COOKE v WOOLWORTHS LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MCHUGH and CLARKE JJA 29 July 1988, 16 December 1988 [1988] NSWCA 27 Contract — acceptance of offer by conduct — offer of reward — construction — no question of principle. Samuels JA In December 1980 extortion demands were made upon the respondent following the detonation of bombs in three of its stores. On 24 December it made a press release relevantly in the following terms: ceseeees Woolworths, in consultation with the NSW Police Force will offer a reward of $250,000 for information that will lead to the arrest and conviction of any person or persons responsible for these acts. Payment of any such reward will be given at the discretion of the Commissioner of the NSW Police." It is, I think, unnecessary to describe the events which preceded a meeting which took place on 15 January between the plaintiff, his legal representatives, police officers and representatives of the respondent. The appellant then nominated one Danielson as one of the persons responsible for the bombing of the respondent's stores. He was, as the learned judge, Grove J, found, the first person to assert that Danielson was one of the persons involved in the extortion attempt. Danielson was interviewed by police on 20 January and arrested on 27 January. He and another man called McHardie were subsequently tried, convicted and sentenced for offences in connection with the bombings and attempted extortion. In due course, after Mr Danielson had been arrested, the appellant's solicitors claimed payment of the reward from the Commissioner of Police and repeated their claim in a letter dated 28 April 1982 after Mr Danielson's conviction. On 7 July 1982 Assistant Commissioner NC Scott signed a letter which, so far as material, was in these terms: You will appreciate that the offer was not made through the Government but was offered as a private reward by Woolworths Ltd. Accordingly, I am only in a position to supply that company with the details of the role played by Mr Cooke and to furnish a recommendation on the amount of reward considered appropriate. Whilst it is conceded that Mr Cooke was the first to nominate Danielson as a suspect, the arrest of McHardie was the commencement of inquiries which I have no doubt would have led to the identification and conviction of Danielson. Notwithstanding the foregoing I am of the view that the actions of Mr Cooke resulted in the early arrest of Danielson. Accordingly, I have written to Mr JD Hendry, Director Corporate Relations, Woolworths Ltd, and recommending (sic) that a reward of $4000.00 be paid to your client." The appellant rejected this payment and claimed the sum of $250,000. The learned judge dismissed that claim on the basis that the offer, on its true construction, vested in the Commissioner of Police the discretion not only to 2 UNREPORTED JUDGMENTS determine whether any reward should be paid - that is to say whether information had been furnished which led to arrest and conviction - but also its amount. The appellant challenged this construction contending that, while the Commissioner had to determine whether any information was furnished which satisfied the necessary description, once that decision was made the informant was entitled to the whole of the stipulated sum, there being no power or discretion in the Commissioner to apportion the amount of the reward. I do not think that the respondent seriously disputed the proposition which Grove J applied that the press release constituted an offer capable of acceptance by any member of the public's supplying information of the kind stipulated; see Carlill v Carbolic Smoke Ball Company [1892] 1 QB 256. However in answer to the appeal, and by its cross appeal, the respondent contended that no information was furnished in response to the offer; but that if it were the offer contemplated that the Commissioner of Police should determine whether the information satisfied the stipulated description. But no such determination had been made either by the Commissioner personally or, in the alternative, by any duly authorised delegate. And finally the respondent supported the construction of the offer adopted by the learned judge, submitting that if any money were payable to the appellant it was no more than the sum of $4000 assessed in Mr Scott's letter. The first of these issues involves a conflict of evidence at the trial between the appellant and a Detective Sergeant Holden which Grove J resolved in the appellant's favour. If Sergeant Holden's account had been accepted it would have been well open to the judge to conclude that the appellant had provided all the information he supplied on 14 January and not in response to the offer of reward. If the appellant's version were correct the information he provided on 15 January was novel and not repetitive, and in response to the offer and hence, subject to questions still to be considered, amounted to an acceptance of it. Grove J's choice was, I would imagine, influenced in some degree by basic considerations of credibility, although he does not explicitly say so. But in any case I find his reasons for preferring the appellant entirely persuasive; they include the not inconsiderable fact that the appellant's evidence upon this point was corroborated by that of his solicitor who was present at the meeting on 15 January and took (and produced at the trial) a contemporaneous note. So the respondent's first point fails. That brings me to the construction of the respondent's offer (the relevant terms of which I have set out above) and the means by which the determination was to be made that any information supplied satisfied the stated requirement. It seems to me that the stipulation that "payment of any such reward will be given at the discretion of the Commissioner of the NSW Police" empowered the Commissioner to determine at his discretion whether the information was of a character capable of attracting the reward. Therefore the appellant had to establish that the Commissioner had determined that the appellant had supplied information which had in due course led to the arrest and conviction of Mr Danielson, since there can be no doubt but that he was a person responsible for the acts in question. The appellant, for this proof, relied primarily upon the letter signed by Assistant Commissioner Scott of 7 July 1982, the relevant parts of which I have already mentioned and which, it is submitted, establishes the necessary exercise of discretion. To this the respondent made two answers. First of all, it contends that whatever the substance