Mr Slater
28 The defendants' submissions on the credit of Mr Slater were extensive. I set them out below (as amended by the defendants' reply submissions received on 30 October 2009):
"9. Mr Slater should not be accepted as a witness of credit.
10. His demeanour as a witness was aggressive, belligerent, evasive and non-responsive. He frequently avoided answering direct questions, and resorted to giving speeches. He made outlandish or exaggerated statements. At best he exaggerated. At worst he was deliberately untruthful.
11. Mr Slater is plainly a man who likes to be in control. He frequently attempted to take control of his cross-examination. He is no shrinking violet.
12. Mr Slater was at pains to attempt to portray himself as a simple man, unsophisticated in the ways of commerce or business. Although he denied it, that was a deliberately contrived position. He offered no direct response when confronted with the proposition that he was endeavouring to understate the experience and understanding that he had in respect of earning a return. Despite repeated statements that he is and was a mere "truck driver", Mr Slater has in fact worn many other hats over many years. He has even sworn affidavits, in these proceedings, where he described his current occupation as a company director, although when giving oral evidence he was careful to describe himself as a "truck driver". The evidence of any truck driving is scant. When questioned as to when he ceased to be a company director and started to be a truck driver, he said: "I have always been both". It is submitted that Mr Slater's attempts to portray himself as a mere "truck driver", were part of a deliberate attempt to give the Court the false impression that Mr Slater was a man inexperienced in business and business transactions.
13. The evidence discloses that Mr Slater has:
(a) been a company director since at least 1979;
(b) been in the equestrian business for 50 years, had extensive experience in the sale of thoroughbreds and other horses, and during that time he has:
(i) owned, bred and maintained all sorts of horses, including thoroughbred horses and show jumpers;
(ii) sold horses to clients in Australia;
(iii) sold horses to clients overseas, including Indonesia, Singapore, Malaysia and Taiwan;
(iv) sold at least one horse for a very significant sum of money;
(v) had investments in various equestrian businesses;
(vi) been a licensed thoroughbred horse trainer;
(vii) been an accredited bloodstock agent;
…..
(d) a detailed understanding of the horse industry;
(e) engaged in substantive construction and development of his property in Western Australia, Lots 15 and 16, over a period of 15 years including:
(i) personally carrying out building works;
(ii) engaging others to carry out works on his behalf, whilst supervising such projects;
(iii) conducting extensive earthworks;
(iv) generally supervising the development of that property;
…..
(g) described himself as a "developer" before a Standing Committee on Constitutional Affairs and Statutes Revision of the Western Australian Parliament ("the Parliamentary Standing Committee");
…..
(j) lobbied a Parliamentary Standing Committee in relation to land development;
(k) been involved in numerous legal proceedings, other than the present ones, including:
(i) Family Court proceedings with his ex-wife;
(ii) proceedings which he brought on his own account against Casula;
(iii) the Strawberry John litigation;
(l) a detailed understanding of various dealings in real property, including:
(i) the lodging of caveats;
(ii) the creation of equitable mortgages;
(iii) the creation of unregistered mortgages;
(m) been involved in numerous trusts, including the Summerfield Trust and the Bill Slater Family Trust;
(n) had set up and maintained complex corporate and family trust structures;
(o) had a keen understanding of the distinction between an individual and a corporate entity;
(p) had a clear understanding of the difference between acting on his own account and in the capacity of a trustee;
(q) is aware of the taxation implications of various commercial dealings and decisions he has made;
(r) understood that a high rate of interest on a loan reflected a high rate of riskiness of the investment;
(s) understood the relative degree of riskiness of a third mortgage, indeed, in his words, a third mortgage was: "useless" because two other people stand in front of you;
(t) understood that not all property developments make money;
(u) is a man who makes up his own mind;
(v) was sufficiently confident to reject the recommendation that he take further advice on tax issues, when it was suggested that he do so by Mr Simpson;
(w) elected not to follow the advice of Deacons, including, their taxation expert, Mr Toole, to the effect that it would be risky to proceed on the basis that the constructive trust is held by Bill Slater as trustee for the Summerville Trust [sic], and that it would be preferable to seek a private tax ruling and appeal if the ruling were unfavourable;
(x) on his evidence, engaged in discussions with Mr Woodgate concerning the imminent sale of the horse Jox and the tax implications which would arise from such sale and the use of accumulated losses to offset the tax which would be payable in relation to such sale;
(y) on his evidence, considered and rejected a suggestions by Mr Simpson that he invest in various projects prior to the Mona Vale development, namely:
(i) an ice cream business at Coogee;
(ii) a franchise, called Shakespeare pies;
(iii) an investment in a development in Wollongong;
(iv) a development concerning vacant land at Ingleside at Mona Vale;
(z) even in the face of recommendations from Mr Simpson that he needed tax advice on capital gains tax issues, chose not to obtain any such advice.
