Subsequent events
40 What then transpired at Camerons and Vawdrey needs to be understood in the context of the events at Krueger.
41 At 3.54pm on 2 December, Vawdrey forwarded its third quoteto Camerons by facsimile. The Third Vawdrey Quote took as its starting point the Second Vawdrey Quote and amended it to take into account the matters discussed at the Cameron / Vawdrey meeting as recorded in Paul Vawdrey's handwritten notes on the Second Vawdrey Quote and the sketch "1 POST PER PALLET SPACING". The Third Vawdrey Quote states, in part:
OPTIONS:
1. Twelve (12) off 1800mm high light weight steel gates AN EXTRA $2242.00
2. Winch track and eleven (11) off load binder winches AN EXTRA $1219.00
3. Light weight sliding side post's (sic), set per pallet spacing AN EXTRA $550.00
…
N.B (2) TWO SET'S [SIC] OF SIDE POST'S [SIC] ALREADY IN SPECIFICATION.
(Emphasis added).
The quote provides for 11 or 12 sliding side posts with nothing attached to any post. This is inconsistent with what Mr Tindal was later to say in evidence that Paul Vawdrey knew he was supposed to draw up, namely "a trailer with a number of posts, some number less than 12, with something hanging off each post" (emphasis added). No drawing was included. That was not surprising. There was nothing new or unique in what Vawdrey was then proposing.
42 Paul Vawdrey's evidence was that after sending the Third Vawdrey Quote to Camerons at 3.54pm on 2 December 2002, he spoke to his father, Michael Vawdrey (who is also the person in charge at Vawdrey), and told him of the meeting earlier that day with Camerons, the Tender and the Third Vawdrey Quote. According to Paul Vawdrey, he told his father that the Third Vawdrey Quote incorporated sliding side posts at each pallet space and he then said words to the effect that "there is some concern that the posts won't fully restrain the load" and that further restraint was required. In response to this concern, Paul Vawdrey gave evidence (contrary to the evidence of the Cameron parties) that his father immediately suggested to him to put "hoops" on the posts as existed on the Gold Wingbars manufactured by Wingliner and used in Australia and Europe for many years prior to 2002. An image of the Gold Wingbars is at Annexure 5. Paul Vawdrey's affidavit went on to say that he and his father then attended Vawdrey's spare parts department where they inspected the Gold Wingbars and concluded that the hoops would be suitable for use in the Cameron Tender.
43 The version of events given by Paul Vawdrey raises more questions than it answers. It is not consistent with Camerons' version of what transpired at the Cameron / Vawdrey meeting and, in particular, it is not consistent with either Mr Cameron or Mr Tindal having already referred at that meeting to "hoops" or something hanging off the posts. Moreover, it is not consistent with Paul Vawdrey's statutory declaration to the Patents Office where he does not refer at all to the Gold Wingbars product but to a "pogo stick" which was said to have originated from the Ancra Company of Austria. An image of the pogo stick, known as "Cargo-Sta", is also at Annexure 5. Paul Vawdrey's evidence was that the statutory declaration was in fact "inaccurate" in the following respects:
1. the Ancra company is American, not Austrian;
2. in December 2002, Vawdrey's spare parts department only had in stock the Gold Wingbar, not the "pogo-stick" by Ancra;
3. in March 2005, at the time of preparing his statutory declaration, Vawdrey's spare parts department did not have the Gold Wingbar in stock, but did have the Ancra "pogo-stick".
44 Mr Michael Vawdrey gave evidence that his son Paul told him about the Cameron quote in the afternoon of 2 December 2002. Michael Vawdrey's evidence was that Paul told him that he, Paul, had suggested to Camerons that they use a post per pallet but that Camerons were concerned that this might not be sufficient and upon hearing this, he (Michael) suggested the hoops idea. There is no independent objective evidence that the conversation took place on that date. It is more probable than not that the conversation actually took place in the afternoon of 4 December, given the lack of any corroborating oral or documentary evidence to suggest that Vawdrey started working on a hoop design on that date and the affirmative evidence that Vawdrey was still proposing a non-hoop design as late as the afternoon of 4 December: see [51]. However, even taking Vawdrey's evidence at face value (ie that it was Michael Vawdrey who first suggested using hoops and that the suggestion originated on 2 December), it still undermines the Camerons and Vawdrey evidence that Paul Vawdrey, Cameron or Tindal had already suggested the Krueger Concept or even that there should be anything "attached to or "hanging off" each post at the Cameron / Vawdrey meeting earlier that day.
