, in my view, is appropriate)...".

318 His Honour then referred to various contingencies and prefaced his ultimate assessment with the words "Doing the best I can...". I might say that it is evident that one discounting factor applied by his Honour related to what he described as the paucity of evidence.

319 Thus, the method or approach adopted in Falls Investments was that of a "broad brush" and of "doing the best I can". That this style of approach had been adopted appears to be reflected in the figures arrived at by Ipp JA, these being round numbers ($100,000 in relation to one head of damages and $75,000 in relation to another).

320 A number of the relevant principles are also set out by Jagot J in Haviv Holdings. These include the proposition that:

"Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating a loss of money to defeat the only remedy provided for breach of contract, an award of damages".

A similar approach was adopted by Ipp JA in Falls Investment when he said at paragraph 165:

"...there was some evidence upon which the Court could assess damages and, according to well-established principle, the Court must do its best."

321 Authority is provided for this proposition and it seems to me that it is equally applicable in a situation where the commission of a tort has been established.

322 Thus, there seems to me to be consistent line of authority which would lead to the conclusion that a court should do the best that it can with the available material so as to award damages in a situation where they are warranted. There has to be a reasoned basis for the assessment that is made. It is not a matter of "plucking a figure out of the air". However, a "broad brush" approach can be taken. The onus remains on the plaintiffs. Possibilities on both sides of the ledger relating to loss of profit or loss of opportunity can be taken into account. Appropriate discounts or increases, allowing for the possibility that the figure selected is "too low or too high", and again on a broad brush basis, can be allowed for contingencies. These are the general principles which I shall apply in assessing damages in this case. Of course, I start from the position that the commission of a tort has occurred. In the circumstances of this case, that seems to me to lead to the conclusion that the plaintiffs are entitled to some damages and the contrary was not argued.

323 I would also say at the outset that there was some argument concerning the time at which damages are to be assessed. In Haviv Holdings it was stated that the general rule is that damages are assessed at the date of breach of contract (or commission of a tort). There was then reference to Johnson v Perez in which it is said that this rule is not universal and:

"must give way in particular cases to solutions best adapted to giving an injured plaintiff that amount in damages which would most fairly compensate him for the wrong he has suffered."

324 As stated, there was considerable argument concerning this in the present case, but some of that argument seems to me to have been not to the point and slightly confusing. The argument concerning the time of the assessment of damages, as such argument was presented, seems to me to, at least in part, also involve the issue of whether purely hypothetical or real figures and calculations should be used. There is the additional complication that this latter argument involves figures relating to matters both before and after the commission of the tort - that is, the intervention by the defendant.

325 It seems to me that, in accordance with the authorities to which reference has been made, if the assessment of damages were to be approached purely with regard to replacement value, the penalty interest rate being applied thereafter, the date of the commission of the tort is essentially the key date to be considered. Matters that occurred previously - including prices ascertained at stock sales, valuations and the like - are relevant. In addition, the prospects off future profits may also be informative in relation to the valuation of the animals as at the date of the intervention. However, if one looks at the value of the asset, namely the animals, as at the date of trial, some real figures can be introduced. What occurs thereafter remains a matter of looking at the future, and therefore hypothetical, probable or possible developments and events. Of course, some past hypothetical events may be relevant. In the present case, both sides have urged me not to assess loss on the basis of the replacement value of the animals as at late May 2003, being the time of the intervention, and using the penalty interest rates thereafter. This was also not the preferred option of the competing experts. It is not the method which I shall be adopting.

326 In advancing arguments based upon a loss of profits assessment, it seems to me that each side was adopting a type of hybrid approach. Assessments were urged which in part reflected the value of the cattle as at the date of intervention, but took into account both real and hypothetical developments thereafter. I shall return to this subsequently. That general approach seems to me to be consistent with what is said in Haviv Holdings and in other cases.

327 The competing methods advanced by the parties rely upon a mix of reality and the hypothetical. In broad terms, it seems to me that the authorities suggest that the more realism that is included, the better. However, any loss of profit or opportunity assessment in a case such as this will, of necessity, take into account the quality and value of the animals at the time of the intervention, which will in part be informed by the history of those animals, together with a mix of real and hypothetical events. In other words, following the assessment as at the intervention, actual occurrences, probabilities and possibilities, can be assessed, and, if necessary, appropriate discounts applied. The same applies to future developments, save for the obvious exclusion of real occurrences. I would refer to some of the decisions referred to above, including Johnson v Perez, where Dawson J referred to the advantage of being able to be aware of actual facts.

328 I now turn to my Rulings in relation to various aspects of this case.

329 Patently, this is a matter which potentially has a considerable bearing upon the assessment of damages. Essentially each assessment is, at least to some extent, founded upon the quality and value of the animals concerned. There are some offshoots of this fundamental argument, including the important one of whether loss should be assessed on the basis of the animals being treated as commercial cattle or stud cattle.

330 I have earlier set out findings which I have made in this regard. I accept that the animals were pure-bred Murray Grey cattle. I accept the evidence of Ms Ellison as to the bloodlines of the merging herds. I would refer to paragraphs 11 and 12 of this judgment and my summary of the detailed evidence of Ms Ellison which follows. I would also refer to what was said by Mr Holdsworth.