14. In his evidence Mr Slater denied that he had carried out property development work, seeking to distinguish between "property development" and "developing a property" (which was a distinction without a difference), yet before the Parliamentary Standing Committee he had no trouble calling himself a "developer". It is also plain from the evidence he gave to the Parliamentary Standing Committee that he had knowledge and experience of property development, and indeed, his evidence in relation to what he had done on Lots 15 and 16 revealed quite clearly he had engaged in property development activities on that land for 15 years.
15. Mr Slater is an experienced, hard-nosed businessman, with substantial experience of real property dealings, trusts and commercial transactions, including property developments. He attempted to present himself as commercially naive and unsophisticated, but nothing could be further from the truth. The objective evidence discloses that Mr Slater was at all material times a strong-willed and vigilant protector of his own commercial interests.
16. Mr Slater made important concessions that there were numerous past instances where, in circumstances where he was under a legal obligation to tell the truth, he had knowingly and deliberately failed to do so, including:
(a) making a knowingly false statutory declaration in 1994;
(b) in 1995 he told the Parliamentary Standing Committee that horse "buyers from Asia continually come down here in droves" yet in his evidence he first denied buyers had ever come to Western Australian equestrian centres in droves, and then confronted with evidence he had given to the Parliamentary Standing Committee which suggested that they had, denied that it was correct;
(c) in 1995 before the Parliamentary Standing Committee he described himself as developer twice, yet denied he had seen himself as a developer in 1995. When it was put to him that he was giving incorrect evidence to the committee he simply responded: "Yeah, yeah, look, Mr Stoljar ..." and then proceeded to give an unresponsive speech, and asserted: "You are reading into this document things that never happened, right?" Plainly, he had described himself as such before the committee;
(d) when it was suggested to him that he had exaggerated some of the evidence given to the Parliamentary Standing Committee, he did not deny that suggestion, but simply said: "I am saying that I wanted, I didn't want any development in the area whatsoever", which was effectively a concession that he had;
(e) just a few moments later, he was asked: "is it the case that you say that the evidence that you gave to the committee was exaggerated?", he answered: "You can put it that way if you like" effectively conceding that he had, but then he refused to accept that; and
(f) he conceded that certain matters which he had verified as true in the statement of claim on 31 May 2006, which he claimed to have read through to ensure that it was true and correct before he swore his affidavit verifying it, included allegations which had no basis in fact.
17. There were also the following instances where Mr Simpson conceded that, during the course of his evidence in these proceedings, he had given false evidence:
(a) he conceded that the evidence he had given on 19 October 2009 that he had received a letter from Mr Simpson between the period July 1999 and January 2000 which gave him confidence that the Mona Vale investment was going to plan was simply false;
(b) at first he said that paragraph 11(vi) of the statement of claim contained words said to him by Mr Simpson; then he changed that evidence; and then when confronted with the suggestion that the original evidence was false, the best he could say was: "I need some help here"; and
(c) he conceded that the verification of the second-cross claim, and in particular, paragraph 9, was incorrect, despite having carefully read the cross-claim before he swore the affidavit, and satisfied himself that the contents of that cross-claim were true and correct.
