The initial contact between Mr Barooni, Mr Heffernan and Mr Burns
10The defendant, Trident, had entered into a contract for the provision of its services to a joint venture, TDJV (T 109), in August 2007. It is not in dispute that TDJV, not Trident, was the charterer of the APC Aussie 1 and of the tug vessel, the Lewek Kea, these charter agreements being entered into in June 2008.
11The defendant places importance upon the fact that Mr Barooni had prior dealings on behalf of TDJV with another Svitzer company, Svitzer Australia Pty Ltd ("Svitzer Australia") in Eden in 2008 and that this was why he contacted Mr Steve Heffernan when the Aussie 1 got into trouble. The Port of Eden, where Mr Heffernan was situated, was to be used to mobilise and demobilise vessels by the joint venture parties. Mr Barooni gave evidence that he told Mr Heffernan that TDJV would be the contracting party for any services to be provided by Svitzer Australia. Mr Heffernan said he could not recall a conversation as specific as this (T 113 line 35). According to Mr Barooni's affidavit sworn 27 September 2011, he was transferred to Victoria in April 2009 and then to New South Wales. He also said he liaised with Steve Heffernan (paragraph 14) on behalf of TDJV since early 2008 in anticipation of the Longtom project. Although there were discussions, the joint venture only began using Svitzer Salvage in relation to departure of the Lewek Kea from Eden (annexures 1 and 2 to the affidavit of Mr Barooni).
12Mr Barooni's claim was that in late April 2009, Mr Heffernan knew that TDJV was the EPCI contract holder for the Longtom project and understood the role of the joint venture partners, even though Mr Barooni always used the defendant's "footers" in correspondence:
"Thereafter, I do not recall there being any confusion as to the identity of the entity contracting with Svitzer notwithstanding that in my email correspondence my default email title stated "Trident Australasia Pty Ltd"." (Affidavit of Mr Barooni sworn 27 September 2011)
13This sentence was struck out and leave to adduce oral evidence was granted, but the extent of oral expansion of this conversation was scant and it remains the most helpful way to characterise the defendant's case. In all of his emails, Mr Barooni used his address at Trident Australasia. The draft TDJV service agreement for agency and support works in the Port of Eden was sent to Mr Heffernan on Sunday 7 June 2009, after the events the subject of this litigation occurred (annexures 9 and 10 to the affidavit of Mr Barooni). Mr Heffernan replied on 9 June advising that TDJV had been entered into the Svitzer credit account system and forwarded a set of fees.
14Whatever the state of the draft service agreement between Svitzer Australasia and TDJV, there was no contractual agreement between the parties in relation to any of the events relating to salvage. Although Mr Barooni contacted Mr Heffernan soon after he was informed about the Lewek Kea's problems on the evening of 22 May 2009, he was not able to assist from Eden as it was simply too far away. As it was a salvage operation, he advised that another company in the group, Svitzer Salvage (the plaintiff), would be the company to carry out the work. He suggested that Mr Barooni contact John Barry at the Newcastle office of Svitzer Australasia to obtain the contact details for Svitzer Salvage. However, there was no contractual obligation on Mr Heffernan to offer this advice, or upon Mr Barooni to accept it. Mr Barooni did in fact ring four other salvage operators prior to accepting the offer from the plaintiff.
15When Mr Barooni spoke to Mr Heffernan about the Lewek Kea, he did not say anything to Mr Heffernan about the TDJV or the Longtom project:
"Q. On the evening of 22 May when you spoke to Mr Heffernan you didn't say anything to him about TD Joint Venture or the Loncom project did you?
A. No, because he knew.
Q. Putting aside what's in Mr Heffernan's head you accept that you said nothing to him on the evening of the 22nd about TD Joint Venture or the Loncom
A. That is correct, that is correct." (T 162)
16However, Mr Barooni went on to retract this answer at T 163:
"Q. What was the answer that you wanted to correct?
A. The I don't recall that I spoke to Mr Heffernan, but because I saw because I saw the affidavit of Mr Heffernan, I don't have any reason not to believe it because it would have been possible because he he was the one he was the only person at that time that I knew from Svitzer, so when the name when I found out that there is a tug boat in there are some tug boats in in Newcastle that may be available and they belong to Svitzer naturally I would have had the first phone call to the person that I knew.
Q. Sir, when you responded to this gentleman's question, on 22 May when you spoke to Mr Heffernan you did not say anything, "No, because he knew," was that your actual recollection of a conversation or is that a reconstruction or a guess as to why you would not have said anything to Mr Heffernan?
