District Court New South Wales Medium Neutral Citation: Douglas Allen Lloyd v Andrew John Doust [2018] NSWDC 463 Hearing dates: 19 – 22 March 2018 Date of orders: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Civil Before: Neilson DCJ Decision: The cross-claim is dismissed. I order the defendant/cross-claimant to pay the costs of the plaintiff/cross-defendant of the statement of claim on the ordinary basis until 27 October 2016 and thereafter on the indemnity basis. The cross-claim is dismissed. I order the cross-claimant to pay the cross defendant's costs. Catchwords: CONTRACT HARVESTING WORK – whether harvesting contractor made a contractual promise to start harvesting ten days after the property owner commenced windrowing his canola crop – time being of the essence – consideration of usual practice in Western NSW between croppers and harvesters – whether alleged contract plausible – contract purely oral – consideration or fallibility of human memory with the passage of time whether alleged contract the subject of reconstruction Legislation Cited: Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Cases Cited: Ahern v Associated Products Pty Limited [2017] NSWDC 185 Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Briginshaw v Briginshaw (1938) 60 CLR 336 Camden v McKenzie [2008] 1 Qd R 39 Campbell v Campbell [2015] NSWSC 784 Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 Craig v Silverbrook [2013] NSWSC 1687 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599 Evans and Braddock [2015] NSWSC 249 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 Harbour Port Consulting v NSW Maritime [2011] NSWSC 813 Helton v Allen (1940) 63 CLR 691 at 712 Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep) McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477 New South Wales v Hunt (2014) 86 NSWLR 226 Nominal Defendant v Cordin [2017] NSWCA 6 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 Société d'Avances Commerciales (Sociéte Anonyme Egyptienne) v Merchants Marine Insurance Co (The Palitana) (1924) 20 Ll L Rep 140 Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; 297 ALR 56 Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: Douglas Allen Lloyd (Plaintiff) Andrew John Doust (Defendant) Representation: Counsel: Mr R Notley (Cross-Claimant) Mr B Le Plastrier (Cross-Defendant) Solicitors: Wilsons Solicitors (Cross-Claimant) Peacockes Lawyers (Cross-Defendant) File Number(s): 2017/00094108 Publication restriction: Nil Judgment The parties 1. HIS HONOUR: This is a cross claim. The cause of action upon which the cross claim is based is a breach of contract. The cross claimant is Mr Douglas Allen Lloyd. I shall seek to refer to him as the claimant. Should, during the course of these reasons I refer to him as the plaintiff, I shall correct the reasons for judgment when they are typed. The claimant is a property owner. He and his wife are either the direct or beneficial owners of a number of properties. The first properties were known as Ossory and Gilgambeth but the latter name is no longer in use. Ossory is now the name of both of those properties. Ossory is approximately 60 kilometres south west of Narromine on the Terowie Road. The claimant and his wife were the also beneficial owners at all material times of a property known as Wilga. Wilga is approximately six to seven kilometres east of Ossory. The total land area of the two properties was 2,515 hectares. For planning purposes the properties are divided into 16 to 18 paddocks varying in size from approximately 20 hectares to 400 hectares. 2. The claimant is the fourth generation of his family farming in the Ossory district. The claimant and his wife have owned and operated the family business since 1995 when, unfortunately, the claimant's father died. Since 2005, the claimant and his wife have operated a cropping only business, the majority under a direct drill basis. On average they grow approximately 2,000 hectares of crop each year. Mr Lloyd is approximately 55 years old at the present time. 3. The cross defendant Mr Andrew John Doust, is a contract harvester. I shall refer to Mr Doust merely as the defendant to avoid having to repeat the words cross defendant. But I bear in mind that he was the plaintiff in the principal proceedings. In [4] of his first affidavit sworn on 28 October 2016, Mr Doust said this: "From about 2001, I have owned and operated a contract harvesting business based in Narromine trading under my own name with Australian Business Number… I provide harvesting services through Queensland, New South Wales and Victoria, from Springsure, Queensland to Harrow, Victoria, operating three headers." 1. A header is a shorthand expression for a combine harvester. In [49] of the same affidavit, Mr Doust refers to himself as having been in the contract harvesting business for "approximately 22 years". Of course, going back 22 years from 2016, takes one well beyond 2001 but it maybe that prior to 2001 Mr Doust was employed in the contract harvesting business. Mr Doust is approximately 47 years old at the current time. Work and payment 1. Between 10 November 2015 and 22 November 2015, the defendant harvested crops on the claimant's properties. On 27 November 2015, he delivered a tax invoice to the claimant for $95,498.90. On 8 January 2016 Mr Lloyd paid $50,000 to Mr Doust in part payment of that invoice. On 1 February 2016, Mr Lloyd made another payment to Mr Doust of $10,000 in further part payment of the invoice. The evidence before me suggests that Mr Lloyd was having difficulty in obtaining the money to pay Mr Doust 's invoice. On 18 February 2016, the defendant's solicitor sent a letter of demand to the claimant demanding payment of the balance owing on the invoice, being $35,478.90. That claim was not met. The proceedings 1. On 8 June 2016, the defendant commenced proceedings by filing a statement of claim in the Local Court at Dubbo seeking payment of the outstanding amount of the tax invoice as well as the usual claim for interest and costs. On 29 July 2016, the claimant filed a defence to the statement of claim and the original cross claim. The claimant filed an amended defence and an amended cross-claim on 2 September 2016. Mr Doust filed a defence to the amended statement of cross claim on 10 October 2016. Proceedings were transferred from the Local Court to this Court, I presume, on the basis that the Local Court did not have the monetary jurisdiction to entertain the cross claim. The current proceedings were listed for hearing here at Dubbo before Sorby ADCJ on 16 October last year. On the first day of that sittings, his Honour, by consent, gave judgment for the plaintiff/cross defendant on the statement of claim and at the request of the current claimant, adjourned the hearing for cross claim to these sittings. The pleadings 1. In the amended cross claim, par 6, the claimant pleaded an "overarching agreement" made in 2011. That allegation was abandoned by the claimant at the commencement of the hearing. In par 18 of the same pleading it is alleged that a contract harvester, Mr Tony Ian Roberts, was a sub contractor to the defendant but that allegation was also abandoned during the hearing. The relevant contract is pleaded in para 8 to 11 of the amended cross claim. It is this: "8. On or around 20 September 2015, the plaintiff attended the defendant's properties. The parties held a discussion as to the price and timing of that year's harvest. Out of this discussion it was agreed that: (a) The defendant promised to advise the plaintiff when the windrowing of the Canola crops was complete or expected to be completed. (b) The plaintiff guaranteed that he would arrive within ten days of the defendant [sic] commencing to windrow the Canola. (c) The plaintiff would then remain to harvest the wheat and chickpeas. (d) The defendant would pay the defendant the rates set out in the Statement of Claim. 9. In the discussion, the defendant made it clear that time was of the essence in relation to the Faba beans, Canola and Barley crops. 10. By virtue of the above, a legally binding contract was entered into by the parties. 11. It was an essential term of that contract that the plaintiff would attend within ten days of windrowing commencing on the canola." 