Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [2020] NTSC 21 | Case summary

REAL PROPERTY - indefeasibility of title under s 19(6) Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) - fraud as an exception.

Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors [2020] NTSC 21 | Case summary | Zoe

[16]

[1] The plaintiff, Windbox Pty Ltd (Windbox or the Company), conducted a cattle business on land owned by the Daguragu Aboriginal Land Trust (DALT). Windbox held grazing licences granted by DALT over three areas of land known as McDonald's Yard, Berta Warta and Northern Paddocks (the Windbox grazing licences). Those licences expired on 7 September 2011, 1 September 2010 and 12 November 2010 respectively. Windbox continued in occupation of that land.

[2] In June 2018, the second defendant (CLC) conducted meetings with people whom it considered to be the relevant traditional aboriginal owners of the relevant land. A fresh grazing licence was issued to Windbox over the Northern Paddocks land and fresh grazing licences were purportedly granted to the third defendant, JACT Pastoral Pty Ltd (JACT PPL), over the McDonald's Yard and Berta Warta areas (the Land) (the JACT grazing licences). The licences were to commence on 8 October 2018.

[3] On 29 June 2018, CLC wrote to Windbox advising of the outcome of the June meetings and gave Windbox 90 days' notice to vacate the land. This required Windbox to remove its cattle, approximately 6000 head, by the end of September 2018. Windbox commenced these proceedings on 27 September 2018 and sought urgent relief by way of interlocutory injunction to restrain the CLC from enforcing the notices to vacate. The Court heard that application on 19 October 2018 and following agreement between the parties, made an interlocutory injunction which was to expire on 1 May 2019.[1] The main effect of the interlocutory injunction was to preserve the status quo and allow the plaintiff's cattle to remain on the land during the wet season. This effectively deprived JACT PPL and its directors and shareholders, the fourth and fifth defendants (collectively referred to as JACT) of their ability to use the land the subject of the JACT grazing licences and to conduct a pastoral business on the Land.

[4] Evidence was adduced mainly by affidavit. Witnesses were called and cross-examined over a period of eight days from 4 - 8 and 13 - 15 March and 4 April 2019. Programming orders were made for the filing and exchange of written submissions. At that stage the main claims on the part of Windbox concerned whether:

(a) the Windbox grazing licences had in fact ended, or had been renewed, and thus whether the notices to vacate were valid[2];

(b) the (new) JACT grazing licences were valid, particularly having regard to the provisions in s 19 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA)[3];

(c) a permanent injunction should be made securing Windbox's continued rights under the Windbox grazing licences;

(d) CLC made misleading or deceptive representations in trade or commerce;[4]

(e) the fourth defendant, Zebb Leslie, was an officer of Windbox at all relevant times and, in breach of his statutory duty, improperly used Windbox's information and exploited Windbox's commercial opportunity to Windbox's detriment and or to his own advantage;[5]

(f) CLC knowingly assisted Mr Leslie's breaches of statutory duty;[6] and

(g) the third and fifth defendants are liable as accessories to Mr Leslie's breaches of statutory duty.

[18]

[8] DALT is a land trust established and constituted under s 4 of ALRA. It is the proprietor of an estate in fee simple of land in the Northern Territory.[10] It holds the land for the benefit of the traditional Aboriginal owners of the land (the traditional owners).[11] DALT constituted of five members, who were appointed from 27 March 2018. At least three of those members must provide their written authority for DALT to affix its common seal to a document. Like all Land Trusts established under ALRA, DALT could not exercise its functions in relation to its land unless it had a direction to that effect from the relevant Land Council, here the CLC.

[9] Aboriginal communities at Kalkarindji and Daguragu are within the land owned by DALT. Kalkarindji is located about 500km southwest of Katherine. The grazing licence areas known as Northern Paddocks, McDonald's Yard and Berta Warta are within the land held by DALT.

[10] The Central Land Council is a body corporate established under s 22 of ALRA. It is empowered under ALRA to negotiate interests in Aboriginal land on behalf of the traditional owners of land held by a Land Trust such as DALT.[12] A Land Trust, including DALT, is not permitted to deal with an interest in such land except at the direction of the CLC.[13] The CLC has various statutory functions in relation to the management of Aboriginal land.[14]

[11] DALT granted the three grazing licences to Windbox, each at the direction of the CLC pursuant to s 19(5) of ALRA:

(a) on 11 October 2006, a licence over Northern Paddocks. [15] The licence was for a fixed 5-year term, expiring on 12 November 2010. Windbox paid an annual licence fee of $58,300.

(b) in October 2006, a licence over McDonald's Yard.[16] That licence was for a fixed 5-year term, expiring on 7 September 2011. The annual licence fee was $70,000.

(c) on 26 February 2009, a licence over Berta Warta.[17] That licence was for a fixed 18-month term, expiring on 1 September 2010. The annual licence fee was $18,000.

[12] Windbox had been operating a pastoral business grazing, breeding and selling cattle on the land at Northern Paddocks, McDonald's Yard and Berta Warta. It also operated an abattoir and butcher's shop in the Kalkarindji township (often referred to as the Kalkarindji Meatworks business).

[13] On 14 May 2009, Mr Raymond Dodd, Mr Robert Vagg and Mr Calvin Chandler purchased Windbox and became directors of Windbox. Mr Chandler retired as a director on 15 December 2009. Thereafter, shareholdings in the Company were held by Mr Dodd (as to 85%) and Mr Vagg (as to 15%). Mr Vagg was purportedly removed as a director on 6 February 2018.[18]

[14] At all material times Mr Dodd was based in Melbourne, Victoria. He did not have first-hand experience in the management of cattle stations. Mr Vagg was based in the Northern Territory until 2016 when he moved to Victoria. Mr Vagg was responsible for the cattle side of Windbox's business and the running of the Station.

[15] The fourth defendant, Mr Zebb Leslie, grew up on a mixed farming property in western New South Wales. From around 1996 until about 2004 he worked in the Victoria River District. He has been a commercial helicopter pilot since about 2004 and has carried out contract mustering work, mainly on cattle stations in the Northern Territory. He is also a qualified meat inspector. As a result of living and working in the Kalkarindji region since 1996 he established good relationships with Aboriginal people in the area including traditional owners. The fifth defendant, Ms Kylie Rowbottom, grew up in Katherine. She and Mr Leslie have been living together as a couple since around 2000 and have four young children. They have been living and working in the Katherine and Kalkarindji region ever since.

[16] In about November 2009, at the request of Mr Dodd, Mr Leslie began providing services for Windbox in relation to "livestock welfare issues". On about 23 December 2009 Mr Dodd prepared the following document titled "Letter of Appointment".[19] The letter stated:

[29]

[17] There is no evidence that the letter was ever signed and sent by Mr Dodd. Mr Leslie did not recall having seen it before. However, when the contents of the letter were put to Mr Leslie during cross-examination he did not disagree with any particular parts of it. Its contents were consistent with what he understood his duties to be. He said he was never in total control of the business.

[18] Ms Rowbottom was initially engaged by Windbox as a meat worker. She also worked around the Station doing gardening, cooking and liaising with Windbox's bookkeeper in Melbourne about the Station books and other office work. She worked without pay until around 2011 or 2012, when Mr Vagg and Mr Dodd agreed to pay her $25,000 per year for continuing to do that work. Mr Leslie also obtained qualifications as a meat inspector. This better enabled him and Ms Rowbottom to organise and operate the Kalkarindji Meatworks.

[19] During 2012, the form of Mr Leslie's engagement was changed from that of contractor to full-time employee. He was then employed as the Station Manager for Windbox. There appear to have been no relevant changes to his duties and responsibilities.

[20] From time to time Mr Leslie and Ms Rowbottom complained about the terms of their employment and the fact that Windbox should reimburse Mr Leslie for equipment of his that he had brought onto the property and that he had been using on the property for Windbox's business. Mr Leslie had told Mr Dodd and Mr Vagg that he and Ms Rowbottom wanted to be allocated some shares in Windbox in return for their efforts. On 28 September 2015 Mr Dodd said that Windbox would offer them 10% of the Company on certain terms. These included 2% of Windbox "in recognition of past effort and in compensation for those items you have purchased that are used on Kalkarindji" and "a further 8% at 1% per year over eight years for a total of $520,000 provided that" Mr Leslie achieved a specified weaner rate.[20]

[21] Mr Leslie responded in some detail on 30 September 2015. Amongst other things he repeated that he and Ms Rowbottom had taken a huge pay cut to work for Windbox and were "promised a 10% deal two years" earlier, and could not understand why they were only being offered 2% immediately and would have to wait another eight years for the 10%. He also expressed concern about the condition concerning the weaner rates, and asked about Windbox engaging a governess.[21] Mr Dodd replied on 27 October 2015 rejecting Mr Leslie's concerns and insisting on the 1% per annum over eight years and the condition concerning weaner rates.[22] Then followed discussions between Mr Leslie and Mr Dodd, which were not successful.[23]

[32]

[23] Following the expiration of the terms of the three Windbox grazing licences in 2010 and 2011, Windbox remained in occupation and continued to conduct its pastoral business. It continued to pay licence fees thereafter, six monthly in advance with an annual CPI uplift.

[24] From about 2009 (i.e. prior to the expiration of the Windbox grazing licences), Windbox and the CLC were in negotiations with respect to the renewal of the three licences. The negotiations were largely conducted through emails and discussions between Windbox's then solicitor, Mr Graham Cole, and the CLC's in-house solicitor, Ms Sarah Wilkie. An important part of those negotiations concerned the duration of the fresh or renewed grazing licences.

[25] On 17 August 2016 Mr Vagg and Mr Leslie attended two meetings at the CLC office at Kalkarindji, convened for the purpose of Windbox presenting its proposal to the traditional owners for new grazing licences.[24] The first meeting related to McDonald's Yard and included a number of people who were traditional owners for that area.[25] The second meeting related to Berta Warta and included a number of people who were traditional owners for that area.[26]

[26] Prior to and for the purpose of those meetings Windbox prepared and provided to the CLC a document titled "Kalkaringi Central Land Council Proposal August 2016".[27] Mr Leslie said, and I accept, that he did not prepare that document or give directions about its the contents. He said that if he did have that kind of involvement with the document, it would have been substantially different.[28] Although some earlier drafts were sent to Mr Vagg and Mr Leslie for their comment, it seems that the document was originally drafted by Mr Dodd with the assistance of Windbox's then-accountant Mr John Pearson of Pearson Partners, largely based on information contained in a letter sent to CLC on 20 October 2014 where Windbox was proposing "a long term pastoral lease".[29]

[27] At those meetings, Windbox had proposed that it be granted grazing licences for a term of 10 years, with two options for 10-year extensions. Mr Leslie and Mr Vagg were both present at those meetings. Mr Leslie was requested by Mr Vagg to make a presentation to the traditional owners in support of Windbox's request for the grants of the licences. Mr Leslie was asked to make the presentation because Mr Vagg had significantly impaired hearing and found it difficult to understand everything that was being said by the traditional owners.

[28] Following the August 2016 meetings and consultations by the CLC with the traditional owners, Ms Wilkie sent Mr Cole an email on 19 October 2016. It was headed: "Daguragu Aboriginal Land Trust - Grazing Licences". It included the following:[30]

[117]

[56] By 12 January 2018, Mr Leslie was in Alice Springs (on his drive back to the Station with Ms Rowbottom). He decided to enquire about various cattle stations that he could potentially run as station manager and over which he could potentially obtain grazing licences. He said he began making these inquiries because, by this time, he thought he may only have limited time left working on the Station and he needed to secure what he was going to do for himself and his family.[68]

[57] Mr Leslie telephoned Mr Steve Ellis (who has a lot of knowledge about Central Australian pastoral lands) and told Mr Ellis that he would probably be leaving the Station soon and wanted to find out what opportunities there were regarding cattle stations in around Alice Springs. Mr Ellis identified three good properties that might be worth investigating: Mount Wedge, Mount Allen and Yuendumu. Mr Leslie then tried, unsuccessfully, to hire a helicopter so he could fly over and inspect some of those properties.[69]

[58] Mr Leslie also had a telephone discussion with a friend of his, Mr Rob Cook. Mr Leslie told him that he had been thinking about trying to obtain a licence over Mount Wedge, Mount Allan or Yuendumu because it looked like he would have to leave the Station soon. Mr Cook suggested that Mr Leslie consider applying for grazing licences over the Station properties. Mr Leslie said that this was the first time that it occurred to him that he could apply for the licences over the Station properties.[70]

[59] On 13 January 2018, Mr Spazzapan emailed Mr Leslie about the Kalkarindji Meatworks[71]. Ms Rowbottom also emailed Mr Spazzapan on the same topic.[72] There is no evidence, or inference that can be drawn, that Mr Leslie spoke to Mr Spazzapan then, or any time before 7 February 2018, about the possibility of applying for the grazing licences.

[60] On 16 January 2018, Ms Rowbottom sent Mr Spazzapan a draft of a letter which she and Mr Leslie proposed to send to Windbox. She also sent him a copy of some earlier correspondence, including the emails in September and October 2015 about Windbox's promises to give them shares in Windbox, and Mr Dodd's email of 10 January 2018.[73] Mr Spazzapan suggested some edits to the letter.[74]

[61] On 17 January 2018, Mr Leslie sent the letter to Mr Vagg and Mr Dodd. It was attached to an email sent to each of them bearing the subject "Letter 17/01/18". The letter stated:[75]

[170]

[84] Mr Leslie and Ms Rowbottom remained on the Station waiting for confirmation from Mr Dodd and Mr Vagg about whether they were to leave the Station or stay on as contractors.[98]

[85] It seems that Mr Dodd had some communication with Mr Cole on or before 1 February. At 12.57 pm on 1 February 2018, Mr Cole sent an email to Mr Dodd, also copied to Mr Vagg, with the subject heading: "Windbox Pty Ltd - grazing licenses - Daguragu Aboriginal Land Trust".[99] That email included Mr Cole's email to Ms Wilkie of 26 July 2017 requesting an initial term of 10 years with two options for two further terms of eight years each, Ms Wilkie's reply of 4 August 2017, and Ms Wilkie's subsequent emails to Mr Cole on 3 October and 6 October 2017. Mr Cole's email had a number of attachments, namely: "D17-94129 Additional paddock - Hooker Creek ALT.PDF"; "Daguragu Aboriginal Land Trust - Grazing Licenses"; and "DRAFT Grazing Licence.doc". The first attachment was a map, apparently relating to some land held by the Hooker Creek Aboriginal Land Trust. The second attachment was Ms Wilkie's email to Mr Cole dated 19 October 2016 referred to in [28] above. The third was a pro forma CLC Grazing Licence containing the date 2015.

[86] At 1.38 pm on 1 February, Mr Cole sent another email to Mr Dodd, copied to Mr Vagg, with the subject heading: "Re Windbox Pty Ltd - pastoral licenses at Kalkarindji".[100] The email said: "Ray as requested". Mr Cole's email included Mr Cole's email to Ms Wilkie of 26 July 2017, and Ms Wilkie's reply email to Mr Cole of 4 August 2017. Shortly after that, Mr Dodd replied to Mr Cole, copying in Mr Vagg. Windbox has deleted all the text from that reply email.[101] The email appears to contain four paragraphs. I do not know what was said in the email. I note however that it bore the same subject heading "Re Windbox Pty Ltd - pastoral licenses at Kalkarindji" as Mr Cole's email sent at 1.38 pm that day.

