Tractor usage
105As I have stated, Mr Ware stated that as of late 2001 he owned several items of farm machinery that included two "Steiger" tractors. In his first affidavit, Mr Ware stated that when he first brought the tractors onto Torry Plains in December 2001 he recorded their usage at 10,149 and 5,623 hours respectively. He said he kept a handwritten note of his hours which is annexed to his first affidavit. He stated that after he was terminated he had the tractors moved from Torry Plains and was assisted by a friend, Sharon Hedwards. He said they both recorded the hours on the tractors as 12,805 and 7,735 respectively. He said he "watched as Sharon wrote the correct tractor hours in her diary". He said he had not retained the paper upon which he recorded the hours, but annexed a copy of the piece of paper said to be from her diary. The difference in hours is 4,768 from which he deducted 50 hours being his estimate of some work they undertook on Warewaegae in 2004. Thus he claimed 4,718 hours. In cross examination he volunteered that a further two hours should be deducted for the time involved in transporting a "laser bucket" off Torry Plains.
106In his second affidavit Mr Ware described the work done on the tractors in considerable detail. He stated that it was necessary to cultivate more fields than were sowed so that many fields could be ready for when water became available. This aspect of his evidence was the subject of comment by Amaral Pastoral which I address below. Mr Ware stated that he told Mr Amaral that he was adopting that approach. He said he reported to Amaral by telephone about once a week and told how much land was being cultivated. He annexes various records showing the land that was sewn and from that annexes a table of the acreage that was cultivated.
107Amaral Pastoral's response to this assertion was encapsulated by a short passage in Mr Ware's cross examination where the following alternative propositions were put to Mr Ware:
(i) the tractors did not do any work between December 2001 and March 2005 at Torry Plains;
(ii) however if they did it was only to the extent that was actually invoiced; and
(iii) but even "if they did do a little bit more work" it was only undertaken because Mr Ware wanted to "keep this job" and have fuel, breakages and maintenances paid.
Mr Ware denied all three (alternative) propositions.
108There were five main points taken up in cross examination of Mr Ware concerning tractor usage that were developed in Amaral Pastoral's final submissions.
109The first contention was that Mr Ware's honesty should be doubted because he conceded that one of his tractors had been used for 20 hours on a sharefarmer's allotment and this was not referred to in his affidavits. This contention has no substance. Mr Ware explained that this occurred when a particular sharefarmer experienced personal difficulties and effectively walked away from his crops. He explained that the crops were taken over by Amaral Pastoral which received the proceeds from their sale.
110The second contention concerned the figure for tractor expenses that was included in the budget for the calendar year 2005 that he prepared in early February 2005. The budget included a figure for $146,860.00. In his first affidavit Mr Ware explained that this was calculated by estimating which paddocks would be farmed, what their area was, how many tractor passes were required, and then determining what hours were required to perform the task. He said he multiplied this figure by the rate of $60.00 per hour.
111In cross examination Mr Ware agreed to the best of his recollection he prepared the estimate using "tens of hours". It was then pointed out that $146,860.00 is not neatly divisible by $60 or $66.00. It was then put:
"Q. Whatever you did do, it was not a calculation using whole hours, correct?
A. If you say so. I don't actually remember how the hell I did the thing. I might have done it per acre. I don't know.
Q. You have said in your affidavit how you did it. Now you don't remember, you mightn't know, you might have done it a different way as set out in your affidavit; is that right?
A. I'm confused.
Q. What you did do, wasn't it, is you plucked a figure out of the air to put it in there because the writing was on the wall for your future employment?
A. No.
Q. And that's why it appears for the very first time in one of your budgets in about February or March 2005?
A. No. It was the first time we were doing a serious budget where we did a serious plan on a 12 month projection.
Q. What were the earlier budgets?
A. The earlier budgets we had a guess figure, with Mr Brennan we developed a budget. But for the first 2 years before that all we did was drive from one end of the farm to try and fix the latest fire and get operating."