of the determination it was not made by the Commissioner of Police in whom the power to make the determination was exclusively reposed; or, alternatively, if the Commissioner had URJ COOKE v WOOLWORTHS LTD (Samuels JA) 3 power to delegate the exercise of this power, no delegation was expressly made and none should be inferred. In my opinion neither of these arguments has substance. There is a well known principle formulated in De Smith's Judicial Review of Administrative Action 4th ed (1980) at 305 in these terms; "Where the exercise of a discretionary power is entrusted to a named officer, eg a chief officer of police..., another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally." But the proposition itself indicates that it is limited to cases where the power is vested by statute. In the present case the appointment of the Commissioner of Police as the respondent's agent to exercise this discretionary power must be inferred from the terms of the offer. It certainly has no statutory foundation and cannot have greater force than that of a condition of an agreement between the respondent and the Police Department. I consider it impossible to construe such an agreement as requiring the Commissioner of Police to act personally in the matter. I would think it reasonably plain that it was contemplated by the respondent and the Police Department that entitlement to the reward would be determined by a departmental officer expressly designated by the Commissioner or routinely engaged in dealing with matters of this kind. There is no evidence of any express delegation. However, it was established at the trial that Mr NC Scott was at the relevant time Assistant Commissioner (Services) and that his responsibility included the signing of correspondence dealing with the administration, control and management of the Criminal Correspondence Branch. According to Mr Scott, who gave evidence, "the Criminal Correspondence Branch consists of a number of police who act as a skilled group dealing with matters of this nature and other matters which would give the Assistant Commissioner sufficient information on which to make decisions on various subjects." He was then asked: Q. In making the decisions which you made in July of 1982 did you believe yourself to be acting pursuant to the delegation of authority by the Commissioner? (Objected to; allowed) A. Yes. Q. Was the delegation of authority pursuant to which you believed yourself to be acting the documents Exhibits Q and R in front of you? (Objected to; allowed) A. Yes. Exhibits Q and R were documents which set out the delegation of responsibility to, amongst others, the Assistant Commissioner (Services); see the Police Regulation Act, 1899 s4D. No objection was taken on the appeal to the admission of the evidence to which I have just referred, which must be admissible at least for the purpose of establishing the scope of the duties encompassed by the term "Criminal Correspondence Branch". Accordingly, it was proved that Assistant Commissioner Scott (as he then was) was acting according to a standing delegation which vested in him the responsibility to make decisions of this kind. I would indeed be prepared to go further and to conclude on the authority of Nelms v Roe [1970] 1 WLR 4, especially at 8, that the Commissioner had an implied authority to delegate decisions of this kind to an assistant commissioner and that it may be inferred that such a delegation was made in the present case. 4 UNREPORTED JUDGMENTS It was next submitted that even assuming that Assistant Commissioner Scott had the power to make the discretionary determination which the offer required, it appeared from the letter of 7 July 1982 that no sufficient determination was ever made. That letter merely determined that the appellant had furnished information which led to the arrest of Mr Danielson but contains no determination that the information had led to Mr Danielson's conviction. However, once it is established, as it was, that Danielson was convicted of offences connected with this affair, there must exist a clear causal link between information and arrest (which is certainly established by the letter) and the subsequent conviction upon the charges, connected with the offences, for which he was arrested. As I understood and now recollect the respondent's argument it did not contend that the Commissioner (by his delegate) had not made any determination that the appellant's information had led to Mr Danielson's arrest. The argument was confined to the absence of the element of conviction; or, more accurately perhaps, that the lack of connection between information and conviction necessarily meant that the character of the composite phrase "arrest and conviction" had not been established. However, if the argument was put, or intended, it has no substance. While acknowledging the proposition that the issue is not the effect of the appellant's information in fact, but only the Commissioner's discretionary assessment of it, it seems to me wholly implausible that in employing the words "early arrest" Mr Scott meant to exclude the notion of arrest. An arrest is an arrest, early or late (cf Miss Gertrude Stein's dictum: "A rose is a rose is a rose.'') If, while information which will inevitably lead to an arrest is on its way to Sydney by runner from Perth, the same information is supplied and the arrest is made, the arrest, though n "early arrest" forestalling the otherwise inevitable, is nonetheless an arrest. Indeed, it will be the only arrest since it is improbable that a person will be arrested twice for the same offence - particularly if in custody. I conclude that the interpretation which must be given to Mr Scott's letter is that he had determined that the information supplied by the appellant had led to Mr Danielson's arrest. He could scarcely have thought otherwise. Although, as I have acknowledged, the question concerns the Commissioner's discretionary finding, in the light of the plain fact that the information provided by the appellant did lead to Mr Danielson's arrest at a time when the police had not yet acquired knowledge of Mr Danielson's implication (or suspicion of it sufficient to justify arresting him) from any other source, I cannot see that any other finding is fairly open. It follows in my view that the discretionary power to determine that the information satisfied the requirements contained in the offer was validly exercised in favour of the appellant. There remains only the question whether the discretion vested in the Commissioner included the power to determine that only part of the