331 Furthermore, I accept some of the evidence of Mr Peter Sutherland. I regard him as being an authority in relation to the history of Murray Grey cattle. At times he may have been a little over-enthusiastic concerning the merits of the breed and he is certainly no supporter of Breedplan. I accept his evidence to the effect that the partnership herd came from good quality bloodlines.

332 There is no real argument but that the cattle in question were pure-bred Murray Greys. On the basis of the evidence which I accept, I am of the view that they were not just pure-bred, in the sense of not being cross-bred, but were of good quality. I accept that they were, in essence, from recognised, good bloodlines.

333 That this is so is underlined by the substantial amount of money and endeavour which the plaintiffs put into the preservation of the animals that went to Framlingham. Given their years of experience and apparent success in relation to showing the cattle and the like, it seems to me highly improbable that they would have expended such money and effort in looking after the cattle in question and then sending them to Framlingham if they did not have a high opinion of the quality of the cattle. I accept the evidence of Ms Ellison that, at least as far as the cows are concerned, these were cattle which were to form the essential foundation of a stud enterprise. Of course, the defendant is responsible only for those that were put down at Framlingham. However, those for the destruction of which the defendant is responsible were a significant and valuable part of that herd.

334 The above observations apply to the 126 cows for the death of which the defendant is responsible. I am satisfied that the two bulls in question were also of that same standard, although an issue arose as to whether one of them was in a damaged condition. I shall return to that. The death of three calves is also the responsibility of the defendant. I do not regard these as being of more than commercial value. Indeed, as I understand it, the contrary was not argued. Whilst, given the timing of things, they could not have been conceived while the cattle were at Framlingham, the possibility exists that they were so conceived when the cows were mingling with more than one bull. It would seem to me that they were pure-bred, as I am not of the opinion that there is evidence which establishes, even as a possibility, that, prior to Framlingham, bulls of another breed were running with the cows in question. However, I accept that the three calves were of commercial value only.

335 Before turning to Breedplan, I accept that the plaintiffs had not registered their cattle with the Murray Grey Beef Cattle Society for some time. This seems to have followed the move of that society from Albury to Armidale and the apparent dispute concerning involvement with Breedplan. However, I also accept the evidence that such registration can be done at any time if the appropriate details have been recorded. Although at times I found the evidence of such recording to be a little confusing, I accept that the partnership kept proper records. Accordingly, I am of the view that the cattle could have been registered at any time and would have remained so registered for life. I do not see the failure to so register the cattle as at the date of the intervention as being in any way fatal to them and their properly-identified offspring being treated as stud cattle.

336 I turn now to Breedplan. This was an issue that created a considerable amount of heat and occupied a disproportionate amount of time in this very lengthy case. My overall conclusion is that the rights and wrongs of Breedplan is an issue which is some distance from being a decisive one.

337 I do not regard the evidence of Dr Byrne as being balanced. I would refer to my earlier observations. As earlier stated, his approach bordered on fanaticism. He effectively almost wrote-off cattle that were not on Breedplan, saying that traditional breeding had been left completely behind. I do not accept this evidence. It certainly did not fit with the evidence of Mr Peter Sutherland. The evidence of Dr Webb Ware was far more balanced than that of Dr Byrne. Whilst Dr Webb Ware is a supporter of Breedplan, his evidence was much more measured than that of Dr Byrne.

338 I accept the logic of Dr Webb Ware's proposition that, by not registering these cattle on Breedplan, the plaintiffs were potentially cutting themselves off from part of the market. However, in relation to this and to the Breedplan dispute generally, there seem to me to be a couple of factors which, as referred to, should also be considered.

339 Firstly, I accept the evidence of both Mr Peter Sutherland and Dr Webb Ware that there remains a portion of the market that does not support Breedplan and pays no great attention to it. The actual extent of that portion may be a matter of debate, but I am satisfied that it exists. There are still cattle purchasers, and I accept that this may be particularly so in relation to those interested in Murray Grey cattle, who prefer to have a visual examination of the animals, rather than relying on statistics. There are still those who prefer to purchase cattle the progeny of stock that have been successful at shows. Doubtless there is another portion of the market that may look at Breedplan statistics, but still place considerable reliance upon a visual inspection. This was not a proposition which Dr Webb Ware would dispute. Thus, whilst there may be a number of Murray Grey purchasers who insist on only buying cattle registered on Breedplan, sometimes not even bothering with a visual inspection, there is also a portion which either ignores Breedplan altogether or uses it in conjunction with a visual inspection or show success. The market is not effectively confined to prospective purchasers who will not buy unless the animals are registered with Breedplan.

340 Secondly, and I have set this out earlier in my conclusions concerning Breedplan, there is nothing to stop owners from starting to use Breedplan if it becomes apparent that they are suffering because of their failure so to do. Exactly how long it might take before existing animals can "catch up" statistically is not clear. Some details can be obtained through related stock. I remain of the opinion that Breedplan is a factor which is to be taken into account, but the failure to register stock in it is not fatal.

