Leckie v Crockett and others

Industrial Relations Commission (NSW)|2007-07-01|Before: Wright J, Kavanagh J, Boland J, Schmidt J

CITATION: Leckie v Crockett and others [2007] NSWIRComm 219 This decision has been amended. Please see the end of the judgment for a list of the amendments.

FIRST RESPONDENT Owen Crockett PARTIES: SECOND RESPONDENT Judy Crockett

THIRD RESPONDENT Peter Crockett

Appeal - Leave to appeal - Unfair contract - Family share farming arrangement - Termination of the arrangement - Whether trial judge erred in disregarding or not dealing with evidence relating to termination of the arrangement - Corroborative evidence - Whether trial judge erred in failing to deal adequately with appellant's claims - Whether trial judge erred in relation to the question of whether notice of termination was a relevant consideration in unfair contract proceedings involving family relationships - Leave to appeal granted to a limited extent - Appeal dismissed - Costs CATCHWORDS: Unfair contract - Appeal - Leave to appeal - Family share farming arrangement - Termination of the arrangement - Whether trial judge erred in disregarding or not dealing with evidence relating to termination of the arrangement - Corroborative evidence - Whether trial judge erred in failing to deal adequately with appellant's claims - Whether trial judge erred in relation to the question of whether notice of termination was a relevant consideration in unfair contract proceedings involving family relationships - Leave to appeal granted to a limited extent - Appeal dismissed - Costs

LEGISLATION CITED: Industrial Relations Act 1996 ss 106, 187, 188, 188(2)

Abalos v Australian Postal Commission (1990) 171 CLR 167 All-Fect Distributors Ltd v Stewart (2007) 160 IR 90 Box Valley Pty Ltd v Price (2000) 97 IR 484 Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations and another (1985) 3 NSWLR 685 Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 CASES CITED: King v State Bank of New South Wales (No 2) (2002) 126 IR 407 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Leckie v Crockett and Ors (No 2) [2007] NSWIRComm 42 Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 Port Macquarie Golf Club Limited v Stead and Another (1996) 64 IR 53 The Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan (1931) 46 CLR 73 Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121 WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2003) 124 IR 59

APPELLANT Mr T D F Hughes with Mr I C Latham of counsel Solicitor: Grant Hansen Harris & Company LEGAL REPRESENTATIVES: RESPONDENTS Mr A R Moses with Mr B Miles of counsel Solicitor: Mr G Casey Garden & Montgomerie

CORAM: WRIGHT J, President KAVANAGH J BOLAND J

Application by Stuart Leckie for leave to appeal and appeal against judgment and orders of Justice Schmidt given on 26 March 2007 in Matter No IRC 1188 of 2005

1 Stuart Leckie ('the appellant') has applied for leave to appeal and, if leave is granted, to appeal from the judgment and orders of Schmidt J of 26 March 2007 in Leckie v Crockett and Ors (No 2) [2007] NSWIRComm 42. The application is brought pursuant to s 187 and s 188 of the Industrial Relations Act 1996. 2 Stuart Leckie was a party to a family share farming arrangement on initially three, and later four, properties near Molong, New South Wales. The other parties to the arrangement were the respondents - Owen Crockett, his wife Judy and their son Peter - as well as the appellant's wife, Wendy. Wendy was the daughter of Owen and Judy Crockett and had married the appellant in 1986. 3 The arrangement, which commenced in or about 1990, was carried on at the rural properties known respectively as Yeronga Hill, Westholme and Iona and, later, Marysville. Owen and Judy Crockett acquired Yeronga Hill in about 1951. Stuart Leckie and Wendy Crockett jointly acquired Westholme in 1990 with funds provided by Stuart Leckie and his family. Also in 1990, Owen Crockett transferred Iona to Stuart Leckie and Wendy Crockett for the nominal consideration of $1.00. Owen and Judy Crockett continued to farm Iona after the transfer as part of the share farming arrangement. In the period 2000 to 2005, Stuart Leckie and Peter Crockett took a lease of a property known as Marysville. This property was farmed as part of the arrangement. 4 As Schmidt J noted, Owen and Judy Crockett conducted their farming operation at Yeronga Hill and Iona in partnership with each other. That continued when the operation expanded to include Westholme and later Marysville. Stuart Leckie and Wendy Crockett also entered a partnership, which shared in the profits of the farming operation, as did Peter Crockett and his wife, when Peter Crockett began working in the operation. 5 Other background information, which was essentially uncontroversial, was recorded by her Honour at [20] to [24] of the judgment at first instance as follows: [20] Between 1990 and the end of 2003, Stuart Leckie and Wendy Crockett received a share of the profits of the farming operation in partnership with each other, even after their partnership was dissolved earlier in 2003. From December 2003 until the end of 2004 when the arrangement came to an end, profits were paid only to Stuart Leckie and he paid no share of what he received to Wendy Crockett. [21] Peter Crockett and his wife also received income from the farming operation, in partnership with each other, until their separation and afterwards, his wife still received a share of profits from Peter. [22] The farming operation was always managed day-to-day by Owen Crockett, who made most of the necessary business decisions. Stuart Leckie described any consultation as 'minimal' and that apart from routine farming tasks, he 'generally performed work as directed' by Owen Crockett. Owen Crockett's evidence was to similar effect, but that he consulted Judy Crockett, Stuart Leckie and Peter Crockett, and on occasions Wendy Crockett, on significant decisions. [23] Owen and Judy Crockett made decisions as to the amount and timing of the payments made to Stuart Leckie and Wendy Crockett and later to Peter Crockett and his wife. The payments were made regularly at intervals of between 6 and 12 weeks, as income permitted. Stuart Leckie pressed no complaint in the proceedings as to the income he received from the operation, while it continued. [24] The arrangement, as it was first made and as it altered over time was entirely informal. It was never documented. It was not Stuart Leckie's claim that there had ever been any partnership between he and the respondents. His case was that it was an informal family arrangement. That was corroborated by the respondents and by Wendy Crockett. 6 By about the end of 2003, the marriage between the appellant and his wife had broken down and they were finally separated. Nonetheless, the appellant retained the entire profit share received from the farming operation between December 2003 and November 2004. According to her Honour, on the appellant's evidence he had earlier told Judy Crockett that Wendy Crockett wished to terminate their partnership. When payments were later made solely to him, he paid no share to Wendy Crockett. On their evidence, Owen and Judy Crockett first learned of this on 11 November 2004, when told of it by Wendy Crockett. On 12 November, her Honour observed that Owen Crockett spoke to the appellant, demanding that he reach a property settlement with Wendy Crockett and advising that if he did not do so, he and Judy Crockett would no longer provide financial assistance to either he or Wendy. On his evidence, Stuart Leckie understood that Owen Crockett had terminated the arrangement that day. Owen Crockett denied this. 7 What followed was set out in her Honour's judgment at [27]-[32]: [27] The conversation was heated and ended abruptly. Stuart Leckie never worked in the farming operation again. His opinion was that the property settlement was not a matter which concerned Owen Crockett. Stuart Leckie and Owen Crockett discussed Stuart Leckie resuming work a few days later, but that did not occur. Stuart Leckie and Wendy Crockett again discussed a settlement, but they were unable to agree. These developments had a catastrophic impact upon the family's farming arrangement and the returns which it generated, compounded by the loss of the Marysville lease in early 2005. [28] After 12 November, the respondents continued the farming operation, using all four properties. Owen Crockett spoke to Wendy Crockett about various steps being taken, but not to Stuart Leckie. Stuart Leckie objected to this and in December took the step of requiring the respondents to seek his written permission before coming onto Iona or Westholme. A short time later Stuart Leckie obtained an Apprehended Violence Order (AVO) against Owen Crockett, which prevented him from coming onto the properties. An AVO was also later pursued against Peter Crockett. On Stuart Leckie's affidavit evidence, the purpose of the AVOs was to 'prevent Owen and Peter Crockett harassing and assaulting me and to stop them coming onto Iona and Westholme and removing the few joint farming assets which still remained on those properties.' The orders did not prevent 'most of the joint farming assets being stripped from Iona and Westholme. The orders did, however, help to protect the grazing assets of Iona and Westholme.' [29] Whoever was responsible, the family operation on Iona and Westholme certainly came to an end. There were other disputes and legal proceedings which ensued, including allegations of assault and damage. They were all resolved in 2006 with Owen and Peter Crockett agreeing that they would not enter Iona and Westholme and Stuart Leckie agreeing that he would not enter Yeronga Hill. [30] The relationship between the parties, upon which their farming operation had always rested, plainly broke down irretrievably at the end of 2004. There was a dispute in the proceedings as to who was responsible for this outcome - the applicant or Owen Crockett. Whoever was responsible, the evidence showed that the termination of the arrangement was financially disadvantageous to all of the parties. [31] At the time of the hearing, Stuart Leckie and Wendy Crockett had still not agreed to any property settlement, nor had litigation between them as to that question, which Wendy Crockett had commenced in March 2005, been concluded. They retained joint ownership of Iona and Westholme. Stuart Leckie still lived at Iona. He had tried to run 'small scale farming business involving raising cattle, sheep and fat lambs and some cropping' on Iona and Westholme, but had so far made no profit. He was also working full-time as a nurse. Neither Stuart Leckie nor Wendy Crockett were earning an income from either Iona or Westholme. They each work full-time in paid employment. Only Stuart Leckie resided at Iona. [32] The respondents now only farm Yeronga Hill. They were unable to renew the Marysville lease in early 2005; that property was sold and they had not been able to acquire other suitable property to lease. Their farming operation on Yeronga Hill and the income it generated were significantly smaller than the operation which the parties earlier conducted together. 8 The appellant subsequently sought relief from what he claimed was an unfair contract and on 8 March 2005 filed a summons for relief under s 106 of the Act. The appellant sought and was granted leave to amend his claim during the second day of the hearing before her Honour. 9 As Schmidt J noted at [33], the case pressed for the appellant was that the arrangement was unfair because: (i) it had no mechanism to fairly distribute the profit; (ii) the mechanism by which profit was distributed was hidden from the applicant; (iii) it had no provision for notice of termination; (iv) it had no mechanism to provide for the distribution of the assets and profit upon the termination of the arrangement; (v) it had no provisions to protect the applicant from arbitrary conduct. 10 At [34] Schmidt J referred to the appellant's claim that the arrangement had been brought to an end by Owen Crockett in his conversation with Stuart Leckie on 12 November 2004, when an ultimatum was put in relation to the property settlement. It was claimed that an immediate answer was required and when it was not received, the appellant said he was told to 'piss off'. Compensation in respect of 15 months' reasonable notice, a 1/3 share of all stock, plant and equipment, and compensation for distress and anxiety were pressed by the appellant at first instance. 11 Schmidt J found that the appellant had not satisfied the onus that fell upon him to demonstrate that the arrangement in question was an unfair contract in any of the ways claimed in the amended summons. Her Honour ordered that the application be dismissed. 12 In a carefully reasoned judgment, her Honour relevantly found as follows: · The arrangement fell within the wide definition of contract appearing in s 105 ([64]). · The appellant was under no constraint or inequality by way of comparison to the respondents, nor was his labour oppressively exploited ([65]). · Over the years, the amount and time of payment of the profits which the farming operation generated to the various family members involved, were always within the entire discretion of Owen and Judy Crockett. Over the course of some 14 years, their discretions were exercised in a way which proved to be of significant benefit to the appellant ([65]). · The arrangement involved the appellant's wife, Wendy Crockett ([66]). · After his partnership with Wendy Crockett came to an end, on his evidence the appellant appropriated the partnership assets and treated them as his own. After December 2003, he ceased sharing the payments he received from Owen and Judy Crockett with Wendy, even though she remained an owner of Iona and Westholme with him and those payments were by way of distribution of a share of the profits of the family farming operation. Owen and Judy Crockett's evidence that they did not learn of this until November 2004, was not seriously challenged ([75]). · A consideration of the evidence as to matters such as the property being farmed, the work being performed and the financial contributions made to the operation by those involved in it, could not lead to the conclusion that in fairness, the appellant was entitled to a 1/3 share of the assets of this operation ([81], [105]). · There was no basis in any of the evidence for a conclusion that the arrangement was unfair, in not making provision that if the arrangement came to an end, Stuart Leckie would be left in a position where he could farm Iona and Westholme independently, by being given a share of plant, stock and equipment to the value of $250,000 ([116]). · During the heated conversation between Owen Crockett and Stuart Leckie on 12 November 2004, the farming arrangement was not terminated ([180]). · Her Honour was unable to accept the appellant's alternative submission, pressed for the first time in submissions in reply, that if the arrangement was not terminated on 12 November, Owen Crockett brought it to an end on 16 November ([186]). · It was the conduct of Stuart Leckie that precluded the arrangement from continuing ([187]). · There was no basis for the conclusion that the arrangement was unfair as claimed in relation to the question of notice ([192]). · The evidentiary basis necessary to be established as a foundation for the exercise of a discretion to grant the stress and anxiety claim was not met ([193]). GROUNDS OF APPEAL