[87] Later that day, at about 5 pm, Mr Dodd emailed Mr Vagg, responding to his email of 30 January concerning the subject: "Re: Instructions to Graham Cole re Licenses" (referred to in [[78] [88] At 8.40 pm on 1 February, Mr Vagg forwarded Mr Cole's email of 12.57 pm (including the attachments) to Mr Leslie.[103] At 8.42 pm Mr Vagg emailed Mr Leslie a copy of his email with Mr Dodd headed "Re: Instructions to Graham Cole re Licenses" (referred to in [87] above). Mr Leslie deposed that prior to making his affidavit he could not recall Mr Vagg's emails regarding Windbox's negotiations to obtain grazing licenses, and that if he had seen them he would have ignored them for the same reasons that he gave for ignoring the previous emails (of 24 and 29 January) about the [104]e topic.104

[89] At 10.57 pm on 1 February, Ms Rowbottom sent an email to Mr Dodd. It said:[105]

[188]

[102] On 19 February 2018 by email with subject heading "muster" and marked "high" importance, Mr Leslie forwarded his email of 16 February 2018 to Mr Dodd, and said: "Please see below noting that it is now in reference to this week ...". Mr Dodd responded immediately instructing Mr Leslie to "pull weaners off" and leave the cows with long tails. He also asked what prices Elders were quoting for cull cows and when they wanted them.[123]

[103] Also on 19 February 2018, Mr Leslie and Ms Rowbottom emailed an "Application draft" to Ms McIntosh at CLC.[124] Ms Rowbottom had read the pastoral proposal form emailed by Ms McIntosh on 7 February to see what was needed and realised there was a large amount of information required including public liability insurance and a business plan.[125] Ms Rowbottom proceeded to arrange the insurance.[126] However, in relation to the business plan, she had no idea what this entailed and searched online to find information concerning business plans and the information to be included in such a document.[127]

[104] On 5 March 2018 Mr Cole emailed Ms Wilkie saying that he had received up-to-date instructions from his client which he would go through over the weekend. He also sent Ms Wilkie an email seeking further information, and also seeking agreement to allow Windbox to grow its own hay on part of the land.[128]

[105] On 5 March 2018 Mr Leslie and Ms Rowbottom sent a completed proposal form and a business plan to Ms McIntosh.[129] On 6 March Ms McIntosh sent a copy of the completed application to Ms Wilkie.[130] On 8 March, Ms Wilkie emailed Mr Leslie acknowledging receipt of the application, and informed Mr Leslie of the existence of a competing application for the three grazing licences.[131]

[106] On 13 March, Mr Leslie and Ms Rowbottom sent an email to Mr Dodd and Mr Vagg.[132] They said they had been trying to call Mr Vagg for the past week however his telephone kept ringing out and they wanted him to reply. Secondly, they pointed out that there had not been enough rain and it was important to start destocking as there would not be enough feed or water given the current stock numbers on the property. They sought approval "ASAP" to start destocking and to take advantage of current prices. Mr Vagg responded immediately agreeing with Mr Leslie's recommendations. He said: "in the absence of any response from Ray you have my authority to begin reduction of cattle numbers immediately."[133] Mr Vagg must have not been aware that he was no longer a director of the Company at this time.

[107] On 16 March Mr Dodd emailed Mr Leslie in response to the email of 13 March, and copied Mr Vagg into that email.[134] He said:

[191]

[108] Mr Leslie continued to make arrangements to sell cattle and de-stock. This involved him arranging contractors for transport and sale. At about the same time he became aware of newspaper advertisements for the role of Station Manager for the Station properties. He rang Mr Dodd and told him that he was negotiating contracts that would be carried out in the following few months. He told Mr Dodd that he wanted to be guaranteed that he would still be working on the Station by at least June so he could see those contracts through because he did not want to make arrangements that he could not follow through on. Mr Dodd assured him that he would still be working there in June. Mr Leslie asked him how he could guarantee that because he had seen advertisements in the newspaper for the Station Manager position. He said that Mr Dodd said: "Those ads must have been taken out by the new owners." When Mr Leslie repeated his concern about not being there if the new owners replaced him in the meantime Mr Dodd said: "OK, don't worry about it. I'll get the new manager to destock. You are to stop once you have finished what you are already doing."[135]

[109] On 20 March 2018 Ms Wilkie answered some of the queries raised by Mr Cole in his email of 5 March and indicated that CLC could seek instructions from the traditional owners about Windbox's request to grow hay.[136]

[110] On 28 March 2018, Mr Cole emailed Mr Dodd and Mr Vagg using the subject heading "Windbox Pty Ltd - proposed Kalkarindji grazing licence."[137] He attached a "preliminary draft" of the proposed licence. He suggested they send it to Mr Leslie "so that he could consider whether there are any unusual obligations that arise from the areas in the licence relating to regulatory matters such as the environment in item 9, feral animals and weed control in item 10, property management plan and the like." Mr Cole identified "key points" including that the term would be five years with an option for a further five years. Another key point related to clause 19 which prohibited assignment of the licence without the prior consent of the land trust. Mr Cole noted that this "is not an absolute right to assign the licence in the event that you wish to sell".

[111] Later that day Mr Vagg forwarded Mr Cole's email to Mr Leslie and drew his attention to the assignment clause noting that any assignment would have to be approved by the traditional owners. Mr Vagg said he would ring him that evening "to discuss".[138]

[112] It seems that even at that stage, even Mr Cole was not aware that Mr Vagg was no longer a director.

[113] Mr Dodd engaged Mr Michael Cann and Ms Sharon Cann as the replacement Station Managers.[139] On 16 April 2018, Mr Dodd emailed Mr Leslie, with a copy to Mr Vagg, telling him that he had appointed Mr Cann as the new Station Manager, and that he would take over between the 25th and 29th April. He requested "a spreadsheet with the updated muster numbers (by paddock by type)." He offered "to pay 1 month's contract as a bonus if the transition goes smoothly.[140] Mr Leslie replied on 18 April advising that he and Ms Rowbottom would vacate the house on 26th April.[141]

[114] On 24 April 2018, Ms Wilkie emailed Mr Cole, attaching a draft grazing licence for review. Her email stated:[142]

[198]

[120] It seems that Mr Dodd terminated the services of Mr Cole some time between Ms Wilkie's email of 24 April 2018 and early June. In his email of 13 May (referred to in [98] above) Mr Vagg informed Ms Wilkie that "our company lawyer Graham Cole has told me that he can only take directions from Ray Dodd as he is now the sole director of our compan[151]."151 Ms Wilkie emailed Mr Cole about that on 15 May and rang him on 16 May. Mr Cole told her that he was still taking instructions from Mr Dodd and that Mr Dodd had not contacted him for t[152]e weeks.152

[121] On 4 June 2018 Mr Luke Gardiner, solicitor, wrote to Ms Wilkie advising that he was instructed by Windbox. He said his client "remains desirous of taking up either a renewal of its existing or grant of fresh grazing licences in relation to McDonald's, Northern and Berta Warta paddocks."[153]

[122] Meetings of traditional owners took place on 14, 15 and 18 June 2018.[154]

[123] On 25 June 2018, Ms Wilkie emailed Ms Emma Farnell, solicitor for Mr Leslie and Ms Rowbottom, and advised her that the traditional owners of the Berta Warta and McDonald's Yard paddocks consented to enter into grazing licences with her client but that the traditional owners of the Northern Paddocks did not. That email went on to explain a number of conditions that the traditional owners required.[155]

[124] On 29 June 2018, Ms Wilkie emailed Mr Gardiner and advised him that the traditional owners of the Northern Paddocks consented to enter into a grazing licence with Windbox, but that the traditional owners of the Berta Warta and McDonald's Yard paddocks did not.[156] The traditional owners of the Northern Paddocks confirmed most of the terms set out in Ms Wilkie's email to Mr Cole on 19 October 2016 except that they were only prepared to grant a 5 year term, not the 5+5 term previously discussed. The traditional owners also requested that the new managers of Windbox undergo a Northern Territory police / criminal history check and expressed concern that the new managers were appointed to that role without formal notification to the community of the change.

[125] That email also referred in some detail to Windbox's unsuccessful requests for grazing licences over the Berta Warta and McDonald's Yard paddocks. It referred to the competing applications for those grazing licences, and advised that the grant of those grazing licences would "need to be approved by the Executive of the CLC after one of the Executive meetings on either 12 July or 8 August 2018." The email also gave Windbox 90 days to remove the cattle from those two licence areas.

[126] JACT Pastoral Pty Ltd was incorporated on 17 July 2018, with Mr Leslie and Ms Rowbottom as its directors.

[127] On 29 July 2018, DALT executed an authority to the CLC to affix the common seal of DALT to documents required for the purpose of DALT granting grazing licences in respect of McDonald's Yard and Berta Warta.[157] A meeting of the CLC Executive Committee was held on 8 August 2018.[158] On 18 August 2018, the CLC Executive resolved to give directions to DALT, pursuant to s 19(4A) of ALRA, to grant grazing licences to JACT over McDonald's Yard and Berta Warta.[159] On 23 August 2018, DALT and the CLC executed a written grazing licence in favour of JACT over McDonald's Yard.[160] On 29 August 2018, DALT and the CLC executed a written grazing licence in favour of JACT over Berta Warta.[161]

[128] On 24 August 2018, the CLC sent a notice to Windbox purporting to terminate its grazing licences over McDonald's Yard and Berta Warta. On 6 September 2018, the CLC purported to fix the termination date of Windbox's grazing licences over:

(a) Berta Warta as 30 September 2018; and

(b) McDonald's Yard as 7 October 2018.

[129] On 21 September 2018, Windbox sought interlocutory relief. Orders were made by consent.

[199]

[130] Although there was a significant quantity of documentary evidence tendered in this matter much of the case pursued by Windbox involved attacks on the credibility of others and inferences to be drawn following the success of such attacks. The attacks were far and wide, not only directed at Mr Dodd's co-director Mr Vagg, and the third and fourth defendants Mr Leslie and Ms Rowbottom. They were also directed at Ms Wilkie and Ms McIntosh and other members of the CLC which was accused of engaging in misleading conduct and facilitating Mr Leslie's breaches of his statutory obligations, and also at traditional owners of the relevant land. The latter included allegations of fraudulent conduct on the part of some of those traditional owners who participated in the meetings that authorised the grant of the JACT grazing licences. In particular Windbox attacked their very important status and recognition as traditional owners of the land despite them being on the CLC's list of traditional owners, which list was based upon the findings of the Aboriginal Land Commissioner.[162]

[131] In light of the resolution of the litigation between Windbox and the first and second defendants, I do not need to say much more about the attacks on the CLC witnesses and the traditional owners. However, in fairness to those people I feel obliged to say that the evidence before me did not reveal any basis for any adverse findings against any of those people. Ms Wilkie and McIntosh were cross-examined at some length during the hearing, having previously provided detailed affidavits. They were absolutely honest and diligent in all of their dealings in relation to this matter, both in the course of their dealings with Windbox and its directors, station manager and solicitor, and the traditional owners, and also in the course of preparing and giving their evidence. The belated attacks on the traditional owners could not be pursued, following my refusal to give Windbox leave to amend its pleadings to raise those serious allegations on the eve of the trial.[163]

[132] The key people involved in the case ultimately pursued by Windbox were Windbox's two directors, Mr Dodd and Mr Vagg, Windbox's solicitor, Mr Cole and the fourth defendant, Mr Leslie.

[133] Mr Vagg was particularly important because he was the director who was responsible for the cattle side of Windbox's business and the running of the Station, and the director who dealt with Mr Leslie, the traditional owners and the CLC. Mr Cole was particularly important because of instructions he is said to have received from Windbox on or shortly before 29 January 2018. Mr Dodd's evidence was important for various reasons particularly in relation to what occurred in January 2018, including the fact that he was the person who is said to have given the important instructions to Mr Cole on 29 January.[164]

[202]

[138] In their written closing submissions counsel for JACT identified some parts of the cross examination of Mr Dodd where he appeared to give different answers at various points to a particular proposition put to him. This included his evidence as to when he first suspected that Mr Leslie had applied for the grazing licences and why it took him so long to take any kind of legal action to prevent CLC and DALT proceeding to consider and later to grant the licences.[169] Mr Dodd stressed that he was a layman, did not know what options he had, and needed a lawyer to tell him what to do. However, he agreed that at all times Windbox did have a lawyer who was involved with the matter, Mr Cole until mid May, then Mr Gardiner.[170]

[139] Counsel also challenged Mr Dodd's evidence that he "had no inkling that [Mr Leslie] was to be a competitor" when he ceased employment on 31 January 2018.[171] Counsel contended this evidence is inconsistent with Mr Dodd's evidence that he immediately "completely cut Mr Leslie out of the picture in relation to his dealings with the CLC" and also no longer involved Mr Leslie in any of his email correspondence, particularly the redacted email to Mr Cole of 1 February 2018.[172]

[140] Counsel for JACT also drew attention to significant differences between the Windbox accounts Mr Dodd verified for the purposes of the security for costs application on 19 November 2018[173] and the different accounts he verified for the purposes of the trial itself.[174] One example given was that on 16 November 2018 Mr Dodd deposed to the cattle on the station having a value of between $2.5 million and $3 million, whereas the accounts verified for the purposes of the trial suggest that as at 30 June 2018 the value was only $582,714.22. Counsel also contended that "the accounts also suggest inappropriate accounting of capital to remove wealth from the company otherwise than by the payment of a dividend through an entirely unexplained $1.7 million reduction of a "general reserve". Despite the notes to the accounts containing detailed comments about matters of far less significance, this unusual feature was unexplained. I note that Mr Dodd said that the decrease in the total current assets from 2017 to 2018 was "a consequence of cash on hand being paid out by Windbox Pty Ltd to its members."[175]

[141] In their submissions in reply counsel for Windbox contended that the examples given in the JACT submissions show the cross examiner and Mr Dodd not being ad idem or otherwise counsel did not directly challenge Mr Dodd with earlier evidence said to be inconsistent.

[142] Counsel for Windbox also submitted that no inference adverse to Mr Dodd's credit or Windbox's case generally can be drawn from a proper claim of legal professional privilege. Whilst this is correct as a general proposition, if a person elects to rely on privilege, that person will often risk not being able to prove a claim.[176] If there is other evidence from which a court may draw an inference as to the content of legal advice, the court may be able to draw the inference on the balance of probabilities in the absence of contrary evidence from the person claiming the privilege.[177]

[143] I share the concerns expressed by counsel for JACT, particularly those relating to Mr Dodd's reasons for taking no action to prevent the progress of Mr Leslie's applications, and the apparent differences between what he told the Court in the course of the security for costs application and the accounts produced at trial.

[144] I also find somewhat disingenuous the submission that Mr Dodd "continued to trust and rely on [Mr Leslie] after 31 January 2018 just as he had in the years prior to that." Not only did Mr Dodd deliberately exclude Mr Leslie from any further dealings concerning the Windbox grazing licences, he had already reached and expressed doubts about Mr Leslie's honesty in relation to his claim for reimbursement for his equipment, a claim that had been outstanding for many years.[178] I also find disingenuous Windbox's blaming Mr Leslie for the unsuccessful attempts by him to obtain equity in the Company in 2015, and speculating that it had something to do with litigation that was unrelated, a proposition that was rejected by Mr Leslie in cross examination and never taken any further by Windbox.

[145] I have also expressed concerns about Mr Dodd's conduct, particularly during the last few weeks of January 2018, elsewhere in these Reasons. See for example his misleading emails to Mr Leslie about not being able to engage Mr Leslie as a contractor,[179] and telling Mr Leslie that "the new owners" must have placed the advertisements for a new Station Manager.[180]

[146] I observed Mr Dodd carefully when he was giving evidence. As Windbox's counsel pointed out he did make some concessions. However, for the most part they were concessions that he had little choice but to make. I often found him to be discursive and reluctant to answer questions directly. On several occasions after he had been answering a particular question at length he had to be directed back to the question, and on some occasions, at his request, reminded of the question.

[147] I formed the impression that Mr Dodd was an experienced, astute and dominating business operator, particularly in his main area of interest, the hotel industry. Over the years while Mr Leslie and Ms Rowbottom dutifully and faithfully worked for Windbox, he strung them along with empty promises, even after they made their difficult decision on 3 January 2018 to walk away from this important part of their life. His treatment of them, particularly after they had told him of their concerns on 3 January 2018 was arrogant, presumptive and disrespectful of their genuine attempts to continue to do the right thing by Windbox and the Station, even after their resignation.

[148] Where Mr Dodd's evidence differs from that of Mr Leslie and Ms Rowbottom, I would accept their evidence, not his.