45 On 3 December 2002 at 2.55pm, Mr Tindal sent to Mr Cameron a spreadsheet entitled "FLEETSPEC.xls". That document included a reference to Vawdrey's load restraint proposal of eleven posts comprising "Sliding Side Posts: 9 of $4500" in addition to the "Side Posts: 2 Per Side Sliding". (The spreadsheet did not include any details of the Second Krueger Quote because that second quote was not sent by Krueger to Camerons until it was included with the facsimile of 1.38pm on 4 December 2002.) Again, contrary to the evidence of Mr Cameron and Mr Tindal that they had already discussed with Vawdrey that the side posts would have something hanging off them, the spreadsheet did not describe anything hanging off the side posts.
46 The events of 4 December 2002 are important. At about 11.55am, after speaking with his engineering group about the feasibility of the Krueger Concept, John Krueger telephoned Tindal on his mobile phone. The call lasted for approximately five minutes. Neither Tindal nor John Krueger was cross examined about the content of this conversation. According to John Krueger, he told Tindal that Krueger was confident that the concept would work and that a quotation and sales drawing would be sent to Camerons later that day. John Krueger's evidence was that he then asked Tindal whether any other manufacturer had provided Camerons with a concept that Camerons believed would work and Tindal told him that none had done so. Tindal did "not recall what was discussed during [this] telephone conversation with John Krueger". He did not deny the contents of the conversation as deposed to by John Krueger.
47 As I have said earlier, the next step in the chronology was that at 1.38pm on 4 December 2002, Krueger faxed Krueger's Second Quote to Camerons: see [36] above. By that time, an employee of Krueger had also prepared the Initial Krueger Drawings, but there was no objective evidence that the Initial Drawings were sent to Camerons: see [35]-[36].
48 Next, at 2.13pm on 4 December 2002, there was a telephone call from the general Camerons office telephone number to a Vawdrey telephone number. The call lasted for three minutes and 24 seconds. This phone call occurred shortly after the Second Krueger Quote was received by facsimile by Camerons at 1.38pm on 4 December 2002. Krueger asserts that it was during this telephone call that someone from Camerons, probably Tindal, disclosed to someone at Vawdrey, probably Paul Vawdrey, Krueger's Concept. Tindal could not recall whether he made that telephone call. However, he did deny that he disclosed the Krueger Concept to Paul Vawdrey during that telephone call.
49 Paul Vawdrey accepted that he may have received a telephone call on 4 December from Camerons, but believed it was Mr Cameron, not Tindal, who he spoke to and that Mr Cameron was calling to ask him to send through Vawdrey's design drawings. Paul Vawdrey denied that during the conversation Cameron conveyed any confidential information to him.
50 Camerons submitted that the call could have been made by many people at Camerons about any number of business transactions going on between Camerons and Vawdrey at that time, including discussions about spare parts, VicRoads requirements for 53ft trailers and invoices.
51 The contemporaneous documents provide some assistance. Paul Vawdrey's copy of the Third Vawdrey Quote sent by him to Camerons on 3.54pm on 2 December was annotated by Paul Vawdrey after it was sent to Camerons. As noted above (see [41]), the Third Vawdrey Quote contained what were described as three "options". Paul Vawdrey annotated the quote by placing a "x" against each option. Paul Vawdrey could not recall when or explain why he placed the crosses on the page. However, there was another annotation on the facsimile cover letter enclosing the quote which supports the contention that the annotations were made during the conversation between Tindal and Paul Vawdrey at 2.13pm on 4 December. The annotation reads "Quote Xtra for 53.0ft". It was common ground that this was a reference to Camerons asking Vawdrey to quote for a 53ft and a 48ft dropdeck curtain-sided trailer. It was that issue that Tindal addressed the very next morning.
