Affidavit of Kevin Michael Henry Roberts sworn 19 September 2006
4. In or around late October 2002, I received a telephone call from Mr Steve Adams ("Adams"), a person I understood to be an employee of AWB, at which time we had a conversation during which words were said to the following effect:
Adams: "Are you looking for any grain?"
Roberts: "Depending on the price."
Adams: "$355 per tonne."
The price of $355 per tonne referred to above is my best recollection of the price Adams quoted me during this conversation.
Roberts: "That price must be near the top of the market."
Adams: "Look Kev, you know grain is going to be really bloody short. We could completely run out by the middle of next year. There is only limited grain left in Southern Queensland."
Roberts: "That would be right. You guys have got all the grain, and know where it is. We'll have a look at it."
6 In his affidavit for the purpose of these proceedings sworn 10 July 2008 (the admission of which on the voir dire was subject to objection by the respondent) Mr Adams said that his understanding was that the purchase of wheat was simply a matter of price so that the supply of wheat in Australia or perhaps from overseas could never realistically run out. In substance, Mr Adams denies saying to any customer words to the effect that there would be no more wheat to buy in Australia as the availability of wheat is always a matter of price.
7 The applicant submitted that these paragraphs are admissible under s 97 of the Evidence Act (Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51; [2000] FCA 1886). Section 97(1) provides:
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind, if:
(a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party's intention to adduce the evidence; or
(b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
8 There is no issue about the giving of notice in writing although the applicant's notice included an additional affidavit of Ross Wardlaw the admissibility of which the applicant no longer presses. The issue is that contained in s 97(1)(b) above.
9 The applicant submitted that the evidence has significant probative value in determining whether the representations as recounted by Mr Setter were made having regard to the following factors: - (i) "significant probative value" is less than "substantial probative value" but the evidence must be "important" or "of consequence" (citing R v Lockyer (1996) 89 A Crim R 457, (ii) "striking similarity" or "underlying unity" are indicative of potential probative value but are not essential, (iii) the evidence in this case is from five feedlot farmers concerning representations made within a few days of each other and having a marked similarity to the representations in issue, (iv) Mr Adams not only denies the central representation (that if the applicant did not buy wheat now, in late October or early November 2002, there would be none left until the next harvest and the applicant could not get grain for the feedlot until October 2003) but says the statements attributed to him were ridiculous and would not have been so understood, (v) each of the deponents gives evidence of Mr Adams saying that grain could or would run out before the next harvest (October 2003), (vi) Branson J had determined that the evidence was admissible under s 97 in Bective Station Pty Limited v AWB (Australia) Limited [2006] FCA 1596 having regard to the very similar representation in [5] and the factors specified in [83] (namely, the closeness in time of the conversations, the similarity of language, the reference in each that the supply of wheat could or would run out, and the nature of Mr Adams' denial), and (vii) if the evidence has significant probative value then (and contrary to the respondent's submissions) the evidence would not be excluded under s 135(c) of the Evidence Act (which provides that the court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might cause or result in undue waste of time).
10 The respondent submitted that: - (i) considered individually no single piece of evidence could have significant probative value, (ii) hence, the issue is whether collectively the evidence is of such value, (iii) s 97 requires this issue to be assessed having regard to other evidence adduced or to be adduced by the applicant (specifically, Mr Setter's evidence but not Mr Adams' evidence), (iv) misleading and deceptive conduct involves questions of nuance, impression and fallible memory (Watson v Foxman (1995) 49 NSWLR 315 at 318 - 319) and careful regard must be had to the context of the conduct (Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199, (v) the distinction between similarity in the wider and narrower sense is relevant (D F Lyons Pty Limited v Commonwealth Bank of Australia (1991) 28 FCR 597 at 605 - 606), (vi) Mr Adams' evidence is that the vast majority of his work involved telephone calls to customers to quote a current price at which the respondent would sell grain, (vii) out of an unknown number of conversations Mr Adams may have had in later 2002 the applicant had selected four conversations (as the conversation with Mr Wardlaw was no longer pressed), one of which (Mr Rowland) contains a sentence similar to that in the conversation with Mr Setter if each is taken in isolation, (viii) the conversations contain substantial differences (explained in two tables provided by the respondent) and do not disclose any system or standard patter, (viii) the observations of Branson J in Bective were obiter and plainly distinguishable given that the principal deponent in Bective was Mr Vickery who alleged representations in a very different form from Mr Setter, and (ix) even if prima facie admissible under s 97 the probative value of the evidence was substantially outweighed by the risk that the evidence might cause or result in undue waste of time (s 135(c)).
11 Given the circumstances of the present hearing (that is, on the basis of the evidence as it stands in the affidavits) the parties agreed that the evidence could be found to be provisionally admissible only.