1. The claimant did not plant chickpeas in 2015, the reference to "chickpeas" in par 8(c) is clearly a reference to Faba beans. Oral contract 1. The alleged contract is entirely oral. There is no contemporaneous record of its existence. Indeed, no evidence of it at all other than the oral evidence of the claimant and the defendant. The first document before me which records the claimant's version of events is his first affidavit sworn on 31 January 2017, some 16 months after the event. In an affidavit sworn on 28 October 2016, the defendant, as plaintiff in the principal action, anticipated the plaintiff's allegation and said this: "45. I'm aware that Doug alleges that he had made some sort of standing contract or retainer with me in 2011 to do contract harvesting for him on the basis that in return for guaranteeing that I would provide a minimum of one header whenever he wanted it and two other headers as soon as they were available, he would give me the first right of refusal to harvest his crops each year (Standing Contract). 46. This is complete bullshit. I deny ever making any sort of contract or retainer with Doug like the Standing Contract." 1. This can be shortly described as a blunt denial of the existence of any such contract. 2. This Court and every court must be extremely cautious in approaching cases of the present nature. As far as I am concerned the locus classicus for the approach of the courts was stated by McLelland CJ in Eq. in Watson v Foxman (1995) 49 NSWLR 315. Commencing at 318, his Honour said this: "Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously describe as 'misleading') within the meaning of s 52 of the Trade Practices Act 1974 (or s 42 of the Fair Trading Act), it is ordinary and necessary for that party to prove to the reasonable satisfaction of the Court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court 'must feel an actual persuasion of its occurrence or existence'. Such satisfaction is 'not…attained or established independently of the nature and consequence of the fact or facts to be proved' including the 'seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding'; Helton v Allen (1940) 63 CLR 691 at 712." 1. What his Honour said is applicable not merely to an action for breach of a statutory prescription of misleading or deceptive conduct but also to the very existence of a contract and its terms. 2. In his submissions, Mr Notley, for the defendant, referred me to recent decision of The Nominal Defendant v Cordin [2017] NSWCA 6 where Davies J collected at [165] a number of authorities dealing with credibility issues and the fallibility of human memory. His Honour said this, "165. In Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 I collected a number of authorities that have provided assistance in dealing with credibility issues and the fallibility of human memory. I recorded these authorities as follows: [100] In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Lord Pearce discussed credibility. The first two matters he raised dealt with truthfulness, and he then went on to say (at 431): Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part. [101] In Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Leggatt J said: [15] An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory. [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). [18] Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. [19] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does or does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. [21] It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. [102] In Campbell v Campbell [2015] NSWSC 784 Sackar J said: [73] In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks: …human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. [74] I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]: [140] Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions. [141] In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted): [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The "Palitana"): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility… [142] In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie's Uniform Civil Procedure NSW at SCA s 75A.20). [75] In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56]. [76] Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said: [71] In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation. [72] I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." [73] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]. [74] A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. [75] … [76] The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time." [77] Finally, I should mention an article by the former Chief Judge at Common Law, P McClellan entitled "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the "Guidelines Relating to Recovered Memories" (2000) of the Australian Psychological Society: "Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval." 1. For my part, I could also refer to my decision of Ahern v Associated Products Pty Limited [2017] NSWDC 185, in which I cited Watson v Foxman when I was called upon to construe a contract which was oral and made between two engaged in business, in the course of the setting up of a franchise. Prior dealings between the parties 1. Before turning to considering the question of whether the contract alleged was made, is important to note that there were prior dealings between the claimant and the defendant. In his primary affidavit of 31 January 2017, Mr Lloyd said this: "18. I first met Andrew Doust in the late 2011. He was introduced to me by the late Brian Rees. We had a conversation to the following effect: I said: Narromine is a fickle location from a rain perspective. A late start to harvest can be really devastating to us, so we need somebody that is going to show up on time. If we give you the contract, you need to be able to guarantee that you will arrive and commence harvest on time." "22. I gave my 2012, 2013, 2014 and 2015 harvest contracts to Andrew Doust. The process in each of those years was always pretty much the same. In early September I would plan my harvest timeframes with my agronomist, Campbell Muldoon. 23. I would then meet on farm with Andrew and I would drive him around the property, showing him the crops to be harvested. I would tell him the expected start time for harvest, and he would tell me what his rates were for that year. Every year I made a point of asking Andrew if he could still guarantee at least one header to start when crops were ready and every year he promised me that he could." 1. On the same issue, Mr Doust said in his first affidavit: "14. I first met the Defendant, Doug Lloyd (Doug), in 2010 through a friend, Brian Rees. 15. I did some harvesting work for Doug in 2012 and also over the next few harvesting seasons at his farm, Ossory, to the south of Narromine." 1. In his second affidavit, that sworn on 16 June 2017, Mr Doust said this: "5. In relation to para 8 of Lloyd's Affidavit, I have checked my diaries, employee timesheets and past invoices, and the work that I did for various clients in each of 2012, 2013 and 2014. To the best of my knowledge, I believe I did harvesting for Doug on the following dates: (a) In 2012 - between 13 November 2012 and 23 November 2012; (b) In 2013 - between 13 November 2013 and 11 December 2013; (c) In 2014 - between 8 November 2014 and 22 November 2014; and (d) In 2015 - between 10 November 2015 and 22 November 2015. 7. I remember on a number of occasions Doug wouldn't agree to my harvesting rates for the year. In 2012, I recall having a conversation with Doug prior to harvest where I told him what my contracting rates were for the year and he said to me, words to the effect of: 'That's too dear, I'll have to get another cheaper contract harvester to do the work instead.' 