52 At 7.35am on 5 December 2002, Tindal sent by facsimile to Paul Vawdrey a document containing VicRoads 53ft trailer requirements that Tindal had received from VicRoads at 3.13pm on the afternoon of 4 December. Tindal addressed the facsimile to Paul Vawdrey and added the notation "As per discussion, Martyn". This evidence supports the inference that there was a temporally proximate earlier discussion between Tindal and Paul Vawdrey, namely, the telephone call at 2.13pm on 4 December 2002. The telephone call is important because Krueger would have the Court infer not only that a call was made from Tindal to Paul Vawdrey, but to take one further step - to infer that the Design Concept was disclosed by Tindal to Paul Vawdrey during that telephone call.
53 Whether to draw this further inference depends upon whether Vawdrey adopting the design concept of sliding side posts and hoops could or did result otherwise than from it first having been told by Camerons of that solution (a solution Camerons knew because Krueger had told Camerons of it). The issues may be approached by asking three questions:
1. What is the Krueger Concept?
2. Did Vawdrey design a proposal employing the same concept as the Krueger Concept on 5 December 2002?
3. If Vawdrey did employ the same concept, do the facts proved form a reasonable basis for affirmatively concluding that it is more probable than not that Vawdrey devised its solution based on disclosure of the Krueger Concept from Camerons rather than independently (ie without knowledge of the Krueger Concept)?
54 With respect to the first question, the Krueger Concept had several elements. Each had its part to play, but for present purposes, the critical element of the concept was the idea of having gates hanging off the sliding posts. As to the second question, there was no doubt that Vawdrey's solution incorporated that element. Camerons submitted that the First Vawdrey Drawing did not employ the same concept as the Krueger Concept because the "First Vawdrey drawing [did] not show gate but hoop, and not gate to coaming". I reject that submission. The critical element of the Krueger Concept was the idea of having gates hanging off the sliding posts. That the gate depicted on the First Vawdrey drawing did not contain cross members and did not go to the coaming (the floor of the trailer) did not result in the critical element of the concept not being present in the First Vawdrey drawing.
55 Thus, the crucial question is the third one: Is it probable that Vawdrey devised the solution it ultimately submitted (incorporating as it did the element of gates or hoops hanging off the sliding posts) based on disclosure to it of the Krueger Concept?
56 In answering this question, the fact to be borne in mind is that by the afternoon of 4 December 2002, no member of the Vawdrey staff had commenced, or had even been asked to commence, preparation of the Vawdrey drawing even though Paul Vawdrey had said that Vawdrey would provide Camerons with a drawing by Friday 5 December 2002 (and even though Michael Vawdrey had supposedly proposed the idea of hoops on the afternoon of 2 December: see [43]-[45]).
57 How then did the Vawdrey drawing come to be? Jason Underwood, an engineer and former Vawdrey employee, was called to give evidence on behalf of Vawdrey on this point. On 4 December 2002, Underwood was working from home when he received a telephone call from Michael Vawdrey asking him to attend Vawdrey's premises that day to prepare a drawing. He does not recall the time of the telephone call. Michael Vawdrey insisted that Underwood attend the premises that afternoon because the drawing had to be submitted to Camerons the next morning. Underwood travelled to Melbourne. The trip took between three and three and a half hours.
58 Underwood arrived at Vawdrey's premises late in the afternoon of 4 December 2002. He spoke to Michael Vawdrey who instructed him to prepare a drawing. Underwood's affidavit recorded Michael Vawdrey's instructions as words to the effect that:
(a) Cameron was seeking to purchase 22, 48ft, 14.6m dropdeck titeliners;
(b) Cameron was seeking to transport double stacked pallets in their trailers;
(c) Cameron was looking for a special load restraint mechanism that would prevent the load, including that in the upper pallet, from falling out of the sides of the semi-trailer during transport and when the curtain was slid open for unloading;
(d) Cameron was interested in the idea of using sliding side post, but they didn't want the standard gates on hinges, which Vawdrey commonly manufactures;
(e) [Michael Vawdrey] had decided to weld hoops, similar to those attached to the Ancra "shoring post" or the Wingliner goldbars to Vawdrey's standard sliding side posts in order to provide the additional load restraint sought by Cameron;
(f) he thought that with the addition of hoops, one post for every two pallets should sufficiently restrain the load.