341 As a preface to this consideration, I am satisfied that, had the cattle in question not been wrongfully put down, they would have recovered from the effects of the drought. I am not of the view that there would have been lasting damage to their condition or value. I would point out that, very shortly after the relevant surviving cattle had been moved from Framlingham to Mr Holdsworth's establishment at Westmere, they were seen by Mr Keys, then an Animal Health Officer. He found their condition to be satisfactory, not giving him cause for concern. I would also refer to the evidence of Dr Kuseff, veterinary surgeon, to the effect that he would have expected drought-affected animals, such as the stock in question, to recover perfectly well. I accept this.

342 The value of the cattle as at the time of the commission of the tort plays at least a partial role in the methods of assessing loss. This is one area in which a certain amount of "broad brush" or "doing the best I can" approach may be necessary. However, in essence, much of the groundwork in this regard has been done by the financial experts. I say now, and as shall be discussed, the figures which I prefer are those of RMCG based upon average stud prices in 2003. I prefer that to the alternative RMCG approach based upon some actual figures of the plaintiffs. Indeed, the impression created by Mr Henderson was that he and Mr McGuckian also preferred the approach based upon average stud prices. As shall be discussed, I also prefer this to the approach of Mr Dicks, whose valuation process is founded upon the cattle having commercial value only. The three calves for the death of which the defendant is responsible were, as stated, of commercial value only. As I understand it, similar calves were sold for approximately $600 each. This sale was effected by the partnership shortly after the intervention at Framlingham. The calves, whilst pure-bred, were not of clearly-established parentage. Market values may have fluctuated. Mr McGuckian and Mr Henderson do not appear to have made an allowance for these three calves being valued at approximately $600 each. A comparatively small adjustment, which can be included in the discounting process, may be required in this regard.

343 In relation to the two bulls, there is the clashing evidence as to whether a particular photograph (No 35 of Exhibit H) shows damage to the prepuce or penis of one of them. I say now that it is one of the two bulls for which the defendant is responsible. In the photograph, it appears to be one of the two bulls destined for destruction. Mr Langslow submitted that the evidence of Dr Webb Ware concerning the bruised prepuce had not been put to witnesses such as Dr Kuseff and that the rule in Browne v Dunn should be applied accordingly. Of course, Dr Webb Ware was not involved in the case at that time. It is almost impossible for me to say which of the various views in relation to the possible damage to this bull is correct. That is leaving to one side issues as to whether the damage was permanent. It may be that some small discount for risks associated with that bull should be included, but I am certainly not convinced that it should be of any great magnitude.

344 There have been separate estimates of quantum by the financial experts founded upon presumptions that the animals should be assessed as being of commercial value; as being assessed on the basis of average prices for stud animals; as being assessed on the basis of previous sales prices achieved by the plaintiff; and as being assessed on the basis of the animals being of high quality bloodlines (which assessment is close to that based upon previous prices). As shall be discussed, I prefer assessment on the basis of average prices for stud animals. Issues such as the argument concerning the value of a bull which might or might not be damaged can be borne in mind when overall discounting figures are considered. The comparatively minor amount in relation to the calves can also be taken into account as part of the general "broad brush" discounting procedure.

The various methodologies used to assess the loss and the resultant figures

345 In summarising the competing methods of assessing the loss, I shall leave to one side the issue of whether any, and if so what, allowance should be made in respect of loss of profits from any artificial insemination business. Otherwise, I turn now to the possible methods and the resultant figures.

346 This method was not favoured as representing the best approach by any of the financial experts. It was not contended for by either party. In the circumstances and whilst this method is an available option, it is not an approach which I am going to adopt. Assessment of lost profit or opportunity seems to me to be fairer and more logical in the circumstances of this case. I turn now to the alternative approaches that may be adopted in this regard.

(b) Assessment on the basis of herd regeneration

347 This methodology was, in essence, adopted by both Mr Tol and Mr Dicks, although the bases of their calculations, and thus the results, differed. This approach involves a "with intervention" and "without intervention" comparison and allows a certain period for the restoration of the herd to the size that it might have been were it not for the intervention. This method fits within the general description of loss of profit or loss of opportunity. To state the obvious, it is not based upon replacement of the original asset.

348 Mr Tol's estimate of loss of profit is $1,610,130. As is apparent, this assessment is based, at least in part, upon the estimates of Mr Peter Sutherland concerning the value of the animals. Apart from arguments about his independence, the methodology adopted by Mr Tol was criticised by the defendant in that he has allegedly assumed stud quality sale prices from 2004 onwards and does not assess the losses by discounting back to the time of the intervention with an appropriate risk factor and then grossing them up to 2012 figures, at which point Mr Tol's assessment ceases. He allows for the herd to be regenerated as at that year.

349 In any event, whatever its alleged failings and whatever might be said of Mr Tol's independence, the end result of his assessment method is, as stated, a loss of $1,610,130.

350 Mr Dicks adopted the same general approach of herd regeneration, allegedly placing the plaintiffs back in the position where they would have been but for the intervention. However, he clearly discounted losses back to 2003 figures and then grossed them up again. The regeneration model employed by Mr Dicks goes through to 2014. As previously stated, a number of mistakes were disclosed in the calculations. In addition, it is readily apparent that some of the work and the provision of substantial parts of the information upon which the reports are based were provided by persons who did not give evidence, including Mr Leigh.