8. Within a week or two of the conversation referred to in the previous paragraph, Doug rang me and said words to the effect of: '…but you're still coming, aren't you?' 9. I recall having similar conversations with Doug before harvest in each of 2013 and 2014. I think he was only before the 2015 harvest when Doug didn't really argue about my rates for once." 1. It is important to note from what I just quoted that prior to 2015 the defendant had harvested for the claimant no earlier than 8 November in any one year. Cyclical nature of farming and harvesting 1. Both farming and harvesting, an extremely important part of farming, are cyclical. In his first affidavit, Mr Lloyd said this: "6. I operate a crop farming business on all three properties in partnership with Carolyn, my wife…I primarily grow wheat crops on the properties, though each year I devote a portion of my property to planting other crops, such as canola, chickpeas, barley, or faba beans. We also try summer cropping when the opportunity [presents] itself. Obviously, some crops have much more expensive inputs than others, ie, canola or cotton compared to wheat. 7. Typically, I start to develop my annual cropping program in early January each year. Depending on the weather and season, I spray/fallow my country in the December (immediately after harvest) to early April period. I commence sowing in early April and finish in about late June each year. I generally crop/spray during August and September to control weeds, etc. Harvest always commences from late October onwards depending on what crops I have grown that year and is generally completed by early December. I am often delivering and selling grain through until February/March and often later in the following year. Throughout the year I employ casual staff or contractors to help me complete the above. 8. These days farming has become a very diverse business in some ways but every season is conceptually the same. Every season I prepare my country, sow, spray, harvest and sell grain. The difficulty is that every season, from a timing perspective, is different. In particular every season my cropping program changes, the volume and timing of rainfall changes, soil temperatures differ, therefore climate conditions always change. Having said that, there is nothing more certain than that my crops will be ready for harvest in mid to late October or very early November each year if I grow crops such as Canola, Barley or Faba beans. 9. I have always taken my crop operations very seriously, as it is the only income I receive. I have always sought to adopt the very best practices and have sought advice off the best people I can find to plan my operations, so that my crops are the best they can be, and the property remains sustainable for a profitable and successful agricultural enterprise. In fact, I have sought out and embraced any innovations that would achieve that purpose. For example, I have attended field days and have had deep soil structural tests conducted by the CSIRO. I embraced direct drilling into my cropping program in the mid 1990s. I grew my first dry land cotton crop in 1999. I was informed that at the time it was the most southern dry land cotton crop grown in Australia. I also purchased my first GPS system in the 1990s. I was nominated in 2000 for the Central West conservation farmer of the year. 10. Since 2002 I have contracted an agronomist to provide specialised consulting services. I have used Campbell Muldoon…to advise and confirm my cropping programme (including where and what crop to sow and what country to fallow), soil preparation, likely weather patterns for the current season, sowing timings, the most applicable crop varieties for my country, fertiliser rates, herbicide and spraying requirements, likely cost and budget implications, expected harvest timings, etc." 1. It should be noted from what I have just quoted that if the claimant's crops were ready for harvesting in mid-October of either 2012, 2013 or 2014 the crops were left unharvested for approximately three weeks prior to the arrival of the defendant to harvest. That appears to me to be unlikely. One will note that in [7] which I have just quoted the claimant referred to his harvest commencing "from late October onwards" but in [8] he refers as the crops being ready for harvest, "in mid to late October" which represents a subtle shift of timing. It is unlikely from I have to observe and discussing questions of quantum, that the claimant or indeed any farmer, would let a mature, harvestable crop stand in the paddocks for three weeks or more prior to harvesting commencing. 2. The defendant also gave some evidence about the cyclical nature of his work. In his affidavit of 28 October 2016, Mr Doust said this: "5. I will usually provide harvesting services each year between about late September onwards through to the end of the following January, harvesting winter crops such as wheat, canola, barley, faba bean and chickpea crops for different farmers throughout the State. 6. Usually crops in northern areas will ripen and be ready for harvesting earlier than those in southern areas. Most contractors will start harvesting in the north and then follow the ripe crops and the season to the south. 7. It's rare to harvest a crop in an area and then head in a northern direction to do further harvesting at another job. It's almost always the case that I start harvesting in the north and move from job to job in a southerly direction. This is pretty much the same for all contractors that I know. 8. I have a few clients in the Narromine district and over the years I have found that after starting harvesting in the north in about October, I don't reach the Narromine district until about the second week in November. Sometimes it will be even later before I have come that far south doing harvesting. 9. Rain is often a big problem during harvest time. The more rain that falls, the longer the ground takes to dry out and handle heavy harvesters, while the crops can be damaged quite easily by rain. During and immediately after rain, I am unable to operate the header. 10. Because each season is different and the weather can be highly unpredictable, I don't make any promises to any clients that I will be at their farm by a certain date to start harvesting unless I can make it there on that date. I've never promised a client that I will be at their farm by a certain date in the following year." 1. In his second affidavit Mr Doust said this: "10. I usually start organising winter harvesting jobs in September each year. Particularly, I will try and look over the crops of potential clients and ask them to keep in touch to provide updates on the progress of the crops. Usually, I'll speak with the clients a couple of times leading up to their expected start date and always at least once about three to seven days before the expected start date to confirm final arrangements and availability. 11. Nick Redden owns the property known as 'Yarran', Narromine. He's normally my first client in the Narromine district. In recent years, I've usually rung Nick in the second half of October to see how his crops are going. If I'm in Narromine, I will also go over to the farm and look at the crops. I also speak with him in about the first week of November to check whether we'll start harvesting his crops somewhere in the second week of November. 12. Nick is a regular client of mine, and I've done harvesting work for him at Yarran over the last ten years or so. I don't have any 'standing' or ongoing contract with Nick or any other client. Obviously, I'm keen to get his work each year and I try and make myself available for him. However, each year is a separate year and a separate contract." The contract alleged 1. I now turn to the evidence concerning the contract alleged. In his affidavit affirmed on 31 January 2017, the claimant said this: "29. On 16 July 2015 I called Andrew. We had a conversation to the following effect: I said: Hi Andrew, just calling to let you know what I have planted this year and that it's coming along well at this stage. Will you be available to harvest for me again this year? He said: That's good to know, mate. What have you got in? I said: I've got canola, barley, wheat, chickpeas. And for the first time I'm growing Faba beans. He said: That sounds good, that won't be a problem. I'll be in touch with you a bit closer to the harvest. 