A. Your question with regard to the conversation that I had with Mr Heffernan?
Q. No, I'm asking you when you replied in relation to the question about what you told Mr Heffernan you said, "No, because he knew." What I'm struggling to do is to reconcile that answer with your statement which you have now repeated that you don't recall speaking to Mr Heffernan. How in those circumstances can you be sure that you did speak to me?
A. That is that is that is what do you call it, deduce, deducing
Q. Deduction?
A. Deduction.
Q. It'd a deduction, so in other words it's not your actual recollection that you didn't need to tell Mr Heffernan because he knew, you're assuming that if you had spoken to Mr Heffernan your reason for not yes, all right.
A. That is correct."
17This is different again to the version of events given by Mr Barooni in his affidavit:
"Q. Can you just turn to the text of your affidavit and can you turn up page 7 at paragraph 40?
A. The original affidavit?
Q. The original affidavit, yes, page 7 of the text of the affidavit, not the annexures. You see paragraph 40, you refer to "during those phone conversations", do you see that?
A. That is correct.
Q. Can I suggest to you that the conversation that you say you had there a number of times that is also not an actual recollection, but a reconstruction after the event?
A. I'm not sure I know I'm confident with the difference between these two." (T 163)
18Mr Barooni went on to state that he did in fact remember saying the words in his affidavit at T 164:
"Q. Mr Barooni, would you agree that the various conversations that are set out in paragraph 40 that you say you had at some stage on the 22nd a number of times that that is something that you have deduced after the event?
A. Some specifics of that of those conversation I clearly remember. Some specifics of those conversations I deduce I deduct that that might have happened in the natural course of the conversation and some of them I can't recall.
Q. What I am suggesting to you to be clear is the precise words that you set out in paragraph 40 of your first affidavit those words are ones that you have deduced rather than actually remembering saying?
A. No, I actually remember saying that."
19Mr Heffernan was, however, quite definite in his affidavit about his description of this conversation:
"(25) When I received the telephone call from Mr Barooni, it was after hours and I was driving my car. I did not have my Emergency Contact list to hand. I cannot recall exactly who I referred Mr Barooni to for further assistance but I believe it was likely to have been Mr John Barry who was the Regional NSW Manager of SVITZER Towage. I provided Mr Barry's contact details because I believed that Mr Barry would be able to provide Mr Barooni with contact details for SVITZER Salvage. As I have no involvement with SVITZER Salvage, I did not know their contact details without looking them up and I could not therefore provide contact details for SVITZER Salvage to Mr Barooni at that time.
(26) During my conversation with Mr Barooni, words to the following effect were spoken:
Mr Barooni: "The "AUSSIE 1" and the "LEWEK KEA" are in trouble off Newcastle. The "LEWEK KEA" has suffered engine failure. Are you able to assist from Eden?"
Me: "No, this is clearly well beyond the capability of our operations in Eden and we are too far away in any event. You will need to speak to someone at SVITZER Salvage. I don't have my Emergency Contacts list with me, but you can call John Barry at our Newcastle office and he can give you the contact details for SVITZER Salvage."
(27) Subsequent to that telephone call, I did not have any involvement whatsoever in relation to the circumstances giving rise to these proceedings. I was never asked to nor agreed to provide any services or assistance to the "AUSSIE 1", whether pursuant to the Services Agreement or otherwise. I was never asked to and did not purport to appoint any other SVITZER Group entity to act as the agent for SVITZER Towage in relation to the incident." (Affidavit of Steve Heffernan affirmed 3 November 2011)
20There was no question of Mr Heffernan being able to provide any assistance because, as he notes in paragraph 31 of his affidavit, the vessel was so far outside the geographical reach of Svitzer Towage at Eden that all he could do was refer him to Mr Barry.
21Although Mr Barooni cannot recall speaking to Mr Burns, Mr Burns from Svitzer said he also received a call from Mr Barooni, about which he made a diary note. Mr Burns' evidence on his topic is contained in his affidavit affirmed on 27 February 2012 as follows:
"(7) In such circumstances, it is my practice to ensure that I obtain details of the organisation requesting assistance and the name and contact details of the representative, so that I can pass them on as required.
(8) I have noted in my notebook:
"Trident Australia
Mehran Bahroone
0434 216 808"
(9) Although I don't have any specific recollection of the telephone call, in accordance with my usual practice and my notes, I assume that I specifically asked Mr Barooni who he represented or worked for and for his contact details and that he replied as is recorded in my notebook."
22Mr Barooni was asked if he had contacted Mr Burns and Mr Barooni's response was as follows:
"Q. Similarly, when you rang Mr Burns you said nothing to him about TD Joint Venture or Loncom did you?