351 Leaving those matters to one side, the ultimate calculation of Mr Dicks was that the loss of profits was, after various revisions, $436,966.

(c) Valuation (notional liquidation or sale of the herd) as at the time of hearing

352 This method of calculation was adopted by RMCG and was criticised by Mr Dicks. Apart from the expertise of Mr McGuckian, who has had experience of note in relation to the assessment of livestock losses and the fact that both he and Mr Henderson were impressive witnesses, one thing favouring this particular approach is that it takes some account of reality. On the evidence, the plaintiffs would have had to take various substantial steps to meet the financial demands put upon them as a result of the loss of stock caused by the intervention. It was also argued on behalf of RMCG that the discount rate applied in the calculations of Mr McGuckian and Mr Henderson had built into it an allowance for risk. Whether this allowance is sufficient or whether a further discount should be applied is another matter.

353 The RMCG reports are based on more than one set of figures.

354 Using the notional sale or liquidation model, the estimate of lost profit, using the average prices was, as at June 2014, $1,141,742. It seems to me that RMCG was applying compound interest for the period June 2012 to June 2014. If simple interest is applicable, the appropriate figure as at June 2014 was $1,132,306. When taken through to the end of May 2015, again applying simple interest, the lost profit, using average prices, would be $1,218,802. If the average penalty rate of 10.6 per cent for the period June 2014 to the end of May 2015 is applied, again using simple interest, the ultimate lost profit figure is $1,235,313.

355 The other calculations of RMCG are based upon the figures that had been obtained in relation to certain sales of the plaintiffs' animals. On this basis, the loss of profit as at June 2014 was $4,009,327. When taken through to the end of May 2015, that loss becomes $4,376,849.

356 In each of the above calculations, from June 2012 onwards, Messrs McGuckian and Henderson had applied an interest rate of 10 per cent. It seems to me that, in making their calculations since 2012, Messrs McGuckian and Henderson have again applied compound interest. If simple interest were applied, the loss as at June 2014 would be $3,976,192. If that number was then taken at the same rate up to the end of May 2015, interestingly, the figure would be identical with the loss of profit shown in their calculations as at June 2014 - namely, $4,009,327. Of course, if the current penalty interest rate of 10.5 per cent was applied, the figure would be increased. By my calculations it would be $4,027,551.

(d) Conclusion as to the method of assessment to be adopted

357 Having considered the various methods of assessing the damages, I have come to the conclusion that the approach adopted by Messrs McGuckian and Henderson of RMCG is to be preferred.

358 I have come to this conclusion because their method seems to me to be sensible and logical. I am of the opinion that as much realism as possible should be injected into the assessments and comparisons. That seems to me to be an approach which is in accordance with that adopted in other cases, and indeed both Mr Dicks and Mr Tol did this to at least some extent. An example is found in Falls Investments where Ipp JA clearly had regard to the prior successful business history of the property in question. This is also in accordance with what was said in Johnson v Perez.

359 Mr Henderson made it clear that the assumption had been made that the plaintiffs were unable to reestablish the herd and would have to sell some of the cattle for cash flow. This fits in with the evidence of each plaintiff. Without going through the summary of the plaintiffs' evidence again, Ms Ellison stated that the partnership could not operate as it had previously, and that the only income which it was getting was essentially on the commercial market. Mr Holdsworth said that the partnership did not have the necessary money and that weaners were sold in order to get some cash.

360 Returning to Mr Henderson, he gave evidence that the loss scenario did not allow for the reestablishment of the herd, because of instructions received to the effect that the plaintiffs could not afford so to do. In relation to the "with intervention" case, he and Mr McGuckian had tried to rely upon what had actually happened to the extent that they could. The plaintiffs were not able to restore the herd, and were forced to make sales. They needed to sell cattle to maintain their cash flow. Stock was sold to make ends meet. He said in reexamination that he had attempted to bring some reality into the comparison. As stated, the methodology used by RMCG seems to me to be logical and appropriately realistic. I prefer it.

361 Further, both Mr McGuckian and Mr Henderson were impressive witnesses and their method of preparing reports and presenting evidence was superior to that of Mr Tol and Mr Dicks.

362 Mr McGuckian and Mr Henderson worked on the reports as a team. Mr McGuckian was the project supervisor, with Mr Henderson doing most of the work. Mr McGuckian was prepared to sign-off on the report of 27 October 2014 on the basis that he had prepared it. Both Mr McGuckian and Mr Henderson gave evidence. Mr Christie stated that there was no challenge by the defendant to the independence of RMCG - see T4069. It also seems to me that Messrs McGuckian and Henderson prepared their reports with minimal attempts to pursue their own lines of enquiry, gather evidence, and speak to witnesses or the like. Indeed, Mr McGuckian gave evidence that he had deliberately not read the reports of Mr Tol prior to he and Mr Henderson compiling their report. They wanted to start with "a clean sheet".

