FEDERAL COURT OF AUSTRALIA

CCL Secure Pty Ltd v Berry [2019] FCAFC 81

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    Order 2 made by the primary judge on 17 August 2018 be set aside.

3.    By 4pm on 31 May 2019, the parties file:

(a)    an agreed minute of orders identifying the further orders necessary to dispose of all issues on the appeal so as to reflect these reasons; or

(b)    failing agreement as to the orders, a minute of the orders for which that party contends, together with any affidavit material relied upon in relation to costs and any submissions (not exceeding two pages in length).

4.    Subject to further order, any issue as to further orders is to be determined by the Full Court on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

A    INTRODUCTION

1    This is an appeal against an award of almost $65 million in favour of the respondents on the appeal (Dr Benoy Berry and Global Secure Currency Ltd (GSC)). It is common ground that the award by the primary judge was one of statutory compensation following a finding of misleading or deceptive conduct contrary to the provisions of s 52 of the Trade Practices Act 1974 (Cth) (TPA) although, in circumstances which will be necessary to examine, the primary judge found the behaviour of officers of the appellant, CCL Secure Pty Ltd (formerly known as Securency Pty Ltd (Securency)), amounted to fraud.

2    A singular aspect of the dispute is that the impugned conduct allegedly occurred at one meeting held prior to and over an Indian repast attended in London by Dr Berry (an agent of Securency in the Federal Republic of Nigeria and territories within the Economic Community of West African States (ECWAS)) and Mr Peter Chapman (a director of business development of Securency), on 24 February 2008 (February Meeting). The primary judge (in the judgment below (J) at [13]) identified the “central issue” as to liability as being precisely what was said at the February Meeting. There were no others present, and no contemporaneous records were kept. Oral evidence was adduced by the two participants, over nine and a half years after the event.

3    The determination of this “central issue” led to what was described by Securency, accurately, as the “central finding”, being that two representations were conveyed by Mr Chapman to Dr Berry at the February Meeting.

4    The grounds of appeal were prolix, diffuse and overlapping but were ultimately placed by senior counsel for Securency (who came into the appeal shortly before the hearing), into seven groupings as follows:

(1)    Grounds directly impugning the central findings;

(2)    Adverse findings not pleaded and/or not put to relevant witnesses;

(3)    Errors of principle affecting fact finding;

(4)    Findings that there was “no evidence” when there was evidence, or otherwise misstating the evidence, in the course of making credit findings;

(5)    Discrete errors supporting adverse credibility findings;

(6)    Reliance grounds; and

(7)    Damages.

5    It is convenient to deal with the first five groupings of grounds initially as they all directly or indirectly seek to impugn the central findings. Other than the grounds relating to reliance and damages, each of the grounds are advanced in aid of, or are subsidiary to, this primary argument (although some of the attacks on individual factual findings are, at best, of marginal relevance).

B    RELEVANT BACKGROUND TO APPEAL

6    It is unnecessary to detail the factual background to the dispute in any real detail. What follows is sufficient to understand the issues that arise on the appeal.

7    Securency was the manufacturer and designer of polymer technology, which was commercialised by Securency in association with the Reserve Bank of Australia including by the production of polymer banknotes. Efforts had been made as early as 1999 to obtain an order from the Central Bank of Nigeria for the production of polymer-based banknotes for Nigerian currency.

8    Dr Berry, a director and shareholder of GSC, is an Irish national of Indian descent with substantial business experience in Nigeria. As a result of his experience, Dr Berry was well-placed to assist Securency in its efforts to promote the introduction of polymer banknotes in Nigeria. Dr Berry began working on behalf of Securency which initially involved travel to Nigeria and attending meetings with key personnel, including with the Governor of the Central Bank of Nigeria in 2003. Following this meeting with the Governor, Dr Berry reported to Mr Hugh Brown (the director of sales and marketing of Securency) and Mr Chapman his view that the only way that Nigerian authorities would be convinced to change from paper banknotes to polymer banknotes would be for production of banknotes, and ultimately the polymer substrate through a process called opacification, to be undertaken in Nigeria.

9    Although throughout the period 2003 to June 2006, Dr Berry did not have any formal contract in place, Securency described Dr Berry as its partner (J[51]-[52]) when negotiating the adoption of polymer notes in Nigeria. Dr Berry acted in that capacity from the outset on the basis of his belief that, in the long term, an opacification plant would be built in Nigeria with the participation of the Nigerian Government and Dr Berry (J[7]).

10    In June 2006, Dr Berry met with Mr Brown in India to negotiate a formal contract and in or around August 2006, the parties executed an agency agreement. A slightly revised version of this agreement was re-executed by the parties in or around March 2007. It is this version of the agency agreement (Agency Agreement) which is presently relevant.

11    The material terms of the Agency Agreement were identified by the primary judge at J[93]. It will be necessary to make further reference to its provisions when considering the grounds of appeal relating to damages, but the provisions relevant for background purposes are as follows:

(1)    Dr Berry and GSC were named as the agent of Securency in Nigeria and ECWAS territory;

(2)    Dr Berry and GSC would use their best endeavours as agent to advertise, market, promote and obtain orders in the territory for Securency’s product of opacified polymer (cl 2.2);

(3)    the scope of the agency was restricted to advertising, marketing and promoting the product in the territory, obtaining orders from customers located in the territory, submitting them to Securency and any matter incidental to those tasks (cl 2.3);

(4)    the Agency Agreement commenced on 2 February 2006 and continued until the Expiry Date “unless terminated earlier in accordance with this Agreement” (cl 3.1);

(5)    the Termination Date was defined (in cl 1.1) as meaning the earlier of the “Expiry Date” (being 30 June 2008 “automatically renewed for further terms every two years unless terminated as per the Termination clauses contained in the contract”) or the date upon which “this Agreement is terminated”;

(6)    the various Termination clauses provided for termination upon:

(a)    Securency giving Dr Berry and GSC 60 days’ written notice (cl 2.6);

(b)    30 days’ written notice given by either party to the other party, which notice could be given at any time on or after the date which was 30 days before the Expiry Date (cl 3.2);

(c)    an event of default or insolvency occurring under cl 16;

(7)    if Securency received an order for the product from a customer located in the territory, “it must forward a copy of the order to [Dr Berry and GSC] as soon as practicable” (cl 5.1(c));

(8)    commission was payable on invoice sales (defined in cl 1.1 to mean, relevantly, the amount of all invoices rendered by Securency and paid by customers relating to sales in the territory) in accordance with a formula set out in cl 8;

(9)    on the expiry or termination of the Agency Agreement, Dr Berry and GSC were not entitled to payment of any commission in respect of invoice sales from the date of expiry or termination (cl 17.1(a));

(10)    the rate of commission was 15% (sch 1).