59 I accept Underwood's evidence about the substance of the instructions he received from Michael Vawdrey late in the afternoon of 4 December 2002. To the extent that Michael Vawdrey's evidence was inconsistent, I reject it. It was apparent that throughout the course of evidence that Michael Vawdrey is a man who wields enormous control over operations at Vawdrey, who instils fear in many who work with him (including his son) and who embellished, whether intentionally or otherwise, the various events in issue.
60 The circumstances in which Underwood received his instructions late that afternoon are just one example of Michael Vawdrey embellishing his version of events. Michael Vawdrey's evidence was that Underwood arrived at approximately 4.45pm and that he fixed that time because the engineers had finished work and Underwood was drinking beer with them. I reject that evidence. Underwood's evidence was that he could not recall whether or not the engineers were finishing up but that he knew that they were not sitting around having a beer. Underwood's evidence was that "wasn't what they did at Vawdrey" and that he had "never had a beer at Vawdrey in [his] life". I accept that evidence. Underwood had no reason to deny it.
61 It was not seriously disputed that Underwood commenced the drawing at approximately 6.30am on 5 December 2002 and completed the drawing at some point between 7.30am and 3.00pm. Although the Underwood drawing did not display all the features of Krueger's Concept, it was a drawing featuring the critical element of sliding side posts with hoops attached.
62 At approximately 8.58am on 5 December 2002, Underwood telephoned Paul Vawdrey to obtain Camerons' facsimile number. He obtained what he presumed was Camerons' facsimile number. It was, in fact, Camerons' telephone number. None of the telephone and facsimile records produced into evidence record a transmission or even an attempted transmission to Camerons in the morning of 5 December 2002. Moreover, none of the facsimile records produced into evidence record a successful transmission of the Underwood drawing on 5, 6, 7 or 8 December 2002. The log of transmissions from the Vawdrey facsimile number record several unsuccessful transmissions to the Cameron telephone number at approximately 3.15pm on 5 December 2002.
63 A great deal of evidence was given about a number of subsequent events. For present purposes, however, it is necessary to deal with only some of those events.
64 It was not until 11.15am on 9 December 2002 that the First Vawdrey drawing was sent by facsimile to Camerons (a copy of which is at Annexure 6). For the first time, and on at least one version of the Vawdrey evidence, without any warning or explanation, a drawing was sent to Camerons which not only featured a new restraint system described simply as "special load restraining side posts" but showed side posts with gates attached. On any view, the appearance of a new restraint system without explanation is unlikely. At the very least, in the absence of an earlier explanation or discussion one would have expected some form of contemporaneous communication from Vawdrey to explain the concept. That it did not occur supports the inference that Paul Vawdrey and Tindal had discussed the concept during the afternoon of 4 December 2002.
65 What then followed on 9 December, in quick succession, was a telephone call from Camerons to Vawdrey at 11.57am. The call was short (11 seconds). Nothing happened for a couple of days and then on 11 December at 3.33pm, Camerons again telephoned Paul Vawdrey. Again the call was short (11 seconds). At that time, Camerons were chasing Vawdrey to provide a quote for what was now to be found in the First Vawdrey drawing. On any view, the Third Vawdrey Quote forwarded at 3.54pm on 2 December by Vawdrey to Camerons was no longer relevant. It was a quote for a different load restraint system and one which had been abandoned.
66 At 1.49pm on 12 December 2002, a facsimile was sent by Paul Vawdrey to Tindal at Camerons ("the Fourth Vawdrey Quote"). The Fourth Vawdrey Quote comprised a cover sheet and two drawings - one for a 48ft trailer and the other for a 53ft trailer. The drawings were dated 12 December 2002. The cover sheet stated, in part:
Martin, please find the following drawings as per our discussion's (sic) of a 16.1m (53,0") dropdeck titeliner.
To supply special sliding side post's (sic) including the removal of the two set's (sic) of standard side post's (sic) the extra cost would be $985.00 per set of load restraining side post's (sic).
…
(Emphasis added.)