112I have set this out in its entirety because parts of this extract were set out verbatim in Amaral Pastoral's written submissions. The suggestion that Mr Ware prepared the 2005 document as ammunition in advance of his likely dismissal because he was aware that his employment was in jeopardy has no evidentiary support. I have described in [16] above the exchange that occurred on 4 January 2005 when Mr Amaral falsely advised Mr Ware that he (Mr Amaral) was under pressure from his bankers about the state of Torry Plains' books and sought an explanation for the bore payments to provide to his bankers. This was the subject of an immediate response from Mr Ware. Mr Amaral replied to that by reassuring Mr Ware that he was "impressed" with the state of the books and thanking him "for getting right on it". Other than the email of 4 January 2005 there was not a single document tendered to suggest that there was any basis upon which Mr Ware would have anticipated that his employment was at risk when he prepared the budget. It is otherwise noteworthy that the budget only anticipates payment of tractor costs when cashflow is positive.
113It was submitted that the combined effect of Mr Ware's evidence (in his affidavit) as to how he calculated the budget figures, and his answers in cross examination, are "evidence that there was no agreement per hour". The cross examination stopped short of suggesting to Mr Ware that he used a different hourly rate to the one he claims to have agreed upon in the April 2002 conversation. The range of rates for tractor hire mentioned in the evidence was between $40 and $80 per hour. It was not clear whether those figures were inclusive of GST or exclusive. The sum of $146,860.00 is evenly divisible by $70 (2098 hours). However the figure of $146,860 could have been a typographical error in that the $146,880.00 is evenly divisible by $60 (2448 hours). Alternatively Mr Ware could have utilised a comparable figure such as a proportion of the crop income or adopted an outright guess. The end result is that while I am not satisfied that the figure supports his evidence as to the use of a figure of $60 per hour, I am also not satisfied that it is inconsistent with it either.
114Much was made in Amaral Pastoral of the reference in the above extract from Mr Ware's cross examination to the reference to the "earlier budgets" which involved a guess figure. It was said that this demonstrated that Mr Ware was "dishonest" because it was said "[t]here were no earlier 'guess figures'" in that he had budgeted "for $0 equipment hire". The suggestion that it was a lie was not put to Mr Ware in cross examination. For my part I am uncertain as to what "earlier budgets" Mr Ware is referring to. As I have already discussed there was tendered in evidence a budget that Mr Ware prepared in January 2003 for the two year period to December 2004. This could be the budget prepared with Mr Brennan that Mr Ware referred to but that was not clarified. If so then the "earlier budgets" are budgets from a much earlier period so that Amaral Pastoral's submission does not advance the matter. If it was meant to be a reference to the 2003 to 2004 budget above, then for the reasons already addressed, I consider that the contents of that budget support Mr Ware's case.
115The third contention was that Mr Ware's evidence as to the recording of the hours on the tractors at the conclusion of his employment was inconsistent with that of Ms Sharyn Hedwards. I summarise Ms Hedwards' evidence below. It was submitted that Mr Ware falsely stated firstly that they both moved the tractors from Torry Plains and secondly that he was present when she recorded the tractor hours in her diary. As for the first point, Ms Hedwards initially nominated a Mr Leslie Schultz as the person who helped her move the tractors from Torry Plains, but when asked whether she was sure of this she stated she was "not a hundred per cent, no". The falsity of Mr Ware's evidence in this respect has not been demonstrated. In relation to the second point Ms Hedwards agreed she did not make the note in her diary recording tractor hours on the day the tractors were moved, but did state that she recorded them on a piece of paper that was later transferred to the diary. It could have been this that Mr Ware witnessed.
116The evidence from Ms Hedwards upon which this submission was based was not given until after Mr Ware had finished being cross examined so the suggested inconsistencies were not taken up with him. Nevertheless, none are such as to cause me to doubt Mr Ware's evidence. They are the type of discrepancies that can be expected when two different people are seeking to recall the same incident from a number of years previous.
117The fourth contention was that the evidence given by Mr Ware in his second affidavit concerning his cultivation of paddocks that were sown in anticipation of rain was "not believable". Amaral Pastoral relied on the fact that it only appeared after the service of two affidavits filed on its behalf from two farmers, Messrs Spinks and Blore. I summarise their evidence below but, in summary, they stated that the amount of acreage actually sewn by Amaral Pastoral should not have exceeded 450-500 hours compared with the approximately 4,500 that was claimed. It was submitted that the "lateness" of Mr Ware's evidence meant that the observations of Campbell J in White v Shortall [2006] NSWSC 1379; 68 NSWLR 650 at [71] to the effect that evidence which only emerges late can sometime be "very damaging to the credibility of a plaintiff's case" were apposite.