30. Later in September I recall it was about the 20th, Andrew Doust came out to the property. As I had in previous years I drove him around and showed him all of the crops. After looking at all the crops on Ossory, Gilgambeth and Wilga, we pulled up at the gateway of Wilga. We had a conversation there to the following effect: I said: As you can see, about 40% of my crops this year will need harvesting earlier than usual. I'm planning on windrowing all of the canola on Ossory except for the 90 acres which we will direct head and part of Wilga around 10 October. The rest of the canola at Wilga will have to wait four or five more days. I have Gary Brown lined up to do this windrowing and this year I have already organised Matt Williams to cart all of our grain, he said that he will organise all of the trucks for me this year and he will be ready to start the day we start harvest. Is this going to fit in with your program? He said: Yes mate, it won't be a problem. But I'll only be able to give you one header at first, because I will still be working up north. I said: That's okay. I will call you when I start windrowing. I can appreciate that you won't bring a header to do the faba beans on their own. I will call you when we start windrowing so you can start harvesting ten days after we start windrowing. By then, the canola should be ready and so will the faba beans and barley. Are you happy with that? He said: Yes mate. I said: I'm happy with that. The only thing is, in our original agreement in 2011 you told me that when the headers are ready you would always send two to me and one to the Reddens. Last year you sent two to the Reddens and only one to me. This year a huge portion of my crop will be ready early, so I need you to bring two headers to me. Can you promise that one of your headers will be here to start harvest ten days after windrowing and another header will come to us when he comes available after finishing up north? This is really important to me. He said: That's fine mate. I can do that. I haven't even seen the Redden's crop yet but because you've got a lot of early crop there will be plenty of work on your place so I won't have a header sitting down there." 1. It should be noticed that the defendant's assents ("Yes mate, it won't be a problem", "Yes mate", "That's fine mate") are alleged to be acceptances of an offer to provide work to the defendant in respect of which the claimant would pay the defendant at the rates the defendant had earlier advised him. The defendant's position on this allegation is robust as I quoted him earlier, "bullshit". 2. The gist of the claimant's case is this: 3. 1. Windrowing of the major part of the claimant's canola crop was completed on 12 and 13 October 2015. 4. 2. The claimant advised the defendant of that on 14 October when the defendant told the claimant that he would not have available for the defendant one of his headers on 23 October. In [40] of his first affidavit the claimant said this: "When Andrew called me back the next day [14 October 2015], we had a conversation to the following effect: I said: Hi Andrew did you get my messages? We've windrowed most of the canola now and the barley and faba beans should also be ready so I will need you to be here on the 23rd. I've got Matt lined up. I've been trying to call you to make sure you are still right to come. Are you still available to give me that first header on the 23rd? He said: Yeah mate, but there's no way I can get a header to you by then. I'm still up north. I didn't think that you'll be ready yet you'll have to find someone else. I said: Andrew, the only reason you've ever been hired is because you guaranteed you would have a header here on time. I showed you around the place so you could see how early my crops would be ready. You assured me that it wasn't a problem and that you'd be here to do my harvest with one header on time. I accepted you would not just bring it to do the faba beans, but we agreed that you would be here ten days after we started windrowing the canola. The barley is very close to ready, as you know. This was our verbal contract. What is the point of having an agreement? That's why you have the job. I expect you to come. You can't tell me to look for another header this late and break your contract. It will be impossible for me to find a header at this stage, as my neighbours are already harvesting. So, I'm holding you to our verbal contract. You have to come. He said: Well, I can't come. I said: But you have to. I'm counting on you [sic] coming. He said: I'll get back to you." 1. 3. On the claimant's case the defendant phoned the claimant on or about 16 or 17 October and suggested to him that Tony Roberts would be available to harvest the claimant's crops. In fact, Mr Tony Ian Roberts did some harvesting work for the claimant on 26, 27 and 28 October but only until 2pm on that day. He returned "late" on 30 October 2015 and then harvested a few hundred acres of barley on Wilga until there was a large rain storm. No harvesting could be undertaken until 4 November but after Mr Roberts harvested 75 acres of faba beans it started to rain again. 1. 4. The defendant arrived at the claimant's property on 7 November 2015 but it would appear that he did not have available to him at that time a harvester. There appears to have been some disagreement between the parties. 2. 5. Mr Roberts packed up his equipment and left the claimant's property on 8 November. 3. 6. The defendant returned to the claimant's property on 10 November 2015 with a harvesting machine and started his harvesting, the payment for which was the subject of the principal action. 4. 7. If the defendant had arrived at the claimant's property and commenced harvesting with one machine on 23 October the claimant says that all of his canola crop would have been properly harvested and that all of his barley would have been harvested prior to the rain event and the claimant claims the loss or reduced value of the canola crop and barley crop from the defendant. 5. The substantive issue tendered for my determination is: was the contract alleged by the claimant made? After using the colourful language which I've already quoted the defendant went on to say this in his first affidavit anticipating what the claimant might say: "47. For a start, I actually met Doug in 2010 and I didn't do any work for him in 2010 or 2011. I did harvesting for him in 2012. 48. There was simply no way that I would put myself in a position where I would promise to drop any other work and come and harvest Doug's crops whenever he wanted. There are several reasons why I wouldn't do this: (a) there are so many variables in each season, especially the weather, that the timing, pace and volume of harvesting on any property is very unpredictable. For example, I've had clients where I've harvested nearly 400 acres in a day in early November because the crop is so light that I move the header through it very quickly, and then in the following year on the back of a great season, I can only do 200 acres in a day in the same paddock in early December because the crop is so heavy. (b) unfortunately, plenty of things can go wrong during harvest including rain, fire, and breakdowns in machinery. When a header or the front breaks down, sometimes there can be delays of a few days to get parts or fix things depending on what's broken and how far away I'm working from the nearest parts dealer or mechanic. (c) there can be a lot of cost and time involved in moving the headers from property to property. When I'm working up past Walgett where the clients farms and crops are a lot bigger, I could be 300 to 400 kilometres north of Narromine and it take a few days to drive the header to Narromine. (d) Doug isn't a big client. Although I had a good relationship with him before the 2015 harvest, I've got other clients I would put before him. I have quite a few regular clients whose farms are a lot bigger than Doug's and I have good relationships with them. I wouldn't be willing to pull a header out of a crop belonging to a good client up past Walgett only to spend two days driving it 300 kilometres to Doug's place for a smaller job. (e) while most of my clients are regular clients and I get to do harvesting for them each year, each job is a separate contract. 49. I've been contract harvesting for approximately 22 years and although I'm aware that many contractors have regular clients, I've haven't heard of any other contractor entering some sort of contract like the Standing Contract that Doug alleges. 51. At the end of the day, Doug was responsible for managing the harvesting of his crops and from at least early September he knew that I wouldn't be available [to] harvest his canola. 