13 The grounds of appeal were as follows: 1. The grounds encapsulated in questions F1 and F2 above. [Note: these questions were in the following terms: 1. Whether, as held by her Honour at [122], the question of the payment in lieu of notice to the Applicant, Stuart Leckie, did not squarely arise upon termination of an arrangement falling within s 106 of the Act if that arrangement was between family members as opposed to an arrangement entered into between unrelated parties at arms length with each other.

Whether her Honour erred in disregarding, or in the alternative, not dealing in her reasons for judgment with, evidence given by the Respondent Owen Crockett under cross examination (at pp 169L 17 - 169L54 of Transcript), the effect of which was to establish that on 12 November 2004, the Respondent Owen Crockett had unilaterally and summarily terminated the arrangement under which the Applicant and the Respondents had conducted farming and grazing operations on the lands that had been the subject of the arrangement in suit and in disregarding, or not dealing with, the corroborating evidence of the Respondent Peter Crockett in (Exhibit 21 Annexure A) and of Wendy Crockett (Exhibit 23 Annexure P)].

That her Honour erred in failing to deal with claims referred to at [33] that the arrangement in suit was unfair on the grounds that: (i) it provided no mechanism for fair distribution of any profit derived from the arrangement;

(ii) the basis upon which the Respondent Owen Crockett distributed profits of the arrangement during the existence of the arrangement was never disclosed to the Appellant;

(iii) it had no mechanism to provide for the distribution of the assets and profit upon the termination of the arrangement

(iv) it had no provisions to protect the applicant from arbitrary conduct on the part of the respondents, particularly the Respondent Owen Crockett. 3. That her Honour erred in rejecting at [98] the submission of the Appellant that the partnership of the Respondents Owen and Judy Crockett acted as a "bank" for all of the parties to the arrangement given the uncontested evidence of the Respondent Owen Crockett on the point (at pp 181 L 39 - 182 L 31).

That her Honour erred in holding at [122] that there was a conceptual difficulty in applying the concept of termination upon notice to an arrangement that subsisted as a family arrangement.

That her Honour erred in holding at [123] that the conduct of the Appellant towards his long estranged wife Wendy Crockett was relevant to the determination of a period of fair notice.

That her Honour erred in determining that the arrangement was not terminated by the First Respondent on 12 November 2004, or in the alternative on the 15 or 16 of November 2004 given; (i) the evidence of the Respondent (at Transcript p 169 L 23 -28) that he had put a deadline of the 12th of November 2004 upon the Appellant to reach agreement as to a matrimonial distribution of assets failing compliance with which deadline the Appellant would receive no further proceeds of the arrangement (at Transcript P 170 L 15 - 25)

(ii) the evidence of the Respondent Owen Crockett that the Appellant was not to continue working pursuant to the arrangement in suit unless he reached agreement with Wendy Crockett as to a matrimonial distribution of assets (at Transcript p 172 L 24 - 30),

(iii) the evidence of the Respondent Peter Crockett (at Exhibit 21 Annexure A) and of Wendy Crockett (Exhibit 23 Annexure P) that the Respondent Owen Crockett had terminated the arrangement 7. That her Honour erred in determining that the Respondent Owen Crockett had not terminated the arrangement in suit on 12 of November 2004, or in the alternative on 15 or 16 November 2004, given the evidence of the Respondent Owen Crockett (at Exhibit 17) that he thereafter did not pay to the Appellant any further share of monies derived from the farming and grazing operations on the relevant properties and removed from the Applicant's land plant, equipment, crops and livestock (at Transcript 178 L 9 - 36).

The various findings made by her Honour in [83] of her reasons for judgement were not justified in the light of the evidence that prior to December 2003 the Respondents and the Appellant, without objection from Wendy Crockett, treated Wendy Crockett as no longer a party to the arrangement. LEAVE TO APPEAL

14 Appeals to the Full Bench of the Court are subject to the grant of leave: s 188(2). As it was observed in King v State Bank of New South Wales (No 2) (2002) 126 IR 407 at [52], leave will not lightly be granted. The Full Bench in that case noted that the most frequently cited contemporary authority on the grant of leave to appeal is the judgment of the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382, where it was stated: We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter. Firstly, as a Full Bench of this Commission noted in Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265 , leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s 188(2) . These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle.

Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal. In Caltex Petroleum Pty Ltd v Harmer [(1999) 92 IR 264] the Full Bench stated: As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same... We agree with the principle so stated. Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s 188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

See also WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2003) 124 IR 59 at [13] to [14]. 15 As it was also stated in King at [54], an appeal that seeks, by and large, to challenge findings of fact or the exercise of discretion of a member of the Commission, will face a significant hurdle in obtaining leave to appeal. Reference was made to Box Valley Pty Ltd v Price (2000) 97 IR 484 at [4] where it was stated: In any event, we think it should be emphasised, as clearly as we may, that appellate review is not available under this statute as of right, but requires the requisite degree of importance to attract leave to appeal. Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave. 16 The reason put forward by the appellant in his application as to why leave to appeal should be granted was that "The issues raised in each of questions F1 and F2 give rise to matters of public importance in the Administration of the Act". In his written submissions regarding leave, as well as addressing the matters raised in F1 and F2 of his application in the context of leave, the appellant contended that the trial judge failed to deal with the claim as pressed. That is to say, her Honour failed to deal with the following claims, which were identified in paragraph H2 of the notice of appeal: (i) it provided no mechanism for fair distribution of any profit derived from the arrangement;

(ii) the basis upon which the respondent Owen Crockett distributed profits of the arrangement during the existence of the arrangement was never disclosed to the appellant;

(iii) it had no mechanism to provide for the distribution of the assets and profit upon the termination of the arrangement;

(iv) it had no provisions to protect the applicant from arbitrary conduct on the part of the respondents, particularly the respondent Owen Crockett. 17 These three matters (that is, the issues arising from questions F1 and F2 and those arising from paragraph H2 of the notice of appeal) were the only grounds upon which the appellant contended leave to appeal should be granted. However, rather than limit the parties in their submissions to the question of leave, the Full Bench allowed the parties to address fully on leave and the merits of the appeal.

18 As to question F1, it was submitted that her Honour made a finding at [122] to [125] that there was a conceptual difficulty in determining the question of notice (and payment in lieu thereof) in the context of an arrangement involving family members as opposed to a commercial arrangement entered into between unrelated parties, at arms length with each other. Such a finding, it was submitted, was a bar upon the exercise of jurisdiction that was not supported by the terms of s 106 itself. 19 At [117], Schmidt J stated: [117] I turn to the claim that it was Owen Crockett who terminated the arrangement and that the arrangement was unfair, in not providing for the giving of notice. There were various difficulties with the claims advanced, even if the applicant had succeeded in demonstrating that it was Owen Crockett who had brought the arrangement to an end. 20 One of the difficulties her Honour referred to at [122] was that the arrangement that was the subject of the proceedings was "not a commercial arrangement entered into between unrelated parties, at arms length with each other, in which circumstances questions of notice would have squarely arisen under the law of contract, either by way of express provision, or by implication." Her Honour continued: What here arose for consideration, was an arrangement which subsisted in the context of a family relationship. It depended from the outset upon the willingness of Owen and Judy Crockett to provide the members of their family with the benefit of their expertise and years of experience in conducting and financing a substantial farming operation. This they did by expanding their operation, initially over a third property which their daughter and her husband had acquired. Later, after their son had also joined the venture, the operation expanded over a fourth property leased by their son, some of which lease fees it was agreed Stuart Leckie would meet. 21 Schmidt J at [125] expressed the following view: [125] It seems to me that it must be most unlikely that an arrangement such as this would have been entered by anyone other than the members of a close family. It is inconceivable that people in the position of Owen and Judy Crockett would have entered into a commercial arrangement with non-family members on terms such as these, particularly given the evidence of what they both contributed to the arrangement, by way of comparison with what they received from it. Plainly, the arrangement must have necessarily rested on the personal relationships existing between these close family members being maintained. The termination of the arrangement, followed upon the breakdown of those relationships. 22 It is apparent from her Honour's observations that if she had found that Owen Crockett had terminated the arrangement, her Honour would have given active consideration to whether fairness would "require that if the underpinning family relationship broke down, that some additional notice of the termination of the arrangement here in question be given, as between these family members?" (See [123]). 23 However, we do not understand her Honour to have made a finding to the effect that there was a conceptual difficulty in determining the question of notice (and payment in lieu thereof) in the context of an arrangement involving family members as opposed to a commercial arrangement entered into between unrelated parties, at arms length with each other. Schmidt J, in a conceptual sense, certainly raised the question of whether, in an arrangement that necessarily rested on the personal relationships existing between close family members, some additional notice of the termination of the arrangement should be given and her Honour saw that as a difficulty. But her Honour did not answer the question raised by her because it was unnecessary to do so in light of her Honour's finding that Owen Crockett did not terminate the arrangement and, therefore, no issue of unfairness involving a lack of notice arose for determination: see [191]. 24 We do not consider there is any basis upon which to grant leave in respect of question F1. 25 In relation to question F2, the appellant contended that her Honour disregarded or did not deal with evidence given by Owen Crockett under cross-examination, the effect of which, it was said, was to establish that on 12 November 2004, Owen Crockett had unilaterally and summarily terminated the arrangement, and disregarded or did not deal with the corroborating evidence of Peter Crockett and of Wendy Crockett. 26 Question F2 raises the central issue in the appeal, namely, whether Owen Crockett summarily terminated the arrangement thereby giving rise to the need to consider the appellant's claim for 15 months' payment in lieu of notice. Much of what is raised by this issue on appeal involves a complex factual controversy, and of itself might not attract the grant of leave. However, the fact that the trial judge did not have before her a statement by Peter Crockett made in March 2005, which the appellant asserted was corroborative of the appellant's claims regarding termination of the arrangement (the statement was supposed to have been exhibited to Peter Crockett's affidavit but had inadvertently been left out), requires us, in the interests of justice, to grant leave in relation to the ground raised by Question F2 and we do so.

27 The third issue in relation to leave is paragraph H2 in the notice of appeal and the question arises as to whether her Honour failed to deal with the claims set out in that paragraph. 28 We note that the appellant, early in the proceedings before her Honour, specifically indicated that he did not press for the remedy claimed in the summons for relief that "2. Compensation for the underpayment of Stuart Leckie throughout the period of the joint enterprise: to be quantified after discovery." 29 The claim for compensation arising from the alleged underpayment could only have been connected to the claims in paragraph H2 of the summons. If this claim for compensation was not being pressed we do not understand the point of pressing the claims in paragraph H2. Moreover, we have not been directed to any submission by the appellant to the effect that her Honour was required to make a finding in relation to the distribution of profit. In the light of the decision of the appellant not to press the money claim, the claims in paragraph H2 cannot be said to have been the subject of substantial argument or, indeed, a significant issue. 30 In any event, a reading of her Honour's judgment as a whole indicates to us that her Honour was of the view that the appellant was not disadvantaged by the way Owen and Judy Crockett distributed the profits and assets of the arrangement. Indeed, her Honour commented that the discretion exercised by these two respondents over the years in distributing the profits, both as to timing and amount, "proved to be of significant benefit to the [appellant]." We agree with that assessment. 31 In our opinion, the matters raised by paragraph H2 of the notice of appeal do not raises substantial issues of principle or law nor do they have wider implications for the jurisprudence of this Commission. As her Honour correctly observed at [124] the arrangement was an unusual one and any decision on the merits of the claims in paragraph H2 would not have widespread practical implications. 32 There was no error of legal principle and no material error of fact. Her Honour did not take into account some irrelevant matter nor did the trial judge fail to take into account, or gave insufficient weight to, some relevant matter, nor was the result so unreasonable or unjust as to suggest error: see Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274 at [45] per Heydon JA (with Sheller JA and Studdert AJA concurring), which has been applied in a number of Full Bench judgments in this jurisdiction including All-Fect Distributors Ltd v Stewart (2007) 160 IR 90 at 102. 33 We decline to grant leave in relation to the ground in paragraph H2 of the notice of appeal.

34 The arrangement that we are concerned with in this appeal may be identified from the evidence of Owen Crockett. It consisted of the following elements: · Four properties: Westholme; Yeronga Hill, Iona and Marysvale. · The land in the four properties was to be farmed as a 'common property'. · The persons involved in the arrangement were Owen and Judy Crockett (which constituted a partnership), Stuart Leckie, Wendy Crockett (there was disagreement about Wendy's participation in the arrangement after December 2003), Peter Crockett and his wife. Each of these persons to varying degrees and at varying times provided their labour in the farming operation. · The profit from the farming operation of the 'common property' went into the Owen Crockett/Judy Crockett partnership. · The profit was distributed by the Owen Crockett/Judy Crockett partnership to the other parties to the arrangement (in Wendy Crockett's case up to December 2003). · Stock, plant and equipment for use in the farming operation was bought by the Owen Crockett/Judy Crockett partnership and came out of that partnership's share of the money from the farming operation. 35 As we have noted, there was a partnership between Owen and Judy Crockett and also one between the appellant and Wendy Crockett until December 2003, when Wendy Crockett terminated the partnership. The partnerships should not be confused with the overall arrangement. 12 November 2004 36 The appellant claimed that Owen Crockett terminated the arrangement without notice with immediate effect on 12 November 2004 at a meeting with the appellant, or, in the alternative, at a later meeting on 16 November 2004. The appellant contended that the reason why Owen Crockett terminated the arrangement was the appellant's refusal to agree to the matrimonial property settlement between the appellant and Wendy Crockett, as proposed by Owen Crockett. The appellant gave affidavit evidence (paragraph [25]) that on 12 November 2004 during a meeting on Iona he had a conversation with Owen Crockett to the following effect: He [Owen Crockett] said: "I am giving you an ultimatum, you have two, maybe three choices; the first choice is to forego the lease on Iona [which Wendy Crockett had earlier offered me] and keep working with me and Judy. The second choice is to continue working alone on Westholme without any of the joint enterprise stock or equipment. The third choice is to take us to court. I'm telling you, not asking you. I want your answer now." I [Stuart Leckie] said: "I will tell you next week". He [Owen Crockett] said: "Piss off. I'll be back to move the cattle off Westholme this afternoon". 37 The appellant said he took this conversation to mean that the arrangement had been terminated. On the afternoon of 12 November 2004, Owen and Peter Crockett moved about 37 head of cattle from Westholme to Iona.

38 It is necessary to understand some of the background to the conversation between the appellant and Owen Crockett on 12 November 2004. Owen Crockett was aware of the separation between his daughter and the appellant. On or about 21 March 2003 he had asked the appellant to start proceedings with regard to property settlement. In his attempts to encourage a settlement, Owen Crockett asked the appellant on three occasions over the following 20 months to come to some agreement so that Mr Leckie could move to Westholme and Wendy remain on Iona. All of those requests, he said, were unsuccessful. By December 2003, no settlement of the matrimonial assets had been reached. In about mid-December 2003, Wendy finally left Iona. 39 On 11 November 2004, Owen Crockett learned that the appellant had not shared any of the payments with Wendy Crockett that he and his wife had made to the appellant from the profits of the farming operation since December 2003. 40 In his first affidavit at paragraph [66], Owen Crockett stated as follows: On or about 12 November 2004, I had a conversation with Stuart on the verandah at "Iona" regarding the unresolved matrimonial property dispute between Wendy and Stuart. I said to him words to the effect: "There are a number of options that are open to you to resolve the matrimonial property dispute with Wendy. One would include that by way of property settlement title in Westholme be transferred solely to you and the title in Iona be transferred solely to Wendy. That appears to be an eminently fair distribution of your assets. If you don't agree to a fair resolution of the matrimonial property dispute, Judy and I will no longer financially assist either you or Wendy from our farming operations". Stuart loudly replied: "It's none of your fucking business" I said, words to the effect: "Well, it is my business because I'm 70 and I want the matter settled before I pass on. I don't want my daughter continuing to be abused and getting nothing from her inheritance." Stuart continued to shout at me: "It's none of your fucking business". I was aware that two of his children were inside and one came out from inside the house while Stuart was yelling at me. I couldn't continue talking with Stuart in front of the children because of his aggressive mood and abusive language. I said: "Piss off, Stuart". I then walked away from him and returned to my home at "Yeronga Hill". From 12 November 2004 onwards, Stuart did not turn up to work with Peter, Judy and I. On or about 12 November 2004, after the conversation referred to above, Peter and I moved about 37 head of cattle belonging to Judy and me from Westholme to Iona. 41 In his affidavit in reply to Mr Leckie's affidavit regarding the conversation on 12 November 2004, which we have set out above, Owen Crockett stated at paragraph [19]: I agree with the conversation detailed in that paragraph [paragraph [25] of Mr Leckie's affidavit]. That conversation occurred after he said to me: "It's none of your fucking business". 42 It is not clear from the evidence whether Owen Crockett was saying that he initially had a conversation with the appellant in the terms described in paragraph [66] of his first affidavit and the conversation continued in the terms set out at paragraph [25] of the appellant's affidavit after Mr Leckie was alleged to have said, "It's none of your fucking business" (either after the first or second time that obscenity was uttered) or, alternatively, Owen Crockett was accepting that Mr Leckie's version of the conversation was the correct version and that it was the only conversation that took place.