118The comments of Campbell J in White v Shortall were made in the context of additional oral evidence being led at the trial. They are not relevant to this case. Mr Ware's first affidavit was some 165 paragraphs long and addressed all the various issues raised by the pleadings, including the number of hours he claims his tractors worked. It was not incumbent on him at that point to set out in exhaustive detail all the matters he stated in his second affidavit concerning the detail of the hours worked and why. The full extent to which, if any, the work done on the tractor was in issue and more importantly the reasons why Amaral Pastoral contended that the work was not done would not have been apparent at the time of preparation of Mr Ware's first affidavit.
119The fifth contention concerns the absence of ongoing records of the hours of work performed by Mr Ware's tractors and where that work was undertaken. This contention is by far the most problematic part of Mr Ware's claim.
120Mr Ware agreed that in 2004 a tractor was hired from Gough & Gilmour. He explained that this related to a particular form of sowing suggested by some PhD students from the University of Melbourne who were advising on methods to increase safflower yields. However he agreed that it was usual practice for machinery hire operators when hiring on a per hour basis to record their start and finishing hours on invoices. Mr Ware did not maintain records of the particular hours performed by a particular tractor on a particular day or even in particular period. In a strict sense, the practice Mr Ware described of recording hours when the tractors arrived at and left Torry Plains equates to the usual practice for contractors he described. However, in the ordinary course one would employ better record keeping than that. Mr Ware stated that there were paddock records showing where the tractors worked, but each side blamed the other for their unavailability.
121There are some records and documents as well as some potential sources of documents. I have already referred (at [75]) to the records from Gough & Gilmour that were attached to Mr Amaral's affidavit. Mr Amaral's cross examination suggested that they did not account for all of the crop sewing that was done over Mr Ware's time as farm manager. I describe below the diaries entries of Ms Hedwards. There were also a number of fuel records and other documents attached to the affidavits of Ms Wells (see below). The fuel records suggest the consumption of a significant amount of fuel but apparently not many of them describe Mr Ware's Steiger tractors as having been filled. However Mr Ware explained that those records concern the filling up of machinery from bowsers on Torry Plains but that tankers located on the farm were also filled and then used to fill machinery. He stated that he would usually use one of these mobile tankers to refuel the Steiger tractors. In addition there were records of what acreage was sown and records maintained of the acres that were annexed to Mr Ware's second affidavit. I have described the budgets that were in evidence. Mr Ware stated that tractor driver timesheets were maintained but said they were in possession of the Amaral Pastoral. It denied having them and accused him of having taken them or destroyed them.
122The end result of this is that, leaving aside the pieces of paper recording the start and finish hours of the tractors, there is a series of incomplete and inconsistent documents that do not appear either to significantly corroborate or undermine this aspect of Mr Ware's case. Each party blamed the other for the inadequate state of the available records.
123I have already touched on the evidence of Ms Sharyn Hedwards. Two affidavits from her were read. In her first affidavit sworn 14 November 2011 Ms Hedwards stated that in January 2002, Mr Ware asked her to move into the house on Torry Plains as a caretaker. She describes her dealings with both Mr Amaral and Ms Hamner on their visits to Torry Plains. Ms Hedwards also describes in considerable detail the work she performed at Torry Plains using Mr Ware's two Steiger tractors. She recounts Mr Ware and Nathan Wilson doing the same. For example, she stated that in early 2003:
"... we began doing some work preparing seeds and lands for crops and farming. Peter's tractors were used extensively for this work working the ground and getting it ready. The ground was ploughed, dragged and prickle-chained and then seeded. Peter's tractors were used for all or most of this work. This required an average of about six to eight passes to do all of this work."
