The accuracy and reliability of the evidence of Mr Tomasetti and Ms Cordony
327Counsel for the defendants were highly critical of the evidence of Mr Tomasetti and Ms Cordony and also submitted that the testimonial evidence in this case has such frailties that "it would be rare for conclusions provisionally reached on the basis of inference from the established facts to be disturbed by witness testimony" (DWS at [9]).
328Mr Parker referred to the judgment of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319:
"Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously describe as "misleading") within the meaning of section 52 of the Trade Practices Act 1974 (Cth) (or section 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the Court: (1) what the alleged conduct was; (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relevantly subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not ... attained or established independently of the nature and consequence of a fact or facts to proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.
Considerations of the above kind can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action based on section 52 of the Trade Practices Act 1974 (Cth) (or section 42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration."
329Counsel for the plaintiffs were stridently critical of the evidence of Mr Brailey. Mr Faulkner submitted that his evidence should not be accepted "where it was in conflict with Mr Tomasetti or any other witness [or] not independently corroborated" (T1222.32). He submitted that "on that basis", Mr Tomasetti's evidence and Ms Cordony's evidence should be accepted in its entirety. Later, when dealing with a specific topic, Mr Faulkner submitted that Mr Tomasetti's evidence was "corroborated by the falsity of Mr Brailey's evidence". These submissions, with respect, lack logic and fail to acknowledge the plaintiffs' onus. Even if Mr Brailey's evidence was rejected in its entirety, it does not follow that the evidence of Mr Tomasetti and Ms Cordony must be accepted.
330Mr Faulkner also sought to characterise something Mr Parker had said as a concession that Mr Brailey's evidence was not relied upon (T1391 - 1392). That is to take what Mr Parker said too far and really amounted to a debating point rather than anything of significance. My views about it were expressed in the course of the exchange with Mr Faulkner and it is unnecessary to repeat them.
331It is of some significance to note the circumstances which led to the evidence that was given by Mr Tomasetti. The starting point is that he had no contemporaneous notes of conversations that he had with Mr Brailey (T479 - 480). The first time he set out to make a record of such conversations was when he compiled his affidavit of 17 November 2009. It purported to set out the substance and effect of conversations which occurred up to about a decade before. He was assisted by documents, but the documents that were available to him at that time were incomplete. He acknowledged that further documents that were subsequently made available to him showed that his account in the 17 November 2009 affidavit was "in error in some respects" (T482.7).
332It is to be recalled that the global financial crisis was gathering momentum in the second half of 2008. Lehman Brothers collapsed in September 2008. There were media reports concerning Timbercorp and Mr Tomasetti became "increasingly concerned that [it] might not survive" (at [137]). In December 2008 there was media speculation about the solvency of Great Southern. Mr Tomasetti repeated that he became concerned ([141]). When Ms Cordony spoke to him about some finance documents from Timbercorp in October 2008 he felt "extremely distressed" ([198]). He said that he suffered "anxiety, nervousness and agitation" ([188]). He had numerous discussions with Mr Brailey in late 2008 - early 2009. One of his concerns was the continued demands for payment of ongoing costs of the projects.
333Timbercorp went into voluntary administration in April 2009, followed by Great Southern in May 2009. It was around this time that Mr Tomasetti was coming to a full realisation of the financial difficulties that had befallen him. He attended a meeting with Mr Brailey and others at Commercial Associates on 26 May 2009. By this time he was actively considering suing Mr Brailey. He felt that he had been let down extremely badly and was angry (T561).
334Mr Tomasetti's undoubted distress had a variety of manifestations. He said that his inability to concentrate and prepare cases compromised his ability to work. He had feelings of being overwhelmed by anxiety. He lay awake at nights, unable to sleep and trembling from anxiety. He consulted his general practitioner, Dr Peter Slezak, who prescribed oxazepam. Dr Slezak became increasingly concerned about Mr Tomasetti's mental state. He referred him to Dr Robert Fisher, psychiatrist, for ongoing management of his "severe anxiety/depressive symptoms". He was prescribed antidepressant medication which he was taking at the time of preparing his primary affidavit ([211] - [218]).
335I turn now to the accuracy and reliability of Mr Tomasetti's evidence as to events, particularly conversations, that are germane to this litigation.