43 Whatever the case, it is not likely Mr Leckie said, "It's none of your fucking business" before hearing what Owen Crockett had to say, so it is most likely that Owen Crockett either said only the words attributed to him by Mr Leckie, or he said those words some time after the words set out in his own affidavit. That is to say, it is possible that Owen Crockett said the words attributed to him by Mr Leckie and then reinforced what he said by saying the words set out in his own affidavit at paragraph [66]. However, the appellant in his cross-examination of Owen Crockett did not explore this issue. 44 Whether or not there were two statements by Owen Crockett (his version as well as the appellant's version), we have had regard to Owen Crockett's reply affidavit, where he acknowledged the accuracy of Mr Leckie's account of the conversation and had regard to his answers in cross-examination where he accepted he put to Mr Leckie the three options referred to by Mr Leckie and where he conceded that he said to Mr Leckie, "I want your answer now". On this basis, we are satisfied that Owen Crockett confronted the appellant with three options to settle the matrimonial dispute, gave an ultimatum to the appellant that he wanted an immediate answer and, that if he did not receive an answer, that he said to the appellant he would stop paying to the appellant any monies from the farming operation. 45 Mr Hughes of counsel for the appellant, however, contended that there was more to be gleaned from the conversation on 12 November 2004. He submitted that on the basis of Owen Crockett's reply affidavit, and the sequence that would have produced as to the timing of the conversation, that Owen Crockett did not say, "Piss off, Stuart" for the reason that he was merely wanting to end a heated conversation because of his concern about the sensitivities of an approaching child. But rather that the timing and context of the words could not be seen in any light other than that Owen Crockett was thereby terminating the arrangement. 46 None of this was put to Owen Crockett at first instance and it would thus be mere speculation, on our part, as to the actual sequence of the conversation and the inferences to be drawn from it. There is therefore nothing, in our opinion, which would cause us to adopt it as the preferred scenario, especially given, as her Honour found, the confrontation between the appellant and Owen Crockett on 12 November was "intense and unpleasant". Recollections about the precise sequence of the conversation in those circumstances are likely to be unreliable. No clear picture emerges from the evidence as to whether Owen Crockett said the words attributed to him by Mr Leckie, as well as his own version of the words spoken, or as to the sequence of the conversation. 47 We note the appellant urges us to accept his version of the conversation but does not suggest that Owen Crockett put two versions to him. Yet the appellant wants us now to accept that there were two versions put in a particular sequence and context that reinforces his claim that the words "Piss off, Stuart" were to be taken as terminating the arrangement. We do not consider the appellant has discharged the onus upon him in this respect. 48 That, however, is not the end of the matter regarding the 12 November exchange. The appellant contended that the conversation and the words "Piss off, Stuart" had to be considered having regard to what was said in the context of the following matters arising from Owen Crockett's evidence: · as early as 21 March 2003 he had asked Mr Leckie to start proceedings with regard to property settlement; · he had put a deadline of 12 November 2004 upon the appellant to reach agreement as to a matrimonial distribution of assets failing which the appellant would receive no further proceeds of the sharefarming arrangement; · the appellant could not continue working unless he reached agreement as to a matrimonial distribution of assets and that the appellant did not accept such terms; · the deadline on the appellant ended on 12 November 2004. Owen Crockett said on 12 November 2004, "I want your answer now"; · the last payment by Owen Crockett to the appellant was on 11 November 2004; · after 12 November 2004 he did not pay to the appellant any further share of monies derived from the farming and grazing operations in the relevant properties; · from mid November 2004 until January 2005, Owen Crockett removed from the appellant's land plant, equipment, crops and livestock which either had been used in, or formed part of the stock in trade of, the arrangement; · he would move the cattle off Westholme [being one of the properties the subject of the arrangement] and did so that day; · he said that Mr Leckie could only continue working if an agreement was reached on the property settlement; · Owen and Peter Crockett had removed from Westholme and Iona its livestock and all plant and equipment except the overhead shearing machinery and the header so that the appellant was prevented from effectively conducting a farming business on either Iona or Westholme; and · Owen and Peter Crockett had harvested crops from Iona and Westholme without providing any of the proceeds to the appellant. 49 Notwithstanding these matters, Schmidt J concluded that Owen Crockett did not terminate the arrangement on 12 November 2004. The considerations that led her Honour to this conclusion are lengthy but they are summarised at [181]-[185] of her Honour's judgment: [181] The confrontation was intense and unpleasant. Stuart Leckie believed that Owen Crockett had no right to involve himself in these matters. There was no question that Stuart Leckie was extremely angry at what he viewed to be unwarranted interference in matters which did not concern Owen Crockett. Owen Crockett thought he had every right to involve himself, but perceived Stuart Leckie to have been so angry that he was not capable of absorbing what he was trying to say. Finally he ended the conversation by telling Stuart Leckie to 'piss off', when he saw one of the children coming to investigate, saying that he would return later to move some cattle. Plainly, nothing was agreed in this discussion, nor, however, was the arrangement terminated, although that was clearly threatened. [182] Stuart Leckie did not work between 12 November and when he met again with Owen Crockett on 15 or 16 November, having received a message from Judy Crockett the night before, through his daughter, that Owen Crockett might need some help. On Stuart Leckie's evidence, Owen Crockett asked how he was going, consistently with Stuart Leckie having wanted time to consider Owen Crockett's demand. Owen said that he was anticipating that Stuart Leckie would want to return to work. Consistently with Judy Crockett's evidence of what he had told her, Stuart Leckie's attitude was that he was not prepared to return, without receiving an apology from Owen Crockett. Owen gave Stuart Leckie the written proposal, directed to one of the options he had earlier raised - a step entirely inconsistent with an understanding on Owen Crockett's part, that he had already terminated the farming arrangement. The tenor of the conversation was consistent with Stuart Leckie's request for time to think and with Owen Crockett's evidence that he wanted to give Stuart Leckie a final period of time to come to grips with a property settlement, before he and Judy Crockett withdrew their financial support for Stuart Leckie and Wendy Crockett, by bringing their arrangement to an end. [183] On the evidence, I am unable to accept the applicant's case that the arrangement was brought to an end, without notice, on 12 November when Owen Crockett told him to 'piss off' and that he would be moving some cattle from Westholme to Iona that afternoon. I am unable to accept that such a construction was reasonably open on the words used, or that it was how Stuart Leckie understood them at the time. Stuart Leckie owned both properties with Wendy Crockett. They were both being used as part of the overall family farming arrangement, which had subsisted by then for about 14 years. Crops were due to be harvested on the various properties and stock was being raised. I accept Owen Crockett's evidence that when he told Stuart Leckie to 'piss off', he wanted to bring the discussion to an end because a child was approaching and that it was simply time for the cattle he mentioned to be moved from one of the properties being farmed to another, where other cattle were already located. [184] Owen Crockett did not say that he was terminating the arrangement there and then, he was giving Stuart Leckie notice that it would come to an end, if the property question was not resolved. Given the evidence as to the nature of the confrontation that day, Owen Crockett's impression that Stuart Leckie had not absorbed what he was saying, seems consistent with his subsequent behaviour. [185] After 12 November, Owen Crockett did not act as if the arrangement had ended. Indeed in cross examination, Stuart Leckie agreed that the operation continued to be conducted after 12 November, until he took steps to stop the respondents accessing Iona and Westholme. 50 Schmidt J considered, comprehensively, the conflicting evidence regarding the exchange that occurred between Stuart Leckie and Owen Crockett on 12 November 2004. As the above extract from her Honour's judgment shows, her Honour found against Mr Leckie. We note that earlier in the judgment at [89], after considering Stuart Leckie's evidence regarding loans between Stuart Leckie and his father, her Honour found that Stuart Leckie's evidence "had to be approached with considerable care when conflicts in the evidence required resolution". It may have been that in finding against Stuart Leckie in respect of the 12 November conversation, Schmidt J was influenced by her finding that Stuart Leckie's evidence regarding the loans "was not given in a way consistent with a strict adherence to the truth." If that were so her Honour erred. Owen Crockett accepted that Mr Leckie's version of the exchange on 12 November was essentially correct. No question of credit, therefore, arises on the present issue. 51 Nonetheless, even if credit is removed from consideration of the issue, we take the view that it was open to the trial judge to find on the evidence that Owen Crockett did not terminate the arrangement on 12 November 2004 and we consider that finding was correct. 52 We have, as her Honour did, taken into consideration Owen Crockett's frustration with Stuart Leckie in failing, in Owen Crockett's mind, to settle the question of matrimonial property with his wife Wendy. This failure extended over many months. We have also factored into our consideration that on 11 November Mr Crockett became angry upon learning that Stuart Leckie had not been sharing with his wife payments made to him by Owen and Judy Crockett. The evidence was that in an angry confrontation on 12 November, Owen Crockett outlined a number of options he considered were open to Stuart Leckie to settle the matrimonial dispute otherwise he would stop paying to the appellant any monies from the farming operation. Owen Crockett said he wanted an immediate answer. Stuart Leckie replied that he would give an answer next week after he had time to think about it. Owen Crockett said, "Piss off, Stuart" and informed Stuart Leckie that he was going to be back to "move the cattle off Westholme this afternoon". 53 We agree with her Honour's observation at [138] that "simply being told to 'piss off', would have been curious words to use to bring about the termination of this arrangement, given how it operated and who owned the properties on which it was conducted." In this regard, Schmidt J stated at [139]: [139] It was common ground that what Owen Crockett raised with Stuart Leckie was the property settlement being pursued by Wendy Crockett, with an ultimatum that if it was not resolved, then the arrangement with both Stuart Leckie and Wendy Crockett would come to an end. Owen and Judy Crockett would no longer be prepared to support either of them. This ultimatum was raised in the context of a large farming operation, involving all of the parties to these proceedings, as well as Wendy Crockett, not just Owen Crockett and Stuart Leckie. To that point, it had persisted for some 14 years, despite the difficulties in Stuart Leckie and Wendy Crockett's marriage over the preceding 6 years. Two of the properties being farmed were part owned by Stuart Leckie. Much of the livelihood of the entire extended family, including Owen and Judy Crockett's grandchildren, about whom they had always been concerned, plainly depended on the continuing success of the farming operation, which was raising stock, as well as crops, which were due to be harvested on various of the properties. There was plainly a great deal at stake for all concerned. 54 To accept that in using the words 'piss off' Owen Crockett was summarily terminating the arrangement means that one has to accept he was bringing to an end a successful farming operation that the entire family had benefited from for the past 14 years; it would mean that Owen and Judy Crockett and their son Peter would most likely no longer have access to Iona or Westholme, they being owned by Stuart Leckie and his wife and in respect of which there was a matrimonial property dispute. 55 It also means one has to accept the summary termination occurred notwithstanding that Stuart Leckie had indicated he would respond to Owen Crockett's ultimatum "next week" and where the next payment to Stuart Leckie, which Owen Crockett was threatening to withhold, was not due for at least another six weeks. That is to say, on the appellant's case Owen Crockett summarily terminated a successful farming operation from which the whole family benefited, in circumstances where Stuart Leckie had indicated he would respond within a relatively short time frame (12 November 2004 was a Friday) and where the payment Owen Crockett was threatening to withhold was not due to be made for at least another six weeks. 56 There is no basis upon which to disbelieve Owen Crockett's evidence that he said "Piss off, Stuart" because he felt he could not continue talking with Stuart Leckie in front of the children because of the latter's "aggressive mood and abusive language." The words "piss off" in those circumstances may be taken as meaning no more than Owen Crockett saying to Stuart Leckie "Go away, I do not want to listen to you any longer" or "this conversation is finished". 57 In so far as the movement of the cattle from Westholme to Iona is concerned, Stuart Leckie's evidence was that he believed this was done to unilaterally give effect to one of the options Owen Crockett had put to him, namely, the arrangement terminating and Stuart Leckie moving to Westholme and farming it himself. As her Honour noted, however, Iona was part owned by Stuart Leckie. He lived there. The cattle from Westholme were mixed with others already at Iona where they remained until the beginning of January 2005, when they were moved to Yeronga Hill. It would be an odd way for Owen Crockett to act, having allegedly terminated the arrangement with Stuart Leckie, to move cattle to a property half owned by Mr Leckie, in which Mr Leckie was in residence and in respect of which there was an ongoing matrimonial dispute about how it should be split between the disputing parties. Owen Crockett said the cattle were moved on 12 November because it was time for that to occur and had nothing to do with terminating the arrangement. There was no contradictory evidence and Owen Crockett was not challenged in cross-examination on this matter. Wendy Crockett