12 There are differences in the conversations. The conversation with Mr Setter starts with reference to the wheat available in northern New South Wales. The context of the conversation with Mr Vickery is the wheat available in Australia and the only other option being importing wheat from Chicago. The conversation with Mr Rowland appears to involve the general availability of feed wheat. The conversation with Mr Gillogly includes reference to the price of importing grain from South Australia or overseas including from Chicago. The conversation with Mr Roberts refers to the grain available in Southern Queensland. Other than Mr Setter only Mr Wardlaw refers specifically to northern New South Wales (although his evidence is not sought to be relied on by the applicant). The conversations with Mr Gillogly and Mr Vickery also involve a comparison between the cost of imported and domestic grain. Mr Gillogly and Mr Roberts refer to a prospect of grain becoming unavailable ("we could run out of grain" and "we could completely run out of grain by the middle of next year") whereas the conversations with Mr Vickery and Mr Rowland refer to no wheat being available. Only the conversation with Mr Setter refers to a specific tonnage of wheat in northern New South Wales.
13 Despite these differences there are striking similarities in respect of the essential allegation in paragraph 12(d) of the statement of claim and Mr Setter's evidence that if the applicant did not buy wheat "now" there would be none left until the next harvest in October 2003. First, it is apparent that the disputed conversations are all said to have occurred in late October or early November 2002 and thus are proximate in time. Secondly, the disputed conversations all involve the respondent's customers or potential customers for the purchase of grain. Thirdly and most importantly, each conversation refers not only to the availability of wheat or grain but to the need to buy now as either no grain would be available until October 2003 (Mr Vickery and Mr Rowland) or grain could become unavailable (Mr Gillogly and Mr Roberts). Hence, the time, context and essential or critical content of the conversations are all remarkably similar. For these reasons I consider that the disputed evidence, taken together with Mr Setter's evidence, has significant probative value within the meaning of s 97 of the Evidence Act (at least in its current form) and is provisionally relevant. The disputed evidence will involve additional time but its probative value is not substantially outweighed by any undue waste of time. As such, I do not accept that it should be excluded under s 135(c).
14 The parties indicated that if the disputed tendency evidence was provisionally relevant then the related contextual evidence (paragraphs 1 to 16, 18 and 20 of Mr Vickery's affidavit, 1 to 3 of Mr Rowland's affidavit, 1 to 5 and 9 to 12 of Mr Gillogly's affidavit and 1 to 3 and 5 of Mr Roberts' affidavit) was also provisionally admissible. As the parties did not fully address this issue I will indicate that my preliminary view is that the evidence is admissible as part of the context explaining the conversations provisionally admissible under s 97 excluding paragraphs 5 of Mr Roberts' affidavit and 11 and 12 of Mr Gillogly's affidavit which appear unrelated.
15 The next issue is the evidence from the same affidavits which the applicant presses as relevant under s 55 for the purposes of answering the respondent's case that the representation about no wheat being available was ridiculous and would not be believed to be true (being paragraphs 23 to 26 of Mr Vickery's affidavit, paragraph 6 of Mr Rowland's affidavit and paragraphs 7 and 13 of Mr Gillogly's affidavit). I accept the respondent's submissions about this question of admissibility. First, Mr Adams does not make such a statement in this case. The statement is made in an affidavit from the Bective proceedings. Mr Adams can be cross-examined about his earlier statement in accordance with s 43 of the Evidence Act but the facts in issue remain whether the representations were made and, if so, what was done in reliance on them (in addition to loss or damage). Secondly, the question of the applicant's reliance depends on the circumstances of the applicant which may well be different from the circumstances of the deponents of the other affidavits. It is difficult to see how the responses of the other deponents could rationally affect the assessment of the probability of the existence of the applicant's reliance other than in the most marginal sense. However, the extent of any such capacity would be likely to require an exploration of the particular circumstances of each deponent. In these circumstances the probative value of the reliance evidence is substantially outweighed by the danger that the evidence might cause or result in undue waste of time and should be excluded under s 135(c).
16 The final issue is the evidence sought to be relied on as admissions (paragraphs 28 to 41 of Mr Vickery's affidavit and paragraph 7 of Mr Rowland's affidavit). These paragraphs are said to constitute implied admissions by conduct. Paragraph 7 of Mr Rowland's affidavit can be dismissed as Mr Rowland could not recall Mr Adams' response other than that he was not satisfied with it. That cannot constitute any form of implied admission by silence or otherwise. At its highest the evidence of Mr Vickery consists of an assertion of being misled and a lack of denial by Mr Adams (although many of the paragraphs pressed for admission consist of nothing more than claims that the advice was wrong). As the respondent submitted, none of the paragraphs say that Mr Adams made no response. Further, the issue is whether there were reasonable grounds for the making of the representations which depends on the facts or circumstances at the time (Sykes v Reserve Bank of Australia (1998) 88 FCR 511 at 513F). Mr Adams' alleged response to conversations about representations other than those to Mr Setter is of such marginal possible relevance that it too ought to be excluded under s 135(c) of the Evidence Act.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.