[203]

[149] Unfortunately, no evidence was adduced from Mr Vagg. No explanation was given for this omission.

[150] Windbox made serious allegations of impropriety against Mr Vagg, one of its two directors, alleging that he conspired with Mr Leslie inter alia to delay Windbox's discussions with the CLC and enable Mr Leslie to obtain the grazing licences instead of Windbox. Windbox contended that this conspiracy had been in existence for many months and was evidenced by Mr Vagg sending on to Mr Leslie and Ms Rowbottom emails that he had received from Mr Dodd and a draft of an email he planned to send to Mr Dodd.[181] Counsel for JACT referred to this as the "Vagg conspiracy".[182] In its written closing submissions Windbox contended that Mr Vagg:

(a) in breach of his own duties to the Company provided Mr Leslie with a "steady stream of intelligence"[183] which he "leaked" to Mr Leslie;[184]

(b) "backgrounded" Mr Leslie with information about Windbox during January 2018, and about Mr Dodd's proposal to agree to the 5 + 5 terms previously requested by CLC;[185]

(c) engaged in other communications and discussions with Mr Leslie about that information and how it could be used to their mutual advantage and contrary to the interests of Mr Dodd and Windbox;[186] and

(d) stalled Mr Cole from carrying into effect Mr Dodd's instructions in order to give Mr Leslie the opportunity to exploit the opportunity for himself.[187]

[151] These serious allegations against Mr Vagg were not pleaded, and, as far as I know, he was not made aware of them.

[152] In their submissions responding to those submissions made by Windbox, counsel for JACT contended that the Court should infer that Mr Vagg's evidence would not have assisted Windbox to prove its case.[188] Counsel stressed Mr Vagg's important role, both as a director and as the person responsible for Windbox's operations on the ground. Counsel quoted and referred to a passage from Greenwood J's reasons in Australian Competition and Consumer Commission v Cement Australia Pty Ltd[189] concerning inferences that could be drawn where a company does not call relevant evidence from one or more of its own directors.[190] In reply, counsel for Windbox contended that a Jones v Dunkel inference should not be drawn against Windbox for two reasons:

(a) from about mid to late 2017, Mr Vagg (a minority shareholder) was in dispute with Mr Dodd about the management of Windbox and Mr Dodd's treatment of Mr Vagg, Mr Leslie and Ms Rowbottom; and

(b) Mr Vagg was leaking information to Mr Leslie and Ms Rowbottom, and encouraging them to use that information to further their own interests and that of Mr Vagg to the detriment of Windbox and Mr Dodd.

[153] Rather, Windbox contended, any adverse inference should be drawn against JACT, because it was they who, according to Windbox, conspired with Mr Vagg to harm Windbox's interests.

[154] I reject that contention. Notwithstanding that Windbox pleaded a large number of instances of misconduct on the part of Mr Leslie, including his misuse of information, the pleadings did not accuse Mr Vagg of any involvement in any misconduct or in some kind of conspiracy with Mr Leslie (and presumably Ms Rowbottom). I accept that had this been pleaded, the JACT defendants may have made further enquiries, for example of Mr Vagg, and conducted their case differently. Further, acceptance of the kind of contention put by Windbox would wrongly put the onus on JACT to call Mr Vagg. It was Windbox who chose to make these allegations against Mr Vagg and to do so without even pleading them.

[155] The importance of proper pleadings, and giving notice to a person that serious allegations have been made against him of her, was stressed in Bale v Mills[191] applied in Ashby v Slipper.[192] However, as counsel for Windbox pointed out, Ashby v Slipper does not require that a person against whom adverse findings will be sought be given notice, by pleading or otherwise. Moreover, Windbox is not, in these proceedings at least, seeking any relief against Mr Vagg. However, Ashby v Slipper does stand as authority for the proposition that caution should be exercised in drawing adverse inferences against a person who is not a party and therefore has not been heard.

[156] For reasons which later appear, I do not accept that Mr Vagg was part of any conspiracy of the kind alleged.[193] I have no reason to doubt the propriety of his conduct at any material time.

[206]

Specifically, his evidence as to how and when he first came to seriously consider making application himself for the grazing licences defies credulity and cannot be reconciled with contemporaneous documents. His explanations were unconvincing to say the least given that he attempted to push all serious consideration by he and his partner of applying for the grazing licences beyond midnight on 31 January 2018 when he was being "backgrounded" through January by Mr Vagg and had approached Mr Spazzapan by 4 January 2018. The 31 January 2018 date does not, in any event, have the legal or factual significance which Mr Leslie seeks to ascribe to it, however his contortions around that date give the lie to the truthfulness of his evidence generally. The move to "contractor" from "employee" was plainly an attempt by Mr Leslie to free himself of the statutory and fiduciary obligations which he owed to Windbox and his persistent refusal to admit this while holding on to the unbelievable story of when he first seriously considered applying for the licences himself is telling against his credit. So, too, is his selective evidence about which emails he received or had brought to his attention in January and February 2018. In his affidavit Mr Leslie claimed not to have recalled seeing a number of emails prior to the preparation of his affidavit. He went as far as saying that he doubted that they had been brought to his attention by Ms Rowbottom. Relevantly and importantly the emails to which this excuse was proffered were all damaging to Mr Leslie and called for an explanation. This necessitated a lengthy cross-examination in relation to these "excuse" emails and their contextual placement with other emails which Mr Leslie either authored, co-authored or admitted having received. That process resulted in Ms Rowbottom conceding that most of the "excuse" emails were most likely brought to Mr Leslie's attention and Mr Leslie being forced to admit that some of them most probably were as well. To the extent that Mr Leslie attempted to cling on to the "excuse" emails being unfamiliar to him that evidence should be rejected. Most importantly, Mr Leslie was advised by Mr Vagg by email of 1 February 2018 that he (Vagg) had effectively stalled Windbox from finalising the grazing licences in conformity with Mr Dodd's instructions of 24 and 29 January 2018. It was only shortly after this that Mr Leslie made contact with Ms McIntosh knowing that the documentation of the grazing licences had not been finalised by Windbox and would not be finalised while Vagg's stalling tactic was operating.[195]

[207]

[161] Later, at [155] of their written submissions, counsel for Windbox made submissions about Mr Leslie's involvement with the Company and his good relationships with the CLC and the traditional owners, which I have generally accepted (at [404]and [405] below). Counsel then made more detailed submissions about the Vagg conspiracy and Mr Dodd's alleged instructions to Mr Cole in the passage which I have quoted at [406] below. I have rejected those submissions in my consideration of the alleged breaches of s 183(1) of the Corporations Act.

[162] Despite the colourful language used by counsel in the submissions quoted in [160] above, I also reject those submissions, for the reasons stated elsewhere. See my discussion and conclusions on the important issue as to when it was that Mr Leslie planned to apply for the grazin[196]icences,196 the "Vagg conspir[197]",197 Mr Leslie's discussions with Mr Spazzapan on 4 Ja[198]ry 2018,198 the frustrations experienced by Mr Leslie and Ms Rowbottom until early February brought about by Mr Dodd's stonewalling, and Mr Leslie's reasons for not taking any notice of Mr Dodd's emails of 24 and 28&#1[199]January.199

[163] Ms Rowbottom's evidence, including during her cross-examination, was consistent with that of Mr Leslie. Counsel for Windbox identified only two reasons why I should reject her evidence, both of which assumed that I would be rejecting those important parts of Mr Leslie's evidence. The first reason was that she should not be believed because her evidence as to when she and Mr Leslie gave serious consideration to apply for the grazing licences was consistent with that of Mr Leslie, which itself "defied credulity, and was patently false." The second reason was that she was "a knowing participant in and contributor to Mr Leslie's obtaining and use of Windbox's confidential information " and she passed on Mr Vagg's "leaked" emails and discussed them with Mr Leslie. She was a co-conspirator with Mr Leslie and Mr Vagg.[200]

[164] I have rejected those attacks on Mr Leslie's credibility. To the contrary, Ms Rowbottom's evidence supports that of Mr Leslie. My observations of Mr Leslie and Ms Rowbottom in the witness box, and during the case generally, left me with a very good impression of their credibility. They were both conscientious and hard workers, trustworthy and honest. They were not particularly sophisticated people. They trusted others, sometimes to their detriment, such as continuing to work with Mr Dodd despite his poor treatment of them.

[208]

[165] Mr and Mrs Cann were placed in a very difficult situation when they were engaged to take over from Mr Leslie and Ms Rowbottom in the circumstances where many unusual things were happening. These included the acrimonious falling out between Mr Dodd and his co-director Mr Vagg, and the strained relationships between Mr Dodd and Mr Leslie and Ms Rowbottom. This was compounded by the fact that Windbox did not have current grazing licences and may not get them, and Mr Dodd might soon be selling out his interest in any event. Moreover, Mr Dodd had not involved Mr Leslie in the process of finding a replacement station manager but had left him and Ms Rowbottom, and their family, in a state of uncertainty as to when and how they would be replaced. An orderly handover was unlikely.

[166] A further and unexpected complication for Mr Cann arose following multiple complaints from early September 2018, including from the CLC, about Windbox's operations both on the Station and also at Kalkarindji Meatworks. In addition to having to deal with those complaints, Mr Cann was in the awkward position of having to take responsibility for some or all of those matters or finding someone else to blame, namely the previous station manager. I shall discuss this further when considering the misconduct allegations.

[167] An additional difficulty faced by Mr and Mrs Cann is that at the time of the hearing they were still employed by Windbox, and were required and to provide the evidence that formed the basis of the misconduct allegations. Mr Cann's evidence was also necessary to enable Windbox's other witnesses, Mr Mobbs and Mr Newsome, to express opinions, also consistent with Windbox's belated allegations.

[168] One such allegation concerned the presence of botulism in the herd. Despite Mr Cann's evidence that some cattle were infected with botulism and that Mr Leslie had not inoculated them, evidence upon which Mr Mobbs relied in support of his opinion, Mr Cann did not produce any contemporaneous record of any such observation. Nor did he suggest to Ms McIntosh of the CLC that cattle were suffering from botulism.[201]

[169] Another example is Mr Cann's affidavit evidence that Mr Leslie failed to provide cattle figures and vehicle records.[202] However, he accepted during cross-examination that those records were in fact held by Windbox's bookkeeper (in Melbourne). He could not explain why he did not disclose that fact in his affidavit, notwithstanding that when he swore his affidavit he had been the manager of the Station for over eight months.[203]

[170] I do not consider that Mr or Mrs Cann were intentionally misleading either in their observations or with their inferences. However I do think that the reliability of Mr Cann's evidence in particular was tainted by the various factors that I have mentioned, including the powerful influence of Mr Dodd.

[210]

[172] JACT contended that Windbox failed to disclose relevant and important documents, and that the Court should draw an adverse inference against Windbox. Counsel referred to Katsilis v Broken Hill Pty Co Ltd[206] where Barwick CJ pointed out that adverse inferences can be drawn in cases where a party deliberately fails to produce evidence in circumstances where that party would have appreciated the relevant nature of the evidence.

[173] Counsel referred to the nondisclosure of:

(a) emails and other correspondence between Mr and Mrs Cann and Mr Dodd concerning station matters between 27 April 2018 and 2 November 2018 when the allegations of serious misconduct were first made;

(b) 549 documents from Mr Cole's file, many of which would have been relevant to Mr Leslie's involvement in discussions with CLC about the Windbox grazing licences;

(c) contemporaneous financial and other records held by Windbox in relation to the operation of the Station including accounts and invoices containing information related to matters such as vaccination purchases, and reports which Mr Leslie provided to the directors in relation to cattle numbers.

[174] Counsel pointed out that no explanation has been provided for these omissions. On the contrary, Windbox did disclose some of the communications between Mr and Mrs Cann and Mr Dodd when responding to JACT's applications for security for costs. Further, Windbox chose to disclose some, but not all of Mr Cole's file. Counsel contended that this suggests deliberate decisions on the part of Windbox to withhold disclosure of important and relevant material.

[175] In response, counsel for Windbox point out that there was no cross-examination of Windbox's witnesses about the discovery process, nor was there any complaint, contemporaneously or otherwise, about the adequacy of Windbox's discovery. Counsel also submitted that there is no evidentiary basis to suggest that other documents existed.

[176] I have some difficulty accepting that last contention, particularly in relation to Mr Cole's file. However, there may well have been valid claims for legal professional privilege in relation to those documents, notwithstanding Windbox's waiver of privilege in some respects. My reservations about Mr Dodd's credibility cause me to suspect that the failure to disclose material of the kind identified was deliberate. However, because Mr Dodd was never given the opportunity to answer those allegations I am not satisfied to the relevant standard that the adverse inferences sought by JACT should be drawn.

[177] Accordingly, the only inference that I can and do draw is that there was in fact no undisclosed documentary evidence that further advances the case of either party.

[216]

[181] As previously noted, the JACT grazing licences were executed by DALT and CLC on 23 August 2018 (McDonald's Yard) and 29 August 2018 (Berta Warta). This followed meetings and directions purportedly pursuant to s 19(4A) of ALRA.[208]

[182] The powers and functions of Land Trusts and Land Councils are set out in ALRA. A Land Trust can only exercise its powers as owner of land held by it in accordance with a direction given by the relevant Land Council (s 5(2)), in this case the CLC.

[183] By s 23 of ALRA, the CLC is given statutory functions concerning the management of Aboriginal land including:

(a) to ascertain and express the wishes and the opinion of Aboriginal persons living in the area of the CLC as to the management of Aboriginal land in that area (s 23(1)(a));

(b) to protect the interests of traditional Aboriginal owners of, and other Aboriginal persons interested in, Aboriginal land in the area of the CLC (s 23(1)(b));

(c) to consult with traditional Aboriginal owners of, and other Aboriginal persons interested in, Aboriginal land in the area of the CLC with respect to any proposal relating to the use of that land (s 23(1)(c));

(d) where land in the area of the CLC is held by a Land Trust, to negotiate on behalf of traditional Aboriginal owners (if any) of that land and of any other Aboriginal persons interested in that land with persons desiring to obtain an estate or interest in the land (s 23(1)(i));

(e) to not take any action, including, but not limited to, the giving of consent, in any matter in connection with a Land Trust unless the CLC is satisfied that:

(i) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed action and, as a group, consent to it; and

(ii) any Aboriginal community or group that may be affected by the proposed action has been consulted and has had adequate opportunity to express its view to the CLC (s 23(3)); and

(iii) it is performing its functions in a manner that ensures that its organisational structures and administrative processes operate in a fair manner (s 23AA(5)(b)).

[184] The statutory scheme of ALRA is that the Act does not confer on Aboriginal people proprietary interests in the relevant land, or give effect to native title interests, but instead vests fee simple title in a Land Trust that can only act on a direction by a Land Council (s 5(2)) and, before giving a direction, the Land Council is to consult with those Aboriginals who may be affected.[209]

[185] Section 19(1) provides that:

[229]

[193] Accordingly, as this Court pointed out in Windbox [No 1] at [35], unless fraud is established, s 19(6) of ALRA operates to preserve the validity of the licences. Windbox failed in its attempts to introduce a fraud claim to engage the exception to s 19(6).

[194] Accordingly, the JACT grazing licences were valid.

[195] I would add in passing that the evidence did not cause me to consider that the CLC did not form the necessary satisfaction contemplated by s 19(5). An important part of Windbox's case was that certain members of the King family were traditional owners and should have been consulted, and that a number of those who were in fact consulted were not traditional owners. This part of Windbox's case fell away before the hearings commenced. Windbox then attempted to allege fraud on the part of one of the people consulted by the CLC. Those allegations fell away when the Court refused to allow certain amendments to the statement of claim,[213] and have become irrelevant following the settlement reached between Windbox and DALT and CLC.