12    The primary judge found that Securency, by its senior employees and officers, set out to deceive the Nigerian Government and Dr Berry by making representations that an opacification plant in Nigeria was in the serious contemplation of Securency. Securency used the promise of the opacification plant to encourage further orders of polymer from Nigeria, including adopting polymer in further denominations, without intending any definite commitment to proceed with constructing a plant (J[11] and [147]).

13    In particular, in November 2007, shortly before the February Meeting, Dr Berry attended a meeting in London between the Governor of the Central Bank and Mr Brown. At that November meeting, the primary judge found that the Governor made clear that he required a letter from Securency with a commitment to move towards establishing an opacification plant in Nigeria (J[10]), a matter the Governor regarded as being of great significance (J[140]-[143]).

14    After the November meeting, a draft of a misleading letter was prepared to satisfy the Governor’s requests (J[145]) and was provided to Dr Berry (although he was unaware it was deceptive (J[144])). The primary judge found that this misleading conduct of Securency was not only an indictment upon its business practices (and that of Mr Brown (J[137]-[149])), but was important contextual background to assessing what occurred at the February Meeting.

15    Another important matter of context was that by the time of the November meeting, but unknown to Dr Berry and GSC, efforts were being made by Mr Chapman to replace Dr Berry and GSC (J[124]-[125]) with the company that became known as SPT Limited (SPT). It will be relevant to come back to some aspects of the evidence as to the intended replacement of Dr Berry and GSC when considering damages, but it presently suffices to note that the primary judge found that at the time of the November meeting, just as revenues were flowing to Dr Berry for the first time after years of effort, Mr Chapman was getting the “ducks in a row” (J[179]) by creating a paper trail that falsely asserted Dr Berry was ill (J[114], [116], [169], [170], [191], [294]) as a means of justifying the proposed termination of Dr Berry and GSC.

16    At the February Meeting, Dr Berry signed a letter (termination letter) on behalf of himself and GSC that Mr Chapman had brought with him. The termination letter was in the following form:

Securency Agency Agreement – Nigeria

I refer to our recent discussions and confirm that the Agency Agreement with Securency dated 2nd February 2006 was terminated in accordance with the terms of the Agreement as from 31 December 2007.

Kindly acknowledge the formal termination of the Agency Agreement by signing and returning the duplicate copy of the letter attached.

Yours faithfully

John Ellery

Chief Financial Officer

Securency International Pty Ltd

17    At J[184]-[189] the primary judge made a number of findings as to what occurred at the February Meeting. These critical findings are reproduced in full at [39] below, but based upon what his Honour found occurred at the February Meeting, the primary judge (at J[303]-[304]) concluded that he was “comfortably satisfied” that Mr Chapman made:

(1)    a representation that if Dr Berry and GSC agreed to terminate the Agency Agreement, the existing terms would continue, and the parties would make a new agreement on those terms; and

(2)    a further representation that if Dr Berry signed a memorandum of understanding or partnership agreement for the goal of establishing an opacification plant in Nigeria prepared by Securency, Mr Chapman would cause it to be sent to Securency in Australia and it would execute that document.

18    As noted above, these were the central findings in the liability aspect of the case and are the focus of this appeal as to liability.

C    GROUNDS RELATED TO THE CENTRAL FINDINGS

C.1    Introduction and Relevant Principles

19    Before turning to the large number of grounds which directly or indirectly impugn the central findings, it is worth revisiting some well-established principles of appellate review, which assume importance in the disposition of this appeal.

20    In Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at 686-687 [43], the High Court (French CJ, Bell, Keane, Nettle and Gordon JJ) observed, by reference to a series of well-known cases (Devries v Australian National Railways Commission (1993) 177 CLR 472, Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 and Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357) that an intermediate court of appeal conducting, such as here, an appeal by way of rehearing, is bound to conduct a real review of the evidence given at first instance and the judge’s reasons to determine whether the judge has erred in fact or law and:

… (i)f the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.

21    Reflecting the fact that these observations were footnoted with references to the cases identified above, in Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93; (2018) 358 ALR 683 at 686 [3] Allsop CJ (Markovic J agreeing and Perram J to similar effect at 697 [54]), explained that this approach did not involve any departure from long-standing principle and that nothing in Robinson Helicopter means that any finding made by a trial judge can only be interfered with if the expressions referred to by the High Court derived from Fox v Percy are satisfied. At 694-697 [43]-[54] Perram J (Allsop CJ and Markovic J agreeing) discussed the nature of appellate review, commencing with findings which involve an evaluative assessment of unchallenged facts. At 695 [45]-[47] his Honour said:

How should this Court in the exercise of its appellate jurisdiction approach the review of such findings? One begins with the proposition that this Court’s appellate jurisdiction involves an appeal by way of rehearing (Branir Pty Ltd v Owston Nominees Pty Ltd (No 2) [2001] FCA 1833; 117 FCR 424 (‘Branir’) at 434-435 [20] per Allsop J, Drummond and Mansfield JJ agreeing). Next, it is established that in an appeal by way of rehearing what is involved is the correction of error (Branir at 435 [22]). Error is not demonstrated merely because the appellate court disagrees with the primary judge. At the risk of stating the obvious, error is demonstrated where it is shown that some aspect of the trial judge’s reasoning is wrong. How the trial judge’s reasoning may be shown to be wrong depends on what that reasoning is about (Branir at 435 [24]). At one extreme, where no deference at all is shown to a trial judge’s conclusions, are errors of law. An appellate court is not influenced in its view of the law by the conclusions of a trial judge and, in this case, mere disagreement on the part of the appellate court with the trial judge will justify the conclusion that an error has been made.