sum of $250,000, and if so, how much, might be allotted to any informant surmounting the first hurdle. Turning again to the terms of the offer, the final sentence has "Payment of any such reward will be given..... "Any such reward" clearly refers to what appears in the preceding paragraph, that is to say "a reward of $250,000". Nowhere in that paragraph, or in the final sentence, are there any words of limitation; throughout the offer the amount of $250,000 is treated as one lump sum payable in return for information which bears the required character. If the intention was that the Commissioner, in addition to determining whether any reward had been earned, was to determine the value of the information up to a maximum of URJ COOKE v WOOLWORTHS LTD (McHugh JA) 5 $250,000 that understanding could have been conveyed very clearly. For example, the offer could have been of "a reward of up to $250,000"; or the offer could have explicitly included a discretion in the Commissioner to determine how much of the maximum sum should be paid. Neither of these simple qualifications was employed. I do not doubt that the offer was deliberately framed in a vein of urgent generosity calculated to appeal to the acquisitive imagination of the public. At all events, whatever the subjective intention might have been, the only reasonable construction which can be placed upon its terms is that the sum of $250,000 would be paid to any person providing information which, in due course in the discretionary judgment of the Commissioner, satisfied the requirements stipulated. It is, of course, true that more than one person might have supplied information in response to the offer. But it is improbable that different people might have supplied such information independently but simultaneously. It seems perfectly reasonable to me to regard the reward as payable to the first person who supplied the requisite information. Such a response would completely satisfy the terms of the offer. The amount payable by way of reward is neither less nor more than the sum stated, $250,000. Once that has been earned the offer is exhausted. If two or more persons jointly supplied the necessary information there would no doubt be a case for dividing the reward between them. Neither of these possibilities is enough to displace what seems to me to be the clear meaning of the offer. I agree also with counsel for the appellant's observation that, bearing in mind that the extortionist had demanded $1,000,000 from the respondent and the potential damage to its revenue and goodwill which further explosions might have caused, the amount of the offer and initial readiness to expend it all are not surprising. I would therefore allow the appeal; set aside the judgment below and in lieu thereof enter judgment for the appellant/plaintiff in the sum of $250,000 and costs. I would dismiss the cross-appeal and order the respondent to pay the costs of the appeal and of the cross-appeal. The judgment for the appellant shall take effect from 6 April 1987. Interest was claimed below (and, it would seem, awarded) and in the notice of appeal. No reference to any such claim was made during the course of the appeal. I would have thought that interest was recoverable. But since, if it is, it might well amount to a tidy sum, I propose that no final order be made at this stage save to order the parties within ten (10) days of the publication of the Court's reasons, either to bring in short minutes indicating an agreed sum for interest or to file written submissions setting out the opposing contentions if no such agreement can be reached. McHugh JA Noel Richmond Cooke (the plaintiff) appeals against the judgment of Grove J that, upon the proper construction of an offer of a reward by Woolworths Ltd (the defendant), he was only entitled to the sum of $4,000 and not $250,000 as claimed. The question in the appeal is whether information which the plaintiff gave to police officers led to "the arrest and conviction" of Larry Danielson in respect of an offence of detonating explosive devices in three stores owned by the defendant and entitled him to the reward of $250,000. In the week prior to 24 December 1980, three bombs exploded in the defendant's stores at Wollongong, Maitland and Sydney. On 24 December 1980 the defendant issued a News Release offering a reward for information leading to the apprehension of the person or persons responsible. The material parts of the offer of reward were as follows: 6 UNREPORTED JUDGMENTS As a result of these horrific actions, and in conjunction with NSW Police, Woolworths is offering a reward of $250,000 for information leading to the conviction of the person responsible. As a result of these three separate actions and in particular in today's incident where Christmas shoppers and staff could have been killed or maimed, Woolworths, in consultation with the NSW Police Force will now offer a reward of $250,000 for information that will lead to the arrest and conviction of any person or persons responsible for these acts. Payment of any such reward will be given at the discretion of the Commissioner of the NSW Police." On 12 January 1981, Gregory Norman McHardie was arrested while attempting to retrieve money paid by the defendant as the result of a demand by a person who claimed to be involved in the bombings. He was arrested in the vicinity of a wharf near Taronga Park Zoo. When McHardie was arrested, he was wearing diving gear which included underwater breathing apparatus, parts of which consisted of air tanks painted black. The tanks carried an embossed symbol identifiable as that of Pro Dive Pty Ltd. The plaintiff was a director of that company. On 14 January 1981 investigating detectives took the air tanks to the premises of Pro Dive pty Ltd where they spoke to the plaintiff and another person. The plaintiff recognised the tanks as belonging to his company. He mentioned that a former employee, Larry Danielson, was suspected of being involved in the theft of the tanks. The theft had occurred at the company's premises at Huskisson on the South Coast of New South Wales. Later that evening the plaintiff made an anonymous telephone call to police in which he asked whether the person arrested at Taronga Park Zoo fitted a particular description. The description was that of a man whom the plaintiff had observed in the company of Danielson. It was an accurate description of McHardie. Since particulars concerning McHardie had not been circulated or published, the police naturally informed the anonymous caller that they wanted to see him. With the defendant's