[196] In any event the evidence shows that CLC did arrange and conduct several meetings about the proposed grants, on country, with those people who it considered to be the traditional Aboriginal owners of the relevant land. That consideration was largely based upon internal information held by CLC about traditional ownership of that area, including findings made by the Aboriginal Land Commissioner in 1982 and 1985 following the Daguragu Land Claim.[214]

[197] Accordingly, I dismiss the plaintiff's claims for the declarations sought in paragraphs 53.3, 53.4, 53.5, 53.6 and 53.7.

[198] It also follows from this, and from the fact that Windbox is not pursuing any of its allegations against DALT and CLC, that I should make the orders sought by Windbox in its summons of 16 September 2019, and consented to by DACT and CLC, namely that:

The proceedings brought by the Plaintiff against the First and Second Defendants are dismissed.

The Plaintiff and the First and Second Defendants bear their own costs of and incidental to the proceedings.

[199] It also follows that the issues remaining for me to determine are those concerning breach of statutory duty on the part of JACT.

[266]

[211] In their written submissions counsel for Windbox contended that Mr Leslie:

(a) used confidential information as to the state of negotiations between Windbox and the CLC to his advantage in submitting a competing application;[219]

(b) was in a position of conflict of interest with Windbox in that his duties as Station Manager at all material times up to late April 2018 included assisting in Windbox's application for renewal of its grazing licences. However, without making any disclosure to Windbox or obtaining Windbox's consent, Mr Leslie planned and carried into effect the making of a competing application for the same grazing licences; and

(c) exploited a commercial opportunity, of which he only became aware through being privy to Windbox's confidential information, for his own benefit to attempt to establish a pastoral operation himself on the areas covered by the Windbox licences, thereby effectively destroying the Windbox pastoral business and/or appropriating it for himself.[220]

[212] Windbox contends that Mr Leslie breached his statutory duties to the Company in that he:

(a) as an officer of Windbox, failed to exercise his powers and discharge his duties in good faith in the best interests of Windbox, contrary to s 181 of the Corporations Act;

(b) improperly used his position as Windbox's Station Manager to gain an advantage for himself and cause detriment to Windbox, contrary to s 182 of the Corporations Act; and

(c) improperly used information gained in the course of his performance of the Station Manager's duties to gain an advantage for himself and cause detriment to Windbox, contrary to s 183 of the Corporations Act.[221]

[213] More specifically, Windbox contends that by reason of his holding the position of Windbox's Station Manager, as an officer of Windbox and as a consequence of the steady stream of intelligence provided to him by Mr Vagg (in breach of Mr Vagg's own duties to the Company), Mr Leslie:

(a) became aware that negotiations between the CLC and Windbox were drawing to a close and that execution of the grazing licences was imminent, but that Mr Vagg had effectively stalled Mr Cole from carrying into effect Mr Dodd's instructions to accept the CLC's terms without reservation in order to give Mr Leslie the opportunity to exploit that opportunity for himself;

(b) used that information regarding a commercial opportunity to benefit himself by submitting a competing application while the window of opportunity to do so remained open;

(c) in circumstances where he knew that Windbox had put him forward as a key component of its application; and

(d) failed to declare the fact that he had done so to Windbox, the company to which he owed statutory obligations.[222]

[214] Counsel for Windbox relied heavily upon their attack on the credibility of Mr Leslie and Ms Rowbottom, and upon that of Mr Vagg.

[267]

[215] In their written submissions of 27 May 2019 counsel for JACT stressed that the claims under ss 181 and 182 are confined to:

(a) Mr Leslie's use of his position as an officer only, and not as an employee or in any other capacity.[223] Accordingly, if Windbox does not establish that Leslie was an "officer" at the time of the acts relied upon, the claims under both sections must fail.

(b) Mr Leslie's actions "in planning for, taking steps to make and making the competing application..." for his benefit as particularised. Accordingly, if Windbox does not establish that the acts relied on were undertaken for this purpose - that is, if they cannot exclude the possibility that they occurred instead because of oversight, neglect or some other, different reason - the claims must fail for this reason also.[224]

[216] They also pointed out that the same particulars are relied upon in [45] of the FSOC as breaches of both sections (181 and 182). The conduct falls into the following categories:

(a) actions "from about 2016" and prior to 31/1/2018 as particularised in [45.1.1] to [45.1.15] of the FSOC of a serious and in many cases criminal nature, e.g., theft of cattle, the deliberate destruction of Windbox's property, etc. If true and if Mr Leslie was an officer, most if not all of these allegations would establish a breach of both ss 181 and 182;

(b) other actions, many after Mr Leslie terminated his employment with Windbox, as particularised in [45.1.16] to [45.1.20].[225]

[217] In relation to the second category JACT conceded that very few if any of the relevant facts are disputed. Mr Leslie does not deny that, shortly after terminating his employment with Windbox, he and Ms Rowbottom made an application for the grazing licences on behalf of JACT. Nor does he deny not providing a handover to the new managers.[226]

[218] In this respect, JACT contended that the principal issues for the Court are:

(a) whether Mr Leslie was an officer;

(b) if so, whether he took or failed to take these steps in the exercise of his "powers" or in the discharge of his "functions" as an officer of Windbox (s 181) or by the "improper use of his position" or "improper use of information obtained" as an officer of Windbox (ss 182 and 183); and

(c) if so, whether nevertheless he acted honestly and ought to be excused for any breach under s 1318.[227]

[219] During final submissions on 23 August 2019 counsel for JACT conceded that if Mr Leslie had engaged in the misconduct alleged in any of paragraphs [45.1.15] to [45.1.15] prior to the termination of his employment on 31 January 2018 he would have breached s 182(1). This is because he was then an employee of Windbox. Accordingly, it is unnecessary for this Court to determine whether Mr Leslie also was an "officer" of Windbox during that time.[228] Similarly s 183(1) would potentially apply to Mr Leslie until 31 January 2018 irrespective of whether or not he was also an "officer".

[220] However, as counsel for Windbox pointed out, s 181(1) does not apply to employees unless they are also officers. There are therefore material consequences if Mr Leslie is found to be an officer in addition to being an employee of Windbox due to his employment in a senior role with significant responsibility.[229] Further, Mr Leslie's status as an officer between 31 January 2018 and 26 April 2018 is "critical" in relation to the alleged breaches of s 183(1).

[221] It seems that the JACT defendants are not pressing the pleading point referred to [215](a) in above. This is apparent from their concession noted in [[230]](2020_21.html#_Ref3861 [222] Section 9 of the Corporations Act relevantly defines an "officer" of a corporation as including: a person:

(a) who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation [the definition in (b)(i)]; or

(b) who has the capacity to affect significantly the corporation's financial standing [the definition in (b)(ii)].

[223] As counsel for JACT pointed out, taken literally, the above definitions are extraordinarily wide. At first blush they could cover persons in government (who make decisions affecting a corporation), third party competitors, and most employees (who can significantly affect their employer's financial standing if they are negligent or fail to carry out their role).

[224] However, as the authorities in this area explain, the definitions are not construed so broadly. They are not directed at any types of decisions which can affect a substantial part of a corporation's business, or any persons who have the capacity to significantly affect the corporation's financial standing. Rather, "both of these categories are concerned with identifying persons who are involved in the management of the corporation."[232]

[225] As Vickery J pointed out in Amcor, the definitions in (b)(i) and (ii) codify the principles stated by Ormiston J in Commissioner for Corporate Affairs v Bracht[233] which focus upon the concept of "management" - namely "the administration of a commercial enterprise" - and those who are involved in the "management of the corporation".[234]

[226] In ASIC v King, the High Court elaborated that "management" could also involve a situation where:

[272]

[230] Windbox contended[242] that Mr Leslie was an officer of the Company at all relevant times (including beyond 31 January 2018) due to:

(a) the scope and nature of his duties and responsibilities as Station Manager;

(b) his high degree of autonomy and decision-making responsibility with respect to all day-to-day operational matters pertaining to the pastoral business;

(c) his substantial financial delegation and ability to affect the Company's financial standing;

(d) the fact that the directors of Windbox were heavily reliant upon, and routinely deferred to, his expertise, instructions and wishes with respect to the operation of the pastoral business; and

(e) the personal relationship he enjoyed with traditional owners and local Aboriginal community and the CLC.

[231] Windbox contended[243] that Mr Leslie played an active role in the formation of policy for, and decision-making on behalf of, Windbox. By way of example:

(a) As part of his duties as Windbox's Station Manager, Mr Leslie developed and nurtured a special personal relationship with the traditional owners, the local Aboriginal community and the CLC, and:

(i) his doing so was an integral part of the performance of his duties as Windbox's manager;

(ii) the operation of the business was dependent upon Windbox having the grazing licences, which in turn was dependent upon the consent of the traditional owners to the grant and renewal of those licences and, in general terms, the approval of the local Aboriginal community (whose views were relevant to the grant and renewal of the licences);

(iii) Windbox's favourable relationship with the traditional owners, the local Aboriginal community and the CLC was critical to the ongoing viability of Windbox's business;

(iv) that relationship was managed exclusively by Mr Leslie, to the exclusion of the directors of Windbox;

(v) his involvement was a point of emphasis in Windbox's licence renewal applications, to the direct knowledge of Mr Leslie;

(b) At all times, regardless of the form of his employment, Mr Leslie's day-to-day duties and responsibilities as Windbox's Station Manager included:

(i) hiring, firing and managing all staff;[244]

(ii) all purchasing of cattle;[245]

(iii) negotiating and effecting all cattle sales, including dealing with stock agents;[246]

(iv) scheduling and performing musters;[247]

(v) programming maintenance and upkeep of all Station facilities, plant and equipment;[248]

(vi) designing and implementing Station improvements;[249]

(vii) liaising with the CLC in all operational respects;[250] and

(viii) carrying out the duties of inspector and manager of the Meatworks;[251]

(c) In his capacity as Windbox's Station Manager, and in circumstances where the proprietors of Windbox were based interstate, Mr Leslie had near-total autonomy for Windbox's daily operations, as well as significant delegated financial responsibilities, making decisions which "affected the whole, or a substantial part, of the business of [the plaintiff]... [and was someone] who had the capacity to affect significantly the financial standing of [the plaintiff]."[252]

(d) It was the daily operations of the cattle station which were integral to the financial success or otherwise of Windbox. Specifically, the amounts involved in cattle sales in any given year amounted to millions of dollars and any given sale transaction might be in the hundreds of thousands of dollars. Mr Leslie claimed that he understood that the directors of Windbox expected him to get the best price he could for its cattle and so he did not have to revert to them every time there was a sale. Windbox says this misses the point which is that integral to Leslie's duties were achieving the best possible sale prices and if he failed to carry out that duty then its potential impact on the substantial part of Windbox's business was profound. In the same way, Mr Leslie's duties as to pasture management, water management and general husbandry of the herd (as to which he had effectively complete autonomy) had a direct relationship to the calibre of the cattle produced on the licensed areas and, it follows, the financial return to be achieved by Windbox on sale. Mr Leslie had the capacity to significantly affect the financial standing of Windbox because Windbox's business was the raising of cattle for sale at a profit and that was at the heart of his responsibilities.

[232] I pause here to note that there are numerous other examples of employees or contractors who would have analogous duties and responsibilities, but who would not fall within the definition of officer as explained in the authorities. Examples would include the manager of a restaurant or hotel, a skilled mechanic who effectively runs a busy motor vehicle service shop, a foreman on a building site, a construction manager employed to manage the construction of a large building or civil works project, and an operations manager. Most of these would have extensive duties and responsibilities, a high degree of autonomy and decision-making responsibility with respect to day-to-day operational matters, financial delegation, and expertise upon which the employer would be heavily reliant. Most would also establish strong and sometimes longstanding relationships - for example with customers, suppliers, public servants (for example, who had authority to grant licences or approvals) and other employees - to enable more efficient operation of the business. In many cases the way in which that person performs his or her duties will have the ability to affect the employer's financial standing. Whilst each case must depend on its own factual circumstances, I doubt that many people performing those kinds of functions would fall within the definition of "officer" as identified in the authorities.

[233] Mr Leslie's role since he was employed as "Station Manager" in 2012 was set out in his affidavit of 19 October 2018.[253] As his title implies, his role comprised the wide range of 'hands on' tasks of running the Station from day to day. These involved the following tasks:

(a) monitoring stock levels and stock welfare (i.e., monitoring the condition of the cattle and taking appropriate steps to ensure the cattle's welfare including protection against wild dogs,[254] ensuring access to water, and inoculation);[255]

(b) overseeing and performing station maintenance (e.g. fixing fences);[256]

(c) ordering station supplies;[257]

(d) managing the stock (e.g. mustering, drafting, watering and managing the breeding of the stock);[258]

(e) maintaining water points and machinery (e.g., bore runs and mechanical maintenance work);[259]

(f) "facilitating" the sale of cattle and the acquisition of stud bulls;[260]

(g) contracting casual station hands to assist as and when needed;[261] and

(h) performing further tasks as requested by Messrs Vagg and Dodd from time to time.[262]

[234] Mr Leslie performed these tasks under the general supervision and instruction of Mr Vagg who, as between the directors, was responsible for the 'cattle side' of Windbox's affairs.[263] To provide those instructions, Mr Vagg was involved in the Station, visiting around three to five times a year for significant periods of time, and maintaining frequent and lengthy correspondence with Mr Leslie.[264]

[235] Throughout Mr Leslie's employment with Windbox, he also contracted his helicopter services to other pastoralists in the area, who were operating businesses similar to that of Windbox - Mt Sanford, Wave Hill and Riveren. Mr Leslie spent around five days per month contracting to these competing businesses with the full knowledge and approval of Windbox's directors.

[236] I agree with JACT that there were important limits on Mr Leslie's role and authority. It was limited to undertaking the tasks set out in [233] above - that is, physically managing the Station and implementing the directors' decisions. Limitations on Mr Leslie's role as employed Station Manager are described in Mr Leslie's affidavit of 6 [265]ch 2019.265

[237] I accept the submissions put on behalf of JACT regarding the "officer" issue. Mr Leslie was not involved in the Company's management in the sense of policy formation and significant decision making. He was a manager of himself and some casual staff. His day to day tasks of running the Station involved him frequently making decisions about fixing fences, moving cattle, conducting bore runs and so on. He was also tasked (in accordance with the directors' instructions) with facilitating cattle sales and the purchasing of stud bulls, and with assisting in negotiations with the CLC and traditional owners.

[238] In my opinion Mr Leslie was not involved in the management of the Windbox "corporation" and was not a "decision maker" of Windbox in the sense contemplated by the authorities. Although his duties involved him spending the Company's money on common Station supplies and making important decisions about the purchase and sale of cattle, Mr Leslie had no real involvement in Windbox's financial affairs as such.[266] He was never made aware of Windbox's financial position,[267] had nothing to do with the bookkeeping and the preparation of Windbox's accounts or financial reports,[268] and was not a signatory on any Windbox bank accounts (which were controlled by the directors and Windbox's accounts team in Melbourne[269]).