58 The appellant relied on what he described as the corroborating evidence of Wendy and Peter Crockett to show that Owen Crockett terminated the arrangement on 12 November. Schmidt J dealt with the asserted corroboration by Wendy Crockett at [175]-[177]. Wendy Crockett had given a police statement in associated criminal proceedings, which contained the statement that "dad told Stuart that the working relationship was off ". At [176]-[177] Schmidt J found as follows: [176] Wendy Crockett's statement in February 2005, that her 'dad told Stuart that the working relationship was off between them, as he was sick of all Stuart's carrying on.' was the only evidence which corroborated Stuart Leckie's version of what had occurred on 12 November. Wendy Crockett was not present on 12 November, during the discussion between Stuart Leckie and Owen Crockett. There was evidence that Stuart Leckie told her what had occurred later that same day. There was no evidence that she discussed what had happened with her father. She was not cross examined about her understanding of what had happened, or what she said in this statement, which departed significantly from the evidence which both Stuart Leckie and Owen Crockett gave in these proceedings, as to what they both said and did that day. [177] Given the state of the evidence, I am unable to accept that Wendy Crockett's understanding, as appears in this statement, which appears to have been gleaned from Stuart Leckie, can outweigh the evidence which both Stuart Leckie and Owen Crockett gave in these proceedings as to what in fact transpired that day. 59 To the extent her Honour found that: Wendy Crockett was not present on 12 November during the discussion between Stuart Leckie and Owen Crockett; that there was evidence that Stuart Leckie told her what had occurred later that same day; that there was no evidence that she discussed what had happened with her father; and that she was not cross examined about her understanding of what had happened, or what she said in the police statement, there was no error. We consider that her Honour was entitled to conclude that Wendy Crockett's police statement did not, in a materially relevant way, corroborate Stuart Leckie's claim that Owen Crockett terminated the arrangement. Peter Crockett 60 The appellant's reference in the notice of appeal at question F2 to Peter Crockett's evidence was that he had said in a police statement in separate proceedings that Owen Crockett "had cancelled his [the appellant's] right to share farm on the property." He also signed a complaint and summons alleging, "Mr Owen Crockett terminated the [sharefarming] arrangement on 12/11/04." This document was not before her Honour and appears it was inadvertently omitted as an exhibit to Peter Crockett's affidavit. Peter Crockett had referred in his affidavit to the statement as an attached document marked "A" but it was not, in fact, attached. No party appears to have drawn attention to the fact that the attachment was missing. In any event, the respondents had no objection to the document being considered in the appeal and so we have had regard to it. 61 The appellant contended that Schmidt J should have dealt with Peter Crockett's police statement because her Honour dealt with the statement of Wendy Crockett. It was submitted that her Honour erred in not dealing with Peter Crockett's statement. Given the statement was missing as an exhibit to Peter Crockett's affidavit, given that this was not drawn to her Honour's attention by any party and given that the appellant never sought to make anything of the statement before her Honour, it is plain why the trial judge did not deal with it. Wendy Crockett's statement, on the other hand, was before her Honour yet the appellant did not seek to make anything of that statement. 62 The appellant's submission that Schmidt J erred in not taking Peter Crockett's police statement into account lacks substance. Certainly, the statement was missing from the evidence. Arguably, the appellant could have contended that as it was missing he was not aware of its content or its implications. However, the statement was referred to in Peter Crockett's affidavit as an exhibit to the affidavit and Wendy Crockett had made a similar statement to police where she also referred to the termination of the arrangement by her father. It may reasonably be concluded that this should have alerted the appellant to the potential for Peter Crockett to have said something about the arrangement. But the appellant neither sought to have Peter Crockett's statement produced nor relied on Wendy Crockett's statement as corroboration of Stuart Leckie's claim that Owen Crockett terminated the arrangement. Wendy Crockett's statement only assumed a place in her Honour's consideration because of her Honour's diligence in examining the evidentiary record, not because of any case put by the appellant. 63 Now the appellant makes the claim that Schmidt J erred because her Honour had regard to Wendy Crockett's statement but did not have regard to Peter Crockett's police statement. We reject the proposition that her Honour erred.

64 The appellant contended, nevertheless, that: (i) as was Wendy Crockett's statement, it was clearly corroborative of Stuart Leckie's assertion that Owen Crockett "cancelled his right to share farm on the property".

(ii) it was made by - a) a Respondent to the proceedings below who was also,

c) almost 5 months after the day of the so-described "cancellation",

d) it was professedly true to the best of Peter Crockett's knowledge and belief.

(iii) This matter deserves logical and objective analysis: a) If the source of Peter Crockett's belief that Owen Crockett had cancelled Leckie's right to share farm on the property was Leckie or Wendy Crockett in circumstances where Peter Crockett remained the only effective partner to the arrangement with Judy/Owen after 12 November, then it is simply unbelievable that he was not exposed to Owen Crockett's strident view that Leckie had terminated. It was glaringly improbable that Peter Crockett would not have enquired of or had made known to him Owen Crockett's view of it for a full five months. All the more so in circumstances of Peter Crockett's acrimonious relationship with Leckie and continuing working relationship with his own father.

(iv) In any event, Peter Crockett's statement is an admission not rendered inadmissible by the operation of either the hearsay or opinion rules: s 81 of the Evidence Act 1995. In light of the foregoing: a) Peter Crockett's statement was, contrary to Her Honour's finding, clearly evidence which corroborated Stuart Leckie's version of what had occurred on 12 November.

b) Peter Crockett's statement was an admission by a person who became a party to a proceeding, that is adverse to the person's interest in the outcome of the proceeding and constituted a previous representation (in writing) to which by reason of the operation of s 81, the hearsay and opinion rule did not apply.

c) The statement was an admission by Peter Crockett, adverse to his interest, that Stuart Leckie's version of who in fact terminated (i.e., Owen Crockett) was the correct version. Such a construction is inescapable.

d) Not only did Her Honour err in disregarding/failing to address this vital evidence, this error led her to a factual finding that was plainly wrong and against the evidence.

e) The attack on her Honour's discretionary finding that Stuart Leckie terminated the arrangement must succeed, it having been shown that she: (i) made a material error of fact;

(ii) failed to take into account, or gave insufficient weight to, some relevant matter, or

(iii) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of her reasoning - see All-Fect Distributors v Stewart (2007) 160 IR 90 at 92.

(iv) What her Honour did in this case was near as precisely to what was described by the Full Court in Keycorp Limited v Michael Thomes (2004) 141 IR 116 at [15]-[17] (i.e., failed to take into account contemporaneous correspondence which repeatedly states matters that are wholly at odds with the conclusions reached). 65 We have to consider whether what Peter Crockett said about the exchange between his father and Stuart Leckie requires us to reverse our earlier conclusion that it was reasonably open to Schmidt J to find that Owen Crockett did not terminate the arrangement on 12 November and substitute it with a finding that he did, on the basis that Peter Crockett corroborated Stuart Leckie's understanding of what occurred. 66 In his statement to the police, Peter Crockett said: About the 10th or 11th of November 2004 dad went to talk to Stuart and they both got in an argument and dad cancelled his right to share farm on his property. 67 According to Stuart Leckie, however, Owen Crockett said to him on 12 November: I am giving you an ultimatum, you have two, maybe three choices; the first choice is to forego the lease on Iona [which Wendy Crockett had earlier offered me] and keep working with me and Judy. The second choice is to continue working alone on Westholme without any of the joint enterprise stock or equipment. The third choice is to take us to court.

68 Earlier, we found that Owen Crockett said to Stuart Leckie on 12 November that he would stop paying to the appellant any monies from the farming operation. 69 At no time did Stuart Leckie claim that Owen Crockett "cancelled his right to share farm on his [Owen Crockett's] property". Nor did Owen Crockett claim that he said to Stuart Leckie words to the effect, "I am cancelling your right to share farm on my property." Owen Crockett's only property, of course, was Yeronga Hill. 70 Peter Crockett's statement neither directly corroborates Stuart Leckie's understanding of what occurred on 12 November nor reflects Owen Crockett's version of what occurred on that day.

71 Peter Crockett's police statement was made on 12 March 2005, some four months after a conversation to which he was neither a participant nor a witness. The statement does not set out the content of the conversation and only relates a belief as to what was said which, in any event, is not directly consistent with either Stuart Leckie's version or the version of Owen Crockett. There was no evidence as to how Peter Crockett came to be aware of the information he conveyed in his statement, he was not questioned about the statement and the appellant did not seek to rely upon it at first instance.

72 If Peter Crockett's police statement had been the subject of her Honour's consideration at first instance it is most likely it would have been regarded by her Honour in the same light she viewed Wendy Crockett's statement, which was given to police on the same day and related to the same incident described by Peter Crockett in his statement. We do not consider that the statement by Peter Crockett should lead us to a different conclusion regarding the 12 November exchange to that earlier stated. 73 In addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Port Macquarie Golf Club Limited v Stead and Another (1996) 64 IR 53 at 59 and the cases referred to therein, namely: The Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan (1931) 46 CLR 73 at 107; Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations (1985) 3 NSWLR 685 at 690-692; 14 IR 269 at 273-274; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178; Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201; (1993) 48 IR 396 at 406; Walker v Industrial Court of New South Wales & Anor (1994) 53 IR 121 at 129; and Haynes v C I & D Manufacturing Pty Limited (1994) 60 IR 149 at 154.