363 Further, Mr Henderson struck me as a very well qualified economist. Mr McGuckian seems to me to be ideally qualified to be the project supervisor in a situation such as this, and to sign-off on the ultimate report. As earlier stated, he is an agricultural consultant who, over the years, has analysed the profitability of various farming and grazing businesses. He has been an expert witness and independent loss assessor in relation to bushfire losses, including loss of livestock. Both also gave evidence in a measured and careful manner. Both were credible and impressive. For the moment, I leave to one side Mr Tol.

364 By way of comparison, several criticisms could be made of the evidence of Mr Dicks, called by the defendant. As earlier described, quite an amount of the input into the reports of PPB Advisory seems to have come not from Mr Dicks, but from other persons. His Brisbane partner, Mr Leigh, clearly had considerable input into the report of 20 February 2015. In that report, he is described as being responsible for providing opinion and commentary on the input and variables used in calculating the loss as set out. His curriculum vitae refers to his having been involved in large beef cattle enterprises in Queensland. The report contains references to "our assumptions", "we have ... prepared this report", "we believe" and the like. Indeed, Mr Leigh signed-off on the report, having made, with Mr Dicks, an expert's declaration. Mr Leigh did not give evidence.

365 Mr Leigh did not sign-off on the subsequent reports. They appear over the name of Mr Dicks alone. He said in evidence that the model contained in the spreadsheets had been developed by "some staff of ours in Brisbane". Mr Dicks gave evidence that he was not an expert in relation to stud cattle and that there were staff in Brisbane that specialised in cattle. Subsequently he referred to two people, Mr Mason and Mr Lester. Their level of expertise is unknown. Mr Dicks said that they were people that he had spoken to before he gave evidence and after the discovery of the substantial mathematical error. Neither was called to give evidence.

366 There were other references to discussions by Mr Dicks with colleagues. Further, one of his colleagues, the identity of whom is unclear, spoke to unnamed stock agents concerning the costs of agistment. This information seems to have then been used by Mr Dicks. In addition, unnamed staff in the Brisbane office had spoken to relevant people in the area where the partnership's farm is located, but Mr Dicks was not able to say who these "relevant people" were. Indeed, he was not even certain whether the "relevant area" in fact meant the whole of New South Wales or just the area in the vicinity of the farm.

367 All of the above compares unfavourably with the far more professional approach adopted by Messrs McGuckian and Henderson. It undermines confidence in the accuracy and correctness of the approach adopted by PPB Advisory. This is in addition to the fact that the methodology adopted by RMCG seems to be more realistic and more logical. Indeed, Mr Henderson referred to the approach adopted by Mr Dicks as being "bizarre".

368 Any remaining confidence which I had in the reports of PPB Advisory was further eroded by the number of errors that plagued the reports and calculations. There were no fewer than four different "bottom lines". The ultimate assessment of loss was just on 125 per cent greater than the amount for which Mr Dicks and Mr Leigh had signed-off approximately a month previously. In other words, ultimately $242,536 had been added in stages to the initial assessment of $194,340.

369 Errors of this magnitude may not lead to the automatic conclusion that the evidence from PPB Advisory must be rejected in its entirety. However, as stated earlier, they do not inspire confidence. I might add that there were two or three other calculations in the PPB Advisory reports concerning which Mr Dicks said that he would have to "double check". One of these was the error already discussed in relation to the 2003 year in which no money resulting from sales was allowed, but a substantial figure for selling expenses was shown.

370 My overall conclusion is that, for a number of reasons, I prefer the evidence and methodology advanced by RMCG to that of PPB Advisory. As shall be discussed, that does not mean that I accept the optimum figures put forward by Mr McGuckian and Mr Henderson. However, as is obvious, I prefer their evidence.

371 I turn now to Mr Tol. As is probably evident from earlier observations, I do not regard him as being an independent expert witness. That may not mean that his evidence is to be rejected in its entirety. However, it is difficult to view him as giving independent, expert evidence.

372 As stated earlier, Mr Christie submitted that Mr Tol was "hopelessly conflicted". Certainly, there seems to me to be adequate reason to be extremely concerned about his independence. Obviously, at one stage, the solicitors for the plaintiffs were of a similar view. However, they proceeded to call him and get further reports from him. I am prepared to accept that the current view of Mr Tol is that the plaintiffs are entitled to some amount of damages in respect of artificial insemination losses and believe that he is correct in that regard. I am certainly not prepared to accept the figures that he has proposed. In relation to lost profit, his methodology bears some similarities to that of Mr Dicks, save that, whilst regenerating the herd, he has not discounted back to 2003 figures. The operational loss, excluding artificial insemination, is shown in his report of 24 October 2014 as being $1,610,130.

373 I am of the view that the expertise of Mr McGuckian and Mr Henderson exceeds that of Mr Tol. They are clearly independent, whereas he is not. He has adopted a modified version of what can be described as the regeneration of the herd model, a model which I do not favour. In short, I do not regard his evidence in relation to operational losses or loss of profit as being preferable to that of RMCG.

374 Overall, I prefer the methodology of RMCG, being that of Messrs McGuckian and Henderson. There is then the question of the animal values to which the methodology should be applied.

What should be the basis upon which the value of the loss is assessed?