[239] Nor did he participate in any significant decisions of the company regarding Windbox's business: for example, whether to apply for a grant or renewal of the grazing licences and, if so, on what terms; whether to expand, contract, or sell the business; whether to expend capital on new equipment and infrastructure; whether to refinance or raise capital; or whether to purchase or rent more land. He did not attend any directors' meetings or similar where Windbox's affairs were discussed and where such decisions would have been made.[270] He was simply kept informed of decisions that related to his functions as Station Manager after they were made, and then expected to assist in their implementation as and when instructed. In fact, Mr Vagg would often remind Mr Leslie of his limited role by saying to him words to the effect of: "Zebb. you have to check with Ray and me to get instructions. We are the decision makers and run the company not you".[271]

[240] Mr Leslie was only authorised to purchase "common station supplies". To do so, Mr Leslie was given a Windbox credit card initially with a limit of $1,000 which would be automatically topped up monthly.[272] This meant that Mr Leslie only had a maximum amount of $1,000 to spend per month in relation to the common stations supplies[273] and after this he would then have to either:

(a) use cash kept in running the Meatworks business for which he would then ensure Ms Rowbottom entered a MYOB expense entry;[274]

(b) use his own money for which he would then seek reimbursement from Dodd which did not always happen[275] - Mr Dodd agreed that Mr Leslie would have to use his own money and then seek reimbursement, but, Mr Dodd disagreed that sometimes he did not reimburse Mr Leslie;[276]

(c) call 'accounts' to ask them to arrange the payments for which they then needed Mr Dodd's permission.[277] Mr Dodd accepted this and explained that all of his businesses are run this way;[278] or

(d) use a Windbox cheque book specifically to make Motor Vehicle Registry payments or to pay John Firman (a cattle pregnancy tester) who insisted on payment by cash or cheque because of a long delay previously in trying to arrange payment for him via accounts. For any payments by the cheque book, Mr Leslie or Ms Rowbottom would inform accounts of the payment being made.[279]

[241] Because of the difficulties Mr Leslie had in making payments in the above ways, he asked to have a higher credit card limit which was then increased in around 2016 to a monthly limit of $5,000 again topped up monthly. This was generally more than sufficient for Mr Leslie to purchase the common station supplies.[280]

[242] Mr Leslie contracted casual station hands to assist carrying out some of the physical tasks on the Station. However, he did not decide the payment terms as they were simply the NT Cattleman's Association award rate.[281] Otherwise, Mr Leslie was not authorised to contract labour on Windbox's behalf. For example, Mr Leslie wanted to hire a cook and other people to assist for general duties and asked the directors on many occasions to make such hires, but they often refused his request.[282]

[243] Mr Leslie did not have authority to make large purchases on behalf of Windbox.[283] In relation to purchasing stud bulls, the directors would discuss potential purchases first and then instruct Mr Leslie to proceed.[284] Mr Dodd accepted that Mr Leslie would approach him first to get approval before committing to pay for the stud bulls. There would be a discussion about whether the purchases were needed, and Mr Leslie would then be "delegated" to buy the bulls.[285]

[244] Clearly, Mr Leslie's involvement in transactions such as sales and purchases of cattle and other expenditure in relation to the Station would have had an effect upon Windbox's financial standing. However, it does not necessarily follow that he was an officer of the Company. Decisions of this kind are the kind of decisions that are frequently left to employees at all levels of a business or service as part of their normal duties. Here, Mr Leslie was not authorised to decide to sell off Windbox's cattle. Rather he discussed each sale program with the directors for their instructions before proceeding.[286] Specifically, Mr Leslie discussed proposed sales of cattle, including the prices on offer, with Mr Vagg to obtain his approval before proceeding. If Mr Vagg did not agree to a proposed sale, he would decline it.[287] Mr Leslie did not have any discretion to determine the sale prices which were determined by the exporters.[288]

[245] Mr Leslie was not permitted to make any significant decisions regarding motor vehicles, accommodation for workers, and other infrastructure and equipment on the Station. Instead, Mr Leslie had to seek approval from the directors. More often than not, the directors did not agree with Mr Leslie's requests and suggestions. Consequently, the infrastructure and equipment which Leslie thought the Station needed was refused by the directors.[289]

[246] Although Windbox's directors were heavily reliant upon Mr Leslie's expertise as a station manager with respect to the operation of the Company's pastoral business on the grazing licences, Mr Vagg was heavily involved in the operation of the business and did not routinely defer to Mr Leslie's expertise and recommendations. Rather, Mr Leslie said that Mr Vagg would routinely ignore and refuse to authorise Mr Leslie's suggestions.[290]

[247] Mr Leslie played an important role in discussions and negotiations with CLC and the traditional owners. The CLC were effectively in control of all of the land held by DALT, including the land the subject of the three grazing licences, and many of the traditional owners lived in or near Kalkarindji. Many of them would have been customers at the Kalkarindji Meatworks. Many of them would have established close friendships with Mr Leslie and Ms Rowbottom and trusted them in all their dealings, including their management of the Station in a way that suited them.

[248] Mr Vagg, and to a lesser extent Mr Dodd, instructed Mr Leslie to assist in Windbox's various, sometimes half-hearted, attempts to apply for or renew its grazing licences with the CLC.[291] Mr Leslie was happy to assist and help out as instructed.[292] However, Mr Leslie was not permitted to make any substantive decisions regarding the grant or renewal of the grazing licences and was rather used by Mr Vagg (and to a lesser extent Mr Dodd) to assist where he could prove useful - particularly in Windbox's interactions and communications with the CLC and traditional owners. In this respect, Mr Leslie attended meetings with the traditional owners in August 2016 with Mr Vagg. Because Mr Vagg has significantly impaired hearing and is difficult to understand, Mr Leslie was instructed to give the presentations on Mr Vagg's behalf.[293]

[249] Moreover, Mr Vagg was quick to reprimand Mr Leslie where he thought that Mr Leslie had taken it upon himself to communicate with the CLC without having instructions from the directors to do so.[294] As Mr Dodd accepted, Mr Leslie was not authorised to communicate with the CLC or traditional owners on any matters of significance unless he had first discussed them with the directors and obtained their approval.[295]

[250] Mr Leslie was not an officer within the meaning of s 9 of the Corporations Act at any time during his employment with Windbox.

[305]

[279] Counsel for JACT also contended that all of the subsequent correspondence exchanged between Mr Spazzapan and Mr Leslie is consistent with Mr Leslie' and Ms Rowbottom's evidence and their position, and is inconsistent with Windbox's assertions. That subsequent correspondence between Mr Spazzapan and Mr Leslie does not relate or refer to any such intention to apply for the grazing licences (in competition with Windbox).[331]

[280] In response to the JACT contentions set out in [278] above, counsel for Windbox stressed the use of the word "the", not "a", in that sentence. Counsel also submitted that Mr Leslie would not necessarily have to find "somewhere else" to lease, nor was it his intention or desire to find "somewhere else". His special relationship was with the traditional owners who had "the" land, not with traditional owners who owned land "somewhere else". Counsel also referred to the use of the word "restock", which implies stocking the same land with his own cattle. Counsel contended that Mr Leslie was positing a scenario whereby he would continue "his association with the Windbox business on 'the' grazing licences 'until sold', throughout which time he intends to exploit his 'upper h[332]'.332 Counsel also contended that the correspondence between Mr Leslie and Mr Spazzapan following 4 January 2018 was consistent with Mr Leslie's stated desire to "get out of the partnership on the best $ he [333]."333

[281] Subsequent to the disclosure of Mr Spazzapan's file note[334], Mr Spazzapan affirmed an affidavit,[335] and was cross-examined.[336] Mr Spazzapan said, and I accept his evidence, that:

(a) He did not remember that telephone call.[337]

(b) The telephone conversation would have occurred on 4 January, sometime between 8.48 am and 2.38 pm.[338]

(c) It is likely he typed the file note on 7 January 2018, based upon rough handwritten notes that he probably made during and/or shortly after the telephone conversation.[339] In cross-examination he referred to these as "short form notes" that he would have filled out to construct the file note.[340]

(d) This was the "first contact [he] received from Mr Leslie about this matter ... which was otherwise entirely new to [him]." He said the call "just came out of the blue".[341] To the best of his recollection, Mr Leslie had not mentioned Windbox or his arrangements with it and its directors prior to then.[342] His previous dealings with Mr Leslie were in relation to litigation concerning a helicopter crash.

(e) Further, "as it was an inquiry about new instructions" he wanted to do a conflict check before he could accept such instructions. "For that reason, I do not normally attempt to understand the precise detail of, and then record, what I am being told by a potential client until I have completed a conflict check ...".[343]

(f) "In those circumstances and given the apparent delay between receiving the call and making the file note, it is quite possible that I misinterpreted my handwritten note and / or misunderstood some of what Mr Leslie told me and that the file note is inaccurate in some respects as a result."[344]

[282] Mr Spazzapan was cross-examined about the file note. He was asked whether he was now able to say that the file note was largely an accurate record of what he was told. He said:

[320]

[287] I reject the plaintiff's submissions concerning the telephone conversation of 4 January 2018.

[288] If Mr Leslie had said anything to Mr Spazzapan about him applying for the grazing licences on his own behalf, Mr Spazzapan would have noted that then. I have no reason to doubt Mr Spazzapan's sworn evidence that the first time he heard about any such intention was on 7 February.

[289] It is unlikely that Mr Spazzapan's notes were accurate, at least word by word, as Windbox's contentions assume and require, particularly those noted in [280] above. The likelihood of inaccuracy follows not only from Mr Spazzapan's evidence that it is quite possible that he misinterpreted his handwritten note and / or misunderstood some of what Mr Leslie told him, but also from the many and obvious errors contained in the note itself. For example:

(a) The first paragraph of the note wrongly refers to a partnership comprising three partners, one of whom was Mr Leslie who was wrongly said to be the owner of 2%. As we know, Mr Leslie said he had been promised a 2% share in the Company, and had asked for a 10% share.[355] Also, Messrs Dodd and Vagg respectively held 85% and 15% of the shares in Windbox, not 81% and 17%.

(b) The second paragraph wrongly refers to the assets as being a (single) leasehold over Aboriginal land. In fact, all that the Company ever held were three grazing licences, all of which had expired many years earlier. It also refers to 14,000 head of cattle, a quantity significantly higher than the 6,000 head that had in fact been owned by Windbox over the preceding three or four years.[356]

[290] In relation to the last paragraph:

(a) The first sentence is consistent with the fact that Mr Leslie had been negotiating with the owners of "the cattle land", namely the Daguragu Land Trust, for new grazing licences (cf a "new agistment lease") for Windbox. It did not mean that he was negotiating for his own grazing licences. Indeed there is no evidence of him having any negotiations about that before he applied for the grazing licences in March 2018.

(b) The second and third sentences are consistent with Mr Leslie's understanding that Windbox's prospects of obtaining the grazing licences would be slim unless Mr Leslie remains part of the "team" engaged by Windbox to continue those negotiations on its behalf. So too the last sentence. He therefore thought he had the "upper hand" in forcing Windbox to pay him the money he was owed, and renegotiating the terms of his future engagement with Windbox.

(c) The fifth, sixth and last sentences are consistent with Mr Leslie's desire to be engaged by Windbox to continue managing the Meatworks and the Station for five years or until that part of Windbox's business was sold.

(d) The penultimate sentence summarised what Mr Leslie might do then, namely in five years' time, or earlier if Windbox was sold in the meantime. Presumably any sale of Windbox would include a sale of the cattle, they being the major asset of the Company. Understandably, Mr Leslie may well have contemplated that if and when that occurred, he could then negotiate to purchase the grazing licences from the new owner of the business and restock the property.

[291] In my view, Mr Leslie was approaching Mr Spazzapan for legal advice about his remedies following the disastrous meeting with Mr Dodd the day before, and his and Ms Rowbottom's decision to end their employment relationship with Windbox as soon as possible. He wanted Windbox to pay him the money it owed him for the assets of his that he had brought onto the property and applied for the benefit of the Company, and to compensate him for the equity that he had been promised but had never received. He was, nevertheless, keen to continue to manage Windbox's meatworks and cattle for five years "or until [Windbox was] sold", and to retain the use of the house where he and his family had been living.

[292] Mr Leslie and Ms Rowbottom were fully aware of Mr Dodd's statement the day before, that he had lined up an overseas buyer and was "selling and getting out". Hence their need to consider their future if that eventuated, and to promptly seek legal advice in order to receive the compensation that was due to them and extricate themselves from their employment as soon as possible.

[321]

[293] Windbox contended that Mr Leslie and Ms Rowbottom continued to plan to seek their own grazing licences over the Station during January 2018. Mr Leslie acknowledged that he became aware of that possibility following his discussions with Mr Cook on about 12 January. However, he said that he did not give it any more thought until about 1 February because he wanted to resolve his issues with Messrs Dodd and Vagg before working out what he was going to do.[357] In particular, he was awaiting a response from Mr Dodd to his letters of 7 January and 17 January.

[294] Counsel for Windbox relied heavily on Mr Dodd's emails of 24 January and 29 January 2018 suggesting that Mr Cole be instructed that Windbox was now prepared to agree to grazing licences with the 5 + 5 year terms proposed by CLC in October 2016. This was the first time that Mr Dodd had expressed any willingness to agree to such short terms.[358] Even then, it seems that he did not make Mr Cole aware of his change of position by the time Mr Cole resumed discussions with Ms Wilkie in February 2018.[359]

[295] I have accepted the evidence of Mr Leslie and Ms Rowbottom to the effect that it is unlikely that Mr Leslie saw these emails or took any notice of them.[360]

[296] Counsel put to Mr Leslie that following his discussion with Mr Cook on about 12 January regarding the possibility of him applying for the grazing licences and his decision to resign from Windbox, it would have been of considerable importance to him that Windbox was about to accept the offer of the 5 + 5 licences. Mr Leslie responded that by then he "was pretty well over the whole deal" and not particularly interested in what was "just something between Bob and Ray." He said if it meant something to him he is sure he would have remembered it.

[297] Counsel also put to him that he decided that he had to do something quickly, otherwise Windbox would "sign up these licenses" and he would miss out. Mr Leslie responded that if that was the case he would have made his own application the next day. He said that he did not know what Windbox's situation was with the CLC at that time.[361]

[298] By this time, Mr Leslie had clearly announced his resignation from his position as Station Manager (and that of Ms Rowbottom) to be effective from 31 January 2018 and he was still waiting to hear from Mr Dodd about whether he wanted Mr Leslie to work on the Station as a contractor. All that he had was a copy of Mr Dodd's email to Mr Vagg, which Mr Vagg had sent him earlier that day, where Mr Dodd was apparently questioning his claim regarding 13 furniture items, referring them to Mr Pearson "to check the legality" and requesting an employment agreement.

[299] Counsel for Windbox also cross examined Mr Leslie about the similar email sent by Mr Dodd on 29 January, headed "FW: Instructions to Graham Cole re CLC Licences." Counsel put to Mr Leslie that if he had read that email he would have then been aware that the licences had not been finalised between Windbox and the CLC. Mr Leslie replied: "If I'd looked at it that way, I would have been, yes, but I didn't look at it like that."[362]

[300] There was no reliable evidence led, either through Mr Dodd or Mr Cole, as to whether and when, if ever, Mr Dodd gave those instructions to Mr Cole. Windbox redacted the whole of Mr Dodd's email to Mr Cole of 1 February 2018, which was at the top of the email trail bearing the subject heading "Re: Windbox Pty Ltd - pastoral licences at Kalkarindji".[363] The fact that the text of the email of 29 January 2018 included the words "Hi Graham" and added the additional paragraph and Mr Dodd's "signature" might suggest that this was a copy of an email that Mr Dodd had already sent to Mr Cole. On the other hand, when Mr Cole spoke with Ms Wilkie on 6 February, he was still advancing the Vagg amendment which he had previously raised with Ms Wilkie in August 2017. Moreover, had Mr Dodd in fact sent those instructions to Mr Cole, one would have expected him to testify that he had done this. Although he gave extensive evidence, he did not give this important evidence. The only evidence about this was Mr Dodd's evidence in his affidavit that instructions in the terms of his email of 24 January 2018 "were provided to Mr Cole on 29 January 2018."[364] It is significant to note that he did not say that he provided those instructions to Mr Cole or how and by whom they were provided. Moreover, Mr Dodd's assertion about this is inconsistent with Mr Cole's apparent unawareness of any change in his instructions when he re-engaged with Ms Wilkie early in February. I am not satisfied that Mr Dodd gave Mr Cole those instructions on 29 January 2018.

[301] Nor was evidence led as to why Mr Dodd copied his email of 29 January 2018 to Messrs Vagg and Leslie, or as to what they were expected to do with it. There is some force in the submission on behalf of JACT that Mr Dodd was deliberately giving this important information to Mr Leslie in order to prejudice him in the event that he proceeded with his threat to resign on 31 January and to seek compensation for his equipment and the loss of his 2% share.

[302] I accept Mr Leslie's evidence about his lack of appreciation of these emails of 24 and 28 January 2018. Despite having written to Mr Dodd and Mr Vagg on 7 January and requested their reply by Friday 19 January, and having given them formal notice on 17 January, he had not received any response from Mr Dodd. All that Mr Leslie had received in relation to Mr Dodd's attitude about that was a copy of Mr Dodd's email to Mr Vagg of 23 January questioning his honesty[365] and avoiding any discussion about Mr Leslie's notice that he would be ceasing his employment on 31 January.