67 The contents of the Fourth Vawdrey Quote confirmed that Tindal and Paul Vawdrey discussed the project and, in particular, the need for Vawdrey to quote on a 53ft trailer. However, no less significant was the language used by Paul Vawdrey to describe the load restraint system. The sliding side posts were described as special, not standard. The standard sliding side posts were to be removed. The special sliding side posts cost an extra $985.00 per set of load restraining side posts. The set was the post with the gate attached. The drawings attached to the cover sheet confirmed that fact. Again the drawings not only described them as "special load restraining side posts" but also showed sliding side posts with a gate attached. As Krueger submitted, it was a different load restraint proposal at a different price and it required the removal of the standard sliding side posts and the addition of special sliding side posts.
68 As noted earlier, the closing date for responses to the Tender was 13 December 2002. Before Camerons submitted its response to Amcor, Tindal telephoned Grant Krueger and asked his permission for Camerons to include the Subsequent Krueger Drawing in its response. Grant Krueger told Tindal that Camerons were permitted to use the Subsequent Krueger Drawing in that way. It was not submitted that the authorised disclosure of the Subsequent Krueger Drawing by Camerons to Amcor robbed the information of its confidential character or released Camerons from their otherwise general obligation to maintain it in confidence. That is not surprising. The Tender expressly provided that any response to the Tender would serve as a basis for any agreements and would represent a firm offer by the supplier to contract with Amcor on the terms and conditions described in the response (cl 1.1.2). The Tender went on to provide that Amcor assumed suppliers would meet all the terms of the attached Supply Agreement unless otherwise stated (cl 3.6). Camerons did not identify any relevant exclusions. Clause 16.2 of the Supply Agreement was entitled "Confidentiality" and provided:
Both AMCOR and The Contractor will each:
16.2.1 Keep all marketing, commercial and technical information, data, records and material acquired from the other party strictly confidential.
16.2.2 Not disclose such information, data, records and material (or permit its employees or agents to do so) except as may be necessary for the purpose of this Agreement.
16.2.3 On termination of this Agreement, whether by effluxion of time or otherwise, return to the other party (or destroy) all such information, data records and material.
16.2.4 Meaning of "confidential information"
In this clause 16.2, Confidential Information means all confidential, non-public or proprietary information exchanged between the parties before, on or after the date of this Agreement relating to the business, technology or other affairs of either party but excludes information:
16.2.4.1 Which is in or becomes part of the public domain other than through breach of this Agreement;
16.2.4.2 Which a party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the disclosing party (other than if such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
16.2.4.3 Which a party acquires from a third party entitled to disclose it.
(Emphasis added.)
69 On 13 December 2002, Camerons submitted their proposal for the Tender. It included a copy of the Krueger Subsequent Drawing. With respect to the load restraint system, the proposal stated: "Our load restraint proposal will satisfy OH&S issues[.]" The proposal also added:
A key difference in the proposal is the load restraint system to be used in the trailing fleet. Our proposal centres around the experience of the past that the pallets need to be retained other than by the curtain to ensure that the load is stable when the curtains are pulled back at the customer delivery point. The design provides for the retaining system to remain in the vehicle at all times. The advantage is that it can be moved on a track to allow pallets to be loaded/unloaded. The drawing below shows the system.
[A Subsequent Krueger Drawing was appended here.]
A key feature of the system is that the load restraint is fitted to the side sliding poles.
(Emphasis added.)
This language supports Krueger's submission that the concept of restraints fitted to the side sliding poles was both innovative and key to Camerons' proposal and its ultimate success in the Tender.
70 On 11 February 2003, Camerons' response to the Tender was formally accepted by Amcor. The next day, 12 February 2003, Vawdrey provided its Fifth Quotation and Third Drawing to Camerons. The quotation (dated 11 February 2003 but with a facsimile header of 12 February 2003) referred to a "telephone conversation" between Paul Vawdrey and Tindal on 11 February 2003. The enclosed specifications referred to "Six (6) special sliding posts for restraint per side". The Third Vawdrey Drawing depicted a 48ft trailer with what were still described as "special load restraining side posts" but which were now substantially larger.