At the other extreme are a trial judge’s finding of fact where the credibility of witnesses is involved. In such cases, it is accepted that the trial judge enjoys very considerable advantages over an appellate court by reason of having seen the witnesses and having been immersed in the milieu of the trial. Where this is so it is commonly said that the appellate court will not depart from the trial judge’s conclusions unless they are shown to be wrong by reference to ‘incontrovertible facts or uncontested testimony’ (Fox v Percy [2003] HCA 22; 214 CLR 118 (‘Fox v Percy’) at 128 [28]) or otherwise be ‘contrary to compelling inferences’ (Fox v Percy at 128 [29]).

Between these two extremes lies a grey area in which the amount of deference shown to a trial judge’s conclusions is a function of the relative advantage enjoyed by the trial judge over the appellate court. That the appellate court can review in such cases is not in doubt. Speaking of the question of when an appellate court can review inferences drawn from facts already found, the High Court explained it this way in Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551:

‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.’

22    Here the liability grounds of appeal all relate directly or indirectly to errors in the fact-finding process which led to credibility-based fact findings. Given the pivotal issue was a disputed account as to whether the impugned conduct occurred at a meeting between two people with no other witnesses, the liability case turned upon an assessment as to whether Dr Berry’s account was to be accepted. Once this is appreciated, given there was conflicting evidence as to this account, this Court in the exercise of its appellate function will not depart from the primary judge’s conclusion just because the appellate court may disagree with the primary judge, but only if the central findings are shown to be contrary to compelling inferences.

23    The consideration of the grounds said to justify appellate intervention in accordance with these principles must start by identifying the case pleaded by Dr Berry and GSC as to what occurred at the February Meeting, and the process of reasoning that led to the central findings being made.

C.2    The Relevant Pleaded Issue and the Credit Based Findings Generally

24    The proceeding was commenced almost six years after the February Meeting. The primary judge required evidence in chief to be adduced viva voce and, as noted above, Dr Berry gave his account of the February Meeting almost a decade after it occurred.

25    This no doubt presented challenges for the primary judge, but those challenges were compounded by the fact that, for reasons examined in detail below, Dr Berry’s oral account differed in significant and material respects from what had been pleaded at various times during the course of the proceeding.

26    Relevantly, in the ultimate version of the pleading, the second further amended statement of claim (2FASOC) at [26]-[26B], a course of conduct is pleaded as having occurred at the February Meeting. For reasons that will become evident, it is necessary to set this out with some specificity. The pleaded conduct was that Mr Chapman:

(1)    made the Renewal Representation to Dr Berry, being that: “if [Dr Berry and GSC] agreed to terminate the [Agency] Agreement, the existing terms would continue and a new agreement would be made between the parties” (2FASOC [26]); and

(2)    provided a document (called the “New Agreement” at [26A]) and, “[a]t the time of handing” this document to Dr Berry, Mr Chapman conveyed the New Agreement Representation, being that: “if you [Dr Berry] signed this now [being the new agreement handed to Dr Berry], I will take it back to Australia and have it executed by Securency straight away” (2FASOC [26B]).

27    Significant confusion has arisen by the loose use of the term “new agreement” in this case to refer to different things. It will be necessary to examine the varying ways Dr Berry and GSC have articulated their case as to which documents, if any, were present at the February Meeting, but the case at the hearing before the Full Court was that there were two documents present. One was the termination letter, which was said to be routine and would not affect a replacement or “new” agency agreement being put in place, and the other document being an agreement called, in the evidence, a partnership agreement. To avoid further confusion, in the balance of these reasons, we will eschew reference to the “new agreement” and refer to the pleaded New Agreement Representation as the Second Representation.

28    The primary judge at [14] identified that the “decisive factual issue” was:

…whether, as Securency asserted based on Mr Chapman’s evidence, Dr Berry simply signed [the termination letter] in response to Mr Chapman’s telling him, “This is the letter of release from the agency agreement”, before the two men proceeded to have a pleasant interchange about other matters for about two hours, over a good lunch prepared by Dr Berry’s Indian chef or whether, as Dr Berry and GSC asserted, Securency, through Mr Chapman, made one or both of the… false representations which induced Dr Berry to act as he did…

29    This was resolved by his Honour (at J[22]) accepting Dr Berry’s account and, as noted at [17] above, finding that the Renewal Representation had been made as pleaded; and that a representation described as “to materially the same effect” as the Second Representation had also been made.

30    In making his credit findings and accepting Dr Berry’s account, this is not a case where his Honour was vexed in deciding whether he preferred one of two, apparently plausible, accounts. The primary judge was in no doubt as to who emerged as the more reliable historian of events. His Honour found Mr Chapman to be disingenuous, tricky, unbelievable, slippery, a backdater of documents, a fabricator and generally dishonest. These were serious and emphatic findings. At J[168], the primary judge said he was led:

…to the firm conclusion that he was a person in whose uncorroborated evidence I could not place any confidence or credibility. In my opinion, he is a person who is and was prepared to say or do anything in his dealings with others, including Dr Berry (and GSC), regardless of what the standards of ordinary reasonable people as to honesty and integrity require.

31    By way of contrast, the primary judge found that Dr Berry was a generally honest witness doing his best to tell the truth about events that had occurred. He was described as a successful entrepreneur and an intelligent and savvy businessman. Overall, the primary judge found Dr Berry to be credible. Ultimately, in a finding which rests at the heart of this appeal, his Honour found (at J[22]) he was “satisfied affirmatively that Dr Berry’s account was more probably than not true”.

32    We now turn to the evidence before the primary judge detailing Dr Berry’s account.

C.3    The Relevant Evidence

33    As there were no contemporaneous records, nor affidavits, to identify what Dr Berry said about the events at the February Meeting, it is necessary to consider both Dr Berry’s evidence in chief and under cross-examination.

34    The following table sets out how each representation was finally pleaded and “particularised” and the evidence pointed to by Dr Berry and GSC as having made out each of these representations drawn from the oral testimony of Dr Berry in chief. The “particulars” are not particulars in the usual sense; for reasons that are not readily apparent, those acting for Dr Berry considered it appropriate to incorporate Dr Berry’s anticipated evidence (set out in a served but unfiled proof of evidence) as particularisation of the material facts pleaded. This is not to say that the “particulars” were unimportant. When taken together with what is pleaded at 2FASOC [26]-[26E], they identify what was contended to have happened with real specificity. The case advanced was that the Renewal Representation was made while referring to the intention to enter into a future renewal agreement, but that the Second Representation was made contemporaneously with the provision to Dr Berry of the document being the then unsigned partnership agreement.

35    The representation allegations at trial and the evidence given in chief, with matters of particular significance emphasised, were as follows:

36    In cross-examination in relation to the Renewal Representation, Dr Berry gave evidence that Mr Chapman had said that “our existing terms would continue” (T154.37 29/08/17). By this he meant “under the new agreement” (T154.40), but he drew an apparent contrast between these terms (of a proposed renewal agreement) and the partnership agreement which was “different in every respect” from his existing Agency Agreement (T155.37-38 29/08/17; see also T156.3 29/08/17).

37    In cross-examination in relation to the Second Representation, Dr Berry gave the following evidence (T152.22-28 29/08/17) as to the partnership agreement:

[Counsel for Securency] And that. Dr Berry, is because it [that is, the partnership agreement] does not exist, does it? It is a figment of your imagination, to put it kindly?—The document I signed was not the same document that’s here. I signed a document, gave it back to Peter, and Peter was going to give it on to get to Australia. Hugh was travelling to Australia; he was going to carry it. There were some issues that we needed to discuss on that, which I thought were longer issues. As soon as the document got to Australia, we would begin discussions.

38    Somewhat surprisingly in the light of this evidence, later evidence given by Dr Berry was that the partnership agreement was a draft that could be “corrected or modified” (T169.13-18 29/08/17) and required a final sign off by all parties (T169.18 29/08/17; T169.41-44 29/08/17); indeed it was said to be “incomplete” in fundamental respects (T169.46-170.3 29/08/17), and “fundamentally deficient” for Dr Berry’s purposes (T171.11-16 29/08/17). Further confused and confusing aspects of the evidence of Dr Berry concerning the partnership agreement will be examined in detail below.

C.4    The Findings as to the February Meeting

39    In making the central findings that the representations were conveyed, his Honour referred to earlier factual findings he had made at J[184]-[189] which, given their importance, are worth setting out in full (other than internal references). At the risk of stating the obvious, in reading these paragraphs it is important to bear in mind that the “second document” to which his Honour refers, is the partnership agreement:

Dr Berry’s account of the discussion at his home on 24 February 2008 was as follows. He said that the two men ate an Indian lunch in the conservatory of his house. He said that they spoke over lunch about the technology transfer, involving the construction of an opacification plant in Nigeria. Mr Chapman told Dr Berry that he had brought some documents with him, drafted by lawyers in Australia, that he would show Dr Berry once they finished lunch and that “we eventually would be able to move forward on the partnership and the opacification plant”.

Whe[n] they finished lunch, Dr Berry said they sat down to discuss matters that Governor Soludo and Mr Chapman had spoken about in Nigeria which made it urgent that Dr Berry sign both the documents Mr Chapman brought “so we could have this put in place very quickly”. He said that Mr Chapman:

showed me the two documents. One was an agency termination, which he said, “We’ve got to ... this is routine. We have to bring this to an end before the partnership agreement can be put into place. This [being the second document] is the partnership agreement that has been drafted by the lawyers in Australia”. So all I needed to do was to sign it and they would take it back and go through the normal routine of endorsing it and sending it back to me. (emphasis added)

Dr Berry said that Mr Chapman told him that their existing financial terms would continue. Dr Berry said that after they had chatted for 30 to 45 minutes he signed the termination letter in the form set out at [13] and [183] above. He said that the second document was not like the draft memorandum of understanding described at [150] above but that “I signed it and gave it back to Peter, as is normal”. He said that normally lawyers in Australia had drafted documents that he “would look at …, sign off on it. It would go back to Australia, where it would be endorsed by signing, then sealed and sent back” to him. Dr Berry described the second document as follows:

The content of the document … was dealing specifically with how we were going to proceed with the partnership agreement and how we were going to lay the foundations of the opacification plant. It also dealt very clearly with the fact that the Reserve Bank of Australia was not going to participate … in investing in Nigeria and would not want a share of this, but they would instead want to get a royalty on every substrate … that was supplied and then pacified.

Dr Berry said that he did not read the second document, but only flicked through it and that it “must have been about 35, 40 pages”. He looked for the parts that dealt with the technology transfer, its timing and “what our total investment was going to be”, while chatting with Mr Chapman “about all sorts of things”, including “how soon we can get this in place” and why the second document provided that the price that he or GSC would be investing for constructing the opacification plant had increased to USD35 million. He said that “about 15, 20 minutes” after Mr Chapman handed the second document to him, he “would have ... signed it”.

Dr Berry said that Securency would supply the Nigerian opacification plant with the polymer film (hence, as I understood him, the RBA as a joint venture partner in Securency would benefit from that sale). After opacifying the polymer, the plant would supply that (substrate) product to the Mint, so that it could print polymer banknotes that the CBN had ordered. He then gave this evidence in chief:

And, Dr Berry, did Mr Chapman say anything to you about the topic of your commission payments? --- Yes, very distinctly. ... when he asked me to sign the termination ... he said to me that ... this is routine and this does not affect our agreements in any way whatsoever for the continuing supply of polymer. (emphasis added)

Dr Berry said that he had no copying facilities at his home and Mr Chapman was to send a copy of the second document back to him the next day. He denied fabricating his evidence about the existence of that document and what he did in relation to it at the meeting on 24 February 2008. He said that subsequently he had not demanded that Mr Chapman provide him with a copy of the second document “because that was not how I communicated with Peter”. Indeed, when challenged that he had not ever written to Mr Chapman asking for a copy of the second document, he said that since meeting Mr Chapman in 2000 and up to 2008, “I had never written to him and asked him for any document”. I accept Dr Berry’s evidence that in giving those answers, he understood (as did I) that he was being asked about writing a letter. He accepted that he had made requests for documents in text messages but said, “It’s not writing”. And, based on Dr Berry’s past experience of Securency taking its time to finalise, execute and return the agency agreement and Mr Chapman’s reference to the “routine” nature of what he was doing at Dr Berry’s home on 24 February 2008, I accept that Dr Berry handed over the signed second document without taking a copy or feeling perturbed that he did not receive a copy soon after...

(emphasis in original)

40    Having identified the pleading and particularisation of the representations, the evidence adduced, and the adjectival findings made by the primary judge, it is next appropriate to identify the principles informing how his Honour was to approach the task of determining whether Dr Berry and GSC had established that one or other of the representations were made and that they were wrongful.

41    It is important to recall that this process logically involves two stages: first, what were the relevant facts or circumstances (in this case, most critically, what happened at the February Meeting) and secondly, the consideration as to whether conduct as found to have occurred has a particular character. Whether conduct is misleading or deceptive is a question of fact to be determined in the context of the evidentiary findings as to the alleged conduct and all relevant surrounding facts and circumstances: Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 199 per Deane and Fitzgerald JJ. In this regard, as French CJ noted in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at 319 [26], characterisation of the conduct proceeds by reference to the circumstances and context of the questioned conduct as found (including the state of knowledge of the person to whom the conduct is directed, to the extent relevant).

42    Although in this case his Honour found fraud, that legal characterisation is also one which is based on the logically anterior step of identifying what actually occurred.

43    Many misleading and deceptive conduct cases are less about what occurred but rather the proper characterisation of conduct; as no doubt by now is already evident, this is a case which turned on what actually occurred and, more specifically, on his Honour’s central findings as to what was conveyed.

C.5    The Principled Approach to Fact Finding

44    The relevant principles are well-established, not in dispute and were referred to by the primary judge, but it is worth revisiting them given both their importance to the consideration of the appeal and the submission that his Honour could not have reached the requisite level of satisfaction so as to sustain the findings made if those principles were applied properly (see Grounds 1 and 8 dealt with at C.14 below).

45    After referring to the very significant effluxion of time since the February Meeting and the tendency of persons to view past events more favourably to their own interest than a detached observer, his Honour directed himself to the seminal caution of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 as to proof in a case where reliance is placed upon spoken words as making out a case of misleading and deceptive conduct. At 318-319, the Chief Judge in Equity explained, in an oft-quoted passage:

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 described [sic] as “misleading”) within the meaning of s 52 of the [TPA]…, it is ordinarily 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 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.

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.

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the [TPA] ... in the absence of some reliable contemporaneous record or other satisfactory corroboration.

(emphasis added by primary judge)

46    The primary judge then made reference to the truth that a mere mechanical comparison of probabilities, independent of any belief in the reality of a fact, cannot justify a finding that it occurred: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132; (2007) 162 FCR 466 at 479-482 [29]-[38] per Weinberg, Bennett and Rares JJ.

47    It is worth pausing to state that the central task for the primary judge on liability was assessing whether Dr Berry and GSC had proved, on the evidence adduced, that the pleaded contravening conduct had occurred in accordance with s 140(1) of the Evidence Act 1995 (Cth) (EA). Relevantly, in doing so, the court was to take into account: (a) the nature of the cause of action; (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. These mandatory considerations specified in s 140(2) of the EA reflect the need to be mindful that the more serious the allegation or the consequences of what is contested, the more a court will have regard to the strength and weakness of evidence in coming to a conclusion: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia at 480 [30]. Additionally, as the primary judge recognised, a party bearing the onus will not succeed unless the whole of the evidence establishes a reasonable satisfaction on the preponderance of probabilities such as to sustain the relevant issue (Axon v Axon (1937) 59 CLR 395 at 403 per Dixon J); and the “facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: Jones v Dunkel (1959) 101 CLR 298 at 305 per Dixon CJ.

48    Hence the usual difficulties of proof for a party relying upon spoken words as the foundation of a cause of action alleging misleading conduct to which McLelland CJ in Eq referred, inform the consideration as to whether the evidence forms a basis upon which actual persuasion of a definite conclusion can be affirmatively drawn.

C.6    Factors Relevant to Actual Persuasion and Approach to Assessing Error

49    While making no complaint as to his Honour’s identification of the principled approach, Securency point to a number of matters which it contends undermine the central findings to such an extent that, notwithstanding the primary judge’s advantages, the proper application of principle should have prevented the primary judge being satisfied the representations had been made and hence the primary judge’s conclusion to the contrary is demonstrably wrong. These seven matters are set out below.

50    First, when attention is directed to Dr Berry’s oral evidence as set out above, taken at its highest, it was not capable of supporting the making of the pleaded case as to the making of either the Renewal Representation or the Second Representation (Ground 1).

51    Secondly, an adverse inference as to Dr Berry’s credibility was not drawn notwithstanding “multiple and radically inconsistent accounts” of the February Meeting contained in different iterations of the pleadings and particulars (Ground 3).

52    Thirdly, the primary judge did not sufficiently take into account the fact that, as was found at J[20], Dr Berry had lied in his evidence about visiting Nigeria in the period between mid-2006 and mid-2010 (Ground 12).

53    Fourthly, it is said Dr Berry’s account was uncorroborated by contemporaneous documents, including various SMS messages following the February Meeting, and was implausible in a number of respects (Grounds 14 and 27).

54    Fifthly, contrary to the primary judge’s finding at J[309], there were entirely rational reasons why Dr Berry would agree to the termination of an agreement that could be terminated without cause on 60 days’ notice (Ground 19).

55    Sixthly, there are numerous attacks made by Securency relating to what are said to be errors colouring the assessment of the credibility of Mr Chapman (Grounds 5, 6, 13, 17, 18, 20, 21, 22, 23, 24, 25 and 26).

56    Seventhly, even assuming the primary judge’s adverse assessment of Mr Chapman’s credibility was not undermined by error, it is said the primary judge fell into error (at J[35]) because he held that Dr Berry’s evidence should be accepted as reliable and truthful because Mr Chapman lacked credibility (Ground 2).

57    We will deal with each of these seven contentions in turn in C.7 to C.13 below. It is necessary to stress at the outset, however, that each ground has a common thread: each error is said to directly or indirectly undermine the “comfortable satisfaction” of the primary judge as to the central findings. However, Securency does not place all its eggs in one basket: it contends that although a particular ground may not be fatal to the central findings when considered in isolation, it may, when combined with other factors, reach a level where error is established (Grounds 1 and 8). It follows that it is necessary, in C.14 below, to consider the combination or culmination of factors identified to the extent they have some substance.

C.7    The Pleaded Representations and the Evidence Adduced

58    As is already evident from the table reproduced at [35] above, there are differences between the particulars provided for the Renewal Representation and the evidence adduced from Dr Berry orally. Although these particulars were not subjoined to 2FASOC [26B], which was the paragraph pleading the Second Representation, the relevant paragraphs particularised in relation to 2FASOC [26], were sufficiently broad so as to notify the evidence that was to be adduced in support of the Second Representation.

59    It will be necessary to refer to the significantly different accounts given as to both representations in C.9 below, but the present issue is whether the factual findings at J[184]-[189] (reproduced at [39] above) are consistent with the ultimate pleaded case and whether the oral evidence given by Dr Berry, taken at its highest, was capable of making that case out. That is, whether the evidence adduced could ground the findings that the pleaded representations were made. This is a logically distinct question as to whether his Honour should, given the balance of the other evidence and the other matters raised by Securency, have reached a level of reasonable satisfaction as to whether one or other of the pleaded representations were conveyed.

60    In considering this issue it is appropriate to deal with each representation separately.

61    As to the Renewal Representation, although the evidence in the witness box was not expressed with anything like the clarity particularised, if the evidence identified in the table reproduced at [35] above was accepted, it was open to find that Mr Chapman said to Dr Berry that what was happening was routine, that the termination letter had to be signed before other arrangements were put in place, and nothing about what was occurring would affect his entitlements to commission to the extent he was entitled to it under the Agency Agreement. What was being conveyed, in substance, was that if Dr Berry and GSC agreed to terminate the Agency Agreement, the existing terms would continue pursuant to the terms of some form of new arrangement between the parties reflected in a renewal agreement. If accepted, this was sufficiently similar to what was pleaded in the 2FASOC at [26], to make out the Renewal Representation, and was not undermined by the evidence given in cross-examination; indeed, Dr Berry was clear that the existing terms (including, importantly, as to commission) would continue (see [36] above). Contravening conduct was capable of being found, depending upon whether his Honour was able to be satisfied that the evidence of Dr Berry should be accepted.

62    As will be explained in detail in C.8 below, the relationship between the foreshadowed renewal agreement and the partnership agreement caused some confusion and, at times, the cross-examination is difficult to follow. The evidence at trial was that the partnership agreement, drafted by lawyers in Australia, dealt with the establishment in Nigeria of an opacification plant and also dealt with how the Reserve Bank would be entitled to a royalty on substrate supplied and opacified (T127.45; T129.15-23 29/08/17). The partnership agreement would be sent to Australia for signing, then sealed and sent back to Dr Berry (T128.39-40 29/08/17).

63    The primary judge did not find that the Second Representation was conveyed as pleaded. What his Honour relevantly found (at J[303]-[304]) was three things. First, that a representation was conveyed that if Dr Berry signed a memorandum of understanding or partnership agreement for the goal of establishing an opacification plant in Nigeria prepared by Securency, Mr Chapman would cause it to be sent to Securency in Australia and it would execute that document. Secondly, it was then said that this representation was materially to the same effect as the Second Representation as pleaded (which his Honour had defined, in an attempt to avoid the confusion introduced by the pleading, as the “opacification plant representation”). Thirdly, the primary judge then explained that the reason why the representation conveyed was materially similar was because Mr Chapman proffered the partnership agreement as being:

…prepared by Securency (and thus an offer capable of acceptance by Dr Berry and GSC) which, if Dr Berry (and GSC through him) accepted it by signing it, Securency would formalise in due course – as a matter of “routine” – by executing it. This occurred in the context in which Mr Chapman also persuaded Dr Berry to sign the termination letter, namely that the two men were engaged in a bit of “routine admin”. Dr Berry had for the preceding four years been seeking, as had the Nigerian authorities from President Obasanjo down (including Governor Soludo), that Securency agree to Dr Berry (and GSC), with or without Securency itself participating, arranging the construction and operation of an opacification plant in Nigeria. Mr Brown and Dr Berry had met Governor Soludo in late November 2007, when he had insisted, forcefully, that he wanted Securency to act on the matter of the opacification plant.

64    Despite the confusion in the evidence and the fact that Dr Berry did not come up to his proof in all respects, his evidence, taken in isolation, was capable of supporting a finding that a representation similar to the Second Representation was made.

65    It follows that Dr Berry’s evidence was capable of making out both representations. Whether his Honour should have accepted that evidence as to one or other of the representations, is the subject of consideration below.

C.8    The Evolution of the Relevant Allegations

66    Leaving aside the disparity between the way in which the representations were particularised and the oral evidence adduced by Dr Berry, Securency submits that a “major error underpinning the judge’s purported attaining of the requisite degree of satisfaction” was the failure to draw a significant adverse inference as to Dr Berry’s credibility and the likelihood of the representations as pleaded having been made from what are described as “the multiple and radically inconsistent accounts” of the February Meeting, and the inconsistency in turn between those versions of events and Dr Berry’s oral evidence in chief. In assessing this submission, it is necessary to wade into the detail of the evolution of the relevant allegations.

67    First, in the statement of claim filed in December 2013 (SOC), in contrast to the notion advanced at trial that Dr Berry signed the termination letter and reviewed and then signed the partnership agreement at the February Meeting, it was not alleged that any document was signed. Moreover, it was asserted that Mr Chapman brought no documents with him to the February Meeting. The particulars subjoined to SOC [27] were:

Mr Chapman attended [Dr Berry’s] house and said words to the following effect. “We are in the process of carrying out some internal house-keeping on our agency agreements. It’s something the lawyers want to do. We will issue a new agreement to you this week on the same terms but before the agreement can be replaced we need you to first agree to terminate your current agreement. I have forgotten the letter of termination which you must sign and return to us but I will email it to you later. When we receive the signed termination, we will forward the new agreement to you for signing.”

(emphasis added)

68    Additionally, the first version of the case proceeded on the basis that it was the renewal agreement that was the only “new agreement” that was spoken about: see the particulars subjoined to SOC [31].

69    Secondly, in the amended statement of claim filed in February 2014 (ASOC), Dr Berry and GSC added to the particulars of the same averment (by then ASOC [26]) a reference to a letter from Mr Chapman to Dr Berry dated 16 March 2008. However, this letter does not refer to any agreement being signed. The particulars of the only representation then pleaded, being the Renewal Representation, were otherwise identical to that in the SOC (extracted at [67] above).

70    As can be seen, confusingly, there was only one “new agreement” spoken about, being the proposed renewal agreement.

71    Thirdly, by the time a further amended statement of claim was filed in December 2015 (FASOC), the reference to the 16 March 2008 letter was deleted. The allegation was transformed to Mr Chapman bringing two copies of the “new agreement”, which was said (at particulars to FASOC [26]) to be on “substantially the same terms as your current agreement”, and (at FASOC [26B]) Mr Chapman saying that “[i]f you sign this now I will take it back to Australia and have it executed by Securency straight away”. The particulars to [26] were also to the effect that Dr Berry did not execute the termination letter at this meeting, rather Mr Chapman told Dr Berry that he “must sign and return [the termination letter] to us. When we receive the signed termination, we will forward a signed version of the new agreement to you”. It was contended by the particulars subjoined to FASOC [26D] that one copy of the “new agreement” was given to Mr Chapman at the time of the execution by Dr Berry and the second copy was couriered to Securency in Australia shortly thereafter. It was also the FASOC that introduced (at [26E]) the notion that the “new agreement” was some form of partnership agreement, but in the following terms:

To the best recollection of [Dr Berry] the New Agreement provided for a continuation of the Agency Appointment of [Dr Berry] and the Technical Partner Appointment of [GSC] and further provided for the transfer of the technology required to manufacture the product to [Dr Berry and GSC] under license (sic) on an indefinite profit sharing basis.

72    Fourthly, in the 2FASOC, filed in December 2016, this allegation again changed by the deletion of reference to the “continuation of the Agency Appointment” of Dr Berry and the “Technical Partner Appointment” of GSC, and it was no longer asserted that the partnership agreement provided for the transfer of technology but the somewhat different allegation that the parties would “work towards” the transfer of technology. Given the particulars, however, the case had now developed to assert that the partnership agreement dealt with both “the transfer of technology to Nigeria and the development by Nigeria of a polymer production industry”.

73    Fifthly, as seen above, the oral evidence given at trial varied, and varied significantly, from the account of the meeting particularised in the 2FASOC.

74    The nature of the allegations, the fact the allegations were settled by lawyers, and the fact the instructions as to what occurred at the February Meeting could only come from Dr Berry, was relied upon by Securency as demonstrating the changing, imprecise and inconsistent account of Dr Berry and it was submitted that this undermined the ability of his evidence to be accepted.

75    The primary judge rejected this argument at J[198]-[202] and, in doing so, made the following points:

(1)    that the cross-examination of Dr Berry on the inconsistencies between the SOC, the ASOC, the FASOC and the 2FASOC proceeded on a false premise, being that each pleading was “in some way an admission and that Dr Berry was the author, or had settled, or had approved, the terms of those pleadings” and that no suggestion was put that Dr Berry had ever seen any of the various versions or approved their contents, making the cross-examination on the topic purposeless;

(2)    Dr Berry spoke to his in-house counsel “on a less than satisfactory Skype communication”, and his Honour was “not satisfied that Dr Berry ever saw, settled or approved any of the statements of claim on which he was cross-examined”, and that there was “no evidence that he did”;

(3)    that Dr Berry did not pay close, if any, attention to documents that he understood had been drafted by persons whom he trusted, and a person such as Dr Berry would “adopt, most likely, the lawyer’s phraseology because of a natural deference to the professional’s way of doing things” without appreciating the significance of such an adoption;

(4)    that unverified pleadings are not admissions, relying on the observations of Mason CJ and Brennan J in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 85-86.

76    With respect to the primary judge, this response does not completely capture the point that was being made by Securency. It may be accepted that various versions of the pleadings and particulars do not amount to admissions in the strict sense, but they were, however, significantly different versions of the central event in the case, being what happened at the February Meeting, which demonstrated, it was contended, that Dr Berry’s recollection of the detail of that event was hopelessly insecure and inconsistent.

77    As can be seen from the reasoning summarised above, what the primary judge concluded was not that various, inconsistent accounts were not advanced, but rather that they should not be attributed to Dr Berry as reflecting his instructions from time to time. This is because there was no evidence he saw or settled them, and because the pleadings were, in effect, “lawyers’ documents”. The conclusion that the conflicting accounts advanced of the February Meeting did not reflect significantly upon the cogency of Dr Berry’s account at trial requires some examination.

78    It might be thought that the notion that pleaded inconsistent accounts should not be attributed to Dr Berry is a somewhat surprising conclusion. Dr Berry and GSC were represented at all times by experienced counsel, including senior counsel. As Dr Ward SC said in submissions on the appeal, although the word fraud was never expressly pleaded in any version of the pleading, “(t)here was undoubtedly always an allegation of misconduct” and senior counsel accepted that at all stages of the proceeding Dr Berry was maintaining an allegation of serious misconduct (see T161.8-19 21/02/19).

79    The professional conduct rules during the period spanning the evolution of the allegations made by Dr Berry were in a state of flux, but under Rules 63 and 64 of the New South Wales Barristers’ Rules of 2011 or 2014 or later under Rules 64 and 65 the Legal Profession Uniform Conduct (Barristers) Rules 2015, no allegation of fact in any court document settled by the barrister could be made unless the barrister believed on reasonable grounds that the factual material already available provided a proper basis to do so. Moreover, as to allegations amounting to serious misconduct against any person, it was necessary for the barrister to believe on reasonable grounds that: (a) available material by which the allegation could be supported provided a proper basis for it; and (b) the client wished the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it was not made out.

80    In these circumstances, there is some force in Securency’s contention that the Court ought to proceed on the basis that the various versions pleaded and particularised reflected Dr Berry’s express instructions from time to time, particularly given that: (a) there was (and could be) no dispute that Dr Berry was the only source of instructions; and (b) there was no suggestion that counsel and the solicitors acting in the proceeding for Dr Berry and GSC did not discharge their obligations in drawing and settling the pleadings conscientiously. Put another way and more directly, Securency’s submission is that Dr Berry’s recollection of what occurred at the February Meeting must have changed very significantly, and that this conclusion must arise by commonsense inference drawn from the certification accompanying each iteration of the pleading.

81    Although the submission of Securency has initial attraction, on close examination, we are not satisfied error justifying intervention is demonstrated in the way the primary judge dealt with the inconsistent pleaded accounts considered in isolation. This requires consideration of some evidence not canvassed in submissions made on the appeal as to how Dr Berry gave instructions to Mr Wole Adebayo, his “in-house” counsel (T144 29/08/17). Mr Adebayo, a peripatetic figure, primarily based in Nigeria, but with residences in the United States and in the United Kingdom and a frequent traveller to Australia, appears to have played a central and somewhat unusual role in providing instructions for the pleadings.

82    After Dr Berry was taken to the particulars of the pleading of the Renewal Representation in the SOC, the following cross-examination (by senior counsel then appearing) occurred (T148-149 29/08/17):

Just read those words to yourself and tell his Honour whether that’s, in fact, what Chapman said on 24 February 2008?---Not – those are not exactly the same words.

Those are not the words he said?---Not exactly.

Do you know how those words came to be placed in quotation marks and in italics under those particulars?---Over a long distance call on Skype.

So you dictated them, did you, to someone on a Skype telephone call in 2013; is that right?---I don’t know if I dictated them, but this is what I said, more or less.

And when you were on this call you were giving that person your best recollection of what Chapman had said to you; is that correct?---Yes.

And there’s no doubt there was only meeting at your house in late-2007 or early-2008? [sic] It’s the one of which you’ve given evidence today; is that correct?---That’s correct.

And you were doing your best, on the occasion of this Skype call, to recollect, to the best of your recollection, what happened on that occasion; is that correct?---No. I was doing my best to be understood on the Skype call.

Were you or were you not doing your best to give your best recollection of what happened in the call?---I didn’t need to do my best to give my best recollection. I had a very clear recollection of what happened. I was doing my best to be heard on a Skype call.

Nevertheless, you now consider that what is written here is not, in fact, what Chapman said to you; is that your evidence?---In – in exact words, no.

When did it first occur to you that this is not what Chapman, in fact, said?---When I was told that I had to be absolutely accurate in every word that was being said and not – and not the principle of what was being said. I was required to now go back and think about each and every word that was said; not the principle of what was said.

And when were you told to be absolutely accurate in every word that was said?

DR WARD: I object, your Honour. We’re getting perilously close to privilege.

[COUNSEL]: When can’t be a privileged occasion, your Honour. The witness has given evidence this is what was said to him. There was no objection to that. I’m just asking him when. That’s not a privileged subject.

HIS HONOUR: I will allow that.

[COUNSEL]: When was that said to you, Dr Berry?---During the course of this – during the course of this case.

Well, can you put a year on it? This case has been going, now, for four years. What year was it?---I’m not entirely certain, but it would have been said to me by Wole Adebayo that I had to be a little more specific.

And you can’t tell his Honour when Adebayo told you that?---No – no. I can’t recall.

Not even the year?---No, I wouldn’t be able to recall the year.

Not even the year?---No.

83    Later, when being cross-examined about the FASOC, the following evidence was given by Dr Berry (T153 29/08/17):

[COUNSEL]: …Is it your evidence that in December 2015, when this version of your claim was produced, you knew that this event happened in February twenty – 2008? Is that true?---I knew that it had happened around the – the 24th, 25th, somewhere round then. Yes.

You will see in the particulars under this version of the representation, Dr Berry, the words have now changed. