In a letter to Mr Hattersley dated 12 May 2004 Connah Steed said that Hooper "does not resile from his claim in that he emailed Mr Oliveri on 1 November 2001 and that he received Mr Oliveri's agreement to it that afternoon". In that letter Connah Steed also said that Hooper acknowledged that he provided Oliveri with a copy of the spreadsheet when he handed Oliveri the cheque for $220,045 on 2 November. It is, therefore, common ground that Mr Oliveri received a copy of the disbursements spreadsheet on 2 November 2001.
146 It is curious, at least, that neither Hooper nor the plaintiff's solicitors mentioned the disputed emails until 1 April 2004 and did not provide a copy of them to Oliveri until 13 April 2004 notwithstanding that Oliveri had first requested a copy some nine months earlier in his letter dated 13 June 2003. Mr Smallbone's evidence was that he had been shown a copy of the emails when Hooper conferred with him on 30 September 2002. It was possible, therefore, for copies to have been given to Oliveri much earlier than 13 April 2004, some two years after it is alleged that they were exchanged. There was no evidence when Hooper gave copies of the emails to Mr Brown, the plaintiff's solicitor at Connah Steed. Had they been provided to Oliveri within a reasonable time after his request on 13 June 2003, it would have been possible for Oliveri to take earlier steps to examine the claim. I do not place any great weight on the failure promptly to give Oliveri a copy of the disputed emails. It is one of a number of factors that point to the conclusion that the disputed emails were not exchanged.
A second copy of the disbursements schedule?
147 It is common ground that Hooper had handed Oliveri a copy of the disbursements schedule on 2 November 2001. That is another fact that calls into question whether the disputed emails were exchanged. Hooper asserted that he sent a copy of that schedule to Oliveri on 1 November in the first of the disputed emails. Had he done so, it was quite unnecessary for him to provide Oliveri with another copy on 2 November. In making that observation, I have had regard to the fact that on 2 November 2001 Hooper also paid the fees due to three barristers who had acted for the plaintiff and that, when he did so, he handed each that page of the schedule that listed the fees due to each. But Hooper had not then given any of them a copy of the part of the schedule that related to each. Hooper was not asked why he had given the schedule to Oliveri on 2 November if he had sent it to him on 1 November. While it is possible that Hooper could have given another copy of the schedule to Oliveri on 2 November, it is I think unlikely that he would have done so. Standing alone, this is not a compelling point. However, when added to all of the other considerations, it is a further reason for rejecting Hooper's claim that the disputed emails were exchanged.
The plaintiff's contentions
148 The plaintiff contends that the absence of the disputed emails can be explained. It contends first that Oliveri could have removed the disputed emails from the hard drive for his laptop and, secondly, he could have received the first email on 1 November 2001 on a different computer and replied to it on that same computer. For the reasons that follow, I do not accept those contentions. Mr Gaweda described the process by which an email could be removed from the hard drive of a computer. He said that the task was not difficult. Yet it is apparent from his evidence that it is not straightforward. The evidence indicates that Oliveri did not have extensive computer skills. Hooper said that in 1995 Oliveri had told him that he knew nothing about computers and had asked him for instruction. As already mentioned, Hooper had to teach him some skills that some might say were simple. I find that Oliveri did not have sufficient knowledge, skill or expertise to delete material stored on the hard drive for his computer. In cross-examination Mr Gaweda also referred to a program on Windows 2000 (the system used by Oliveri) called "defragging" and to a cleaning process. While his evidence indicates that these processes might be relatively straightforward, I find that Oliveri did not have the sufficient knowledge, skill or expertise to undertake those processes. I find that, even if he did have some understanding of the processes by which to remove material from the hard drive, Oliveri would not have attempted the task lest he should unintentionally delete material he wished to retain.
149 The plaintiff relied on the fact that Oliveri's laptop contained no spam or junk email. As Mr Gaweda confirmed in his evidence, the absence of spam or junk email was consistent either with the fact that spam or junk mail had been had been blocked by the server or it had been removed by cleaning or defragging. I find that the absence of spam or junk email from Oliveri's laptop is quite inconclusive.