71 As was properly conceded by Paul Vawdrey, the larger gates did not appear in any Vawdrey drawing until the day after Camerons were awarded the Amcor Tender in February 2003. The evidence of Paul Vawdrey and Underwood was that they could not recall why the size of the gates was increased. Both assumed that, consistent with usual practice, any increase resulted from a request of the customer and, in particular, a request from Tindal. Tindal denied making such a request. In support of his denial, he referred to the fact that Camerons did not employ any engineers and that it was incumbent on Vawdrey to ensure that the pallets were restrained adequately. I reject Tindal's evidence. Krueger submitted, and I accept, that it is open to infer that the increase in the size of the gates resulted from Camerons' obligation to provide to Amcor a load restraint system substantially identical to that detailed in its successful Tender proposal. That is to say, Camerons requested the amendment to the Vawdrey drawing more than two months after Vawdrey's original submission and on the day of (or one day after) winning the Tender so that the Vawdrey drawing would more closely match the successful Subsequent Krueger Drawing. Camerons' submission was that this inference was not open to be drawn because although Camerons were awarded the Amcor contract on the basis of the Subsequent Krueger Drawing, Camerons were not obliged to precisely follow that drawing because of the margin afforded to them in cl 14.2.5 of the Tender. That provision provided that it was up to Camerons to advise Amcor if any changes were required to the restraint mechanism to ensure the stability of the load. That submission is rejected because no changes were required to be made to the load restraint system shown in the Subsequent Krueger Drawing. Rather, the changes that were made were changes to the restraint system shown in the Vawdrey drawing to make it conform to the Subsequent Krueger Drawing. Clause 14.2.5 of the Tender, which gave Camerons the discretion (and indeed the obligation) to modify the successful (Krueger) system if it proved to be necessary for safety reasons (that is to say, it could have explained a decision by Camerons to drop the system shown in the Krueger drawing and adopt the system shown in the Vawdrey drawing on the basis that Vawdrey's design was more stable), does not and cannot have anything to say about why the Vawdrey drawing was amended to be more like the Krueger drawing.
72 The next morning, 13 February 2003, Paul Vawdrey and Tindal met to discuss the Fifth Vawdrey Quote. What transpired at that meeting was not the subject of oral evidence, but the contemporaneous documents assist.
73 At 1.30pm on 14 February 2003, Vawdrey submitted amended pricing and specifications for the trailer ("the Sixth Vawdrey Quote"). The price was now reduced to $57,500. There are three documents in Vawdrey's possession relevant to this issue. First, Vawdrey's copy of the Fifth Vawdrey Quote which was crossed through (consistent with the rejection of that proposal by Camerons) and, secondly, a copy of the Third Vawdrey Quote with Tindal's handwriting which had not been faxed by Camerons to Vawdrey. The handwritten notes on the copy of the Third Vawdrey Quote read "46645.45 + $3480 for sliding side gates = 50125". "$3480 for sliding side gates" was the price provided by Krueger to Camerons in the Third Krueger Quote. Vawdrey did not explain when or how it came to be in possession of the document. On any view, that document must have been provided by someone at Camerons to Vawdrey.
74 The third document was a copy of the Fifth Vawdrey Quote which contained handwritten annotations by Michael Vawdrey. There was no dispute that document contained Michael Vawdrey's handwritten annotations. Paul Vawdrey's evidence was that he may have discussed the document with his father. The notes are dated 14 March 2003. Krueger submitted that they were in fact made much earlier and should be dated 14 February 2003. The document on its face supports the inference that at least some of the document was prepared before 14 March 2003. The quote used was the Fifth Vawdrey quote. If the calculation was done in March 2003, one would have expected Michael Vawdrey to have used the later quote that Vawdrey issued. No less significant is the fact that the notes record the conclusion reached by Michael Vawdrey - "WE WILL DO FOR $57,500 INC GST". $57,500 was the amount specified in the Sixth Vawdrey quote dated 14 February 2003.
75 Two other annotations are significant. First, the number of special sliding posts for load restraint per side had increased from six to seven. As the notes recorded, Vawdrey's price for seven posts was $57,500.00 (being the amount included in the Sixth Vawdrey quote for six posts).