124Ms Hedwards also states that after Mr Ware was fired "I helped him remove his equipment off Torry Plains. I took a note of the hour meter of both tractors in my diary. I wrote this down in the front of my diary as we were leaving Torry Plains, before we reached the river". She annexes to that affidavit a photocopy of a page from a diary referable to the period March and April 2005 which on a page from April 2005 has the following entry:
"Tractor Hours for Peter
Move from Torry to Hay over Nap Nap River. ***, it was scary. Never been to crossing site before. Straight down one bank and up the other side - full on scary.
Dual 12,805
Single 7,735"
125In her second affidavit sworn on 31 July 2011 Ms Hedwards attaches extracts from her 2003 diary split into two sections being those recording the work she performed "using one of Peter's tractors" and the rest being examples of pages recording other work on Torry Plains. I have attached to this judgment a table of the recorded hours in 2003 "using one of Peter's tractors". I have done this because Amaral Pastoral's written submissions contended that her diary only records a total of 288 hours work which was said to not all be tractor work. However, my calculations indicate she recorded 401 hours of tractor work.
126In cross examination Ms Hedwards modified the account in her affidavit as to how she came to record the tractor hours after Mr Ware's dismissal. She recounts driving one of the tractors to the Nap Nap River. I have described her evidence as to who she moved the tractors with and how she recorded the tractor hours (at [115]). In addition, having regard to the layout of the note in the diary, she stated that she was not sure when she transferred the note she took of the hours into that diary, that is, whether it was soon after or possibly weeks later. She stated that her best recollection was that it was her husband who had asked her to make the note. The other significant modification to the version contained in her affidavit was that the diary recording the hours was not in fact her diary, but her husband's diary. She explained that it was in her husband's diary rather than her own because it reflected how relatively disorganised their home was. Effectively she stated that she just transferred the hours from a piece of paper into the nearest available diary.
127Towards the end of her cross examination it appeared to be suggested to Ms Hedwards that she had not moved the tractors at all, but ultimately no submission to that effect was made. She maintained that she had recorded the hours recorded on the tractors' meters when she moved them in 2005.
128It was submitted on behalf of Amaral Pastoral that Ms Hedwards' evidence should be rejected because of the discrepancies between her affidavit and her evidence in cross examination that I have summarised. Amaral Pastoral also pointed to inconsistent answers that she gave as to whether certain handwriting found immediately below the entry that I have extracted above was in her handwriting or that of her or her husband.
129I find none of these points persuasive. The discrepancies that existed in Ms Hedwards' account seem to me the type of discrepancies that one would expect of a person who is being asked to recall in 2011 and 2012 the circumstances in which they scribbled some notes back in 2005. At the time, the full significance of those notes was unlikely to have been appreciated by her and it can be expected that her memory in 2011 and 2012 of the precise manner in which she made them would not be strong although the broad details could be remembered. The strong impression I gained from her evidence was that she was emphatic in recalling the work done over a significant period using the tractors, was certain that she had moved the tractors and made the various notes. She was unclear as to precisely when and how the notes were made and was prepared to accept the possibility of the various means by which that had happened, as suggested by the cross examiner.
130I regard both the qualitative evidence that Mrs Hedwards gave of her observations of the amount of work that was done with the tractors, as well as her diary entries of the work she performed, as significantly corroborative of that part of Mr Ware's case concerning the number of hours his tractors worked at Torry Plains. As I have said, and contrary to Amaral Pastoral's submissions, her diary entries for 2003 record she worked 401 hours on Mr Ware's tractors. I expect this would be a reference to her hours of work and would probably overstate the number of the hours the tractors were operational. Even so, and assuming that they correspond to approximately 250 to 300 operational hours for a single tractor they suggest that for about one third of the period in question (i.e. 2003) she drove one of the tractors for around 6% of the total time it was said they were worked. Given the limited period in question and the time spent by Mr Ware and Mr Wilson on the tractors this seems to me to be broadly consistent with Mr Ware's claim.
131I accept her evidence concerning recording of the final hours of both of Mr Ware's tractors.
132Amaral Pastoral also made a submission that the inability of Ms Hedwards to produce her 2002 diary gave rise to an inference adverse to Mr Ware relying on Jones v Dunkel [1959] HCA 8; 101 CLR 298. Leaving aside all the other difficulties with this contention, it suffices to state that I reject it on the basis that it was not demonstrated that Ms Hedwards had access to her 2002 diary at the time of the hearing, much less that Mr Ware or his legal team had access to it. The evidence did not come close to enabling me to conclude that there was some deliberate decision by Mr Ware not to tender it because of some fear of what it might or might not reveal.