advertised offer of a reward in mind, the plaintiff then instructed his solicitors to seek a meeting with police officers for the purpose of supplying the information which he had. This meeting took place on 15 January 1981 at the office of the plaintiff's solicitor. Present were three police officers, two representatives of the defendant, two solicitors and the plaintiff. The plaintiff nominated Larry Danielson as one of the persons responsible for the bombing of the defendant's stores. He referred to a number of matters in support of his assertion. They included (1) that the paint which had been applied to the air tanks was similar to that used by Danielson on another occasion, (2) that an association existed between Danielson and McHardie, and (3) that Danielson had claimed knowledge of and experience with explosives. The learned trial judge found that it was not "mere speculation" by the plaintiff to conclude that Danielson was involved in the crimes when the plaintiff was in possession of the following items of knowledge: (a) McHardie was arrested when seeking to take possession of the ransom from the location nominated by the extortionist; (b) He was wearing Pro Dive tanks; (c) These were the tanks stolen at Huskisson; (d) Danielson was suspected of stealing the tanks; (e) Danielson was an associate of the man arrested wearing the tanks and they had associated in Huskisson; URJ COOKE v WOOLWORTHS LTD (McHugh JA) 7 (f) The tanks had been painted in a fashion to make them more difficult to observe at night with paint of a type which Danielson used in Huskisson; (g) The setting of bombs was an integral part of the criminal enterprise and McHardie's accomplice or accomplices needed to have skills in that area, and (h) Danielson had claimed to be expert in the handling and use of explosives. Moreover, the plaintiff was the first person to nominate Danielson as one of those involved in the bombings and extortion attempt upon the Defendant. Danielson was interviewed by police on 20 January 1981 and arrested on 27 January 1981. Both he and McHardie were subsequently convicted and sentenced for offences in connection with the bombings. On 26 February 1981 the solicitors for the plaintiff formally claimed the reward on his behalf. On 28 April 1982 after the conviction of Danielson and McHardie, the solicitors for the plaintiff wrote to the Commissioner of Police inquiring about the payment of the reward. On 28 May 1982 Detective Sergeant Anderson prepared a Report for his superiors in connection with the plaintiff's claim for the reward. In his Report Sergeant Anderson said: Tn assessing the information Cooke supplied it can be said that he was the first person to mention the name of Danielson and further that he saw a person similar to McHardie in Danielson's company at Huskisson. However, this was after the investigation came to him and the information he supplied was that which could be expected from a responsible citizen in the circumstances. There was no evidentiary value in it and he was not called to give evidence during the course of proceedings. It is submitted that Cooke is an opportunist who, realising that the association between Danielson and McHardie would be revealed when Wells and others were interviewed at Huskisson, arranged the urgent meeting between Woolworths and his solicitor... Ihave discussed the matter of this reward with Mr John Hendry, the Corporate Relations Director, of the firm, and he has intimated that Woolworths considered an amount in the vicinity of $4,000-00 to $5,000-00 appropriate. They are aware of the extent of the information, their representative being present during the course of the interview with Cooke. The company is looking for a recommendation from the Commissioner of Police..." On 7 July 1982 Assistant Commissioner Scott wrote to the plaintiff's solicitors referring to their letters concerning the claim for the payment of a reward offered in connection with the Woolworths bombings. The letter stated: Whilst it is conceded that Mr Cooke was the first to nominate Danielson as a suspect, the arrest of McHardie was the commencement of enquiries which I have no doubt would have led to the identification and conviction of Danielson. Notwithstanding the foregoing I am of the view that the actions of Mr Cooke resulted in the early arrest of Danielson. Accordingly, I have written to Mr JD Hendry, Director Corporate Relations, Woolworths Ltd recommending that a reward of $4,000 be paid to your client." Subsequently the plaintiff commenced legal proceedings claiming that he was entitled to the sum of $250,000 and not $4,000. The trial judge's reasons The learned judge held that the provision of the information led to the arrest of Danielson "in both chronological and causative senses". However, his Honour held that upon the proper construction of the offer, which the plaintiff had accepted by the provision of information, two discretions reposed in the Commissioner of Police. The first was a discretion to determine whether any 8 UNREPORTED JUDGMENTS information provided led to the arrest and conviction. The second was a discretion to determine the quantum of reward payable to any claimant out of the fund of $250,000. His Honour rejected the argument that, upon the proper construction of the offer, the defendant offered a single sum or created a fund which was to be utilised in its entirety. Grove J thought that once it was appreciated "that there is contemplation of possible multiple perpetrators, it follows that the fund is available against the contingency of multiple entitled claimants. There is no basis for implication that at any particular time the number of qualified claimants became closed. Thus, it becomes compelling to understand any such reward as referring to the part of the fund to be allocated to a Claimant". Accordingly, his Honour held that the plaintiff's entitlement depended upon the exercise of a discretion by the Commissioner as to the amount payable to him and that in the present case the entitlement had crystalised to the sum of $4,000. The plaintiff contended that under the terms of the offer the function of the Commissioner was to determine whether information provided had led to an arrest and conviction and that the Commissioner had no discretion to determine the quantum of the regard to be paid to a claimant. I think that this contention must fail. No doubt the proper construction of the terms of the offer is not an easy matter. An initial difficulty in construing the offer is to determine whether the information provided was required to be causally connected