18. There were instances where he gave evidence which was also plainly false, even though he did not concede it, such as:
(a) when first shown the judgment in Slater v Strawberry John Pty Ltd [2002] WASC 204 ("the Judgment") he claimed that had "read it a long time ago", yet is abundantly plain from the handwritten pencil notes on the face of Ex 4 that he had looked at it the very night before,
(b) after a brief adjournment, Mr Slater was questioned about his statement that he had not read the Judgment for some time, and could not remember what was in it, and was asked whether that evidence was true or false. Rather than answer that question directly, Mr Slater attempted to assert that he was somehow confused about whether Ex 4 was a "judgment or a finding", but then almost straight away conceded that he knew that the document which became Ex 4 was a copy of the judgment in the Slater v Strawberry John proceedings. He then conceded that he had read the Judgment the previous night;
(c) Mr Slater then asserted that the pencil marks had been made "ages ago". That was plainly a false statement, and must have been knowingly false at the time it was made. His subsequent explanation of this comment was entirely unsatisfactory for the following reasons, and was a transparent attempt to explain away what was plainly the untruthful evidence that Mr Slater had earlier given. First, it is clear that the pencil notation made the night before was not on any view made "ages ago". Secondly, the balance of the pencil marks were conceded to have been made the Thursday, Friday or the weekend before the hearing (ie. on one of 15, 16, 17 or 18 October). Given that the evidence that those marks were made "ages ago" was given on Monday, 19 October 2009, the explanation that: "It wasn't ages to me but to me it seemed ages ago because I had read so many documents" is a wholly unbelievable explanation, especially in light of the myriad of other problems with Mr Slater's credibility generally. It is also significant that the explanation for the evidence about "ages ago" came after Mr Slater was recalled for further cross-examination, and after he had heard the argument about the notes and the admissibility of Ex 4 whilst sitting in court, immediately before being recalled for further cross-examination;
(d) Mr Slater's conduct in giving Ex 4 to his counsel whilst he was under cross-examination: "Because [Mr Slater] felt it was relevant" was flatly contradictory to the instructions given to him by his counsel that he could not talk to anyone about the case whilst under cross-examination, and demonstrates Mr Slater's scant regard for the proprieties of conducting litigation;
(e) Mr Slater had signed a resolution of Kingswood resolving to de-register it, and in applying for deregistration of the company, had certified to ASIC that Kingswood was not a party to any legal proceedings, when plainly, to Mr Slater's knowledge, it was a party to these proceedings. At first Mr Slater said he had not seen Ex 2 before. When directed to his signature he agreed he had signed it on 10 September 2009. He denied that he had read through the form before he had signed it. That denial was not credible. He accepted that paragraph (f) of the declaration was false. He claimed not to have known that when he signed it, and, interjecting before a full question could be put to him, volunteered that: "I have just signed the document without reading it. That is all I have done". That was an explanation which he gave at the end of his cross-examination, after he had repeatedly been shown to have sworn affidavits that had been incorrect. It is submitted that in the context, his explanation was scarcely credible. He claimed that his accountant Mr Woodgate gave him the document to sign. He claimed to have been in Western Australia in June when he signed the document, but according to Mr Woodgate, it was sent to him in the post. If it was indeed sent to him in the post as Mr Woodgate asserted, and was accompanied by a covering letter of the kind Mr Woodgate described, it is inconceivable that Mr Slater did not read it on receipt before he signed it; and
(f) Mr Woodgate's evidence was that he had had a telephone conversation with Mr Slater and asked him if there was any reason why Kingswood could not be deregistered. Mr Slater made no mention of any such call.
19. There were various other unsatisfactory aspects of Mr Slater's evidence, such as:
(a) he denied that he would describe himself as a "developer", saying: "No way. I describe myself as a truck driver", and denied that he had ever described himself as a developer. Despite this, before the Parliamentary Standing Committee he described himself as a developer at least twice. When asked whether he had seen himself as a developer in 1995, he said: "No way".