150 The plaintiff contended that the fact that the disputed emails do not appear on Oliveri's laptop is explained by the possibility of Oliveri "accessing the email" on one or the other computers in the network in Oliveri's office at 161 Palmer Street. (It is perhaps now too late to complain of the misuse of the noun "access" as a verb, especially when referring to computers.) That submission carries with it the submission that the disputed email from Hooper on 1 November 2001 and the disputed email in reply by Oliveri were received and sent on another computer in Oliveri's office. While that is possible, I do not think it probable that it would have occurred. In my view, the plaintiff is clutching at straws. I do not accept the submission. There was no evidence that Oliveri used other computers in the network. More importantly, there was no reason why Oliveri would not have used his own laptop on 1 November 2001. The evidence shows that on 1 November 2001, he did in fact receive on his laptop one message from Hooper on a topic related to the Daihatsu litigation. It did not concern legal costs. The plaintiff's submission depends of the coincidence of Oliveri chancing to use another computer on 1 November 2001. I find the coincidence is altogether too unlikely to be probable. I am encouraged to make that finding by reason of the fact that the premises at 161 Palmer Street housed both Oliveri's office and the office in which his brother Emanueli Oliveri conducted his legal practice. The computer network served both offices. The real probability is, therefore, that Oliveri would have used his own laptop on 1 November 2001.
The disputed emails were fabricated
151 When Hooper's assertion that the disputed emails is tested in this way, it is apparent that no such exchange occurred. I find that Hooper has fabricated the two emails in such a way as to give the appearance that each was sent and received. In making that conclusion I am very conscious of the gravity of such a finding. The charge that Oliveri makes is very serious. I bear in mind s 140 of the Evidence Act 1995 and the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 - 363 which are reflected in s 140. As already mentioned, it was highly improbable that Oliveri would in the space of three hours agree to a proposal as to his costs that was inconsistent with earlier dealings. Those are compelling considerations and they are reinforced by the examination of the evidence as to the whereabouts of the laptop computer and the Fujitsu hard drive as well as the very curious manner in which the claims for the return of goods and the later claim in detinue came to be made. For the reasons given earlier, I do not accept Hooper's claim that Oliveri has retained and continues to retain possession of the laptop. In my view, he has fabricated that evidence in order to prevent any forensic examination of the laptop. The fact that the claim in detinue for the return of the laptop was first made after the solicitors for Oliveri has issued proceedings seeking an order for production of all computers held by the plaintiff had been made cannot be dismissed as mere coincidence. I do not accept Hooper's evidence as to the disposal of the hard drive and his reason for doing so. It too was fabricated to avoid having to produce it for examination. I have carefully weighed these factors and the other factor I have mentioned with the contentions advanced on behalf of the plaintiff. I am not satisfied that the plaintiff's contentions answer what I believe to be the compelling inferences that flow from consideration of the objective facts. I am not satisfied that the disputed emails were exchanged between Hooper and Oliveri on 1 November. They have been fabricated on behalf of the plaintiff.
Were Oliveri's fees 10 per cent net?
152 The case for the plaintiff that Oliveri's fees were to be 10 per cent of the net amount recovered by Daihatsu does not depend solely on the question whether the disputed emails were in fact exchanged. It is, nevertheless, an important plank in the plaintiff's case. I turn to examine the other evidence relied on by the plaintiff in support of its case.
153 The findings just made cast real doubt on the evidence of Hooper and Mrs Hooper. Other facts to which I shall refer also calls their evidence on this issue into question.
154 The plaintiff relied on several other contentions in addition to the alleged exchange of the disputed emails on 1 November 2001. One contention was that the schedule of disbursements that Hooper had handed to Oliveri on 2 November 2001 contains the box with the words "10% of above total to Oliveri Attorneys on account of their fees - $220,045". The submission is belied by the expression "on account of". That expression does not usually mean payment in full. Instead, it means a part payment. The ordinary meaning of that expression on the disbursements schedule means that the payment of 10 per cent of the balance represents a part payment of the fees due to Oliveri. There is no cause to displace that ordinary meaning. Had Hooper intended that the payment should be a full discharge of the plaintiff's liability in costs to Oliveri, he could quite easily have said so, using an expression such as "10 per cent of above total to Oliveri Attorneys in payment of their fees" or "10 per cent of above total to Oliveri Attorneys in full discharge of their fees" or simply "10 per cent of above total to Oliveri Attorneys for their fees". The expression "on account of" is more confirmatory of the case for Oliveri than the case for the plaintiff.