375 This dispute essentially resolves into three competing propositions. Should the loss be assessed on the basis that:

(i) The animals were and would have been of commercial value only; or

(ii) The animals should be assessed as being stud animals, but with their value assessed as at average stud prices; or

(iii) The animals would have attracted a price higher than the average for stud cattle?

376 The first basis for the valuation - commercial prices - was favoured by Mr Dicks, and the EYCI was employed for this purpose. Ultimately RMCG worked out losses assessed both on average stud prices and what were described as plaintiffs' prices, these being achieved in relation to a comparatively small number of animals sold in the years prior to the intervention. Mr Tol based his loss assessment on prices at the upper end of market values. I should add that RMCG allowed a two-year gap before the plaintiffs' stud operation was commenced - that is, starting from 2005. Whilst commencing stud operations in 2005 seems to have been part of the plaintiffs' overall plan, that two year gap would, perhaps by coincidence, also allow time for any calves conceived whilst the cattle were on the "long paddock" or at Framlingham. It fits with the evidence of Ms Ellison in relation to waiting for any pregnant cows to become empty.

377 Again I prefer the approach of RMCG, and in particular the loss assessment based upon average stud prices.

378 Mr Dicks made it clear that he had assessed the loss solely on the basis that the cattle in question were commercial. He was not an expert in relation to stud cattle and could not take matters much further in that regard. It would seem that PPB Advisory was not asked to make the base calculations upon an assumption that the animals would form part of a stud cattle herd but, using the EYCI, looked at the situation in terms of meat sales, carcass weights and the like.

379 In relation to this, firstly l have already expressed my misgivings concerning the reliability of the evidence of Mr Dicks. I need not repeat them. Secondly, the assumption that this was going to be a commercial herd and not a stud one seems to me to be misplaced. These were pure-bred animals. They were of established bloodlines. The whole idea of the partnership had been to go into a stud enterprise. Property had been purchased. The partnership herd was, in essence, a distinct entity, kept separate from the herds run by the plaintiffs as individuals. The yards had been bought, and it was the intention of the partnership to conduct stud sales. A great deal of time, money and endeavour had been put into the preservation of the breeding stock during the difficult times of the drought. It was the intention of the partners to move on with the development of the stud project when the drought ended and the cattle had returned to Carrathool. It seems to me to be unrealistic and contrary to the evidence to assume that the stud project would not have gone ahead and to not even give mathematical consideration to losses on a possible stud cattle basis. Overall, I again prefer the approach taken by Mr McGuckian and Mr Henderson.

380 As stated, RMCG estimated the lost profit on two alternative bases. The average prices were derived from the average of Murray Grey stud sales around the time of the loss for both females and bulls. The end result of using the average stud prices as a base and applying a 10 per cent discount or "grossing up" figure was, as stated, $1,141,742. That is also after allowing for the plaintiffs to commence fully-functioning stud operations in autumn, 2005. It is not entirely clear whether RMCG allowed for the fact that the three calves in question were destined to be commercial animals because of the inability to establish single sire mating. In the overall scheme of things, the difference that this would make to the figures is not great and is something which, amongst other matters, can be taken into account when some general discounting is being undertaken.

381 In short, the calculations done by Mr McGuckian and Mr Henderson on the basis of average prices for stud animals prevailing at the time of the loss and with a two-year delay prior to the commencement of stud operations and sales strikes me as a fair and reasonable, if not conservative, approach. I appreciate that Dr Webb Ware regarded the setting up of the stud enterprise as being somewhat optimistic, but then again Mr Peter Sutherland spoke in glowing terms of the bloodlines and of their marketability.

382 In this regard, RMCG adopted another approach based upon some average sales achieved by the plaintiffs over the five years prior to the loss. In their report of 28 September 2012, Mr McGuckian and Mr Henderson did not use such figures, as they seemed to be considerably higher than the industry averages. They thought that such prices probably reflected sales of the plaintiffs' best led stud animals, rather than of the overall herd. However, in their post-judgment report of 27 October 2014, they included an alternative valuation based upon the plaintiffs' sales. It is clear that the evidence of Mr Peter Sutherland, which had been provided to them, played a role in their thinking in this regard.

383 On balance, I prefer the valuation founded upon average stud prices. This was based upon information provided by three studs in different parts of Australia and from the National Sale conducted during April 2003. This seems to me to provide a more reliable foundation than the somewhat patchy information relating to sales by the plaintiffs. I appreciate that the plaintiffs had some support, in general terms, from Mr Peter Sutherland. However, the average price approach adopted by RMCG seems to me to be more reliable. It also seems to be the approach which Mr Henderson, and presumably Mr McGuckian, preferred.

384 Furthermore, as it is possibilities that are to be considered in relation to hypothetical events, the chance that the plaintiffs may have achieved some higher sales prices is something that can be taken into account when percentage adjustments are made in the final calculation. Of course, the possibility also exists that they would not have achieved average stud prices, and the herd would have been sold on a commercial basis. However, bearing in mind the evidence about the quality of the bloodlines and the existence of at least some market for cattle with them, I consider that the possibility that the cattle would only ever have achieved commercial prices is less than the chance that they would have achieved above average stud prices.