336It should first be noted that I accept that it is well possible that a person may accurately recall a general proposition for a very long period of time. Claims such as, " I never read a prospectus from beginning to end " and " I relied upon my accountant's advice " are so devoid of detail that, despite the time that might have elapsed, there is a greater probability that they are reliable. The situation is different when it comes to claims about the actual content of specific conversations. But where it is alleged that another party has been responsible for misleading or deceptive conduct, or negligent advice, determining what that other party said, or did not say, and the context in which things were said, or not said, is critical. It is not to be expected that there would be verbatim recollection. But Mr Tomasetti's memory about the substance and effect of conversations has been shown to be less than perfect, to put it mildly.
337The first demonstration of Mr Tomasetti's memory being faulty occurred at the commencement of his evidence when he made a number of corrections to his primary affidavit. They were not merely typographical errors. Moreover, Mr Tomasetti agreed that he had carefully reviewed the affidavit prior to giving evidence (T86), but despite this, some aspects of the corrected versions were still wrong.
338He said that he bought a farm in 1987 and sold it in 2000 (at [6]). He corrected that to read that he sold it in 1989 or 1990 (T80.45). The topic is irrelevant to the issues, but it is of some significance that Mr Tomasetti could have a mistaken recollection of some 10 years.
339He said that Mr Brailey set up a company for him, Tomasetti Holdings Pty Limited, shortly after a conversation that occurred in about 2000 - 2001 (at [21]). He said the conversation involved Mr Brailey advising him that through this company he could effectively minimise Mr Tomasetti's tax obligations. Mr Tomasetti corrected that by saying he no longer believed that Mr Brailey set this company up. It was in fact established in 1995 by his previous accountants (T81.3; EB1 at p.177). The correction was also made in Mr Tomasetti's affidavit of 14 July 2010 (at [25]). He added that it "was a dormant shelf company" which was "not involved in my financial affairs until Mr Brailey started to use it".
340Mr Tomasetti set out something of a history of his real estate purchases (at [40]). The subject matter is not significant but the mess that was made of this evidence and the attempts to claim recollections of actual conversations are significant.
341Mr Tomasetti said that in about 1996 "or so" he bought a small apartment in Mosman. He and Ms Cordony then bought a second house at Lovett Bay "for $740,000" (which was corrected to "$840,000 or thereabouts" (T81.31)). "Each time the NAB provided mortgage funds to us" (Mr Tomasetti did not bank with the National Australia Bank ("NAB") until 2003). He said that he then sold the Mosman apartment and purchased a home unit in Point Piper (the Mosman apartment was sold in April 2000; the Point Piper property was purchased in July 1999). In about 2001, they decided to sell Lovett Bay and Point Piper and buy a home at Church Point.
342In the following paragraph, Mr Tomasetti said that "in respect of each of the property acquisitions that I have referred to above, I spoke to Mr Brailey and said words to the following effect". He then purported to set out a conversation he claimed that he had with Mr Brailey about buying the house in Lovett Bay. It included:
"Ted, Sassi has found a nice house at Lovett Bay and we are very interested in it. The flat at Mosman is very small and trying to manage 4 children there over the weekend is extremely difficult for me. If we buy this property at Lovett Bay, there will be ample room for everybody and lots of things for the kids to do on the weekend which will make things easier for me. The vendor wants $750,000 or so what do you think"
343The affidavit continues in the same paragraph ([41]) to set out a conversation said to have taken place subsequently with Mr Brailey in Mr Tomasetti's chambers. It concerned his financial situation and included Mr Brailey saying " What do you think Mosman is worth at the moment ?" At the end of this conversation, Mr Brailey said, " Well it all looks good to me. I'll do some work and prepare some up to date accounts and speak to Neale for you " . This was a reference to Mr Neale Howard at the NAB, a man who was not involved with Mr Tomasetti until 2003.
344Mr Tomasetti then (at [42]) set out a conversation he claimed occurred when " Mr Howard contacted me shortly thereafter " . Mr Howard said that he had spoken to Mr Brailey, " everything [would] be fine " , and that he would send some loan documentation. In the following paragraph, Mr Tomasetti said that " the same procedure was followed when we purchased Point Piper, Church Point and later our farm at Robertson in the Southern Highlands. The conversations with Mr Brailey were to the same effect " .