[322]

[303] The plaintiff has not satisfied me that Mr Leslie and or Ms Rowbottom decided to further explore the possibility of applying for the grazing licences before 1 February 2018. Until then they were preoccupied with their uncertainty about their position with Mr Dodd and also with operating the Station business until the termination of their employment, on 31 January.

[304] Mr Leslie (and Ms Rowbottom) did not take any steps towards applying for the grazing licences and thus establishing a competing pastoral business prior to Mr Leslie's resignation from Windbox. The plaintiff has not established the allegations particularised in FSOC [45]. The first step taken by them occurred on 2 February 2018 when Mr Leslie telephoned Ms McIntosh to enquire whether he and Ms Rowbottom could apply for the grazing licences. Even then, they merely lodged expressions of interest.[366] It was only after Mr Leslie had spoken to Ms McIntosh that Mr Leslie and Ms Rowbottom decided to apply for the grazing licences. They then set about proceeding with the application. This included them obtaining and completing a CLC Pastoral Proposal form, engaging Mr Spazzapan, contacting an insurance broker, identifying referees and drafting a business plan. They lodged their application on 5 March.[367]

[305] Further, prior to 1 February 2018, Mr Leslie would not have been aware of what instructions, if any, Mr Cole had actually been given or what communications, if any, had occurred between Mr Cole and the CLC. Hence, his telephone inquiry of Ms McIntosh on 2 February 2018. There was nothing said during that call that suggests Mr Leslie had any such knowledge by then.

[306] Mr Leslie was fully aware of Mr Dodd's intentions to sell his interests in Windbox in the near future. Once it became clear to him that Mr Dodd was not willing to fulfil his earlier promises of equity and or compensation, and was only prepared to keep him on as a contractor for a short term, Mr Leslie had no choice but to advance his own interests after 31 January.

[307] I also reject Windbox's allegations of a conspiracy between Mr Vagg and Mr Leslie ("the Vagg conspiracy"). Mr Vagg was the director who was primarily responsible for the operation of the business and had frequent contact with Mr Leslie and Ms Rowbottom. He was also concerned to do the best he could in the interests of the Company (in which he held 15% of the shares). This is evident from his conduct such as suggesting the "Vagg amendment", and convincing the CLC to arrange meetings in October 2017 to consider that suggestion.

[308] Mr Vagg recognised the importance to the business of properly looking after Mr Leslie and Ms Rowbottom so that they would continue working with Windbox. Clearly, and understandably, he was very embarrassed about Mr Dodd's unsatisfactory treatment of Mr Leslie and Ms Rowbottom, going back to some years before 2015 when Mr Dodd had first promised them equity in the Company. It was clearly in Mr Vagg's interests, and in Windbox's interests, for Mr Leslie and Ms Rowbottom to continue working for Windbox. Hence, his suggestion that they attend the meeting on 3 January 2018 in Melbourne.

[309] Mr Vagg's embarrassment about how Mr Dodd was treating Mr Leslie and Ms Rowbottom would have continued towards the end of January 2018. By then it was clear that Mr Dodd was still avoiding those issues for Mr Leslie and Ms Rowbottom that were obviously important to them. The resolution of those issues was becoming more urgent in light of their clear decision to end their employment as at 31 January and Mr Dodd's intention to sell out of Windbox. Mr Vagg was well within his rights to pass on communications he had with Mr Dodd concerning their differing views on important issues that would affect Mr Leslie's prospects of being given what he had been promised. At one point, Mr Vagg told Mr Leslie that Mr Dodd had shared his private email with Mr Pearson. This implies that he thought that he was well within his rights to pass on to Mr Leslie information that he had received from Mr Dodd.

[310] It is important to note that there is no evidence to suggest that Mr Vagg knew of any intention on Mr Leslie's part to apply for the grazing licences. Also relevant is the fact there is no evidence of Mr Vagg passing on to Mr Leslie or Ms Rowbottom, Mr Dodd's critical (redacted and presumably privileged) email to Mr Cole of 1 February 2018, or any other document referring to instructions given (or not given) to Mr Cole at about that time. Nor is there any evidence to suggest that Mr Vagg had anything to gain by conspiring with Mr Leslie, for example by providing him with the information, or by stalling Windbox's negotiations, or by enabling Mr Leslie to "jump the gun" on Windbox's application. Rather, it was still in his interests that Windbox, not Leslie, get the licences.

[311] Also consistent with the absence of a conspiracy is the absence of any evidence of Mr Leslie responding to the emails that Mr Vagg sent him. Rather Mr Leslie told Mr Vagg that he was no longer interested in Windbox's business and was sick of being strung along. Further, there is no evidence that Mr Leslie was asking Mr Vagg to send him any of that information. Also, as I have noted elsewhere, even Mr Dodd sent him the email of 29 January 2018, unsolicited and for no apparent reason.

[323]

[312] Paragraph [45] of the FSOC accuses Mr Leslie of improperly using his position as an officer of Windbox to gain an advantage for himself and Ms Rowbottom and JACT and to cause Windbox detriment. He is said to have done this by "planning for, taking steps to make, and making the competing application for grazing licences over McDonald's Yard and Berta Warta".

[313] Under the sub-heading "Particulars of improper use of position", Windbox contends that for a period of time prior to his resignation "and more particularly from about 2016", Mr Leslie "planned for and took steps ... to establish a competing pastoral business".[368] He did that by engaging in the misconduct referred to in [204] above. For the most part these allegations are that Mr Leslie deliberately and dishonestly, and in many cases criminally, ran down Windbox's business by stealing cattle, destroying fences and engaging in other nefarious acts.

[314] Allegations of criminal conduct such as some of that pleaded against Mr Leslie in particular, attract the Briginshaw requirements of proof set out in s 140(2)(c) of the Evidence (National Uniform Legislation) Act (NT). JACT submitted that Windbox has not established any of these serious allegations to that, or any standard. They advanced a number of reasons.

[315] Firstly, no direct evidence was led as to the occurrence of these acts. Most of Windbox's evidence came from Mr Cann and from others who expressed opinions largely based on Mr Cann's evidence. Mr Cann first worked on the Northern Paddocks area with the assistance of six young indigenous men who lived in the area. In early June he moved to the south of the Station to muster McDonald's Yard over the next six weeks or so. It was there that he observed that about half a kilometre of fencing was down. He had previously noticed that some fences were down in that area when he drove around the property to locate waters and to get an idea of where the cattle were.[369]

[316] As counsel for JACT pointed out, the scale of the alleged acts is significant. It involved, for example, the theft of hundreds of head of cattle belonging to Windbox, including by the use of a helicopter, the deliberate mistreatment of hundreds of head of cattle, and the destruction of half a kilometre of fencing by Mr Leslie over a two year period. None of this could have happened in secret and remained so. Rather one would expect other people to have seen evidence of one or more of these acts at about the times when the conduct is said to have occurred. Such other people would include other users of the land or nearby land such as traditional owners and the six young indigenous men who later assisted Mr Cann, and CLC inspectors such as Ms McIntosh, or Mr Vagg. For example, one might expect evidence that a fence was standing one day and down soon after. Further, Windbox did not produce a witness who could testify to Mr Leslie's possession of the spoils of these alleged crimes, or a witness or document observing or recording the sale by Mr Leslie in his own right of cattle which could only have come from the Station.

[317] Accordingly, Windbox was left with the burden of proving each of these serious allegations through circumstantial evidence only. JACT pointed to the failures on Windbox's part to adduce evidence of the kind noted above, and to a number of inconsistencies between the allegations and the evidence adduced, as leading to the opposite conclusion.

[318] As I have noted, Mr Vagg was the director of Windbox who had the primary hands-on responsibility for the cattle operations. He visited the Station regularly and for days at a time, and was the director who had most of the dealings with Mr Leslie. As I have also noted, he was not called to give evidence. I can only infer that he would not have given evidence that supported Windbox's allegations of misconduct on the part of Mr Leslie. Rather, the evidence points to him and Mr Dodd being quite satisfied about Mr Leslie's conduct throughout, at least until late January 2018 when Mr Dodd suggested to Mr Vagg that Mr Leslie was dishonestly seeking payment for some equipment that was not his.

[319] Mr Dodd confirmed that Mr Vagg reported to him from time to time that Mr Leslie was doing "a pretty good job[370] and said the same in effect to the CLC.[371] Mr Dodd agreed[372] with an opinion expressed in an email of 23 August 2017 by Mr Vagg's accountant, Mr Murphy that:

[325]

[320] Similarly, Windbox's own evidence confirms that on 4 August 2017, the CLC advised Windbox's lawyer, Mr Cole, that "the traditional owners are eager to continue their good relationship with the company and in particular with Zebb Lesley (sic)...".[374] This is also inconsistent with Windbox's contentions that Mr Leslie was running down the business.

[321] Much of the conduct alleged would also have in breach of Windbox's licences with the CLC[375]. However, there is no evidence of any complaint by the traditional owners, by the CLC, by Windbox's directors or by anyone else about Mr Leslie's conduct. There were at least 6 indigenous young men who were resident in and around Daguragu engaged by Mr Cann soon after he commenced in late April. None of them, nor any other local, were called to give evidence about any of this alleged misconduct. Ms McIntosh described Mr Leslie as a "very good manager" whose "cattle management skills" were impressive.[376] When she inspected the stock when Mr Leslie was managing the Station she did not observe any evidence of mismanagement.[377] In her opinion, Mr Leslie was not responsible for the issues she observed on the Station in September 2018.[378]

[322] This too is inconsistent with the allegation that Mr Leslie was deliberately running down the business.

[323] Another inconsistency between Windbox's allegations and Mr Leslie having engaged in the conduct alleged is the fact that until the meeting of 3 January 2018, Mr Leslie and Ms Rowbottom had hoped to acquire an interest in Windbox's business.[379] Mr Dodd largely accepted as correct the accounts given by Mr Leslie and Ms Rowbottom in their email of 30 September 2015 which recorded the basis on which they sought an interest in Windbox.[380] Those negotiations continued until 3 January 2018.[381] Not only was it in their interests to see Windbox obtain fresh grazing licences, it was also in their interests for the business to continue to operate profitably.

[324] Another odd thing about these claims is the fact that they were made somewhat late, some considerable time after Mr Leslie ceased working on the Station. Prior to that the only complaint of any misconduct on the part of Mr Leslie was Mr Dodd's suggestions to Mr Vagg on 23 and 30 January 2018 that Mr Leslie did not own all of the equipment that he was seeking reimbursement for.[382] As I have said, Mr Dodd never put this allegation to Mr Leslie. Rather, he seemed to be using that allegation as a further delaying tactic towards the end of January. Moreover, notwithstanding that allegation, Mr Dodd continued to engage Mr Leslie until late April 2018 until Mr Cann commenced. Indeed, Mr Dodd acknowledged that during that period Mr Leslie continued to do "the right thing" both for the company and the property.[383] Similarly, Mr Newsome agreed that Mr Leslie displayed "competence" and "dedication" in his management of the Station during the period February to April 2018.

[325] Mr Cann's allegations only emerged after there were multiple complaints about Windbox's operations both on the Station and also of Kalkarindji Meatworks.[384] These included serious complaints and enquiries from about 12 September including:

(a) from the Northern Territory Environmental Protection Agency (about a paddock containing dead cattle), Ms McIntosh of the CLC (following inspections of the property carried out by her from 12 September) and from the Lajamanu Store (about the poor quality of meat being sold to the Lajamanu Store and the Kalkarindji Store);

(b) a formal investigation conducted by Mr Frost (Senior Meat Industry Officer) on 26 September concerning the unauthorised disposal of abattoir waste on the Station, and the unlawful swill feeding of pigs, followed by an official caution and a Major Corrective Action Request by Mr Frost on 26 September, and a letter and order pursuant to the Livestock Regulations made by Dr Kevin De Witte (Chief Inspector of Livestock) on 3 October; [385]

(c) Australia-wide publicity about the "Kalkarindji Meats Naked Butcher" on about 22 October followed by a further written warning by Dr Peter Saville (Acting Chief Inspector) on 22 October 2018;[386] and

(d) a formal notice under the Animal Welfare Act stating that Mr Cann and Dodd had breached "the 'duty of care' to an animal namely cattle" and requiring them to undertake specific remedial action by 31 December.[387]

[326] Further, these claims were not pleaded until 2 November 2018 when Windbox amended its statement of claim. They were not raised in the original statement of claim - endorsed on the writ dated 27 September 2018 - although it contained a detailed pleading alleging breaches of duty by Mr Leslie for making a competing application in breach of his duties as an officer. Nor were these claims alleged during the hearing of the injunction proceedings on 19 October 2018. The affidavit evidence in support filed by Windbox was extensive. Even though Mr and Mrs Cann had been on the Station for about five months, there was no suggestion that Mr Leslie had engaged in the criminal misconduct now alleged against him. No explanation was provided to explain why these very serious allegations were not included in that material, and were not the subject of the initial pleadings.

[327] Moreover, in October or November 2018, Mr Cann reported to Mr Dodd that "the general condition of the herd overall is reasonable to good" and that the business operations of Windbox were "operating without issue"[388]. Mr Dodd repeated this in his affidavit of 16 November 2018.[389] That is quite at odds with the suggestion that by this stage Mr Cann had detected the deliberate, criminal acts of Mr Leslie in damaging or stealing cattle and in degrading paddocks and infrastructure. Given that Mr Leslie left the Station at the end of April 2018, if that had occurred it would have been obvious to Mr Cann by October/November 2018.

[328] Counsel for JACT submitted that the allegations against Mr Leslie were fabricated by Mr Cann and Mr Dodd in order to deflect criticism of them for their own misconduct, which I have summarised in [325] above. There is considerable force in that submission.

[326]

[329] As I have said, these allegations, some of which go back to early 2016, were not raised until November 2018, some 6 months after Mr Leslie and Ms Rowbottom had left the property. Particulars as to dates and detail were vague, thus making it difficult for Mr Leslie to inspect the property himself and defend the allegations. Moreover, as I have concluded, Mr Leslie did not make a definite decision to apply for grazing licences himself until 2 February 2018. He only began to consider the possibility of getting another job or establishing his own business after the meeting of 3 January 2018.

[330] [45.1.1] of the FSOC alleges that Mr Leslie, without the knowledge or consent of Windbox, diverted Windbox's cattle to adjacent Daguragu land and hid them there pending the grant of grazing licences to him in order to use those cattle to establish his own herd. Windbox has not identified when, during that period of more than two years since early 2016, Mr Leslie is said to have done that.

[331] There is no credible evidence circumstantial or otherwise that Mr Leslie stole Windbox cattle and then hid them in neighbouring land pending the grant of grazing licences. The evidence relied upon by Windbox is Mr Cann's evidence that cattle must have been deliberately driven from McDonald's Yard by Mr Leslie, because when Mr Cann flew a helicopter over cattle, they moved away from the Station. That was a very flimsy inference and was not supported by Windbox's own expert, Mr Newsome.[390] Further, as Mr Leslie explained, such allegations do not make sense and are not plausible, because the areas where he supposedly hid the cattle cannot actually support them.[391]

[332] [45.1.2] of the FSOC alleges that Mr Leslie failed to adequately tend to Windbox's stock by not adequately feeding or watering or inoculating them, so as to damage and run down the stock. Mr Dodd was not able to explain the inconsistency between the figures in [17] of his affidavit (Ex P5) in relation to purchases of vaccinations which suggested that expenditure was much less in 2018 than in 2017, and the figures in Windbox's accounts which showed an increase in expenditure on animal health from $41,000 to $57,000 from 2017 and 2018 financial years (in Ex P5, p.17).[392] The accounting information which he said supports [17] was not produced.