385 I might add that I also prefer the average stud price figures selected by RMCG to those used by Mr Tol. I have already expressed my opinions in relation to Mr Tol's evidence generally.

386 Preferring as I do the methodology adopted by Mr McGuckian and Mr Henderson and the average stud price approach which forms the basis of their calculations, as well as my preference for them as witnesses, I turn now to their fundamental calculation of lost profit based upon that preferred evidence.

387 Leaving to one side the prices "as per the plaintiffs' sales", the value of the lost profit as at June 2012 was calculated by RMCG to be $943,588. A 10 per cent rate was then applied to bring the loss up to June 2014. The resultant figure is $1,141,742. However, that appears to be applying compound interest for the second of those two years. If simple interest was applied for each year, the figure would be $1,132,306. If simple interest at the rate of 10 per cent was again applied to bring the lost profit up to the end of May 2015, the total figure would be $1,218,802. If, however, the average penalty interest rate of 10.7 per cent was applied from June 2012, again on a simple interest basis, the loss as at the end of May 2015 would be $1,238,066. Arguments can be mounted for either approach. My preference is for applying simple interest and at the 10.7 per cent rate. I appreciate that there may be a possible argument that compound interest could be allowed pursuant to the decision in Hungerfords v Walker [1989] HCA 8; (1989) 171 CLR 125, but it seems to me that the calculation based upon simple interest and the average penalty interest rate is the fairest in the circumstances. I am aware of the operation of ss58 and 60 of the Supreme Court Act 1986. Allowing for the fact that this Judgment will be handed down approximately one week before the end of May 2015, I fix the amount of lost profit, inclusive of interest, in the sum of $1,240,000.

388 Reference has been made earlier to the approach adopted by courts in relation to percentage adjustments which can be made so as to allow for various contingencies or vicissitudes. Such adjustments can be either by way of an increase or a decrease of the figures involved - see, for example, what was said in Burger King Corporation and referred to above. This is consistent with the "doing the best I can" and "broad brush" approach described in Falls Investments. Further, obviously the application of such percentage adjustments will vary from case to case. Again, I would refer to what was said in Burger King Corporation.

389 Adopting this approach, which, of necessity, involves a combination of findings in relation to past alleged facts on the balance of probabilities and a consideration of past and future hypothetical developments as possibilities, I have reached the conclusion that an overall discounting factor of 20 per cent should be applied. That would result in a primary figure for lost profit of $992,000.

390 In arriving at such a discount percentage, I have tried to balance the various competing figures based upon hypothetical events, some of which could indicate a percentage increase in the basic assessment, whilst others would suggest that a discount should be applied. Dr Webb Ware seemed to be of the view that it was optimistic on the part of the plaintiffs to think that a successful stud enterprise could have been operating within a couple of years of the intervention. The potential loss of market share associated with the cattle not being registered with Breedplan, at least in the short term, must also be borne in mind. There are then the hazards generally associated with commencing any business against established competitors and particularly when the fortunes associated with this particular product - Murray Grey cattle - seem to have been fluctuating. Further, as was clearly evident from 2001 to 2003, this is an industry which is at the mercy of the elements. In addition, it is to be remembered that there was the "second intervention" - that is, the loss of the missing cattle for which the defendant is not liable. This may also have had a negative or delaying effect upon the stud enterprise. On the other hand, there is evidence to suggest that this particular herd had carefully selected bloodlines and offspring may have been in demand, selling at prices above average Murray Grey stud prices. The potential existed that these cattle may have fetched the prices described by Mr Peter Sutherland. They may have fetched prices equivalent to those which formed the foundation for the calculations done by RMCG on the basis of the "plaintiffs' sales". That would have the potential to take the figure for lost profit well above the agreed maximum amount of damages for this action, the RMCG assessment on such a basis being in excess of $4,000,000.

391 The above is not a list of all the factors involved. Other factors would include a small adjustment in relation to the three calves that were sold on a commercial basis and for the somewhat uncertain matter of possible damage to one of the bulls. The RMCG figures have allowed for expenses, but it may be that some greater or unforeseen expense could occur. On the other hand, whilst the stud operation was not to commence until 2005, the partnership business was one that was "up and running". The taxation material referred to by Mr Dicks and subsequently put in evidence indicates that sales were being effected and income produced. In addition, various items of documentary evidence and the oral evidence of Mr Peter Sutherland would indicate that a certain amount of goodwill was attached to the names of both Mr Holdsworth and Ms Ellison. The stud enterprise aspect of the partnership may have taken off more rapidly and become more successful than foreshadowed, with figures exceeding the more conservative estimates of RMCG.

392 However, as stated, on balance I am of the view that a discount, rather than a percentage increase, should be applied. This was a stud enterprise which, whilst possessing well-bred Murray Grey cattle, as well as possessing property and yards, had not actually commenced such stud operations. The partnership may have had the potential to create profits far in excess of the figure at which I have arrived. However, it also faced the prospect of not achieving that figure. After weighing up the competing possibilities and doing the best I can, I am of the view that the figure at which I arrived should be reduced by 20 per cent. This would mean that my finding in relation to lost profit associated with running the stud enterprise is $992,000, as set out above.