133Mr Ware also relied on evidence from Mr Wilson (see [74] above). He described the repair and ploughing work undertaken with the tractors in the period from 2002 to 2005. He states that Torry Plains was in a poor state of repair when he commenced. He stated that there was a clean up period in which the tractors were generally doing five days a week for twelve hours a day "over a period of 12 to 18 months". He stated that in 2002 they started preparing for farming by ploughing paddocks in the summer. He said they planted in the winter of 2003 in the majority of paddocks that had been fallowed previously. In the summer of 2003/2004 he said they began farming again, fallowing the paddocks that had been used in the previous years, and expanding upon the number of paddocks. He said there had been rain in 2003. He said they did not plant in all the paddocks that had been cultivated. He said he did not recall planting again in 2004 because there was no water available, but he said that they continued to do preparation work, fallowing and cultivating the paddocks using Mr Ware's tractors.
134Mr Wilson stated that during the time they were fallowing, the tractors were constantly in the fields. He said that fallowing took approximately two to three months, and during that period the tractors were in the field approximately six days a week, twelve hours a day. He stated that for the "period 2002 to March 2005 I used Peter's tractors on Torry every week for a minimum of 4 days a week. I often did 10 to 12 hour days. This was either the general clean up and repair work or cultivation and seeding".
135Mr Wilson stated that during Mr Amaral's visit in June 2003 he showed Mr Amaral the improvements that had been undertaken to the farm and told him that they had been undertaken using Mr Ware's equipment including his tractors. He stated that he regularly spoke to Mr Amaral when he rang to speak to Mr Ware and this included telling him of the paddock cultivation that was occurring in the anticipation of it raining.
136In cross examination Mr Wilson was asked to extrapolate from the estimates he gave as to the weekly tractor usage to arrive at overall figures for tractor hours. The results were significantly in excess of that claimed by Mr Ware. Hence, for the clean up period he accepted that if that that had lasted for twelve months with the tractors operating at his estimate of five days a week, twelve hours per day, it would yield 6,240 hours and if it was eighteen months it would yield 9,360 hours. Equally he agreed that if one took his estimate of the tractors working every week for a minimum of four days a week, ten to twelve hours per day, then it would yield an overall figure of somewhere between 10,000 and 15,000 hours between early 2002 and March 2005.
137Amaral Pastoral submitted that Mr Wilson's evidence is "clearly unreliable" because these estimates meant that he "cannot be an accurate historian". I have no difficulty accepting the proposition that Mr Wilson's evidence overstated the level of tractor usage. When he sat down in November 2011 to prepare his affidavit and sought to estimate tractor hours based upon his recollection of the level of work that he observed being undertaken, it is readily understandable how his estimate can differ so significantly from Mr Ware's estimate. Be that as it may, it certainly does not mean that his evidence as to the general usage of the tractors was dishonest much less generally unreliable. I consider that his evidence corroborates Mr Ware's claim in so far as it demonstrates that there was a high level of tractor usage.
138I have already described Mr Amaral's evidence on this topic and my rejection of it (at [76] to [81]).
139Amaral Pastoral also read two affidavits from the last remaining Australian employee of Amaral Pastoral, Lynette Wells. Ms Wells was employed as a book keeper at Torry Plains from February 2002 and stayed on after Mr Ware's dismissal. In her affidavits, she stated that she entered various information about the income and expenses for Torry Plains. Initially the software package that was utilised was "Phoenix" but in 2003 this changed to the Australian version of "Quickbooks". Apparently Ms Hamner used an American version of "Quickbooks".
140I have already referred above to the position in relation to documentary records (at [121]). There was a significant amount of evidence about the incompatibility between the various systems and who bore responsibility for that state of affairs. Ms Wells also attached some fuel records for the period from November 2002 to March 2003 and noted that only five entries were made "for fuel utilised for 'Steiger' tractors". I have already addressed this (at [121]).