with the conviction of a responsible person. That is, was it enough that the information led to the arrest of a person who was subsequently convicted? Or must the information provided be "the cause" of the conviction of the person responsible for the bombings? If the latter construction is correct, there were formidable difficulties in the way of the plaintiff's case since the plaintiff was not called as a witness at the trial and it is difficult to see how his information led to the conviction of Danielson. Certainly, words in the first paragraph of the reward offer - "offering a reward of $250,000 for information leading to the conviction of the person responsible" - suggest that the information provided must be "the cause" of the conviction. However, it is unnecessary to determine this point since the offer made the Commissioner the judge as to whether the reward conditions were fulfilled and it was not suggested that he had misconceived the question to be decided. In addition to the foregoing problem of construction, the offer was evidently drawn with little thought to the possible combinations and permutations of fact which might comply with the terms of the offer. For example, different persons might give different pieces of information leading to the arrest and conviction of the different persons. I do not think that it can have been intended that the first person who supplied information which led to the conviction of a person should get the whole reward while a person who later gave information which led to the arrest of others should get nothing. At all events I do not think that the whole reward was to go to the first person to name the first person arrested and convicted if information led to the arrest of others who were convicted at the same time as the first person. Moreover, a person might give an item of information which, standing alone, would not lead to the arrest and conviction of a person. But, when combined with other information, the item might lead to an arrest and conviction. Was the provision of such information within the terms of the offer? URJ COOKE v WOOLWORTHS LTD (McHugh JA) 9 These difficulties of construction have led me to the conclusion that the construction which the learned judge put on the offer was correct. It is the only construction which the language justifies. The offer is not expressed to be a reward of $250,000 to any person for information leading to a conviction of any person. It is an offer of a reward of $250,000 "for information that will lead to the arrest and conviction of any person or persons responsible for these acts". This indicates that there is a single sum to be paid for information that leads to the arrest and conviction of one or more persons. I do not think that an ordinary reader of the offer would understand that, if four persons gave separate information which led to the conviction of four different persons, the defendant was offering $1,000,000 for the information. Nor, as I have said, do I think that the ordinary reader could understand that the $250,000 would go to the first person who gave information which led to the arrest and conviction of one or more persons. Multiple claimants seem to be contemplated. But if there might be independent and multiple claimants for the reward of $250,000, how and by whom was the sum of $250,000 to be apportioned? The most plausible conclusion to be drawn from the terms of the offer is that the Commissioner had a discretion to determine both whether a person was entitled to any payment and what the amount of that payment should be. Accordingly, he was entitled to determine that the plaintiff should only receive $4,000. Accordingly, the conclusion of Grove J was correct. The appeal fails. Cross-Appeal The defendant filed a cross-appeal alleging that his Honour erred in finding that the plaintiff was entitled to the sum of $4,000. The defendant contended that neither the Commissioner of Police nor Assistant Commissioner Scott had determined that the information supplied led to the arrest and conviction of Danielson. The defendant also asserted that the discretion was vested in the Commissioner of Police and that he had no express authority to delegate the exercise of the discretion. Further, so the defendant contended, no right to delegate could be implied because the discretion was one requiring personal confidence and skill. It is true that the Commissioner made no personal determination of the matter and that Assistant Commissioner Scott only stated that the actions of the plaintiff "resulted in the early arrest of Danielson". Mr Commissioner Scott made no finding as to whether the information supplied by the plaintiff led to the conviction of Danielson. However, information which leads to the early arrest of a person is information which has led to his arrest within the meaning of the offer. And the recommendation that "a reward of $4,000 be paid" to the plaintiff implies that the Assistant Commissioner was satisfied that all conditions precedent to the granting of the reward had been fulfilled. Unless it was demonstrated that he misconceived the question to be decided, his opinion must prevail; cf Legal and General Life of Australia Ltd v A Hudson Pty Ltd (1988) 1 NSWLR 314 at 335-336. The defendant made no suggestion during the argument that the Commissioner or his delegate had misconceived the question to be decided. Accordingly, unless the defendant's contention that the Commissioner and not a delegate was required to determine whether the plaintiff was entitled to the reward is correct, the cross appeal must fail. The answer to the defendant's contention concerning delegation is that, upon the true construction of the offer, the ordinary reader would form the conclusion that, if the Commissioner made a decision, more likely than not he would be giving effect to the recommendation of one of his officers. Moreover, I think that 10 UNREPORTED JUDGMENTS an ordinary reader would have contemplated that the Commissioner, instead of rubber-stamping a decision by one of his officers, might have delegated the exercise of his discretion to an officer. I do not think that either the defendant or any reader expected that the Commissioner himself was going to investigate the whole matter and make a decision. After all, the offer was not made in "conjunction" or "consultation" with the Commissioner but with the New South Wales Police Force. What the offer contemplated was that the Commissioner would give his authority to a decision that a claimant was or was not entitled to the whole or part of the $250,000. As the