The credibility of witnesses
34 Mr Land gave evidence in five affidavits which, by leave, were substantially supplemented by oral examination-in-chief. I found his evidence to be coherent and consistent, though times his recollection was far from perfect, as he admitted. Generally I prefer his version of the events from mid-1993 to the end of April 1994, and during the subsequent period, to the versions offered by Ms Wolf and Mr Jones. I accept his evidence that the defendants were paid $ 3,200 per month from May to August 1994. He said the total amount was $12,600 but that seems to be a mathematical error, the correct figure being $12,800. I reject the evidence of Ms Wolf and Mr Jones that a payment of $ 3,200 at the end of May or early June was not received. I was somewhat troubled by Mr Land's alteration of his evidence as to when a security guard was assigned to the shop. He initially said it was shortly after 28 April, but subsequently said he had been thinking the matter over and had decided that the security guard was posted only after the apprehended violence order was obtained on 25 August 1994. Since, however, the change of evidence does nothing to improve the plaintiffs' case, I accept Mr Land's eventual version as correct.
35 Mr Seaborn's evidence was far from satisfactory. In particular, he constantly protested that he could remember very little of the events of April 1994, and that he was affected in the witness box by his heart condition and by insulin-dependent diabetes. At one stage I adjourned to permit him to take an injection of insulin, although that did not improve his memory very much. He claimed that on 28 April 1994 there were two meetings, one between him and Mr Land and the second a meeting of all four partners. The assertion that there was a meeting of all four partners was not consistent with the evidence given by Mr Land, and was denied by Mr Jones and Ms Wolf. My conclusion is that at best, Mr Seaborn had a very faulty recollection of the events of 28 April 1994. In my view there was no meeting of all four partners on that day. I am prepared to accept other evidence given by Mr Seaborn, at least where it is not contradicted by other witnesses.
36 The other witnesses who gave oral evidence for the plaintiffs were four men, Messrs Lark, Leverett, Chambers and Dickinson. Their evidence related to conduct of the defendants which they had observed in the shop.
37 Mr Lark answered questions in cross-examination directly and (so far as I could tell) honestly. Initially his evidence was that he observed Mr Jones' conduct over the period from March to July 1994, but when it was pointed out to him that Mr Jones left the Wolf Den at the end of April 1994, he frankly accepted that he was mistaken. Overall, I found him to be a reliable witness, although there were some defects in his recollection of events.
38 There were some differences between Mr Leverett's oral evidence and his affidavit. The oral evidence was generally not as hostile to Mr Jones as his affidavit, some parts of which were disallowed. I accept his oral evidence concerning Mr Jones' treatment of customers suspected of wrongdoing, and the combination of his affidavit and oral evidence with respect to two fights between the defendants.
39 Mr Chambers was not an entirely satisfactory witness. His affidavit conveys the impression that the defendants took over from him at the end of his shift on a regular basis, but he admitted in cross-examination that this was not so, and that they took over from him only when he was on rotation during the early part of his employment, and when he specifically asked them to relieve him so that he could catch a plane to Brisbane. He has known Mr Land and Mr Seaborn for many years, and his relationship with them may have influenced him to colour his evidence in their favour. Nevertheless, I accept his evidence, on the balance of probabilities. He appeared to be direct and truthful in the witness box, and his evidence concerning the targeted purchases is corroborated by Mr Land.
40 Mr Dickinson struck me, on balance, as a witness whose evidence I should accept. Mr Land did not corroborate Mr Dickinson's evidence, but Mr Seaborn did.
41 Ms Wolf denied the allegations of misconduct against herself and Ms Jones. She said she was always punctual and attended the shifts to which she was allocated, although sometimes she went to a warehouse and when she did, Mr Jones would attend the shop punctually. She said that Mr Jones drank in the shop but only during the hot months, and only three or four bottles of Crown Lager a shift. She said Mr Jones never used offensive language to customers, although she noted that some of the book titles contained offensive language to which he may have referred. He never was physically violent to customers except in self-defence.
42 In my opinion Ms Wolf was an unsatisfactory witness whose evidence should not be accepted unless reliably corroborated. At various stages during cross-examination she shifted her position. For example, when it was suggested to her that she had told Mr Land that she could find a buyer for the business for $400,000, she first said 'it was not a serious comment', and then denied that she had made any such statement. She said that on 30 August 1994 she was not living at 40 Womerah Avenue Darlinghurst, the address to which the plaintiffs' solicitors had sent her a letter bearing that date, and that she was not sure when she ceased residing there. Later she said the street was in Rushcutters Bay rather than Darlinghurst, though it was a borderline street between the two suburbs and the postcode on the letter was correct, and eventually she said that she lived at 40 Womerah Avenue on 30 August 1994 and for some time before and after that date. At first she denied having received or even having seen the letter of 30 August 1994, but later she said she had seen it at some time which may have been months after 30 August, and the letter was produced by the defendants' solicitors when a call was made for it.