Should any allowance be made for loss of profits associated with artificial insemination?

393 This is an even more vexed question, with the hypothetical range being from zero to a figure in excess of $6,000,000, well beyond the agreed maximum amount of damages in this case. The latter figure is that of Mr Tol, who is the only financial expert to have allowed any amount for this item. It is to be remembered that RMCG did not make a zero assessment, but rather did not consider the topic, as it was being dealt with by another expert. Despite the fact that it was drawn to the attention of Mr Dicks (see letter of instructions which is Appendix B to Exhibit B10), I can find no indication in the reports of PPB Advisory that any conclusion, one way or the other, was reached as to the proposed artificial insemination business. Thus, the situation seems to be that there is a very large, if not huge, assessment of lost profit of the artificial insemination business given by Mr Tol and effectively no comment from RMCG or PPB Advisory.

394 I am prepared to accept the proposition that there is a loss associated with the proposed artificial insemination business, but I am not prepared to accept the assessment given by Mr Tol. Apart from reservations which I have about him as a witness, his assessment appears to me to be unrealistically high, particularly bearing in mind other evidence concerning the potential market for artificial insemination. However, he is clearly of the view that there is such a loss and the contrary proposition is not clearly spelt out by the other financial experts.

395 I am satisfied that the plaintiffs have discharged the onus of establishing that some loss resulted from interference with, or postponement of, the proposed artificial insemination business. That loss is attributable to the intervention, although, of course, the loss of only two of the four bulls is the responsibility of the defendant. I am also bearing in mind that one of the bulls may have been in a damaged condition, although if this was the case, the degree of interference with the extraction of semen, as opposed to normal stud duties, is not entirely clear.

396 In any event, I am satisfied that it was the intention of the plaintiffs to set up an artificial insemination business and that the two bulls, for the death of which the defendant is responsible, were to be part of this business. Yards had been purchased. I am satisfied that there is a market for semen straws. I refer in particular to the evidence of Mr Wagstaff. Amongst other things, he said that there were some seven firms supplying the market. I am satisfied that the breeding of the bulls was such that some sales could have been achieved. I should add that I do not take into account any prospective sales of semen from the tank owned by Ms Ellison. Whether or not it was the intention of the partnership to use some of this semen to impregnate the partnership cows, such semen was destroyed for reasons unassociated with the intervention by the defendant.

397 Thus, it would seem to me that the partnership has suffered a loss in this regard. It is a loss resulting not only from the destruction of the two bulls, but also from the financial stress placed upon the partnership. I would refer to the evidence of Mr Holdsworth and Ms Ellison in this regard, and would point out that, as stated by Mr Holdsworth, it is only recently that a higher quality bull has been purchased. Whether it not it will be satisfactory is still unknown.

398 I would refer again to what was said by Jagot J in Haviv Holdings to the effect that, where there has been a loss of some sort, the common law does not permit difficulties of estimating a loss to defeat the only remedy, namely an award of damages. I would also refer again to the approach of Ipp JA in Falls Investments. Doing the best I can, I am allowing $175,000 for losses relating to artificial insemination. This permits a few years - perhaps five - for the setting up of the project, advertising, the attraction of customers and the like. It allows for sales thereafter to date and for a few years into the future. Mr Wagstaff, who is in the business, said that essentially the price range for straws of semen from Murray Grey bulls was $10 to $25. If the average price of $17.50 was selected and sales of 1,500 straws per year allowed for 10 years, the end result would be $262,500. However, whilst some discounting has already been built into the above figures by reason of using an average price, modest sales and a period before a suitable replacement bull or bulls could be found and afforded and the business set up, it seems to me that some further discounting is required. This is a prospective enterprise, the success of which could certainly not be guaranteed. Some overheads would exist. Doing the best I can and adopting a broad brush approach, I am further discounting the figure of $262,500 by one-third. The result is that, in relation to lost profits from the intended artificial insemination business, I allow the sum of $175,000.

399 My finding is that I fix the damages to be paid by the defendant to the plaintiffs in the sum of $1,167,000, being the sum of $992,000 lost profit in relation to the stud enterprise and $175,000 lost profit in relation to the artificial insemination business, the above amounts being inclusive of interest.

400 I shall hear from the parties as to any ancillary orders that are sought. I would point out that, during the conduct of this lengthy case, there have been various reservations of costs. There may be some costs issues with which I can deal. There may be many which are best dealt with by the Costs Court. In any event, I shall hear the parties as to what is sought, including any other ancillary orders. I shall also hear the parties as to the timing of any further argument.

Footnote: I ruled on 31 March 2015 that a bundle of financial documents of the plaintiffs and the 2007 partnership tax return could be tendered. Because this Ruling occurred after the plaintiffs' case was otherwise closed (I granted leave to re-open for the purpose of tendering all such documents), an exhibit number was not allocated to them. The bundle of financial documents, including the 2007 partnership return, is Exhibit DG. I might add that I saw no reason why limited weight should not be attached to such documents in the limited circumstances described above concerning some realism being employed as to an established, although not a stud, enterprise.