155 Another contention was grounded on a payment in January 2002 of an amount equal to 10 per cent of a payment of $34,070 by Daihatsu to the plaintiff. Daihatsu had been ordered to pay interest. It paid interest in the amount of $34,070 on 9 January 2002. On 23 January 2002, the plaintiff paid $3407.88 to Oliveri. When it was put to him in cross-examination that the payment of $3407.88 was 10 per cent of the payment of interest, Oliveri said the payment was made pursuant to the supplementary fees agreement by which the plaintiff was to pay 10 per cent of the recovery after disbursements in consideration for Oliveri deferring his claim for costs. I have already found that the supplementary fees agreement alleged by Oliveri did not exist. Notwithstanding Oliveri's answer, I do not accept that this payment is further evidence that Oliveri had agreed to accept 10 per cent of the amount recovered after payment of his fees. I reject the plaintiff's contention that the payment of $3407.88 bolsters its case. While that payment is, like the payment of $220,045, an amount equal to 10 per cent of the recovery after disbursements had been paid, it was again, as in the case of the payment of $220,045, a payment on account of Oliveri's costs as stated in the summary at the head of the disbursements schedule. The payment does not in my view support the plaintiff's claim.
156 The plaintiff seeks to gain some support from the fact that Oliveri had amended its claim against Daihatsu to some $700 million. It says that was the reason why Oliveri agreed that his fees would be ten per cent of the net amount recovered. I do not accept this assertion. It is altogether too fantastic. If correct, it would mean that Oliveri believed that he would recover $70 million as fees. It is apparent from Oliveri's evidence that his practice is to make an ambit claim. As Kirby J found, the plaintiff had made an ambit claim. The ambit claim does not necessarily establish that Oliveri had agreed to his fees being a percentage of the net recovery.
157 The plaintiff also sought to establish that Oliveri had agreed to accept 10 per cent in payment of his fees by alleging that Dr Bradley, who had given evidence on behalf of the plaintiff in the Daihatsu litigation, had also been paid on a contingency basis. The plaintiff contended that Bradley was to be paid 10 per cent of the fees recovered by Oliveri. The plaintiff points to a payment made by Oliveri to Bradley on 6 December 2001 of the sum of $22,000, an amount that very closely approximates 10 per cent of the money paid to Oliveri on 2 November 2001. Both Oliveri and Bradley denied the allegation. Their evidence was that Dr Bradley had been retained to act for other clients of Oliveri's firm and that the amount of $22,000 represented payment of fees in respect of a number of those matters. I accept that evidence. I also accept Dr Bradley's evidence that he still has not been paid for his services to the plaintiff. In addition, the terms of Dr Bradley's retainer are set out in a letter dated 21 September 1998. That letter has no reference to his fees being paid on a contingency basis. It states that he was to be paid at the rate of $500 per hour. I reject the plaintiff's contentions entirely.
158 The plaintiff relied on the fact that Smallbone gave advice to Hooper on the validity of what Hooper had told him was the agreement that Oliveri's fees would be 10 per cent of the amount recovered after disbursements had been paid. However, the evidence of Smallbone does not materially assist the plaintiff's case on that point. Smallbone had advised on what Hooper had told him. It does not follow that Hooper had told him the true facts. In my view, Hooper was attempting to avoid the consequences of the backdated costs agreement that Oliveri had prepared, a costs agreement that was substantially in the same terms as the costs agreement with Garland Hawthorn Brahe as had been agreed wholly by Oliveri and Hooper in June or July 1998. Hooper was trying to create a set of facts which would advantage the plaintiff.
The DETCO proceedings
159 The plaintiff also relied on what it alleged was the costs agreements in the DETCO proceedings. As already mentioned, the plaintiff had commenced in 1997 an action in the Federal Court of Australia against Detroit-Diesel-Allison Australia Pty Ltd and others, "the DETCO proceedings". At first, the solicitors for the plaintiff were Hillman Mura & Consultants ("Hillman Mura"). Oliveri's brother Emanueli Oliveri was then employed by Hillman Mura. The principal of that firm was Mr Mura. According to Oliveri, he had previously declined to accept a retainer from Hooper to act for the plaintiff in the DETCO proceedings but from time to time he was retained by Mr Mura to provide advice in respect of the DETCO proceedings and other matters. Mr Mura ceased to practise and Oliveri took over the conduct of the DETCO proceedings. The evidence is not clear but it seems that he did so in 1997 when he held an unrestricted practising certificate.