141Ms Wells also attached to her affidavit some documents submitted to the National Association of Sustainable Agriculture Australia, presumably intended to demonstrate the amount of acreage that was cultivated at Torry Plains on Amaral Pastoral's own account. Presumably these were meant to provide the factual foundation for the opinion evidence of Mr Spinks and Mr Blore which I describe below.
142In cross examination Ms Wells stated that she thought Mr Ware only owned one tractor, that she never saw Mr Ware's tractor "towing any implement which is farming" but saw it "parked in the yard". However she also accepted that she overheard conversations involving Mr Ware and Mr Wilson about using tractors:
"Q. So, you had heard. Had you ever heard Peter Ware say something that suggested he had been on his tractor, working up Amaral Pastoral?
A. I have heard conversations of that but I have never physically seen it.
...
Q. Have you ever had or overheard a conversation with Mr Wilson, in which he said that he had been using Peter Ware's tractors for the purposes of the Amaral business?
A. Yes.
...
Q. Blokes who operated the machinery could come in and go each time that you were there and you would hear discussions about what they were doing, didn't you?
A. Sometimes.
Q. And you would regularly hear conversations about the use of Peter Ware's tractors in relation to the business of Amaral wouldn't you?
A. They would say we are on the tractor. That wasn't the only tractor there.
...
Q. And you did form the view that those tractors were in use didn't you?
A. Yes.
Q. And you told Mr Amaral that very simple fact, didn't you?
A. Yes. "
143Her evidence of the conversations she overheard involving Mr Ware and Mr Wilson satisfied s 64(3) of the Evidence Act 1995 so that it is evidence that they worked on Mr Ware's tractors. I consider it to be material strongly corroborative of Mr Ware and Mr Wilson's evidence, to the extent they asserted that they regularly worked on Mr Ware's tractors although it does not prove the amount of hours claimed. It is certainly inconsistent with so much of Amaral Pastoral's case that involves a denial that Mr Ware's tractors were used on Torry Plains.
144Amaral Pastoral also read two affidavits from two farmers, Michael Spinks and Stephen Blore. Mr Spinks owns a number of properties one of which adjoins Torry Plains. He has sharefarmed on Torry Plains at various points in time. He states that he was "regularly on the property" in late 2003 and 2004 and did not see Mr Ware's tractors undertaking any work there. He stated that one of Mr Ware's tractors had single wheels which he said was inappropriate for floodplain cultivation. He also stated that there was no use for cultivation when there is no water available. Based on his training and experience I allowed Mr Spinks to give opinion evidence as follows. He was asked to assume that between 2001 and 2005 Amaral Pastoral "farmed" (i.e. sowed) 3167.99 acres of safflower, 446 acres of sunflowers and 670 acres of "other row crops". He concluded that would or should have involved only a maximum of 450-500 hours of tractor hours.
145In cross examination he estimated that his sharefarming at Torry Plains amounted to only 20 per cent of his total farming operations. He agreed that opinions vary about using single wheel tractors and "quite often you use what you got". He agreed that there was some scope for variation as to how many hours were required depending on the quality and state of the paddock. He accepted the following scenario:
"Q. But if you, you might work up a paddock because it's rained, and then expecting on the expectation that there might be more rain, you don't get that rain, then native weeds and the like start to get into your paddock before you sow, so unexpectedly, you've got to work it up again, correct?
A.Correct."
146Mr Blore stated that he has been farming on the Lowbidgee flood plain since 1981. He states that in 1996 he purchased Warewaegae in 1996 from Mr Ware's mother. (The apparent contradiction between that and the balance of the evidence referring to Warewaegae as Mr Ware's family property after that date was not explored in the evidence.) In March 2005 he was one of the three lessees who farmed Torry Plains. He stated that Mr Ware's tractors were not suitable for flood plain farming as they had logger tyres and lacked the ability to connect to the "necessary equipment". Like Mr Spinks he was asked to express an opinion on the amount of tractor hours necessary to sow the amount of acres noted in [144] above. In relation to the 3167.99 acres of safflower he estimated that between 250 and 320 tractor hours would have been required to cultivate them. In relation to the 446 acres of sunflowers he did not nominate any figure for the hours required. Instead he stated that from his observation of the crop in situ a "tractor with linkage" was required to cultivate that crop, which he stated Mr Ware's tractors did not have. For the 670 acres of "other crops" he stated that he had not been provided with "sufficient information to express an exhaustive opinion", but estimated 25 to 30 tractor hours at the low end and 100 to 130 tractor hours at the high end would be required, depending on factors such as soil quality and moisture.