345At the beginning of his evidence, Mr Tomasetti volunteered a correction to paragraph 41 on the basis that the house at Lovett Bay was purchased in May 1998, some six months or so before he had even met Mr Brailey (T81.35).
346Even with that correction, the evidence was wrong in that "the conversations with Mr Brailey" concerning the purchases at Point Piper, Church Point and Robertson could not have all been "to the same effect". Mr Tomasetti denied that it was fictional to refer in his primary affidavit to a conversation about acquiring Lovett Bay for the reason that Mosman was too small (T157.1). He accepted that such a conversation did not take place, but on 17 November 2009 he "had a genuine belief in the truth" of what he had asserted.
347It is unnecessary to refer to the detail of the evidence on this subject any further. It demonstrated, however, a preparedness by Mr Tomasetti to construct a claimed recollection of conversations that could not possibly have taken place in the terms he claimed.
348I have mentioned elsewhere the corrections Mr Tomasetti made to paragraph 45 of the affidavit concerning the occasion of his first conversation with Mr Brailey about agribusiness investments, with even the corrected version being clearly wrong. His claim in the next two paragraphs that at the conclusion of their meeting he signed application forms and Mr Brailey took them away was also shown to be wrong.
349A relatively minor and peripheral matter, but something that speaks of the reliability of Mr Tomasetti's memory, arose when he was asked about a margin loan facility that he had with the Commonwealth Bank of Australia. Mr Tomasetti was being asked about the alternative option of investing by buying shares in "blue chip companies". He mentioned that this is something that he could have done if he had the funds available (T283.44). He agreed that he could have borrowed money to buy shares, but " it's never been my practice to do so because I had watched other people do that and lose money " (T284.16). He amplified on his experience of seeing other people being the subject of margin calls. He agreed that he had a margin lending facility that was put in place for him by his bank, but was adamant that he had " never used it ... for the reasons I have just described. ... I thought it was an unsound thing to do " (T284.47). Earlier in his evidence, he had said that in the period 1997 to 2009, he borrowed money if he did not have the money in his own resources to pay for investments; for real estate purchases; for real estate development; and for the investments that Mr Brailey recommended for him. However he added, " I used my own cash when I invested in the stock market " (T91).
350Mr Tomasetti was then shown a statement in respect of his margin loan account (Exhibit 5). He had in fact traded on it. The facility limit was $200,000 and the balance at 31 July 1999 was $138,000. He acknowledged that his recollection had been wrong (T287.27).
351Mr Tomasetti's signature appears on a document headed "Authority to Proceed" relating to the investment in Great Southern Blue Gum Plantations 2000 (Exhibit 4) which is countersigned by a Tony Snape. The document contained a number of significant acknowledgements (e.g. that the project was longterm and speculative with no guarantee as to possible returns). Mr Tomasetti had no recollection of Mr Snape and no recollection of signing the document. I am satisfied, for reasons given earlier, that it is highly likely that Mr Snape attended Mr Tomasetti's chambers on the day this document was signed.
352Another matter about which I am satisfied Mr Tomasetti's memory was demonstrated to be faulty was in relation to the joint venture investment by himself and the TSF in 2001. He claimed that he had no knowledge that he had entered into this investment on a joint venture basis until 2004 (T417.50). The nature of the documents, particularly where Mr Tomasetti signed for himself and on behalf of the TSF, make it very hard to accept that he signed it without any awareness that it related to an investment on a joint venture basis. I am satisfied that Mr Tomasetti was aware of this in 2001, and that his memory was faulty in this respect.
353Mr Tomasetti's recollection of the circumstances surrounding his making of three applications for investments at the end of the 2003 financial year was demonstrated to be quite poor. He gave an account in his primary affidavit of a meeting in June 2003 when Mr Brailey brought his tax returns and financial statements to chambers and their discussion included Mr Brailey extolling the virtues of almond investments schemes. He made brief reference to Mr Brailey also mentioning an investment in a Gunns Woodlot project. He said that he signed the application forms and Mr Brailey took them away. In cross-examination, Mr Tomasetti maintained that his recollection was that he had signed application forms at a single meeting and Mr Brailey took them away (T432.26).