(b) he said in his evidence that the description of Mr Simpson as a "business associate" was a false description, yet he was later forced to concede that for the whole of the period between May 1999 to about May 2002 he regarded the description of Mr Simpson as a "long time friend and business associate" as correct, and that it accurately and fairly described the relationship between Mr Simpson on the one hand, and Mr & Mrs Slater on the other;
(c) he claimed that when he prepared his 29 September 2008 affidavit he had set out to give a comprehensive account to the Court of what happened with the $350,000 investment, and that he had made sure it did not omit any material matters, and that he had checked it carefully before he swore it, yet then had to concede that there was no reference to sale of the home units on a progressive basis as each sale was achieved, and his explanation was that: "We didn't think of everything in the affidavit. I didn't put everything in it", which was flatly contradictory of his earlier answer that he had attempted to be comprehensive;
(d) he then said that he regarded it as unimportant to include that he would be entitled to a quarter share of any net proceeds achieved from the sale of the home units on a progressive basis as each sale was achieved, but then immediately conceded it was important, but claimed it was missed or omitted;
(e) there were similar problems with the omission of any evidence that Mr Simpson said that he would take also reasonable steps to commence construction;
(f) Mr Slater then tried to blame his difficulties caused by verification of allegations in the statement of claim which had no basis in fact on the fact that his solicitor Mr Rees had drafted it;
(g) he gave first gave evidence that Mr Simpson had assured him a letter that building would start on the Mona Vale development by late January, yet he was later forced to concede that he did not receive a letter from Mr Simpson between July 1999 and January 2000 which gave him confidence that the Mona Vale project was going to plan, and admitted that the evidence he had given the day before was false;
(h) he conceded that paragraph 63 of his affidavit of 24 March 2009 was simply untrue and contained a false statement, yet denied he knew it was false when he swore the affidavit, but conceded that by that paragraph he was attempting to rebut the proposition that there was an agreement that Mr Simpson would receive commission, and that the paragraph was endeavouring to convey a false impression, although he denied that he knew this when he swore the affidavit;
20. Mr Slater was, during the course of his sworn evidence, quite content to make serious but completely unfounded allegations against Mr Simpson. It is submitted that, the plaintiffs entire case in these proceedings against Mr Simpson in fact falls into that category. In an extraordinary non-responsive answer, which prompted Mr Slater's own counsel to object, Mr Slater alleged that Mr Simpson had gone behind his back, in some sort of underhand way, in negotiating with Australand. When confronted with the allegation, he retracted that evidence, and conceded that it was an unfounded accusation.
21. There were various other matters that also impact adversely on Mr Slater's credit. For example, the acceptance of the evidence of the plaintiffs that the purchase price of the horse Hendrix was $25,000 plus some GST, would involve an acceptance that Mr Slater had attempted to devise a scheme with Mr Bunning to avoid paying GST on the sale of Hendrix (then known as "Monty") which was known by all concerned to be properly payable. In other words, Mr Slater was attempting to procure the assistance of Mr Bunning to devise a scheme to avoid paying GST properly payable. On any view, if the true purchase price of Hendrix was $25,000 exclusive of GST, then that scheme was implemented to some degree, because GST was only paid on amount of $10,500, when at the very least, both Mr Slater and Mr Bunning knew that the total consideration moving to Mr Bunning (assuming he only owned a half share of the horse as he contends) was $12,500, and GST would properly be payable on that amount, but in reality, there was GST payable on the whole $25,000 consideration if indeed that is what was paid.
22. Above all else, Mr Slater's evidence on critical events was unsupported by any contemporaneous records, unconvertible facts, or the logic of events. His evidence was also inconsistent in critical respects from that of Mrs Slater, and also, to some degree, Mr Woodgate."
See paragraphs 9 - 22 of the defendants' final submissions.
29 The submissions made on behalf of the plaintiffs in relation to the credit of Mr Slater fell into two categories. The first was to the effect that there were six objective factors which support the Slaters' version of events and these were, Mr Lindsay submitted:
(1) The absence of any documents of a type which would be expected in commercial transactions.