[333] At no stage prior to April 2018 did Mr Vagg ever refer to botulism in his discussions with Mr Dodd.[393] Mr Leslie said that there was never any outbreak of botulism while he was at the Station and that the first he has ever heard of this was when he read Mr Cann's affidavit.[394]

[334] Much was made by Windbox's expert witnesses about the lack of noticeable lumps on the neck of the cattle. However, as Mr Leslie outlined in some detail, he followed a strict vaccination regime and all cattle that were immunised were bangtailed.[395] Mr Leslie further explained that if the vaccination needle is kept clean, the vaccination area does not become infected and no long-term lump forms. For the very few cattle that Mr Leslie did see with an infected lump, he would lance the lump with a scalpel.[396] I accept that evidence.

[335] [45.1.3] of the FSOC alleges that Mr Leslie overgrazed the Northern Paddocks licensed area in order to enhance the quality of feed on the McDonald's Yard and Berta Warta licensed areas, being (inter alia) the licensed areas that Leslie intended to make the competing application for and the licensed areas closest to adjacent Daguragu land where he had hidden Windbox cattle as alleged in paragraph [45.1.1].

[336] As I have said elsewhere, I am not satisfied that Mr Leslie decided to apply for the grazing licences until about 2 February 2018, let alone to engage in conduct such as that now alleged with that in mind. Indeed, when Mr Leslie applied for the grazing licences, he would not have foreseen that he would be awarded McDonald's Yard and Berta Warta but not Northern Paddocks.

[337] Further, as confirmed by Mr Newsome, the condition of the paddocks in late 2018 is explained by the poor season and Windbox's decision to defer mustering from early 2018 until mid to late 2018.[397] I have previously referred to Mr Leslie's concerns about this in March and Mr Dodd's failure to authorise appropriate destocking.

[338] [45.1.4] of the FSOC alleges that Mr Leslie failed to muster calves and weaners and brand them with Windbox's brand in a timely manner and in accordance with standard pastoral practice. Mr Newsome's evidence as to the age of the animals in the photograph attached to Mr Mobb's affidavit was to the effect that the age of the heifers may be explained by the fact that they were not mustered between April and June 2018.[398] This too is fatal to this complaint and is consistent with Mr Leslie's evidence.[399]

[339] [45.1.5] of the FSOC alleges that Mr Leslie failed to muster and sell fat cows in a timely manner and in accordance with standard pastoral practice. This allegation is also explained by Mr Leslie's mustering schedule and Mr Dodd's instruction to Mr Leslie to cease mustering. This resulted in an extended delay while Mr Cann took over and then resumed mustering and processing the cattle.

[340] [45.1.6] to [45.1.11] of the FSOC allege that Mr Leslie permitted sections of fencing to be down so as to enable cattle to wander onto adjacent land, or alternatively dropped sections of fencing and moved cattle onto adjacent land with the use of a helicopter.

[341] In particular, Windbox says that Mr Leslie permitted a section of approximately half a kilometre of fencing on the northern boundary of McDonald's Yard, at the intersection of Lily Hole and Topsy Bore paddocks, to be down thereby enabling cattle to wander from McDonald's Yard onto adjacent Daguragu land. Mr Cann said that he observed those fences to be down and cattle on the adjacent land during his initial inspection of the property shortly after he arrived on 23 April 2018. However, he did not commence mustering in that area until the first week of June.[400] He also said that a station manager should check fences at least once every two weeks.[401] If he had been doing this he would have noticed the fences down earlier, if they had in fact been down during Mr Leslie's time there.

[342] Mr Leslie denied these allegations. He pointed out that Mr Dodd, Mr Vagg and their advisors attended the Station in the first two weeks of April 2018 for the purposes of inspecting the infrastructure and cattle on the Station, but there was no suggestion then that any fences needed repairing.[402]

[343] There are many reasons why Mr Cann may have found fences down. Mr Newsome accepted that local indigenous people may have pulled fences down to find and take a "killer", feral animals may have pulled fences down, and water damage could have the same effect.[403] I see no reason not to accept Mr Leslie's evidence that during his time on the Station he had in place a thorough system of checking fences and that he followed that system. Indeed his ready access to and use of his helicopter including to do mustering work on nearby properties provided him with additional opportunity to keep an eye on the Station's fence-lines. I accept his evidence that there were no fences down at the time he left the Station.[404]

[344] [45.1.12] of the FSOC alleges that Mr Leslie over-ordered plant and machinery, with the intention of misappropriating it for his competing pastoral business. Mr Dodd listed a number of items said to be missing from a depreciation schedule prepared on the change-over to Mr Cann. I accept Mr Leslie's evidence regarding the supposedly stolen items. The second-hand horse truck and the Hallmark Livestock Trailer 1990 were not on the Station when Mr Leslie began working there. The Hatz genset broke down because it was so old and Windbox purchased a new Yanmah genset which was at Berta Warta when Mr Leslie left the property. Mr Dodd was present on the Station when the old genset was deemed unserviceable. The second-hand Massey Ferguson Tractor never worked and was scrapped following discussion with and agreement of Mr Dodd. The other items were left on the Station when Mr Leslie and Ms Rowbottom left.

[345] [45.1.13] of the FSOC alleges that Mr Leslie wrongfully converted to his own use a large loom of poly-pipe, the head bale from the main cattle crush at McDonald's Yard and a calf cradle from Bob's Gully which items were and remain the property of Windbox. I accept Mr Leslie's evidence that the poly-pipe purchased from Elders on Windbox's account was used to construct a new pipeline at McDonald's Yard,[405] the head bale was beyond repair and is located in a pile of scrap metal in the shed at McDonald's Yard (such that Mr Leslie had to use his own head bale on the Station)[406] and the calf cradle was at McDonald's Yard when Mr Leslie stopped working at the Station (and that he used his own calf cradle on the Station).[407]

[346] [45.1.14] of the FSOC alleges that Mr Leslie ingratiated himself with some members of the local Aboriginal community and denigrated Windbox and Ray Dodd to them. Clearly, Mr Leslie established good relationships with the local Aboriginal community, both before and during his time on the Station. He had a far better knowledge and understanding of the local community and their preferences than either of the directors of Windbox, particularly Mr Dodd. Conversely they trusted him to do the right thing by them in his capacity as Station Manager for Windbox. There is no credible evidence that Mr Leslie denigrated Windbox or Mr Dodd to the local community.

[347] I am not satisfied that any of the allegations of misconduct set out in [45.1.1] to [45.1.14] have been made out.

[348] [45.1.15] of the FSOC alleges that Mr Leslie failed to keep, maintain or hand over Station records, such as a station diary and waybills. Although it is common practice for a station diary to be maintained for large cattle stations, there was no requirement for Mr Leslie to keep a station diary.[408] The Station records were provided to Windbox or left in the appropriate place at the Station.[409] Further, no-one ever requested Mr Leslie or Ms Rowbottom for the records which Mr and Mrs Cann later said they needed and expected to be provided.[410]

[349] [45.1.16] of the FSOC alleges that Mr Leslie refused to participate in a handover to the incoming station manager, Mr Cann. Mr Leslie does not dispute this but points out that there was no requirement for him to do this. This is clear from Mr Dodd's offer to pay Mr Leslie for an additional month if he did so assist, an offer which Mr Leslie did not take up. He had been kept in the dark about the engagement of the new manager, including when the new manager would be assuming the responsibilities which Mr Leslie had been undertaking during almost four months of uncertainty and acrimony created by Mr Dodd. It is hardly surprising that Mr Leslie was not willing to assist him.

[350] I am not satisfied that the conduct alleged in either [45.1.15] or [14.1.16] was misconduct by Mr Leslie (or Ms Rowbottom), or conduct of the kind that constitutes a breach of relevant provisions of the Corporations Act.

[351] [45.1.17] to [45.1.20] of the FSOC refer to Mr Leslie's admitted conduct of preparing and submitting the applications for the JACT grazing licences, and other associated conduct including arranging insurance, contacting and arranging for referees to support the JACT applications and obtaining legal advice. Paragraphs [41] and [46.1] of the FSOC accuse Mr Leslie of other misconduct in relation to him seeking and obtaining those grazing licences.[411] I shall deal with those allegations shortly.

[328]

[352] An important starting point when considering possible breaches of any of these statutory provisions, including s 181, is the contract or other arrangement that identifies the functions, duties and responsibilities of the officer or employee as the case may be. Also relevant will be common law and equitable obligations.

[353] Windbox did not inform Mr Leslie, let alone seek or obtain his agreement, that he was in the possession of any particular information that Windbox considered confidential which he was required to keep secret post-employment. Indeed, Windbox has not alleged that Mr Leslie breached any implied contractual obligation or equitable obligation of confidence owed by an employee to his employer post employment.

[354] With some exceptions, for example the wrongful disclosure of trade secrets, an ex-employee is entitled to make full use of the skill, experience and "know-how" which he or she has acquired as a result of the previous employment. This includes using it in legitimate competition with a former employer.[412]

[355] Sections 181, 182 and 183 of the Corporations Act have not expanded the duties of officers and employees in any significant respect. However, they may have expanded the categories of persons who are subject to particular duties, and clarified the content of particular duties. Nor do they qualify an employee's right under the common law to compete against his or her former employer absent a contractually binding agreement to the contrary. Allegations of breaches of these sections have been considered and determined in light of, and consistent with, those common law rights.

[356] Counsel for JACT referred to the decision of Jessup J in Links Golf Tasmania Pty Ltd v Sattler.[413] That case concerned the actions taken by Mr Sattler to develop a golf course on land which he owned adjacent to a golf course operated by Links Golf Tasmania Pty Ltd. He was a director of that company and its CEO at that time, but his actions were not undertaken in either capacity.

[357] Jessup J noted that the concept of impropriety for the purposes of ss 181(1)(b), 182(1) and 183(1) does not mark out a "new jurisdictional ground" beyond what the law of equity already imposes in relation to the duties of fiduciaries.[414] See too Amcor at [1337] concerning s 181(1), Del Casale v Artedomus (Aust) Pty Ltd[415] at [59] - [60] concerning s 183, and Manildra Laboratories v Campbell[416] at [130] - [133] concerning ss 182 and 183.

[358] In Manildra Laboratories McDougall J referred to what Hodgson JA had said at [60] of Del Casale, and said:

[337]

[365] The particulars pleaded in relation to the claims under ss 181 and 182(1) refer only to the period prior to Mr Leslie's resignation from Windbox, namely that period during which he was an employee of Windbox. I have concluded that Windbox has not proved any of the misconduct alleged in [45.1.1] to [45.1.14] of the FSOC, or that the conduct alleged in [45.1.15] and [45.1.16] constituted misconduct.[420] Further, neither that conduct nor that alleged in [45.1.15] nor [45.1.16] of the FSOC supports the plaintiff's contention that Mr Leslie was planning for and taking steps to establish a competing pastoral business.

[366] In relation to the conduct referred to in [45.1.17] to [45.1.20] of the FSOC, I have concluded that these things were done after the cessation of Mr Leslie's employment on 31 January 2018. Importantly, Mr Leslie did not decide to apply for the grazing licences until 2 February 2018 at the earliest, and he did not actually apply for them until 5 March. When Mr Leslie took those steps he was no longer an employee of Windbox, and he was not an officer of Windbox. He was not using his position as an officer or employee of Windbox.

[367] From 2 February Mr Leslie was merely a contractor for Windbox, his sole duties being to manage the Station until Windbox found a replacement station manager. Windbox specifically excluded him from playing any part in - and therefore having any responsibility for - its negotiations with the CLC and the traditional owners.[421]

[368] When he took these steps Mr Leslie was not "using" any of the "powers" he had at the time as a contractor of Windbox. At all times, he was acting in his own time and in his own right. Nor was Mr Leslie "discharging" any of his "duties" as a contractor of Windbox. Nor did he "use his position" with Windbox. He did not suggest to the CLC or any others that he was making the application as a contractor of Windbox's. It was quite the opposite.

[369] JACT also contended that even if it could be said that, by relying on his past experience as the manager, he was "using" his former position with Windbox, that use of "his position" was not "improper" as contemplated in s 182(1). Counsel referred to the passages quoted above from Amcor and Links Golf. I agree with that contention.

[370] Moreover, even if he was "using" some of the experience and knowledge that he acquired when he was the manager, I do not consider that he was thereby "using" his former position with Windbox. He was entitled to use "know-how" acquired during his work there, within the limitations discussed in more detail below in relation to the alleged breach of s 183(1) of the Corporations Act.

[371] The plaintiff has not made out this part of its claim.

[339]

[372] I have referred to the relevant pleading of this claim at [209] - [210] above, and summarised Winbox's written closing submissions at [211] -
[373] I pause here to make some preliminary observations and findings.

[374] It is clear that by obtaining the JACT grazing licences JACT would gain an advantage for themselves. It is also clear that Windbox would have suffered detriment if, but for JACT having applied for and obtained the grazing licences, Windbox would have been granted grazing licences over the relevant land.[423] However s 183(1) requires much more than that. Amongst other things, it requires the plaintiff to establish that in applying for the grazing licences Mr Leslie improperly used certain information in order to gain such an advantage or to cause detriment to Windbox.

[375] Counsel for JACT correctly pointed out that [46] of the FSOC does not provide any particulars of how any of the information alleged in [46.1] was "used" by Mr Leslie.[424] All that was particularised was that Mr Leslie had particular knowledge. Counsel also contended that there was no evidence to fill that void. Consequently, the claim should fail for the same reason as did the claims in Hodgson at [1333] and [1423] and Links Golf at [702]. Despite that pleading point, I think it was clear that the plaintiff was contending that Mr Leslie was improperly using information obtained while he was an officer (or employee) of Windbox "in planning for, taking steps to make and making the competing application for" the JACT grazing licences.[425]

[376] I have found that Mr Leslie did not take any such steps until 2 February 2018 and did not make the application until 5 March 2018. Thus the relevant questions to ask are:

(a) At the time of making the application on 5 March 2018, did Mr Leslie have the knowledge alleged in [46.1] of the FSOC, namely knowledge of "the state of negotiations between Windbox and the CLC and Daguragu in relation to the renewal [sic] of the grazing licences", particularised in [46.1.1] and [46.1.2] of the FSOC?

(b) What information about those matters did Mr Leslie obtain while he was working for Windbox?

(c) What of that information did he "use" in the course of preparing and making the application?

(d) Did he "improperly" use that information to apply for the JACT grazing licences?

[377] I pause to make some observations about Windbox's three contentions referred to in [[426]](2020_21.html#_Ref38017821
[378] I reject the second contention.[427] This was to the effect that Mr Leslie was in a position of conflict of interest until late April 2018 because he still had duties, as station manager, which included assisting in Windbox's application for renewal of its grazing licences, but he proceeded to make the competing application without making any disclosure to Windbox or seeking Windbox's consent. As I have already found, he had no such duties at least from 1 February 2018. Further, Windbox's pleadings do not assert a positive obligation upon Mr Leslie to make such a disclosure to Windbox or to seek its consent.

[379] In the first and third of those contentions counsel for Windbox referred to the information relied on in [46.1] of the FSOC as "confidential information".[428] Counsel also referred to and placed considerable emphasis on authorities concerning confidential information.[429] However, shortly after that,[430] counsel for Windbox took objection to the JACT defendants wrongly conflating "confidential information" with "information" for the purposes of s 183 of the Corporations Act. Counsel referred to the following observations of Beach J in CellOS Software Ltd v Huber[431], at [814]:

[341]

[380] With respect, I agree with those observations of Beach J. However, despite the plaintiff's objections to the JACT defendants' references to "confidential information" and the plaintiff's reliance upon authorities concerning confidential information, I do not think much turns on such a distinction in the present case.