evidence established that the Commissioner had delegated the relevant authority to Assistant Commissioner Scott, the defendant's contention fails. The defendant also contended that his Honour erred in concluding that a police officer's account of what occurred on 14 January 1981 was less reliable than the testimony of the plaintiff Once the police officer's account of the conversation was accepted, so the defendant contended, the relevant information was given by the plaintiff on 14 January 1981 and not in reliance on the reward offer. It is enough to say that his Honour's determination obviously depended upon his estimation of the credibility of the plaintiff and the police officer. There is no ground for interfering with his Honour's finding on this matter. The cross-appeal should be dismissed with costs. Order The appeal and cross-appeal should be dismissed with costs. Clarke JA In 1980 during the week prior to Christmas bombs were detonated in retail stores of the respondent situated at Warilla, Maitland and George Street, Sydney. Extensive damage was caused by these explosions yet surprisingly no one was injured The respondent became so concerned that on 24 December it issued a press release in which it offered a reward said to be the highest ever offered in Australia. The press release was in the following terms: Bombs have been placed and exploded in 3 Woolworths stores in the last week. The damage to these stores has been extensive. On Christmas Eve at 3.30 pm a bomb was activated in the Toy Department of the Principal City Store and Head Office building in Sydney. As a result of these horrific actions, and in construction, with the NSW Police, Woolworths is offering a reward of $250,000 for information leading to the conviction of the person responsible. Woolworths has had explosive devices placed and activated in three of its NSW stores in the last week. The first two were in the Warilla Shopping Centre, south of Wollongong and in Maitland. Both were placed in the roof and the explosions occurred in the early hours of the morning causing extensive damage to the Maitland Store. Damage of lesser degree was experienced in the Warilla Centre. Neither Of these incidents caused injury to any person. At 3.10 pm on Christmas Eve an anonymous call was received indicating that a bomb was to be detonated within 10 minutes in the main store and head office building Opposite Town Hall in Sydney. The building was completely evacuated and due to the immediate response by the staff, all customers and personnel were removed promptly and safely from the building. At 3.30 pm the bomb exploded in the Toy Department causing considerable damage to shop front, windows, fixtures and stock. URJ COOKE v WOOLWORTHS LTD (Clarke JA) 11 No known injury was occasioned to either customers or staff. As a result of these three separate actions and in particular in todays incident where Christmas shoppers and staff could have been killed or maimed, Woolworths, in consultation with the NSW Police Force will now offer a reward of $250,000 for information that will lead to the arrest and conviction of any person or persons responsible for these acts. Payment of any such reward will be given at the discretion of the Commissioner of the NSW Police." Prior to the third explosion those responsible for the bombing had notified the respondent that unless they were given cash, diamonds and gold to the total value of one million dollars further explosions would take place. Following the publication of the media release the extortionists, as they came to be known, contacted the respondent's officers on a number of occasions. Eventually on 12 January 1981 a police officer, acting as the courier, took a bag ostensibly containing the ransom demanded to the ferry wharf at Taronga Park and, in accordance with instructions, tied it to a rope and threw it into the harbour. At about 8.30 am on the following morning, 13 January 1981 Gregory Norman McHardie was arrested when he endeavoured to retrieve the bag. At the time of his arrest he was clothed in full diving gear and was carrying long range air tanks. The Police decided to trace, if possible, the origin of the air tanks one of which bore a particular testing mark. This mark led Detective Sergeant Holden, the investigating officer, to the premises of Pro Diving Services at 27 Alfredo Street, Coogee. There Detective Holden met the appellant, an executive director of Pro Diving Services and his co-director Mr Poole. During the course of discussions it was disclosed that the appellant and Poole conducted a number of associated companies one of which was the "Sea Life Dive Company Pty Ltd". This company operated from premises known as Shop 6, Owen Street, Huskisson, which premises Detective Holden was advised, had been broken into on the night of 15-16 October 1980 and a considerable quantity of the company's diving equipment, including tanks and air regulators, stolen. The detective was also informed that a person named Larry Danielson was suspected of the theft of the equipment in October and that the tanks, which the detective had taken to the Pro Dive premises, appeared to have been amongst the equipment stolen. Following this meeting Detective Holden set in motion procedures to facilitate an investigation being carried out at Huskisson into the possible link between the theft in October and McHardie's activities. Later on the afternoon of 14 January 1981 the appellant telephoned the investigating police, and after a short discussion, made arrangements to meet them in consultation at the office of his solicitor at mid-day on the day following. It is sufficient for present purposes to point out that during this conversation the appellant reiterated his belief that Danielson had been guilty of the burglary in October and submitted a description of a person whom he had seen with Danielson at Huskisson in late November. The appellant was also careful to indicate that if Danielson proved to be one of the extortionists he would make a claim for the reward. The description by the appellant of the man seen with Danielson fitted the arrested man McHardie. Following more detailed investigations Danielson was arrested on 27 January 1981 and, together with McHardie, was convicted at the Sydney District Court on 27 April 1982 with a number of offences arising out of the bombings and the attempted extortion. 