52. I understand Doug was able to get another contractor, Tony Roberts, to the harvest canola. If Doug lost canola due to wet weather, that's got nothing to do with me.' 1. I have already quoted [10], [11] and [12] of Mr Doust's second affidavit and they must be borne in mind in considering the issue currently before me. In that affidavit Mr Doust went on to say this: "14….I don't remember ever having conversations with Doug where he would ask me whether I could guarantee at least one header to start when crops were ready and I deny giving Doug any guarantee about showing up at his property on any particular date. I deny ever using the word "guarantee". 15. I deny stating to Doug the first time I met him that I would give him or his property 'priority' or 'guarantee to show up on time' or 'guarantee to give you one header to start when you need it'. Instead, I remember saying to him words to the effect of: 'Nick Redden is an existing client and I could bring you one header from there but only after I've finished at Redden's, whenever that is.' 16. In 2015, I had been arranging with Nick Redden to be stripping his barley crop in the first week of November that year. However, I was aware from my conversations with Nick in September, October and early November that the crop wouldn't be quite ready by 10 November 2015 so instead I lined up to start work at Doug's property on that date. 17. I remember Nick Redden then rang me on or about 11 November and told me that the barley was ready to go. I said to Nick words to the following effect: 'Mate, I've already started stripping at Doug Lloyds place, you'll have to get someone else in.' 18. Nick informed me that he would hire another contractor. A few days later, I had some availability to put a header in at Nick's place and do stripping for him. 19. I rang Nick and he said to me words to the effect of: 'The crop is too wet and I already have another header doing what can be done at this stage. I don't need you at the moment but there might be some work for you in a few days' time.' 20. I then went and did some stripping for Brad Anderson at his property next door to Nick's place. I believe I was working at Brad's place on or about 13 or 14 November 2015. I continued stripping at Brad's place until Nick rang me back a few days later and informed me that his crop was sufficiently dry for me to come in and work alongside his other contractor. I then went and completed Nick's harvesting alongside his other contractor. While I was working at Brad Anderson and Nick Redden's places, I also had the header operating at Doug's place. 21. Over the years, there have been many times when an owner would want me to come and start stripping on his property on a certain day but because of weather, machine breakdowns or because I'm already on another job I couldn't get there on the day the owner would like me to be there. 22. In these situations I have no choice but to give the owner an option to get another header or contractor into do the work. And over the years there have been plenty of times where the clients that I have done work for in the past have hired other contractors instead of me to do their work. For example, I have one client at Collie, north of Narromine, where I've done his harvest work every second year over the last six years because in each other year things like weather, breakdowns or delays up north have stopped me getting there and have meant that the client has had to get a different contractor in to do the work. 23. However, I'm always up front with a client. If I can't do work for him I tell him straight away so he can get someone else in without being mucked around. I believe this is why my client at Collie keeps getting me back in the years that I can be available, because I'm honest with him and don't muck him around. 24. This is how it nearly always works in our industry: everything's so unpredictable. You try and line up a job, working with the weather, the crops, the season, breakdowns and everything else, and you just can't give anyone any guarantees. And this also means that the contractors like me often have to be prepared to let a job go and let someone else have the job. Just as I've had to give work to other contractors here and there, I've also picked up plenty of jobs over the years where other contractors have been unavailable. 25. In all the years that I have been a contract harvester, I have never had a client make a complaint to me about me [sic] 'letting him down' or not being there [at] the property 'on time', until Doug complained about his 2015 harvest. 26. In relation to paragraph 24 of Lloyd's Affidavit, I deny saying to Doug any words [to] the effect of, 'I gave up a 2,000 acre contract to be here when you want to be'. I did not give up any contract in 2012 to go and do Doug's work instead. 27. I refer to paragraph 29 of Lloyd's affidavit. I really don't remember having a conversation with Doug on 16 July 2015. I really don't start looking at the winter harvest program until the start of September in any year and I would be surprised if I had been talking with Doug in July. 28. I refer to paragraph 30 of Lloyd's affidavit and paragraph 18 of my first affidavit. 29. When I met with Doug at his farm on or about 10 September 2015, I remember Doug telling me how much canola he had sown and when he had sown it, and that I believed that the amounts in paragraph 26 (a) to (d) of Lloyds affidavit would be about right. 30. In addition to the conversation referred to in paragraph 18 of my first affidavit Doug and I had further conversation words to the following effect: I said: Doug, you put the canola in three weeks earlier than you normally put it in, so it's going to come in two to three weeks earlier if it's coming in around October 25th. I'll still be up north doing my chickpeas. You've got to get another header, mate. Doug said: Any suggestions? I said: You could try and give Tony Roberts a call. 31. It was at this time that I gave Tony Roberts' number to Doug. I do remember Doug mentioning Garry Brown's name. However, I deny the rest of the conversation as Doug describes it. Doug did not talk to me about starting any barley that early." 1. There is an optimal time to harvest any crop when it is fully grown, fully matured, at its most valuable. However, the optimal time cannot be predicted with any certainty, only with estimates based upon experience. Relevant events appear to be the time of sowing, the time of germination, the condition of the soil at the time of sowing, rainfall patterns, the sun and the wind. The crop can be affected by fertiliser, or the lack of it, by weed growth, by fungus, by pests hence the use of pesticides, fungicides and herbicides. See Mr Muldoon's "Season Plan 2015" for the claimant's properties, which is annexure A to Mr Muldoon's affidavit of 13 February 2017 which is exhibit M. Harvesting can also be affected by many contingencies: rain may contra indicate harvesting but also due to wet paddocks into which heavy harvesting equipment cannot be introduced without the risk of the machinery becoming bogged. Harvesting can also be dependent upon the type of crop being harvested. Some crops are much easier to harvest and can be done more quickly than others. The evidence tells me that a very good crop, a bumper crop with a heavy seed load is harvested at a much slower pace than a moderate crop. Harvesting is also affected by breakdowns which would stop a harvester being used for considerable periods of time. Mr Doust told me and I accept that he would be delighted if a relevant mechanic was only 100 kilometres away when the mechanic needed to be called out. The evidence also tells me that crops should not be harvested when dew is falling and cannot be resumed until the dew has dried off. Time is also spent moving harvesting machinery with in properties, between properties and between districts. Operators of harvesting equipment also need to rest, if there is no available operator to hotseat the harvester. However, long hours are often spent harvesting when the climatic conditions are appropriate. Some of the defendant's business records are annexed to his affidavits and show that some of his employees working for eighteen hours in one particular day. 2. In short, there are so many variables involved that the idea of a