354This recollection may be contrasted with the documents and with Mr Brailey's recollection. Mr Brailey said there was a meeting on 9 May 2003. He made file notes (EB1 at p.1166) which included reference to "Trees & Almonds". He said that he informed Mr Tomasetti of the availability and features of almond project investments. There was a subsequent meeting on 15 May 2003. It was Mr Brailey's evidence that it was at this meeting that Mr Tomasetti indicated his desire to take up both the almond and the forestry investments which had earlier been discussed.
355Even though there were in fact two applications for investment in almonds, Mr Tomasetti could only recall one. The application forms were signed on 23 May and 30 June 2003. They were witnessed by Mr Clynes and Ms Cordony respectively. There was the one forestry investment and its application was dated 3 June 2003. It was witnessed by Mr Clynes.
356The documents support the proposition that Mr Tomasetti's recollection was wrong. If he had no reliable recollection of how he came to sign the application forms, and how many, it is difficult to see how reliance could be placed upon his claimed recollection of the substance of conversations with Mr Brailey.
357Mr Tomasetti's difficulty in recollecting the conversations and events surrounding the 2003 investments would also seem to be an explanation for another matter. He gave the appearance of being in some difficulty when trying to give an explanation for his claim that he was given to think that the ongoing expenses with the 2003 almond investment would be "trivial". I earlier set out a relatively lengthy extract from the transcript of the cross-examination on this subject (T445 - 449). Mr Tomasetti's evidence about this was quite unsatisfactory.
358A topic that logically follows on from the making of the 2003 almond investments is the receipt of invoices from Timbercorp in October 2003 in relation to them. Mr Tomasetti applied to take up the offer of finance to pay a large proportion of these substantial sums (in the order of $100,000). He was asked about his decision to seek finance rather than paying cash, but he responded, " I did not make that decision Mr Parker at any time. ... I just followed Mr Brailey's instructions " (T504). He did not read the loan application; did not recall signing it; and did not recall any of the circumstances in which he did. He asserted that it was Mr Brailey's job to read these types of application forms and to tell him if there was anything important in them (T505).
359I observed earlier that the nature of the documents appeared more consistent with them having been sent direct from Timbercorp to Mr Tomasetti's chambers. The applications were signed by Mr Tomasetti and witnessed by Ms Cordony. Ms Cordony said that the decision to take up the finance option was one made without recourse to Mr Brailey (T612-613). This topic provides an example of Mr Tomasetti having no real recollection of something but seeking to attribute responsibility to Mr Brailey where no such responsibility lay.
360Mr Tomasetti took up a further $97,000 investment in an almond project in October 2003. He said in his affidavit that he had no recollection of signing up for this investment. He said that if he had made " a decision to buy further almonds in September or October of 2003", he would definitely have remembered it (T518.8). There is no question that Mr Tomasetti signed the application form. It is dated 23 October 2003. This was two days after he had signed applications for finance for almost $100,000 to meet expenses for the earlier almond investments.
361Recollection about the circumstances surrounding the largest of all of the investments, the $400,000 almond project in 2004, was also not without errors. Mr Tomasetti's affidavit originally contained the assertion that Mr Brailey came to his chambers on or about 14 June 2004 with tax returns and financial statements. That was clearly incorrect. He changed it to an assertion that it was on about 3 June 2004 and the documents related to agribusiness. Mr Tomasetti retained in his affidavit an assertion that he had looked to find his balance sheet and observed that his capital position "looked healthy enough". He conceded in cross-examination that he could not maintain a claim that this is something that occurred at this meeting. Another correction had to be made in relation to a document Mr Brailey provided during the meeting - "Statement of Advice" was changed to read "Financial Services Guide" when it became apparent that the Statement of Advice came into existence later than 3 June 2004.
362A most significant concession was made midway through the cross-examination which has a bearing upon the entirety of Mr Tomasetti's evidence. He was asked about his affidavit of 29 October 2010 in which he claimed that he would not have entered into the investments if he had been aware of certain things. He was challenged as to whether each of 13 things he listed applied to the individual investments. For example, he was asked (T382) whether he would not have entered into the first investment he made in 2000 if he had been aware:
"That the borrowing necessary to fund the projects would be approximately $1.6 million by the end of ... June 2008".