12 UNREPORTED JUDGMENTS On the day after the conviction the appellant's solicitor's wrote to the Commissioner for Police seeking an indication of his intention with respect to the payment of the reward. In this respect it should be recalled that the media release stated that payment of any such reward would be given "at the discretion of the Commissioner of the New South Wales Police". On 7 July 1982 the Assistant Commissioner replied to the appellant's solicitors in the following terms: "Re: Offer of reward with respect to the incidents known as the 'Woolworths Bombings'. I refer to your letters of 26 February 1981 and 28 April 1982 concerning the claim by your client Noel Richard Cooke for the payment of a reward offered in connection with the "Woolworths Bombings'. You will appreciate that the offer was not made through the Government but was offered as a private reward by Woolworths Ltd. Accordingly, I am only in a position to supply that company with the details of the role played by Mr Cooke and to furnish a recommendation on the amount of reward considered appropriate. Tam advised that the information provided by Mr Cooke was as a direct result of an inquiry by Detective Sergeant Holden at Pro Diving services, 27 Alfredo Street, Coogee, following the arrest of Gregory McHardie. Prior to these inquiries Mr Cooke was obviously not aware of Danielson's involvement in the extortion attempt and the action he took to inform Police of his suspicions was that which would be expected from a responsible member of the public. Whilst it is conceded that Mr Cooke was the first to nominate Danielson as a suspect, the arrest of McHardie was the commencement of the inquiries which I have no doubt would have led to the identification and conviction of Danielson. Notwithstanding the foregoing I am of the view that the actions of Mr Cooke resulted in the early arrest of Danielson. Accordingly, I have written to Mr J D Hendry, Director Corporate Relations, Woolworths Ltd. and recommending that a reward of $4000.00 be paid to your client." The sum of $4,000 was submitted to the appellant but as he considered he was entitled to the full amount mentioned in the media release he declined to accept that sum and he sued to recover $250,000. The case was heard by Grove J who decided that the Commissioner's discretion, which was referred to in the final paragraph of the media release, covered both the appellant's entitlement to payment of a reward and also the amount or proportion of the reward funds to which he was entitled. Taking the view that the Assistant Commissioner had accepted the appellant's entitlement to a reward, in the sense that he had given information that led to the arrest and conviction of Danielson, his Honour concluded that there was no occasion to award the appellant more than the sum fixed by the Assistant Commissioner in the exercise of his discretion. In conformity with these conclusions the entry of judgment in the sum of $4,900 was directed. That sum includes, I assume, an interest component. The appellant has challenged this decision contending that his Honour erred in his construction of the offer made in the media release. It was said, in particular, that once the Commissioner was satisfied that the information supplied by the appellant had led to the arrest and conviction of Danielson and therefore exercised his discretion in favour of payment of the reward to the appellant he was not entitled to go further and determine that it was appropriate to pay only a proportion of the reward. The appellant's submission was that upon a determination that the reward had been earned in the sense to which I have URJ COOKE v WOOLWORTHS LTD (Clarke JA) 13 referred then his entitlement was to the whole sum. If the appellant is correct in asserting that the assistant commissioner had determined that the appellant had earned a reward there is, in my view, much to be said for this construction of the terms of the press release. But because I am of opinion that the premise on which the argument is based has not been established and that therefore the respondent is entitled on its cross-appeal to an order setting aside the Judgment in favour of the appellant the question does not arise. The ground on which, in my opinion, the respondent/cross-appellant is entitled to succeed is that the appellant did not establish that the Commissioner, or Assistant Commissioner, had exercised his discretion in favour of the payment of the reward mentioned in the media release to the appellant. In this respect I think it is important to emphasise that the question confronting the learned Judge was not whether the appellant had furnished information that led to the arrest and conviction of Danielson but whether the Commissioner (or the Assistant Commissioner) had decided in the exercise of his discretion that the information furnished had those consequences. That this is the critical question appears clear from the terms of the further amended statement of claim in which the appellant conditioned his right to recovery upon that determination and the statement made by counsel for the appellant during the hearing that "the question of whether it (the information supplied by the appellant) led to the arrest and conviction was one pursuant to the terms of the contract reserved solely for the exercise of the discretion or judgment of the Commissioner of Police and/or his agent". Nothing could be clearer than that the parties joined issue on the question whether the Commissioner of Police (or his agent) had decided in the exercise of his discretion that the information supplied by the appellant led to the arrest and conviction of Danielson with the consequence that the appellant was entitled to the reward. There was therefore no call for the trial judge to concern himself with the question whether in fact the information led to the arrest and conviction of Danielson. Upon turning to the letter of 7 July, which it is accepted by both parties contains the Assistant Commissioner's statement of the exercise of his discretion, one is immediately struck by the absence of any statement by the Assistant Commissioner to the effect that in his opinion the actions of the appellant led to the arrest and conviction of Danielson. On the contrary the Assistant Commissioner was at pains to emphasise that the arrest of McHardie was the event which would, without any intervention by the appellant, have led to Danielson's arrest. Senior Counsel for the appellant contended however that the letter on its proper construction conveys the Assistant Commissioner's determination that the appellant is entitled to the reward. The words which are said to lead to this conclusion are "notwithstanding the foregoing I am of the view that the actions of Mr Cooke resulted in the early arrest of Danielson. Accordingly, I have written to Mr JD Hendry, Director Corporate Relations, Woolworths Ltd, and recommending...". The fact that the letter refers to an early arrest does not diminish the importance of the conclusion, which was stated earlier, that the arrest of McHardie was the critical factor leading to the arrest of Danielson. Whether his arrest on 27 January was made earlier than it otherwise would have been if the appellant had not assisted the police is, in a sense, beside the point. 