harvesting contractor such as the defendant would make a contractual promise to turn up at any property on ten days' notice after the commencement of the harvesting season is completely implausible. Mr Notley, who appeared for the defendant, used the adjective "illogical" but in my view the concept of implausibility is the proper one to apply. Implausibility is the thrust of the defendant's evidence which I have quoted. I have no hesitation in accepting that evidence. In the circumstances the claimant has failed to discharge the onus of proof which lays upon him to satisfy me on the balance of probabilities that a legally binding agreement was made as alleged in the cross-claim. The cross-claim must accordingly fail. Other arguments 1. I turn to submissions concerning the question of liability. In [17] of his written submissions, Mr Notley said this: "...Mr Doust submits that it is particularly relevant in assessing the credibility of the evidence given by Mr Lloyd that Mr Lloyd did not tell Mr Muldoon until late 2015 that Mr Doust had not yet commenced harvesting. Mr Lloyd accepted in cross examination that he spoke to Mr Muldoon frequently in October 2015 (and, in fact throughout the entire year). At [17] of the Muldoon affidavit [exhibit M], Mr Muldoon gave evidence that he had telephone conversations with Mr Lloyd on 2, 9, 14, 15, 16, and 28 October, as well [as] 7 and 10 November 2015. However, at [18] of the Muldoon affidavit, Mr Muldoon gave evidence that Mr Lloyd did not inform him until around 28 October 2015 that Mr Doust had not arrived to commence harvesting. Mr Muldoon confirmed in cross examination that 28 October 2015 was the first occasion that Mr Lloyd informed him that Mr Doust had not commenced harvesting. If Mr Lloyd, in truth, expected Mr Doust to arrive on 23 October 2015 and informed by Mr Doust on 13 October 2014 and 14 October 2015 that Mr Doust would not be there on 23 October 2015, Mr Lloyd would have mentioned this to Mr Muldoon during the telephone conversations on [either] 14, 15 or 16 October 2015." 1. Mr Notley then quoted [16] of Mr Muldoon's affidavit, but that paragraph is in my view not inconsistent with the concession given by Mr Muldoon in cross examination, that it was only on 28 October 2015 that the claimant informed Mr Muldoon that Mr Doust had been unable to turn up. Paragraph [16] of Mr Muldoon's affidavit is this: "Leading up to the harvest, Doug Lloyd did not give any indication that Andrew Doust, his contractor, might not have been available until November. As Doug's agronomist, Doug would have told me if his contractor was not going to be available in time. He would have asked me to help him source a replacement. None of that occurred in 2015. The impression that I got was that everything was organised for harvest, that there was no controversy surrounding it." 1. That, in my view, does not take away the effect of the failure of the claimant to explain the absence of Mr Doust to Mr Muldoon. It merely means that up until 28 October 2015 the claimant was not concerned about the failure of Mr Doust to turn up. After all, by that time, Mr Roberts had started the harvesting work. In essence, I agree with the thrust of Mr Notley's submission. 2. The next issue with which I should deal is the role of telephone records. No one suggests that the telephone records are inaccurate or incomplete. Relevant telephone records are summarised in a document prepared by Mr Le Plastrier, who appeared for the claimant. The document is MFI 8 and it formed part of his submissions. Telephone records may tell us who communicated with whom or who sought to communicate with whom by mobile telephone service. They do not record telephone calls made on landlines. However, the mere fact that a telephone call was made does not mean that anything in particular was said or done. When the telephone records became available to assist either of the parties, in this case to assist the claimant, is unclear. Clearly, he had available to him his own telephone records when he swore his primary affidavit on 31 January 2017, but when he may have had available the other telephone records, those of Mr Doust and Mr Roberts, is not established by the evidence. 3. Valiant attempts were made by learned counsel for the claimant to reconstruct what may have been said in these telephone calls by reference to his clients' instructions as to what had taken place. However, it is only a reconstruction. The telephone records themselves do not, for example, give me one call that may be critical, the timing of the call made by the claimant to Mr Roberts, which Mr Roberts told me was made on a landline when he was harvesting at Mr Paul Johnston's farm. Mr Roberts told me that there was no mobile service cover where he was harvesting at the time, and Mr Johnston came out to Mr Roberts in the paddock and told him that there was a call for him on his landline, and that led Mr Roberts to go back to the Mr Johnston's homestead and talk to the claimant on the telephone. There is no record of when that call was made because, as I understand it, no records of local landline calls are kept, but even if they are, they were not put into evidence. The phone calls in my view do not have the significance that learned counsel for the claimant asked me to give them. 4. Furthermore, I, for one, would not be able to remember who phoned me last week, and what the calls may have been about, and it is doubtful in my view whether anyone could recall what phone calls were made months or years ago, and if so, what was the subject of the call. Furthermore, Mr Le Plastrier's submissions seem to proceed on the basis that the only reason for either Mr Roberts to talk to Mr Doust, or Mr Doust to Mr Roberts, or any call between Mr Doust and the claimant, or the claimant and the defendant, or indeed between any of the three persons involved, concerned only the harvesting that was to be done at the claimant's property. 5. Before moving to Narromine, Mr Doust had lived at Baradine, and before living in Baradine, had lived in Gulargambone. Mr Roberts is by trade an electrician, but also works as a contract harvester. The two gentlemen first met in Narromine when Mr Roberts went to a house rented by Mr Doust to perform some electrical work at the behest of Mr Doust's landlord. There clearly was some conversation at the time, and Mr Roberts and Mr Doust found out that each was a contract harvester and that Mr Roberts' combine harvester was identical to one of the defendant's combine harvesters. Indeed, Mr Doust went on to tell me that at some stage, Mr Roberts did some electrical work for him on his combine harvester. In that way, they had become acquaintances and were working in the same industry. A phone call between Mr Doust and Mr Roberts might have been about things other than the claimant's harvest. According to Mr Roberts' affidavit which was sworn on 11 October 2017, he had known Mr Doust for "a few years". Mr Doust told me that he had only been living in Narromine for the last three years, so that the relationship between Mr Roberts and Mr Doust might only go back to 2013 or 2014. 6. Nevertheless, one might recall from evidence I have quoted from Lloyd earlier today that Mr Doust is alleged to have said, "I've got an old schoolmate, named Tony Roberts". According to Mr Doust and Mr Roberts, they only met in Narromine in the last half decade or less, and it is highly unlikely in those circumstances that the defendant represented to the claimant that Tony Roberts was "an old schoolmate". That throws some doubt in my mind as to the reliability of Mr Lloyd's evidence. 7. Another issue referable to liability is the role of Mr Roberts in these proceedings. The thrust of the claimant's evidence is that Mr Roberts was recommended to the claimant because the defendant had, if not a legal obligation to the claimant, a moral obligation, to provide the name of a contract harvester because of the inability of the defendant to turn up when the claimant wanted him to turn up. However, the thrust of that argument completely ignores another social imperative, of merely helping out because of goodwill rather than because of obligation. There is no doubt that the defendant gave Mr Roberts' name to the claimant and also his telephone number, and there is no doubt that the claimant got in contact with Mr Roberts and arranged for Mr Roberts to do the work that he did do for the claimant. However, the offering of a name and the provision of a telephone number, a name which would be taken very properly by Mr Lloyd as being a recommendation, does not imply or infer, as the claimant asks me to infer, a moral or legal obligation on the part of the defendant to provide the services of another contract harvester. 