363Mr Parker suggested that such a proposition would be ridiculous. Mr Tomasetti responded with the assertion that it was part of a strategy: he believed that Mr Brailey had "targeted" him for ongoing commitment to these projects (T382.24). He then gave this evidence:
"Q. You seriously maintain that, that he always intended right from 2000 that you would be in the financial position that you are no [sic] now?
A. I believe Mr Brailey target[ed] me, in light of my position in life and my income, as a target for these types of investments and he intended to sell them to me on a continuing basis, and would have continued to sell them to me unless I had stopped him.
Q. And do you think that that has coloured your evidence in this case at all?
A. No. But the catastrophic loss I've suffered, it's undoubtedly coloured my evidence. I have a - you know that I'm not well. It's difficult not to be coloured." (T382.34) (Emphasis added)
364Ms Cordony did not pretend to recall what was said in any discussions with Mr Brailey about the two investments she made in 2005. She advanced reasons for why she invested in the two projects (for example, "I trusted Mr Brailey and was guided by his suggestions"), and also said that she was not told things (for example, he did not tell her that she would incur additional payment obligations in subsequent years). She made a number of significant concessions in the course of cross-examination, culminating in her agreement that she could not legitimately blame Mr Brailey on the ground that she was ill-advised (T648.34). In the light of those concessions, it is difficult to conclude that he engaged in some form of misleading or deceptive conduct in relation to her investments.
365The 2005 investments again highlight problems with Mr Tomasetti's evidence. His account was generally to the effect that he was unaware of them at the time they were made. This included that he was unaware that he had undertaken an obligation to pay for them. Those claims are hard to accept. Ms Cordony could not say with certainty that Mr Tomasetti was not made aware that he was signing obligations to finance her investments (T635). In the end, she agreed with the proposition that she had not deceived him but offered the concern that she had not explained "things fully enough to him" (T646).
366The forms that Mr Tomasetti signed, by their very appearance, make it difficult to accept that he had no idea what he was signing. I will only refer to some examples to make the point. In relation to the citrus investment application, he signed a credit card authorisation for $7,000. Immediately above that part on the page there is a very clear indication that the application is for citruslots with a total amount payable of $70,000. The application for vinelots in the Gunns project was signed on a page headed "Application and Power of Attorney Form". He signed immediately underneath the "Applicant's signature", that is Ms Cordony's signature. Even a very cursory glance at the page would have revealed that it was an application for an investment in vinelots of $34,650. On the following page, Mr Tomasetti signed a credit card authorisation for $6,930. On another page, headed in very large and bold type, "Part F - Direct Debit Authorities", Mr Tomasetti signed in two places: once under a similarly large and bold heading, "Authority for Loan Repayments Via Direct Debit from Bank Account", and again under a heading in similar style, "Credit Card Authority for Loan Establishment Fee". How a person, no matter how busy or pre-occupied, could sign such documents without either having been told what they were for, or failing that, asking what they were for, defies imagination.
367There are some other aspects of the evidence of Mr Tomasetti and Ms Cordony that do not bear upon the reliability of their memories but are relevant in a more general way to the FTA claim. One is that Ms Cordony conceded an awareness of a number of risk factors: price fluctuation; costs not being capped; the investor having no control over costs; yield fluctuation; the borrower being committed to repayments, despite no, or reduced, yields; and that there was a degree of speculation (T652 - 654). She agreed that she appreciated all of these things before entering into her two investments (T654).
368Ms Cordony claimed in her affidavit of 1 November 2010 that she would not have entered into the investments if she had been aware that they were "highly risky". However, she agreed that she knew they were "risky projects" (T656-657). It may be a matter of semantics, but it is difficult to see any significant difference between investments that are "highly risky" and "risky projects". There was also the claim by Ms Cordony in that affidavit that she would not have entered into the investments if she knew that they could not be sold. However, she conceded that she had been aware of that beforehand (T659; 660).