14 UNREPORTED JUDGMENTS Doubtless a stated conclusion that the actions of X resulted in the early arrest of Y could, depending upon the context of the statement, be taken to convey that X's actions led to the arrest and conviction of Y but in my opinion that wider meaning was not conveyed by the assistant commissioner. The letter when read as a whole conveys a statement of a determination of a more limited effect. It conveys to me no more than that the information supplied by the appellant led to the arrest of a person, which was inevitable, at an earlier time than would otherwise have occurred in the absence of the particular information. The expression by the Assistant Commissioner of his opinion that the arrest of McHardie set in train enquiries which would have led to the identification and conviction of Danielson, inferentially without the assistance of the appellant, could not be clearer. That the Assistant Commissioner should have reached this conclusion is understandable given the report furnished by Detective Anderson who was called upon to advise the Assistant Commissioner on the appellant's claim for the reward. Paragraph 20 of that report is of particular importance. It reads: "In assessing the information Cooke supplied it can be said that he was the first person to mention the name of Danielson and further that he saw a person similar to McHardie in Danielson's company at Huskisson. However this was after the investigation came to him and the information that he supplied was that which could be expected from a responsible citizen in the circumstances. There was no evidentiary value in it and he was not called to give evidence during the course of proceedings. It is submitted that Cooke is an opportunist who, realising that the association between Danielson and McHardie would be revealed when Wells and others were interviewed at Huskisson, arranged the urgent meeting between Woolworths and his solicitor. He did this unbeknown to his Co-Director Rick Poole. It was common knowledge in the small township of Huskisson that Danielson and McHardie had been living at 10 Currumbene Street during Christmas of 1980. Many of the residents were called to give evidence of this together with their movements on the relevant dates." It is apparent that during the course of routine enquiries the investigating officer had gone to Pro Diving Services and there ascertained that diving equipment had been stolen from the Huskisson company in October 1980. The investigation was then well in train and once the officer had visited the Huskisson company and spoken to a person in the locality the significance of Danielson was readily revealed. Seen in this context the Assistant Commissioner's determination that the provision of the name of Danielson and the description of the person seen with him, which matched McHardie, could, at most, only have hastened the arrest is entirely explicable. When, therefore, Assistant Commissioner Scott expressed his view that the appellant's actions resulted in the early arrest of Danielson and recommended that a reward of $4,000 be paid to the appellant he was, it seems to me, doing no more than indicating that because of the measure of the appellant's assistance it was appropriate that the relatively small sum mentioned be paid to him. He was not expressing a determination that the information had led to the arrest of Danielson. In the absence of an express statement by the Assistant Commissioner that he had determined, or exercised his discretion and concluded, that the information furnished by the appellant had led to the arrest and conviction of Danielson the proper conclusion is that the appellant failed to establish the existence of the facts upon which payment of the reward was conditioned. URJ COOKE v WOOLWORTHS LTD (Clarke JA) 15 It should not be overlooked that, according to the terms of the press release, the reward was payable in respect of the arrest and conviction of the person or persons responsible. A conclusion that information was furnished which led to the arrest of X will readily support the inference that it also led to his conviction. But in this case the conclusion, expressed in the context of the inevitable arrest and conviction of Danielson, was that the information furnished led to his early arrest. Ihave already pointed out that the statement to that effect should be understood as conveying only that the information led to Danielson being arrested somewhat earlier than he would have been if it had not been provided. So understood there is no basis for concluding that the information led to, or resulted in, the conviction of Danielson. A statement that information led to an arrest a day or two earlier that would have occurred in the absence of the information would not readily support the inference that the information also led to the ultimate conviction. The statement would be understood as conveying the opinion that the information hastened the arrest but had no relevance to the conviction. That in my opinion is all Assistant Commissioner Scott was saying. It is possible that the Assistant Commissioner simply failed to address the critical question but it is unnecessary to conclude an opinion on that matter for the reason that, whether or not he did he did so, he did not exercise the discretion in a manner which entitled the appellant to payment of the reward. For these reasons I am of opinion that the following orders should be made: (1) Appeal dismissed. (2) Cross-appeal allowed. (3) The judgment below is set aside and in lieu thereof direct the entry of judgment for the respondent. (4) The appellant should pay the costs of the trial, and the appeal, the cross-appeal and is to have a certificate under the Suitors Fund Act 1951 in respect of the costs of the cross-appeal. The appeal and cross appeal are each dismissed with costs. Counsel for the Appellant: Mr KR Handley, QC, and Mr B McClintock Solicitors for the Appellant: Toomey, Pegg and Drevikovsky Counsel for the Respondent: Mr B Oslington and A Tink Solicitors for the Respondent: Mallesons Stephens Jaques