8. Mr Roberts had no prior experience in harvesting canola. He did not have what is called a "canola front", a tool to be placed on the combine harvester which enables it to harvest the canola. For that purpose, Mr Roberts borrowed the canola front owned by the defendant, and the defendant was kind enough to leave it for Mr Roberts at the defendant's property. That again may be the defendant's merely giving assistance, help, through goodwill to Mr Roberts rather than because of some obligation which the defendant perceived he owed to the claimant. 9. One of the problems with this area of the case is a question of timing, which is almost impossible to work out, by reference either to telephone calls or telephone calls that have not been recorded, and because estimates of time are "fuzzy", to use vernacular. They are merely guesses in many instances. However, it is clear that Mr Doust did not need to use his canola front, and therefore he lent his to Mr Roberts. 10. The other matter to bear in mind in this regard is the long established practice of "back scratching". It was common, at least in the past, for adjoining neighbours in rural properties to help each other out with things such as fencing or the construction of a shed or barn, or the construction of a dam. The problems which arose from the legal point of view was when someone was injured and a claim was made for workers compensation. Back scratching, that is, neighbours helping each other out, is common or at least was common. 11. Equally, one could understand one contract harvester helping out another contract harvester. Sometimes one contract harvester might recommend another to one client he was unable to provide a service to, and in the pious expectation that that contract harvester would return the favour on another occasion. Again, I do not ascribe to the role of Mr Roberts in these proceedings, or his role in the interaction between the claimant and the defendant, anything by way of obligation being displayed by the defendant to the claimant. 12. Another area of the evidence which points in favour of the defendant is what happened on and after 7 November 2015. In his primary affidavit, the claimant said this: "71. On 7 November 2015 Andrew Doust arrived at the property. I had been off property that day and as I returned to the property he had just arrived with his partner [his wife]. He had his ute, and he was fixing a flat tyre when I arrived. 72. I got out of my vehicle and we had a conversation to the following effect: I said: Hi Andrew, I'm glad you've eventually made it, looks like you've had a flat. Tony Roberts is just down there in his header, getting it ready to start harvesting again. He said: That's fine, we'll talk to him later. I said: All right well let's go for a drive around the crops and come up with a plan. 73. We drove around the properties as we had done back in September. As we drove around, I explained the [issues] I'd had with harvesting the canola. Our conversation went on: He said: Yeah, well you should deduct money off Tony for your losses. I said: Well I told him to keep harvesting 'cause I was worried about the rain. He said: Yeah but he's cost you a lot of money. I said: Well, it's actually you that's cost me a lot of money, Andrew, as you didn't come on time. Now I feel as I deserve some form of compensation. He said: Don't worry mate I'll sort it out. I'll be here a couple of days anyway. I said: I've told Tony he can stay because I'm worried about another rain event. He said: I don't like you two talking behind my back about my business. I said: Well you promised a header and it hasn't arrived, I need a couple of headers. He said: Well I'll have one here in a day. You can have two of my headers or just Tony's but it's your choice. Two is better than one. I said: Well we're going to have to talk to Tony. He said: Yeah, I'll talk to him. 74. When we got back to Tony's header, as Andrew was stepping out of the vehicle, his tone of voice became quite aggressive towards me. I heard his partner say to him 'Be calm when you talk to Tony'. 75. He approached Tony and said 'What the fuck do you think you're doing? Taking my contract. You had no right to stay here'. He turned to me and said, 'I'm going back and taking one header out of Coonamble tomorrow and I'll be here tomorrow afternoon'. 76. I got out of the car too and said 'Well I want Tony to at least finish the faba beans and the 90 acres of canola that haven't been windrowed on Ossory'. Both Tony and Andrew separately something to the effect of 'That's fine'. 77. The next morning (8 November) I went across to the header, Tony Roberts was packing up to leave, and had a conversation with him to the following effect: I said: What's going on? He said: I'm very upset with the way Andrew spoke to me yesterday and on the phone. I found another contract. I don't want to get into a fight with Andrew. I said: What about the agreement to finish the rest of the faba beans and canola on Ossory? He said: I'm sorry, but I cannot have any more arguments with Andrew Doust. He's going to be here in a couple of days. 78. Andrew arrived on 10 November very late in the afternoon with his header. He got bogged on our road when he arrived. He went straight to Wilga. As I arrived at Wilga, he had gotten out of the bog and was hooking up his canola front to harvest the canola that hadn't been harvested on Wilga. He said to me 'Tony Roberts hasn't covered the hydraulic ends. These are damaged. I should never fucking loan this to anyone.' 79. He managed to repair it and started harvesting that night. It was not boggy in the paddock. 80. The next day (11 November) we made the decision to swap to the wheat because it had not been affected or damaged by rain. The barley and canola had shot and sprung due to the rain. I suggested harvesting the wheat then in case another rain event occurred. 81. Due to the enormous amount of rain starting on 30 October, we could not get trucks into Wilga to cart the wheat, so we left it on the ground in piles and in silos so we could harvest as much as possible as quickly as possible. 82. I concur with the harvesting records that Andrew Doust has provided in annexure A of his affidavit." 1. The response of the defendant to that evidence is as robust as some of his earlier evidence. In his second affidavit, the defendant said this: "73. I refer to paragraphs 72 and 73 of Lloyd's affidavit. I remember Doug telling me about Tony's canola samples and I said to Doug words to the following effect: 'Mate, you should be talking to Tony about his sample. It's got nothing to do with me.' 74. Otherwise, I deny the conversation as Doug has described in paragraph 73. If Doug had said to me words to the effect that I had cost him a lot of money because I didn't come on time and that he said some sort of compensation - if he had tried that sort of shit on me, I would have told him to 'get fucked' and not done any work for him at all that harvest. 75. I refer to paragraph 25 of my first affidavit which sets out my recollection of the conversation. In addition I remember Doug saying to me words to the effect of: 'Tony's told me that you should be in Victoria doing other jobs and I've told him that he can keep going'. 76. I refer to paragraph 75 of Lloyd's affidavit. I wasn't worried about Tony doing some of the work on Doug's place. I don't have a problem working alongside other contractors. I was cranky with Doug but deny going off at Tony the way Doug describes it. Instead, I remember saying words to Tony and Doug to the effect of: 'I don't know what's going on between you guys and what you're doing, but my business is my business and you guys won't be telling me where I put my headers and when they're going anywhere.' 