74 The onus in the proceedings at first instance was on the appellant to prove on the balance of probabilities that it was Owen Crockett who terminated the arrangement on 12 November 2004. Schmidt J decided, on the basis of a comprehensive review of the evidence, that the appellant had not discharged his onus. In our opinion, it was reasonably open to her Honour, on the evidence, to come to that conclusion. There is no basis for this Full Bench to interfere with her Honour's finding regarding the exchange between the appellant and Owen Crockett on 12 November 2004. 16 November 2004

75 In the alternative to the proposition that Owen Crockett terminated the arrangement on 12 November 2004, the appellant submitted that Owen Crockett terminated the arrangement in a conversation on 15 or 16 November 2004. As her Honour noted at [186], this was "pressed for the first time in submissions in reply". 76 Schmidt J referred at [145] to a note written by Stuart Leckie on 18 November: [145] Stuart Leckie kept a handwritten note of what had occurred on 12 November and later on 15 or 16 November, when he and Owen Crockett spoke again. The note was prepared on 18 November under the heading 'sacking'. In cross examination, Stuart Leckie explained that this was a fuller account of what had occurred on those days than that contained in his affidavit… 77 In relation to what occurred on 16 November Mr Leckie's note said: The following Tuesday, Tuesday 16th Nov, I left the house at Iona about 8:15 and walked down to the paddock where Owen was beginning to hook up a bale carrier. I was out Monday evening and I was told on my return by my eldest daughter that Judy had said 'Owen may need help with hay carting tomorrow'. Hoping he'd changed his mind about sacking me, I walked down.

I asking him purposefully, as the situation was serious for me. "Are you asking me back to work"? His reply was "depends if you want to". I corrected him, at least I thought I did, by saying "no, it's up to you to ask me back. I would really like to continue working with you."

It then became clear that my return to work was dependent on my accepting his demand for me to agree to his terms of settlement with my wife.

I said something to the effect of - "you mean your' saying I can't return to work unless I sign you (sic) settlement? He had produced a sheet of paper which he gave me, restating the first option which he had dictated to me the previous Friday. His answer was 'yes' though he didn't meant that actual bit of paper.

At that I walked off. 18/11/04 I told Judy Crockett the following afternoon that it was extortion and it was wrong, to which she replied 'I am out of it'.

He also said in reply to my statement 'that's not the way to do things' Owen "that's the way I do things."

In the course of an SMS 'conversation' with my wife on Tuesday 16th Nov 2004, (she had replied to a question of mine whether or not she would help with income payments as they were due) I said/texted "your father has given me the sack for not signing off on his version of settlement. He is an old fashion loose cannon". No reply.

Conversation with Tony Cheney 18/11/04, whereby, after being relayed the chain of events leading to my dismissal, he recommended, if I desired, filing an unfair dismissal claim against my father-in-law. 78 At [146] Schmidt J noted: [146] The reference to Mr Cheney was a reference to the applicant's then solicitor. Again a shorter account of the conversation on 16 November appeared in Stuart Leckie's affidavit evidence. Owen Crockett did not challenge either version. The written proposal which Owen Crockett gave Stuart Leckie on 16 November was:

Stuart Leckie will remove his name from the Deeds of "Iona"

"Iona" will be held in Wendy Crockett's name or jointly with Peter Crockett.

Wendy Crockett will remove her name from the Deeds of "Westholme".

"Westholme" will be held in the name of Stuart Leckie solely.

Because "Iona" is more valuable than "Westholme" Wendy will allow Stuart to live in "Iona" indefinitely for no rent.

There will be no financial adjustment either way. 79 Schmidt J, at [153], referred to a letter written by Stuart Leckie on 16 November to Owen and Judy Crockett in the following terms:

It is difficult to reply to your settlement 'offer', as it was presented as a demand upon the acceptance of which hangs a job.

I have had enough of deadlines, threats and ultimatums.

Furthermore having four of you (Wendy, Judy, Owen and Dalton) to deal with is ridiculous and unworkable. One says one thing and another does another as with our agreement Judy.

Wendy restated this morning (via sms) that Dalton is her negotiator so that is who I'll deal with; and Wendy herself.

Why can't you trust Wendy and I to sort it our between ourselves? I know it seems a long time to you but on the receiving end here it only seems to have been the blink of an eyelid. Between work, the house, kids and sport it seems little enough time to think it through and assimilate what it will mean. I have been making efforts to settle the dispute since returning from Uluru. At times, I admit, I've lacked inclination both because I have been deeply hurt and at times, very angry.

I was wanting you to apologise Owen (though you said this morning you won't), not for your rude ultimatum or telling me to piss off from work, through after nearly 20 years here, that hurt; but rather for telling me to piss off to Westholme and moving the cattle because that of course means you are also telling the kids to piss off from what is, after all, their Family home. That rudeness and disregard for the kids wellbeing I cannot accept.

If everybody keeps their cool, me included, we can do this. Please allow Wendy and I to work this out between ourselves. We can you know.

Wendy reminded me Owen that Iona was your inheritance. It is obviously hard for you. I think I have said before that I do not want sole ownership of Iona. I did at one stage think that changing from joint tenant to tenants in common my have been preferable but that thoughts nearly gone. Depending on how our relationship survives I may need the use of the land.

I envisage and hope both Iona and Westholme will be left to our children. I'm sorry if that does not meet your expectations. 80 In relation to this letter, her Honour found at [154]: [154] On its face, this letter does not suggest an understanding when it was written, that the arrangement had already been brought to an end. Stuart Leckie described Owen Crockett's demand as 'a demand upon the acceptance of which hangs a job.' That is not the language of a termination of the arrangement having already occurred. The statement that Owen Crockett had told him to 'piss off from work', did not reflect what Owen Crockett said, either on Stuart Leckie's own account in these proceedings, or in the note he made of the conversation on 18 November. Owen Crockett did not mention work, when telling Stuart Leckie to 'piss off', nor did he say to Stuart Leckie that he should 'piss off to Westholme', as the letter suggested. 81 At [156] the trial judge noted that Stuart Leckie also claimed that he and Owen Crockett had a further conversation later in November (Owen Crockett denied he spoke to the appellant after 16 November), to the following effect: He [Owen Crockett] said,' Are you making any progress yet? I thought you might want to come back to work".

I [Stuart Leckie] understood this to be his way of saying have you agreed to my terms for your property settlement with Wendy?

I [Stuart Leckie] said, "No, and its none of your business".

He [Owen Crockett] laughed in reply. 82 At [157] Schmidt J found that, even if Stuart Leckie's recollection about the conversation in late November was accepted, that: [T]he conversation suggests that Owen Crockett expected that Stuart Leckie would return to work and that Stuart Leckie was not prepared to do so, consistently with his evidence in cross examination and what he had told Judy Crockett. Stuart Leckie's attitude remained that the property question was not a matter for Owen Crockett and he was no longer prepared to work with him. Stuart Leckie's evidence that he understood that the words 'Are you making any progress yet? I thought you might want to come back to work' to mean 'have you agreed to my terms for your property settlement with Wendy', was simply not credible, given that, even on Stuart Leckie's own account, Owen Crockett had proposed three options for sorting out the property dispute, including litigation, not just one. 83 Further, at [158] her Honour found: [158] Despite Stuart Leckie's evidence that his understanding was that the arrangement had been terminated, in cross examination he also agreed that the farming operation continued after the discussions both on 12 and 15 or 16 November. It was in his letter of 16 November that he advised that 'Depending on how our relationship survives I may need the use of the land.' This foreshadowed for the first time that the land might not be available any longer to the respondents. Again, that advice was, nevertheless, consistent with an understanding that the relationship was still on foot at that point. 84 At [163] Schmidt J referred to a conversation Stuart Leckie said he had with Owen Crockett on 19 December 2004, a conversation that Owen Crockett denied as ever having occurred: He [Owen Crocket] said, "So you want to dissolve the partnership do you?"

I [Stuart Leckie] said, "You already have dissolved it when you told me to piss off."

He [Owen Crockett] said, "You must be dreaming Stuart I never said that. When did I say that?"