43 In the last analysis, however, the most serious deficiency in her evidence is its overall implausibility. Having denied key elements in Mr Land's account, her own explanation of the falling out between the plaintiffs and the defendants was disjointed and entirely unsatisfactory. Ms Wolf denied that the defendants had received any warnings that their behaviour was unsatisfactory prior to April 1994. She said that she was not working a shift on 27 on 28 April, and had no discussions at that time with Mr Land or Mr Seaborn. She said that on about 28 April Mr Jones told her that he had had a conversation with Mr Land as a result of which they would not be allowed to return to the shop. She said that a security guard was put on the shop at about that time and she subsequently had a telephone conversation, and then met with Mr Land on 3 May. On both occasions she asked him why he had put a security guard on the shop. He told her that Mr Jones needed a holiday and things would get back to normal, but she was not allowed to go back to the shop and that he wanted to sell the business. She said she did not want to sell and that she wanted to go back into the shop. She had a later conversation with Mr Land in the middle of May in which he told her that 'things weren't working out and either we sell the business as a whole or we buy you out or you come up with the money and by us out'.
44 Her evidence implies that the plaintiffs' attempt to exclude her and Mr Jones from the partnership late in April was a bolt from the blue, without any justification. That is implausible, even apart from the weight of evidence to the contrary.
45 Mr Jones, as I have said, gave very brief affidavit evidence in which he purported simply to confirm Ms Wolf's affidavit. That part of his affidavit was disallowed, but he was permitted to give oral evidence, and did so extensively. Various parts of his evidence were inconsistent or misleading. For example, he changed his evidence as to whether he and Ms Wolf had arguments in the shop, at first admitting that there were arguments two or three times a month, but later denying that there were any 'domestic disputes' in the shop. He said that the shop operated on three 8 hour shifts per day, but this changed to two 12 hour shifts per day a couple of months before the end of April 1994. Later, when confronted with timesheets for April, he resiled from that evidence and said that there were three shifts up until the end of April (a curious alteration of evidence, given that he was responsible for the preparation of rosters). He said that Ms Wolf's attendance at the shop was a bonus for the partnership, apparently overlooking her obligation under clause 11.1 of the partnership agreement to devote such time to the partnership as the partners agreed. His attempt to explain the handwritten insertion of names in some carbon copies of timesheets was inadequate. He said that in the couple of days prior to 27 April 1994 he had been driving up to visit with his dad, but when pressed he qualified that evidence by explaining that he was referring to his stepfather, and that as he did not drive, the driving was done by Ms Wolf. He gave evidence that he worked the 6pm to 2am shift on a regular basis, but later admitted when shown timesheets that he had worked only seven shifts from 1 to 27 April 1994, although he insisted that he worked for the partnership in other ways at other times.
46 His evidence of his conversation with Mr Land which caused the break-up of the partnership (in effect, that he agreed with Mr Land that he would take a three-month sabbatical) was inconsistent with Ms Wolf's version (that Mr Land said that they were not to return to the shop). In his affidavit he saw fit to refer to paragraph 16 of Mr Land's affidavit of 8 September 1994 and to deny Mr Land's version of the conversation between them in the coffee shop on 27 April, but he did not deny other aspects of paragraph 16. As I have already said, I do not hold against the defendants every failure on their part to deal with factual allegations in the plaintiffs' affidavits, but I find it implausible that Mr Jones would not have denied the finger-biting episode in his affidavit, if it was really false.
47 As with Ms Wolf, Mr Jones' version of the events from mid-1993 to the end of April 1994 is implausible. His evidence is that there was no misconduct by him or Ms Wolf in the shop, and that he conscientiously attended to his duties, arriving late only when he had worked late on the previous night, and then only by less than one hour. He denied all specific evidence of misconduct (including the finger-biting episode) and gave an account of some altercations arising out of attempts by customers to steal goods from the shop.
48 His evidence was that on 27 April 1994 he received a telephone call from his mother who told him that his dad had been readmitted into intensive care with Krohn's disease and emphysema. He was upset and telephoned Peter Tomasulo (an employee of the partnership) at the shop, arranging that Mr Tomasulo would cover that evening's shift so that Mr Jones could visit his father. Mr Tomasulo invited him to the shop to have coffee as it was evident that Mr Jones was distressed. While he was having coffee with Mr Tomasulo, and still upset and crying, Mr Land arrived. Mr Land took him to another coffee shop and told him that he had been working too hard and was under too much stress with his dad's illness, and that he should take six months off. Mr Jones said he could not take six months off because he needed his wages and his profit share and the shop was his life, but agreed that he had been working for a long period without a holiday. After discussion, says Mr Jones, he agreed with Mr Land that he would take a three-month break. Subsequently he had a nervous breakdown which prevented him from responding effectively in the early part of the present proceedings.
49 I am prepared to accept that Mr Jones' stepfather was terminally ill and that Mr Jones found out about his stepfather's last illness late in April 1994, and was distressed. Nevertheless I find it implausible that Mr Land would have advocated a six-month sabbatical for Mr Jones, especially since that would entail the absence of Ms Wolf as well. It is particularly implausible that Mr Land would have proposed such an arrangement on the spur of the moment, observing Mr Jones' distress at his father's illness. Mr Jones' evidence does not explain why or how an amicable proposal for a sabbatical developed into a bitter partnership dispute. It denies the evidence of successive witnesses for the plaintiffs. It is inconsistent with Ms Wolf's evidence about what Mr Jones told her when they meet on 28 April after his conversation with Mr Land.