A. I cannot recall Mr Burns.
Q. Can I suggest when you introduced yourself to Mr Burns you said, "It's Mr Barooni from Trident"?
A. I cannot recall Mr Burns again." (T 162)
23Mr Burns' cross-examination on his topic was as follows:
"Q. You say that on 22 May 09 I was called by Mehran Barooni in relation to assistance required for the Lewek Kea and the Aussie 1 barge?
A. Yes.
Q. Do you have an independent recollection of the conversation or is it just something that you now say having just relied back on that note that's annexed to your affidavit?
A. I have a recollection of that he called me. The detail of what was said, no. I took his name, where he was from and his contact number and passed it to Drew Shannon or to Oliver. Probably to both.
Q. You don't say that your note itself is a complete record of the conversation that took place?
A. It's not. It wouldn't be a complete record, no." (T 119)
24Mr Barooni agreed he had not told Mr Heffernan about TDJV:
"Q. On the evening of 22 May when you spoke to Mr Heffernan you didn't say anything to him about TD Joint Venture or the Loncom project did you?
A. No, because he knew.
Q. Putting aside what's in Mr Heffernan's head you accept that you said nothing to him on the evening of the 22nd about TD Joint Venture or the Loncom
A. That is correct, that is correct." (T 162)
25This is inconsistent with Mr Barooni's claimed practice to refer to TDJV when he first dealt with any possible contractor.
26The portions of Mr Barooni's cross-examination which he referred to this practice are set out above. In re-examination, he provided yet another version, inconsistent with his previous evidence, as to this practice:
"Q. What are those other details that you say you would proceed to?
A. Once you have a potential client that can offer you a vessel, then obviously at that point of time there's a likelihood of coming into a contract, and at that point of time you would explain and you would discuss about the details, like
Q. I'm just asking you what are the details that you were referring to?
A. That the contracting party would be TDJV and that the TDJV is the contractor holder for Nexus Energy and that is the entity that charters the tug and barge and that is the entity that ultimately obviously implicit to that is that this is the entity that would pay your bill.
HER HONOUR
Q. Is that the only information you get? Not the name of your
A. Other kind of information is I mean, where would you like to take over the ship, from the
Q. No, no. About the person. Is the only information that you would give the actual name of the company? You wouldn't, for example, tell them that they were, I don't know, an Australian company or give their address or anything like that?
A. That is correct, yes.
Q. So you'd go out there and you'd have a contract for a substantial sum of money and you wouldn't even tell them your address?
A. Yes, definitely.
Q. Why not?
A. Yes. Say for example the correct title of the company, the address of the company
Q. You'd give that too, would you. I see. So you give the name of the company, the address, what else?
A. ABN number.
Q. ABN number, yes. That's all very helpful.
A. The address of the company, obviously, for and say, for example, who should be titled for the invoice, for the invoice to come.
Q. So you say you give that information right at the beginning so they know exactly who they're dealing with?
A. Pretty much so, but right in the beginning a bigger part of the detail that nobody would be passed to the client, and again you expect that the client would pass the same information, some relevant information to you.
HER HONOUR: Yes, I understand.
WOODS
Q. Mr Barooni, you were asked questions also in relation to the initial telephone calls you had with those companies that possibly might have had a tug available.
A. That is correct.
Q. I think the evidence was that you didn't give the details in relation to TDJV in the first telephone calls with them.
A. Because there was not
Q. Do you remember that question?
A. That is correct, yes.
Q. It was put to you that you didn't follow your usual practice because you didn't follow you didn't tell them that information regarding TDJV at that first telephone call?
A. That is correct.
Q. You said that there is a because.
A. Yes.
Q. What was the because that you wish to tell the Court?
A. Because there was not a likelihood of I mean, of getting a tug from them. If some of them one of them, for example, would say that, yes, I have a tug boat, then obviously you would progress the discussion, but so far as there is no tug boat available, then obviously it doesn't make sense. You start to talking about the contract first. You need to have the asset in place and then talk about the asset hire and other values, details of the contract, including say the this is TDJV who is going to be responsible for the contract." (T 195-196)
27This re-examination occurred after Mr Barooni accepted that he had not followed his asserted practice (T 166 line 25 to 167 line 28).
28In addition, the note made by Mr Burns in his notebook which gives Mr Barooni's name and phone number and the company name as "Trident Australia" is strong evidence that Mr Barooni in fact said he was from Trident Australia, not "TDJV".
29As is discussed in more detail below, Mr Barooni must have kept some form of record of his telephone conversations with all these persons. No documents recording who he spoke to, what information he obtained, and any subsequent discussions he had with his superiors either at TDJV or Trident Australia has been produced.