77. I remember speaking to Tony later about the matter. We had a short conversation in words to the following effect: I said: Mate, why have you been talking to Doug behind my back about me going to Victoria? Tony said: That's bullshit. I didn't say that to him, he's making it up. I said: There's not enough work left here for three headers here. Tony said: Yeah, I agree. I said: I'm happy to bring in one header and work alongside you. 78. I've known Tony for a long time and I believe that he was telling me the truth." 1. On the same issue, Mr Roberts said this: "24. I refer to paragraphs 75 and 77 of Doug's affidavit. Andrew did not talk to me the way Doug says he did, and I didn't say that I was upset with Andrew. However, Andrew did say to me something to the effect of: What are you and Doug doing talking behind my back? I said 'nothing'." 1. One thing is patently clear. The defendant, Mr Doust, is a forthright, blunt, plain speaking man. Having heard him and seen him, I wholly accept that if any protestation had been made to him by the claimant on 7 November 2015 or about that time, that Mr Doust would have told him to "get fucked" and left, or as a policeman would say, decamped, never to return. 2. Insofar as I know that Mr Doust did provide one header to continue the harvesting on Mr Lloyd's property, it is extremely unlikely and, to use the word again, implausible that there was any remonstration by the claimant to Mr Doust on 7 November 2015. In other words, the conduct from that time onward of both the claimant and the defendant is inconsistent with the claimant's allegation of a promise to do something which was contractually binding, and which was breached, causing the claimant the losses which he suffered. Credibility 1. The final thing which I ought say about liability is to express some view of the credibility of the parties, lest the matter go further. Mr Lloyd is clearly a "professional" farmer. He has been tied to his land all his life. As he said, he is the fourth generation of his family farming in the Narromine district. Unfortunately, Mr Lloyd kept no written records of any of the matters now in question. He explained that he did not do so because he is dyslexic. 2. However, it appears to me that the case that he brings against the defendant is largely based on reconstruction. It is clear that he was caught short of cash in order to pay the bill delivered to him by the defendant for the harvesting that the defendant did on his properties in 2015. When the proceedings were commenced, it is clear that there must have been some reconstruction of why he was short of cash. 3. The reason was because of damage to his crops in 2015 and then the case has been reconstructed: that there was a contractual promise made by the defendant to turn up at a specified day and if the defendant had done so the claimant would not have suffered the losses that he did suffer and would have been able to pay the defendant's bill without any problem. Everything points, in my view, to reconstruction as to what has happened in this case. I do not mean a dishonest reconstruction, but reconstructions occur often subconsciously because of an attempt to establish why a person is in the position in which that person finds himself or herself to be. 4. Equally, the defendant is, as I said, a forthright, blunt man who could be described as the "salt of the earth". It is obvious to me that the defendant has spent all his life in rural areas and pursued a rural career. When Mr Doust was telling me where he had lived prior to living at Narromine, he told me, inter alia, that he lived at Gulargambone. However, he pronounced the name "Gulargambone" in such a fashion that I did not understand it until my error was pointed out to me by counsel. When I asked Mr Doust to spell Gulargambone, he was quite unable to do so. One document put into evidence in this case is Mr Doust's diary for 12 October 2015 to show that he started the harvesting season on that day at the property of Mr Kane Younghusband, who was at Baradine and had a harvest of barley. However, what Mr Doust wrote in the diary indicates that his level of literacy is particularly low. 5. The blunt, forthright man would obviously rely mainly on his memory for many things, and I accept the thrust of his evidence, that he would not make any promise to be at any one place at any one time after the commencement of the harvesting season because to make such a promise would be entirely futile and that has been his working experience over some two decades. Equally, it is clear to me that Mr Doust did attempt to over egg the pudding on one occasion, when describing how he had merely hired out the canola front to Mr Roberts, and then it became clear that it was not a formal bailment, as a lawyer would call it, a formal hiring out of the item at a fixed rate per day or per acre, but rather it was merely an exercise in what I have described as back-scratching. 6. I interrupt. I realise that the Court of Appeal requires me to make findings about quantum lest the matter go further, but you obviously don't need me to? NOTLEY: No, your Honour. HIS HONOUR: Do you, Mr-- CULLENWARD: No, your Honour. HIS HONOUR: You don't? You don't want— NOTLEY: I'll just confirm my instructions, your Honour. Your Honour, we don't require findings on quantum. 1. HIS HONOUR: Neither party requires me to give any reasons or make any particular findings referable to quantum. However, I just say this. During the address of Mr Le Plastrier, I formed the view that the claimant was entitled to, if he were successful, $6,624 as assessed by Mr Shepherd for damage to his Snapper canola. I was also persuaded that the claimant would be entitled to $94,827 for damage to or loss of his Victory canola crop. 2. There was then a debate as to what the plaintiff may have been entitled to for his barley crop, and based on the oral evidence of Mr Shepherd, I would have allowed $157,096 for that head of damage. However, when I looked at the figures later on in Mr Le Plastrier's submission and overnight, I found a major discrepancy in Mr Shepherd's computations. The financial loss for the barley crop is encapsulated in a table under s 5.3.3 of Mr Shepherd's report of 25 January 2018. That table is based upon the value of malt barley in the period between 23 and 30 November as being $222.58 per tonne delivered at Narromine. 3. However, it is clear that Mr Shepherd became confused between October and November, and he was then asked to establish the value of the barley in the period between 23 and 30 October. In oral evidence, he told me that that would have increased the value of the barley to $225.58 per tonne delivered at Narromine. However, exhibit R are the Barley bid sheets of the AWB, formerly known as the Australian Wheat Board, which include the bids made by AWB for delivery of barley to the GrainFlow at Narromine. The sums offered ranged between $205 and $201.75. They average out at $202.96. If one adds GST, they come to $223.25, not $225.58. I also looked at MFI 5, which were the bid sheets for the period from 23 November to 30 November. They give an average figure of $191.92, and if one adds GST to that, one gets to $211.10, not to $222.58. Care must accordingly be applied in dealing with the report prepared by Mr Shepherd, because clearly some of the mathematics itself are faulty, and I for one rely on others' mathematical computations because mathematics is not my forte. However, I make that comment because it appeared clear to me when I looked at exhibit R that it could not have averaged out to the same extent that Mr Shepherd gave evidence. However, that question need not trouble me any further, in light of the fact that neither party wants me to make any further findings about quantum. 4. For those reasons, the cross claim is dismissed. 5. [SUBMISSIONS RE COSTS] costs 1. Subject to any earlier cost order, I order the defendant/cross-claimant to pay the costs of the plaintiff/cross-defendant of the statement of claim on the ordinary basis until 27 October 2016 and thereafter on the indemnity basis. The cross-claim is dismissed. I order the cross-claimant to pay the cross defendant's costs. 2. Any other orders sought? 3. NOTLEY: No orders sought, your Honour. 4. HIS HONOUR: Do you want the exhibits to be returned? 5. NOTLEY: Yes, your Honour. 6. HIS HONOUR: Yes. Exhibits to be returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2019