369Mr Tomasetti acknowledged that he knew that the projects were "not as safe as other potential investments", in particular that they were not as safe as blue chip shares. He was conscious of this at the time he made them and that he did not have to make them and could have instead invested in safer investments. He also acknowledged that he was aware of some of the "agricultural risks" and "finance risks", although he did not contemplate the level of debt he would eventually accumulate (T383).
370There was another feature of Mr Tomasetti's evidence that did not encourage its acceptance. At various times in the cross-examination, he gave the impression of being reluctant to give a direct answer to questions. The following is an example. He was being asked about infrastructure bonds being no longer available for use in a tax minimisation strategy in the 2000 financial year.
"Q. Did you ask anyone to do it for you; that is, to find out whether something is available to reduce your tax?
A. In my initial interview with Mr Brailey, I raised the issue of tax minimisation.
Q. That was 1998?
A. That was December 1998, yes.
Q. But I was asking you about 2000?
A. I don't believe I gave any specific instructions to anybody at that time to go looking around for other ways of minimising my tax.
Q. Did you expect Mr Brailey to do it as part of his job as your accountant?
A. I think the answer to that is yes . Yes, to - yes.
Q. So assuming, as you may, for the purposes of these questions that the infrastructure bonds had come to an end--
A. Yes.
Q. --your expectation of Mr Brailey was that he should look around to see if he could find something to replace it in terms of obtaining a deduction?
A. No, not specifically.
Q. Isn't that what you have just said?
A. No, I didn't expect him to go looking around for anything. I just expected him to give me advice from time to time about matters including tax minimisation, as had been done in previous years since I first commenced my professional life.
Q. Can we at least agree on this: in about April 2000, you were looking to Mr Brailey to see if he could find ways in which you could lawfully reduce your tax?
A. I have difficulty in answering that question, I'm sorry.
Q. Are you having trouble understanding it?
A. I didn't give Mr Brailey any specific instructions to that effect, Mr Parker.
Q. That's why I asked you about--
A. But in my initial discussions with him, I did draw to his attention that part of my expectations were to make me aware of lawful tax minimisation measures. And by that I had in mind the service company arrangements and things of that nature.
Q. Now--
A. I did not give Mr Brailey any instructions in the 2000 year specifically to go out and find for me investments to replace the infrastructure bond.
Q. Well, I didn't suggest you had given him a specific instruction--
A. I'm sorry.
Q. --my question was whether that was your expectation?
A. No, no, my--
Q. My question first was, was it your expectation--
A. No, it wasn't my expectation --
Q. Please, let me finish this question--
A. I thought you had finished.
Q. Was it your expectation in that year that Mr Brailey, as part of his duties as your accountant, would do his best to see whether there were avenues, apart from the ones that you were already using, for you to lawfully reduce your tax?
A. Yes ." (T234 - 235) (Emphasis added)
371Another example of Mr Tomasetti appearing to be reluctant to give a direct answer to a straightforward proposition appears in the following exchange. To put it in context, Mr Parker was asking about notes Mr Tomasetti made at and shortly after a meeting that occurred in 2009:
"Q. That is the first in chronological sequence meeting in this case of which you have a contemporaneous note?
A. No, that's not right. Can we go to the facsimile that I wrote on 3 November 2005 and to which Mr Brailey replied on 4 November. That's a contemporaneous note.
Q. It's not a contemporaneous note of a conversation?
A. It's a contemporaneous note of exactly what was occurring and it's a contemporaneous note of his response at the time.
Q. It is a contemporaneous document. Will you agree with me this, you've referred in this affidavit by the time we get to 2009 to a very large number of conversations that you say you had principally with Mr Brailey?
A. Well, only with Mr Brailey essentially sir. I haven't had conversations with others in relation to these matters at Brailey Fenton Lane & Co and there are a number of conversation [sic] and there are contemporaneous notes along the way that myself and Sassy - I dispute the fact that there are not contemporaneous notes.
Q. You never set out at any of these meetings to actually make a note at the time of what had transpired at these meetings?
A. No, I did not.
Q. All of the conversations that you have deposed to which you say took place at the time when you made the decision or you received advice in connection with entry into the projects which are the subject of these proceedings, every one of those conversations is unsupported on your part by any contemporaneous note?