At the conclusion of this exchange Owen Crockett followed me back up the road to the house in his utility. When I realised that he was following me, I ran down the driveway shouting at him to get off the property. At low speed, he drove his utility towards me causing me to be thrown onto the bonnet. Owen Crockett still refused to leave until my eldest daughter came onto the veranda, obviously distressed by the events she had witnessed. A copy of my notes of these events made on 20 December 2005 is at tab 10. 85 In the notes Stuart Leckie made of the alleged conversation, the last aspect recorded was in the following terms: Sorry Grant, I suspect the policeman told him on the 15/12/04. My stupid mistake. I believe the accompanying letter was written with 106 knowledge. 86 In relation to this last part of Mr Leckie's notes, Schmidt J referred to the fact that in cross examination Stuart Leckie explained that it referred to an earlier interview which he had had with a policeman, when he had complained about some damage to his property. During the interview, Mr Leckie explained that he had taken legal advice in relation to bringing proceedings under s 106 of the Act. Her Honour noted that Stuart Leckie suspected that the policeman had later told Owen Crockett about this and that this explained Owen Crockett's conduct towards him. At [165] Schmidt J observed that, "This suggestion was not put to Owen Crockett in cross examination. His evidence was that he had no conversation with Stuart Leckie after 16 November." 87 At [182] Schmidt J gave consideration to the exchange between Stuart Leckie and Owen Crockett on 15 or 16 November: [182] Stuart Leckie did not work between 12 November and when he met again with Owen Crockett on 15 or 16 November, having received a message from Judy Crockett the night before, through his daughter, that Owen Crockett might need some help. On Stuart Leckie's evidence, Owen Crockett asked how he was going, consistently with Stuart Leckie having wanted time to consider Owen Crockett's demand. Owen said that he was anticipating that Stuart Leckie would want to return to work. Consistently with Judy Crockett's evidence of what he had told her, Stuart Leckie's attitude was that he was not prepared to return, without receiving an apology from Owen Crockett. Owen gave Stuart Leckie the written proposal, directed to one of the options he had earlier raised - a step entirely inconsistent with an understanding on Owen Crockett's part, that he had already terminated the farming arrangement. The tenor of the conversation was consistent with Stuart Leckie's request for time to think and with Owen Crockett's evidence that he wanted to give Stuart Leckie a final period of time to come to grips with a property settlement, before he and Judy Crockett withdrew their financial support for Stuart Leckie and Wendy Crockett, by bringing their arrangement to an end. 88 At [186], Schmidt J indicated that she was unable to accept the appellant's contention that Owen Crockett brought the arrangement to an end on 16 November. At [187] her Honour expressed her reasons for coming to this view and the view that it was Stuart Leckie who, by his conduct, terminated the arrangement: [187] Stuart Leckie's letter of 16 November reflected that rather than their conversation on 12 November having already resulted in the arrangement being brought to an end, it was Stuart Leckie who was not prepared to accept that Owen Crockett had any interest in the property settlement; who was not prepared to accept any demands; and was not prepared to return to work without an apology. On 16 November, Owen Crockett was expecting that Stuart Leckie would resume working. He was not prepared to do so. Consistently with that attitude, Stuart Leckie later took steps to preclude the respondents from continuing to farm Iona and Westholme. First he used silicone to jam the lock on the padlock on a gate, to preclude access when crops needed to be harvested; then he demanded that the respondents obtain his prior written approval to come onto the properties, even though they had Wendy Crockett's permission to do so, and finally he obtained AVOs against Owen and Peter Crockett, which precluded them from entering Iona or Westholme at all. It was those steps which finally precluded the arrangement from continuing.

89 In contending that her Honour erred in her interpretation of events on 16 November and subsequently, the appellant referred to his contemporaneous note where he asked Owen Crockett, "Are you asking me back to work?" and that according to the same note he subsequently asked "you mean you're saying I can't return to work unless I sign you (sic) settlement". It was submitted that in both his contemporaneous note and his affidavit evidence the appellant stated words to the effect, "I would like to keep working with you". In both versions, it was submitted, Owen Crockett made clear that the appellant could only keep working with him if the appellant accepted the proposed property settlement. Mr Hughes submitted there was a strong consistency in Stuart Leckie's oral and written versions of the conversations, neither of which, as found by her Honour, was challenged. 90 Further, counsel for the appellant noted the appellant deposed that in late November, Owen Crockett said to him, "Are you making any progress yet? I thought you might want to come back to work". The appellant took that to mean "have you agreed to my terms for your property settlement with Wendy?" It was submitted her Honour erred in finding that Stuart Leckie's interpretation "was simply not credible, given that, even on Stuart Leckie's own account, Owen Crockett had proposed three options for sorting out the property dispute, including litigation, not just one." Counsel submitted that the basis for this finding was impossible to discern from her Honour's stated reasons and that her Honour did not explain why the existence of three options rendered Stuart Leckie's interpretation "simply not credible". 91 It was further submitted by counsel that on a proper analysis of the words, "It is difficult to reply to your settlement 'offer', as it was presented as a demand upon the acceptance of which hangs a job" in Stuart Leckie's letter to Owen and Judy Crockett on 16 November, what the appellant was saying was that, "you've sacked me, now you presented me with this demand to sign a property settlement. If I don't sign it, I won't have a job". It was submitted this was a fairer reading of the letter than the one attributed to it by Schmidt J, namely, that it was not the language of a termination of the arrangement having already occurred. Counsel for the appellant also submitted that there was no evidence from Owen and Judy Crockett, the recipients of the 16 November letter, that they acted in any way to correct his asserted apprehension that what "piss off" meant was "piss off from work", as stated in the sixth paragraph of the appellant's letter.

92 It does seem to us somewhat odd for the appellant to claim so categorically, as he did, that Owen Crockett terminated the arrangement on 12 November, but in his reply submission claim in the alternative that if termination did not occur on 12 November then it occurred on 16 November. 93 In any event, what Schmidt J found was that consistent with Judy Crockett's evidence of what he had told her, Stuart Leckie's attitude was that he was not prepared to return to work without receiving an apology from Owen Crockett. On 16 November, Owen Crockett gave Stuart Leckie the written proposal headed "Property Settlement" referred to earlier, directed to one of the options Owen Crockett had raised on 12 November. Schmidt J regarded the handing of the written proposal as "a step entirely inconsistent with an understanding on Owen Crockett's part, that he had already terminated the farming arrangement". When one considers that step in conjunction with the fact that Stuart Leckie had received a message from Judy Crockett the night before, through his daughter, that Owen Crockett might need some help in the farming operation, we have to agree with her Honour that Owen Crockett was not conducting himself as though the arrangement had already been terminated. 94 As to the conversation between Owen Crockett and Stuart Leckie on 15 or 16 November, it is tolerably clear on the evidence that Stuart Leckie indicated he would like to continue working with Owen Crockett. Owen Crockett's reply was that this could only occur if Stuart Leckie reached a property settlement, but not necessarily the settlement proposed by Owen Crockett. 95 Owen Crockett said that he gave Stuart Leckie the written property settlement proposal because he thought Stuart Leckie had been too angry to absorb what he had been trying to say on 12 November. But in providing Stuart Leckie with a written proposal on 15 or 16 November, and indicating to Stuart Leckie he could not continue working with him unless he reached a property settlement, it is open to find that Owen Crockett was doing no more than reiterating the position he put to Mr Leckie on 12 November, namely, that if a property settlement was not reached (be it based on his proposal or otherwise) Owen Crockett was giving notice that he would not provide Stuart Leckie with any further share of the income from the farming operation, the next distribution of that income being at least six weeks away. 96 There was no evidence, in our opinion, to indicate that if Mr Leckie had continued working after 12 November that Owen Crockett would have precluded him from so working. Indeed, Owen Crockett had indicated to Mr Leckie through his wife Judy and Mr Leckie's daughter that he might need some help with hay carting on 16 November. The farming operation continued and there was work for Mr Leckie to undertake if he had chosen to do so. Consistent with the relevant principles guiding appellate review that we earlier referred to, it was open for the trial judge to find, as her Honour did at [187] that: On 16 November, Owen Crockett was expecting that Stuart Leckie would resume working. He was not prepared to do so. Consistently with that attitude, Stuart Leckie later took steps to preclude the respondents from continuing to farm Iona and Westholme. First he used silicone to jam the lock on the padlock on a gate, to preclude access when crops needed to be harvested; then he demanded that the respondents obtain his prior written approval to come onto the properties, even though they had Wendy Crockett's permission to do so, and finally he obtained AVOs against Owen and Peter Crockett, which precluded them from entering Iona or Westholme at all. It was those steps which finally precluded the arrangement from continuing. 97 As we earlier noted, Owen Crockett denied there were any further conversations between him and Stuart Leckie after 16 November. Schmidt J considered Mr Leckie's evidence that such a conversation did occur later in November. We consider her Honour's findings regarding this alleged conversation at [157] were open to her. 98 We find that Schmidt J did not err in holding that Owen Crockett did not terminate the arrangement on 15 or 16 November 2004.

(1) Leave to appeal is granted to the extent determined in these reasons.

(3) The appellant shall pay the respondents' costs of the appeal as agreed or, failing agreement, as assessed. _____________

AMENDMENTS HISTORY: 15/11/2007 - Name amended from "Owen Leckie" to "Owen Crockett". - Paragraph(s) [98]

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