76 Secondly, the notes recorded that the "price [Vawdrey] must do it for" was $56,653, being the price quoted by Camerons to Amcor of $51,503 plus GST. The GST exclusive price was made up of $46,645.45 (trailer price ex-GST from the Third Vawdrey Quote) plus $3,480 (price for sliding side post with gate from the Third Krueger Quote) and $1,378 (stamp duty as recorded in Camerons' response to Tender). There were, in fact, two references in the notes to $56,663.00. It was this amount that was included in the next Vawdrey quote. That quote was submitted by Vawdrey at 1.11pm on 17 February 2003, dated 16 February 2003 ("the Seventh Vawdrey Quote"). The price specified was now $56,653 ($51,503 plus GST), being the price quoted by Camerons to Amcor.
77 The Seventh Vawdrey Quote still referred to six special sliding side posts for load restraint per side. However, handwritten annotations on Paul Vawdrey's copy show a "(7)" noted next to the item "Six (6) special sliding posts for load restraint per side." Although it is not clear when this annotation was added, the contemporaneous documents establish that the increase in the number of gates from six to seven was resolved during February because by 27 February 2003, Camerons and Vawdrey had a signed sales specification and order acknowledgement for 22 trailers with "seven (7) special sliding side posts for load restraint per side" at a total unit cost of $56,653.00. Michael Vawdrey's evidence was that the number of gates increased because Mr Worboys, one of his engineers, told him to do so. That evidence is rejected. Mr Worboys gave evidence, which I accept, that he had no involvement in the relevant drawings until March 2003, when he became involved in the process leading to the final Vawdrey drawings, being the Vawdrey Engineering Drawings (a copy of which is at Annexure 7). Furthermore, Alastair Lang, another Vawdrey engineer, accepted in cross-examination that the change occurred on or before 27 February 2003 and was not made pursuant to a direction from the Vawdrey engineering department.
78 In the absence of any other plausible explanation of when, and the circumstances in which, the number of gates was increased from six to seven, the evidence above provides more than a reasonable basis to definitively conclude that Camerons requested the increase to seven posts and that change occurred before 27 February 2003.
79 Just a few months later, on 14 April 2003, Paul Vawdrey sent a letter to Mr Cameron in which he referred to the Cameron / Vawdrey meeting again without referring to anything "hanging off" the posts. In this letter, Paul Vawdrey said "I [Paul Vawdrey] suggested using one side post per pallet spacing which would form a part of load restraint for the top and bottom pallet" (emphasis added). Mr Cameron took no action to correct that statement.
80 Lang, the engineer who had responsibility for drawings prepared by other engineers at Vawdrey, gave evidence that in March or April 2005, Vawdrey's solicitors requested the engineering department to provide electronic copies of the drawings that had previously been provided to them in hard copy. Lang's evidence was that although Michael Vawdrey was on leave, he had left instructions with Lang that Michael Vawdrey "knew that a certain sales proposal drawing had been drawn and sent to Cameron[s] on 5 December 2002 and that [Lang] should ensure that every sales proposal drawing [Vawdrey] send[s] to Vawdrey's solicitors is dated 5 December 2002". Lang's recollection, at the time, was that the original Cameron Job Package which contained the original hard copy documents had already been sent to Vawdrey's solicitors. Lang reviewed the electronic copies of every drawing relating to the Cameron Job Package. The electronic copy of Vawdrey drawing 25-1056-1 was dated 5 December 2002. The electronic copy of Vawdrey drawing 25-1056-2 was dated 12 December 2002. After checking all the information available to him (including the Cameron Job Package), Lang could find no record of anything having been sent to Camerons on 12 December 2002. Lang then went to Paul Vawdrey or Russell Baker. (The evidence discloses that it was Paul Vawdrey that he spoke to. Baker, a former director of Vawdrey, denied that Lang ever raised with him the issue of backdating the electronic drawings. Paul Vawdrey recalled the conversation.) Lang told Paul Vawdrey that Michael Vawdrey had said words to the effect that everything had been sent on 5 December 2002. Paul Vawdrey's response was to the effect that "well we've go[t] to do what Mick told us to do". And that is what Lang did - he backdated the date on the electronic copy of Vawdrey drawing 25-1056-2 from 12 December 2002 to 5 December 2002.