147In cross examination Mr Blore accepted that only one of Mr Ware's tractors had logger tyres. Unlike Mr Spinks, he was not prepared to accept that there might ever be a need to cultivate a paddock more than once before sowing a crop.
148Mr Ware did not appear to dispute Mr Blore's statement about the need for "linkages" in tractors cultivating sunflowers. Otherwise most of the points made in these affidavits about the capacity of Mr Ware's tractors were disputed in his second affidavit and there was no cross examination or submissions of Mr Ware directed to these topics. They do not assist me in resolving the question of how much work was undertaken on the farms.
149I make four further points about the evidence of Messrs Spinks and Blore.
150First I do not attribute much weight to Mr Spinks' failure to observe Mr Ware's tractors working on Torry Plains. He did not appear to travel to the property that often. Given the size of Torry Plains it was quite possible for him not to have observed those tractors working. As I have noted Mr Blore did not state whether or not he had seen the tractors working at Torry Plains.
151Second neither Mr Spinks nor Mr Blore addressed the amount of tractor hours likely to be involved in cleaning up and repairing Torry Plains in the period following its acquisition by Amaral Pastoral.
152Third, as I have stated, the opinions expressed by Messrs Spinks and Blore as to the amount of tractor hours required related to an assumed number of acres of crop that were said to have been sown (see [144] above). No attempt was made by Amaral Pastoral in its submissions to explain how that assumption was made good. In his second affidavit Mr Ware did not accept that assumption was correct. In cross examination it was suggested to him that some of his records indicated a maximum acreage of 7000 acres in 2003. I am left in a state of uncertainty as to the accuracy of the assumption that Messrs Spinks and Blore based their expert opinions on.
153Fourth, the evidence of Messrs Blore and Spinks needs to be placed in context. As I understand the relevance of their opinions is that it is said they negate so much of Mr Ware's case that sought to prove the number of hours of work the tractors performed. That experienced farmers considered the number of hours Mr Ware's tractors spent on the land to be excessive is legally irrelevant. Amaral Pastoral did not defend this aspect of this claim by contending that, if there was an agreement, it was limited to only so many hours as were reasonable etc. If the existence of the machinery contract is established then it left to Mr Ware in the first instance to decide how many hours to perform. However, as I will explain, this was subject to the power of Amaral Pastoral as his employer to direct him to limit his hours or stop using the tractors and, if necessary, report on how many hours were incurred and on what. In this regard one matter of debate between Mr Ware on the one hand and Messrs Spinks and Blore on the other was that Mr Ware considered it appropriate to cultivate paddocks in advance of rain and the latter did not. Irrespective of whether or not that was proper farming practice, Mr Ware states that he informed Mr Amaral that he was adopting that approach and he agreed. I accept that evidence.
154The starting point for this evidentiary trawl concerning tractor usage (at [105]) was the pieces of paper said to record the starting and finishing hours of Mr Ware's tractors on Torry Plains. Their veracity is supported by the evidence of Mr Ware and, in respect of the finishing hours, Ms Hedwards, whose evidence I accept. The balance of the evidence of Mr Ware, Ms Hedwards and Mr Wilson supports the veracity of those documents in a quantitative sense. Further support is to be found in the evidence of Ms Wells that I have referred to above. The balance of the documentary material (and the absence of certain material) cuts both ways and ultimately does not detract from the evidence that I do accept. Mr Amaral's evidence does not assist. The evidence of Messrs Blore and Spinks does not advance the matter far. In the end result I am satisfied that the start and finish hours of Mr Ware's tractors on Torry Plains was as recorded in the documents I have referred to. The difference between them is 4,768. I also accept Mr Ware's estimate that 52 hours should be deducted from that figure to allow for work done by the tractors off Torry Plains in the interim.