160 Oliveri produced an unexecuted copy of a costs agreement dated 14 August 1997 between Hooper and the plaintiff on one part and Hillman Mura on the other in relation to the DETCO proceedings and on other matters. That agreement states that the rate at which Hillman Mura was to charge for its services was $500 per hour but only if the plaintiff succeeded in its claim. The agreement provided that the persons who would work on the DETCO and the other matters were Mr Mura, Emanueli Oliveri and Oliveri. There is no evidence that the document was executed. It is not clear whether it was drawn before or after Oliveri had become the solicitor on the record. There is no objective evidence of that fact.
161 The plaintiff's case is that it did not execute any costs agreement with Hillman Mura and that it had an oral agreement with Oliveri as to his legal costs when he took over the conduct of the DETCO proceedings. Both Hooper and Mrs Hooper deposed to that oral agreement in their affidavits. Their evidence was to the effect that Oliveri had agreed that his costs for acting in the DETCO proceedings would be an amount equal to 10 per cent of the amount recovered after payment of disbursements. Oliveri denied the allegation. He said that his fees were to be charged at the rate of $500 per hour if the plaintiff succeeded in the action. The Hoopers said that in May 1998 Oliveri agreed to take over the conduct of the Daihatsu litigation on the same terms.
162 The evidence concerning the DETCO proceedings and in particular the evidence as to the terms on which Oliveri agreed to act in those proceedings was unsatisfactory. The evidence as to the costs to be paid to Oliveri essentially consisted of allegations and counter allegations. In my view, a number of the disputed facts as to the conduct of the DETCO proceedings could have been established by objective evidence and, in particular, evidence of who were the solicitors on the record for the plaintiff at particular times. For example, Hooper deposed to a conversation with Oliveri asserting that Oliveri had proposed a course of conduct because he did, not then hold an unrestricted practising certificate. Oliveri denied the allegation contending that he did hold a practising certificate at the time. In addition to these considerations, Oliveri was extensively cross-examined as to the allegations made by Hooper and Mrs Hooper in their respective affidavits. He denied the allegations. I closely watched Oliveri during his cross-examination. His demeanour when being cross-examined on the DETCO proceedings indicated that his denials were truthful. I have such serious misgivings as to the reliability of the evidence of Mr and Mrs Hooper that I am not satisfied that Oliveri's costs in the DETCO proceedings were to be 10 per cent of the amount recovered after payment of disbursements. Nor do I accept the Hoopers' that, when Oliveri agreed in May or June 1998 to act in the Daihatsu litigation, he said that he would act for the plaintiff on the same basis as in the DETCO proceedings.
Were back to back agreements made?
163 The plaintiff also contended that Oliveri had agreed to enter into what Hooper called "back to back agreements" that would give effect to the arrangement that Oliveri would recover as his fees 10 per cent of the net amount recovered from Daihatsu. The so-called "back to back agreements" were alleged to be a costs agreement between the plaintiff and Oliveri and a service agreement between Hooper and Oliveri pursuant to which Hooper was to be paid for his services in assisting in the Daihatsu litigation. Hooper said that the difference between the payments made under each agreement was to be 10 per cent of the amount recovered from Daihatsu.
164 Five affidavits sworn by Hooper were tendered at the hearing of the action. The first was sworn on 22 June 2004 and the last on 25 March 2008. There is no reference to back to back agreements in any of those affidavits until the last affidavit sworn on 25 March 2008. It is curious, to say the least, that the allegation was made so late in the day.
165 In his affidavit of 25 March 2008, Hooper said that, when Oliveri had agreed to act for the plaintiff in the DETCO proceedings, Hooper discussed with Oliveri the basis upon which Oliveri's fees were to be paid. As already mentioned, it was Hooper's evidence that Oliveri agreed to be paid an amount equal to 10 per cent of the amount recovered after disbursements had been paid. Hooper said that the following exchange then occurred between him and Oliveri:
"Hooper: 'This arrangement will work if we get a lump sum settlement inclusive of costs. It won't work if we get a verdict or a settlement with costs that have to be taxed I don't want to have any argument between us about any agreement we have.'
Oliveri: 'If we have to submit a Bill of Costs we will strike back dated back to back Agreements between us whereby I'll enter into a service agreement with your Company and you enter into a Costs Agreement so that the net outcome would give effect to our arrangements that you pay me 10% of what you get net after costs.'
Hooper: 'Is that legal?'
Oliveri: 'Yes. Anybody can enter into back dated Agreements if the parties agree. It is in our interest to do so otherwise DETCO will get the benefit of our deal and we will lose out. The beauty of this Agreement is that it will work in both circumstances, whether we get a lump sum or have to put in a Bill of Costs.'"