A. No, that's wrong sir.
Q. Which projects gave rise when you were entering into them to conversations of which you have a contemporaneous note?
A. Well, from the very first time that I met Mr Brailey there is a note on a Morgan Stockbroking pad of the conversation I had with him. [This was Mr Brailey's notes of a conversation in December 1998, 16 months before any conversation about agribusiness projects (EB1 at pp. 159 - 170)].
Q. That's Mr Brailey's note?
A. I thought you were asking me of a contemporaneous note of my conversations with Mr Brailey?
Q. You know that Mr Brailey made contemporaneous notes of many of the conversations the subject of your evidence, don't you?
A. No, not many, some.
Q. He made some?
A. Some, yes.
Q. And you haven't got one?
A. No, I don't. I've got the note from that meeting but otherwise I--
Q. By that meeting?
A. --there may be.
Q. Please?
A. I haven't answered the question.
HIS HONOUR
Q. I think Mr Tomasetti is still answering the previous question?
A. Thank you very much, your Honour. I do not agree that there are no contemporaneous notes. The documentary record is huge and there are contemporaneous notes, but there's not many and apart from the ones that I've mentioned to you. I'm not in a position to identify them immediately.
PARKER
Q. I'm asking about your notes?
A. No, I didn't take note of my discussions with Mr Brailey Mr Parker. I didn't do that." (T478 - 480)
372There were also occasions when Mr Tomasetti gave the impression of being reluctant to nominate or agree to something that might not have helped his case. It is hard to avoid the conclusion that legitimate tax minimisation was a major factor in deciding to enter into these investments. Mr Tomasetti was earning substantial professional fees which were increasing each year. Infrastructure bonds, a means by which he obtained significant tax deductions in the 1998 and 1999 financial years, were no longer available. Thereafter the agribusiness investments enabled him to reduce his taxable income considerably.
373However, Mr Tomasetti repeatedly said that tax minimisation was not an important consideration. For example, he said tax was not the primary consideration (T301.27); it was not important to him (T362.50); the "tax incentive was not [his] incentive for going into these arrangements" (T363.27); and he was "not particularly keen or otherwise" to receive a tax deduction (T520.15). Mr Parker specifically asked him about the advantages he saw in making the investments in 2000. He responded by identifying diversification, forced savings, and the opportunity to receive an income in years to come. It was only after Mr Parker prompted him with the "elephant in the room" that he agreed that "tax" was another advantage (T296).
374Mr Tomasetti twice referred to his position of being a barrister. These were unnecessary and were unimpressive and self-serving attempts to bolster his own credibility:
"Q. In November 2009, it was probable you'd received the prospectus for this project and when you gave evidence today you wouldn't go that far. What is the explanation for that?
A. The exchange before lunch, my position as a barrister, I need to be very, very accurate with every answer that I give ." (T244.16)
And later:
"Q. Is that a serious answer?
A. It is an absolute serious answer, your Honour, on my oath, as a barrister of 32 years ." (T460.12)
375Because there is strident criticism by the plaintiffs of the evidence of Mr Brailey, in assessing the reliability of their evidence I have not had regard to anything he said unless it is corroborated by documents. However, there is evidence of another witness which is reliable and contradicts that of Mr Tomasetti. It is concerned with the topic of the meeting in May 2009 at the offices of Commercial Associates, at which Mr Tomasetti, Mr Brailey and Mr Fleming Stojanovski were in attendance, and in which the investments were discussed at length. Mr Stojanovski's affidavit evidence (at [21]) included that Mr Brailey made the following response to Mr Tomasetti:
"I have advised you of these risks, Peter. Either you don't recall this or didn't at the time have the necessary level of interest for this information."
376He also said (at [26]) that in response to allegations by Mr Tomasetti that he had not been properly advised about a range of matters, Mr Brailey responded, " But I did advise you of that " .
377This evidence was disputed in the cross-examination of Mr Stojanovski but he maintained that this was his recollection of what was said (T1078 - 1079).
378Mr Stojanovski also gave evidence (at [32] - [33]), which was not challenged, that Mr Brailey said to Mr Tomasetti
"Peter, you can't spend the amount of money you have on cars and boats and other luxuries without it having an effect";
and at the end of the meeting, Mr Tomasetti said:
"I always thought that I could spend as much as I liked because I was earning such a large income".