[381] As I have just noted, counsel for Windbox referred to the information relied on in [46.1] of the FSOC as "confidential information".[432] Counsel introduced their written submissions about ss 182 and 183 with a lengthy quotation from a passage in APT Technology Pty Ltd v Aladesaye,[433] where Foster J referred to and quoted from the reasons for decision of Jessup J in Wilson Parking Australia 1992 Pty Ltd v Rush[434]. Counsel underlined certain parts of that passage and in particular the references therein to confidential information. Shortly after that, counsel submitted that the "correct test is as recently restated in Advanced Fuels Technology v Blythe[435], per Macaulay J at [178]". Counsel quoted from part of [178] where his Honour quoted from a passage in [40] of Del Casale which referred to lists of factors that "helped in determining whether information may be considered confidential."[436]

[382] Advanced Fuels was concerned, amongst other things, with allegations that Mr Blythe, a former director and Chief Executive Officer of the plaintiff company (AFT), and Mr Wilson, a former employee of AFT, had breached s 183. It was alleged that after resigning from their positions at AFT, they set up and engaged in businesses that were in competition with AFT including entering into commercial arrangements with previous customers of AFT. The information said to have been wrongfully used by them fell into 3 broad categories:

(a) computers used by Mr Blythe in the course of his work for EFT, and the information stored on them;

(b) particular documents allegedly uploaded by Mr Wilson onto a SkyDrive; and

(c) contact details kept on mobile phones and devices used by Mr Blythe and Mr Wilson.[437]

[383] The Court dismissed AFT's claims, notwithstanding that none of the defendants gave evidence. The passage from [178] quoted by counsel for Windbox was preceded by the following:

[343]

[384] As I have noted, counsel for Windbox quoted a lengthy extract from Jessup J's reasons in Wilson Parking. However the factual basis of the claim in that case is quite different to that in the present matter. Like the situation in Advanced Fuels the former employees had removed from their former employer confidential and commercially sensitive documents, data and other information which they then used for their own benefit. The only other case quoted at some length in Windbox's written submissions was Courtenay Polymers v Deang,[438] but that quote was confined to Whelan J's summary of "principles emerging from the South Australian Full Court decision of Southern Real Estate". No reference to the latter decision was provided, but the passage quoted clearly relates to the fiduciary duties owed by directors and former directors, as distinct from employees or former employees.

[385] I have found more relevant the decision of the New South Wales Court of Appeal (Hodgson, McColl and Campbell JJA) in Del Casale.

[386] Del Casale was concerned with allegations that Mr Del Casale, a director and manufacturing manager of Artedomus (Aust) Pty Ltd (Artedomus) since 1998, and Mr Savini, a director of Artedomus since 1999, breached s 183 by misusing confidential information very shortly after severing their ties with Artedomus. Both of them had also been employees of Artedomus, and had companies which had held shares in Artedomus since its formation in 1998.

[387] The largest selling product of Artedomus was a stone which it sold under the name "Isernia". It was a stone type known as modica (or Pietra di Modica) and came from the Ragusa district in Sicily. Mr Schepsis (who became the managing director of Artedomus when it was formed in 1998) had first seen this stone exhibited at a trade fair in Italy in 1991 and began importing it to Australia in 1993. From then until 2001, Mr Schepsis and (from 1998 when Artedomus was formed) Artedomus, were the sole importers of modica stone into Australia. Although it could be readily ascertained that Isernia came from the Ragusa region, it could not easily be ascertained that Isernia was modica stone. Artedomus went to some lengths to conceal this. Only directors of the company, the warehouse manager and those responsible for payments to suppliers were given this information. Mr Schepsis repeatedly emphasised to each of Mr Del Casale and Mr Savini that the source of products such as Isernia was not to be disclosed.

[388] In late 2002 Mr Del Casale and Mr Savini resigned from their employment at Artedomus, relinquished their directorships, and sold the shares which their companies had held in Artedomus. Mr Del Casale also entered into an agreement with Artedomus that he would not compete with Artedomus for three years, and would keep confidential any "commercially sensitive information" he had learnt while in Artedomus' employ.

[389] Shortly before that, on 2 September 2002, Mr Del Casale formed a company Stone Arc Pty Ltd (Stone Arc). Mr Savini became a director of Stone Arc shortly afterwards. Mr Del Casale and Mr Savini visited the Ragusa region from where modica stone was supplied, and met some suppliers of modica stone. On 3 December, Mr Del Casale resigned as a director of Stone Arc and sold his shares in that company to Mr Savini and a trust. On 12 December, Stone Arc received sample crates of modica stone from the two suppliers in Ragusa who Mr Savini had met when he went there a few months earlier.

[390] Artedomus obtained injunctions on account of breaches of confidentiality and s 183 of the Corporations Act, and Mr Del Casale's breach of contract. The primary judge found that the information that Artedomus' successful stone Isernia was modica stone, and thus sourced from the Ragusa region of Sicily, was highly confidential information in the nature of a trade secret. Accordingly, there was an obligation on Mr Del Casale and Mr Savini to keep that information confidential, even after termination of their relationship with Artedomus.[439]

[391] The Court of Appeal allowed their appeal, apart from the primary judge's finding that Mr Del Casale had breached his agreement not to compete for three years.[440] Most of their Honour's reasons related to those parts of the case which, like the present matter, did not involve an express agreement such as a restraint of trade clause. In short, their Honours all agreed that there was no relevant breach of an obligation of good faith or confidentiality.[441]

[392] Hodgson JA observed that even though certain information might be confidential and cannot be used by an employee against the interests of his employer during the employment, a duty to preserve the confidentiality of some of that information may not necessarily continue after the employment has ended.[442]

[393] At [36] his Honour referred to four elements necessary to an action brought on equitable grounds for breach of confidence, the first three identified by Megarry J in Coco v AN Clark (Engineers) Ltd[443] and the fourth identified by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs (Vic)[444] and Smith Kline & French Laboratories (Australia) Ltd & AlphaPharm Pty Ltd v Secretary, Department of Community Services[445]:

(a) the information itself must "have the necessary quality of confidence about it";[446]

(b) the information must have been imparted in circumstances importing an obligation of confidence;

(c) there must be an unauthorised use of the information to the detriment of the party communicating it; and

(d) the plaintiff must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question.

[394] At [37] Hodgson JA referred to the additional consideration required where the person is no longer employed (and there has not been any relevant contractual prohibition).

[363]

[407] The knowledge which counsel for Windbox stressed as "critical" was Mr Leslie's knowledge of the "information" that Mr Dodd had given instructions to Mr Cole to accept the terms offered by the CLC and the traditional owners. Indeed this is the information particularised in [46.2] of the FSOC which alleges, in effect, that that information was provided on 29 January. There is no allegation in the pleadings that that "critical" information was given to or obtained by Mr Leslie prior to that date. Further, there is no evidence that Mr Leslie obtained such information from Mr Vagg, or anyone else. Nor is there any evidence that he had any such information when he spoke to Mr Spazzapan on 4 January 2018. Moreover, there was no reliable evidence that Mr Dodd had in fact given instructions to Mr Cole to accept the terms offered by the CLC and the traditional owners on or before 29 January 2018, or indeed at any time prior to Mr Leslie deciding to apply for the licences.[450]

[408] In their written closing submissions counsel for JACT dealt with the "information" that Windbox had particularised, in [46.1.1] and [46.1.2] of the FSOC.

[409] In relation to the information in [46.1.1], JACT submitted that:

(a) The fact that the parties had not formalised the terms of their ongoing legal relationship in relation to the grazing licences was known to the CLC and perhaps also the traditional owners and, further, was available on the "bush telegraph".[451] Any person with a legitimate interest could have inquired with the CLC about the availability of grazing licences for the subject land and discovered this information. The CLC would have been obliged to provide such information, and would have made it available to prospective applicants.[452]

(b) In any event, Mr Leslie did not use that information in any relevant sense. He rang Ms Macintosh at the CLC and inquired as to whether it was possible for him to apply for licences for the subject area. That is an inquiry any person could have made. Further, the answer he received from the CLC was unaffected by any knowledge by him of the fact that negotiations had not been concluded. On the contrary, it was a legitimate way of ascertaining for himself the same information.

(c) Thirdly, he did not use this information to gain an advantage for himself or to cause detriment to Windbox. Nor did this information cause him to get an advantage or cause any detriment to Windbox. The information he used to apply for and gain the licences was (i) information from the CLC; and (ii) the information which he and Ms Rowbottom compiled for their application and supporting documents in relation to which no claim of confidentiality has or could be made.

[410] In relation to the information in [46.1.2] counsel for JACT submitted that:

(a) The email of 29 January 2018[453] does not instruct Mr Cole to do anything. It is a draft set of instructions which had been first sent by Mr Dodd to Mr Vagg and Mr Leslie on 24 January 2018 for comment.[454] This email of 29 January 2018 appears to be a 'chaser', pressing them for their response. It is clear from Ms Wilkie's evidence that it was not sent to the CLC. She emailed Mr Cole two days later wishing him a happy new year - clearly the first communication between them in 2018.[455] Mr Cole's first communication with her in 2018 appears to have been a telephone call on 13 February 2018.[456] There is no suggestion in Ms Wilkie's affidavit (Ex C1) that she ever received an email from Mr Cole reflecting these instructions on or shortly after 29 January 2018. It seems that this draft email was never sent to Mr Cole, perhaps because of Mr Vagg's objections in his email of 30 January 2018.[457]

(b) The only evidence of an email communication from Mr Dodd (or Mr Vagg) to Mr Cole on or shortly after 29 January 2018 is the email from Mr Dodd to Mr Cole of 1 February 2018 copied to Mr Vagg only, the contents of which have been redacted.[458] Whatever the contents of that communication were, they are still being kept secret from Mr Leslie.

(c) Accordingly, there is no evidence of information which meets the description "Windbox had by email dated 29 January 2018 instructed its solicitors to formalise the grazing licences with CLC and Daguragu on the terms set out in the CLC's emails." The existence of any such information has not been proved.

(d) Further, the only evidence of instructions to Mr Cole at about that time shows that Mr Leslie was not made aware of the content of those instructions.

(e) Finally, whatever [45.1.2] is referring to, there is no evidence that Mr Leslie used it in any way.

[411] In their written submissions of 10 June 2019 in reply to the JACT submissions,[459] counsel for Windbox stated that:

[379]

[420] The overarching allegation pleaded in [46.1] that Mr Leslie "knew the state of negotiations between Windbox and the CLC and Daguragu in relation to the renewal of the grazing licences" is far too general and does not meet the requirement clearly stated in the authorities that the information relied upon must be clearly and readily identified.[468]

(a) For a start, there were no negotiations for the renewal of any grazing licences. The Windbox grazing licences had expired in 2010 and 2011.

(b) No proper particulars were provided as to when "negotiations" commenced, what they were, and what was Mr Leslie's knowledge of and involvement in the negotiations. Nor was there much evidence led of his actual involvement in negotiations prior to the meetings in August 2016 or after October 2017.

(c) What is known is that by 2016 Windbox was seeking fresh grazing licences and was seeking them for a term considerably longer than its previous grazing licences. On the last occasion when the traditional owners met and considered Windbox's request for new grazing licences, they were only prepared to offer them terms of 5 + 5 years. That was in August 2016.

(d) Mr Cole's attempt to reopen negotiations almost a year later, in July 2017, by reducing Windbox's request to a term of 10 + 8 + 8 years was rejected by Ms Wilkie on 4 August 2017.

(e) Although Mr Vagg put forward the Vagg amendment later that month, and Ms Wilkie was prepared to take that to a further meeting with the traditional owners in October 2017, there is no evidence that Mr Dodd was aware of that proposal at that time and agreed to Mr Cole putting it to the traditional owners.

[421] Even if the plaintiff had pleaded, or sought leave to amend its pleading, to provide the additional allegations set out in [24.4] of its reply submissions, most of those would still not be a sufficient identification of the information, the use of which was said to be improper.[469] The same applies to the very general allegations contained in [40] of the FSOC that refer to circumstances over a lengthy period from 2010 until 2018. Most of the allegations referred to "information about" matters of a very general nature. For example, no attempt was made to identify what is meant by Windbox's "strong and weak points" such as could enable the Court to consider what if any "points" were known to Mr Leslie and whether he used his knowledge about one or more of those points improperly. Similarly, the allegations concerning "information indicating that" a certain state of affairs existed, are not sufficiently particularised. For example, even if Mr Vagg was taking active steps to stall Mr Dodd and Mr Cole, it is impossible to discern how Mr Leslie's making of enquiries to the CLC and then taking steps to apply for the grazing licences, could be said to involve him using any knowledge that he might have about that, or doing so improperly.

[422] Further, although counsel repeated and stressed Windbox's "imminent finalisation of a commercial opportunity that it had been negotiating for some years", the evidence does not satisfy me that this was the case at any relevant time. Even if Mr Dodd did end up giving Mr Cole instructions along the lines of those set out in the emails of 24 and 29 January there are a number of reasons why they may well not have resulted in Windbox being granted the grazing licences at all. There were still other terms to be negotiated (as is evident from the later discussions between Mr Cole and Ms Wilkie) and Mr Vagg appeared reluctant to agree to Mr Dodd's proposal without further discussion between them. There were two other very important reasons why the traditional owners may not have been prepared to authorise the grant of the grazing licences to Windbox. The first is the fact that Mr Leslie was no longer employed by Windbox and would only be staying on for a short time until a replacement station manager was found. The second is the fact that Mr Dodd was proposing to sell his 85% share to someone else, relatively soon. In those circumstances, there was every prospect that the traditional owners would not have granted the grazing licences to Windbox. Indeed this is borne out by the fact that the traditional owners were not prepared to grant a 5 + 5 year term over Northern Paddocks and expressed some reservations about the new Station Manager.

[423] In relation to the information alleged in [46.1.1] of the FSOC it is clear that Mr Leslie knew on 2 February 2018 that "the parties had not formalised the terms of their ongoing legal relationship in relation to the grazing licences." He may well have already assumed that to be the case because of his knowledge about the considerable delays since the licences expired some seven or more years earlier, and Windbox's failed attempts in 2016 and again in 2017 to persuade the traditional owners to depart from their insistence upon maximum terms of 5 + 5 years. However, he did not know this to be the fact until he asked and was told by Ms McIntosh on 2 February that there was no impediment to him applying for the grazing licences. He acquired that information, as could any other member of the public, simply by making that inquiry. It was not confidential information. He did not "improperly" use that information. I agree with JACT's submissions summarised by me in [409] above.

[424] In relation to the information alleged in [46.1.2] I am not satisfied on the balance of probabilities that anyone from Windbox sent the email dated 29 January 2018 to Mr Cole. See my reasoning and conclusion at [300] above. I also agree with the JACT defendants' submissions summarised by me in [410] above, except that I would not conclude that the email was a 'chaser'. I suspect Mr Dodd had other motives for copying that email to Mr Leslie at that very late stage of Mr Leslie's employment, perhaps to deliberately put him into a position of knowledge that he could later use against him and others, as he has now done by making these serious allegations against him, Ms Rowbottom and the CLC.

[425] Further, even if, contrary to my findings above, Mr Leslie did read the emails of 24 and 29 January or was aware of their contents, the evidence would not be sufficient for me to conclude that he "used" the information contained in those emails when he decided to make the application for the grazing licences. That information was not relevant to him.

[426] Moreover, this was not information that Mr Leslie requested. Rather, it was information that Mr Dodd, for reasons not disclosed, voluntarily provided to Mr Leslie at that very late stage of his employment of some six years. It was not "information [that] was conveyed in circumstances where a reasonable man standing in the shoes of [Mr Leslie] would have realised, upon reasonable grounds, that the information was given to [him] in confidence. Thus there [was not an] obligation of confidentiality attaching to it."[470]

[427] By that time Mr Leslie was very much preoccupied with the uncertainties of the next few days and weeks, and in particular when he would need to uproute his family and move elsewhere. Mr Dodd was fully aware that Mr Leslie's employment was about to come to an end. Had he considered that it was information that Mr Leslie should not have, two days before his employment was to end, he would have said so at the time. Indeed, by that time Mr Dodd already had trust issues with Mr Leslie, in relation to his request for payment for his equipment.

[428] The plaintiff has not made out the allegations in [46] of the FSOC. I dismiss the claim of breach of s 183(1) of the Corporations Act.

Windbox Pty Ltd v Daguragu Aboriginal Land Trust & Ors

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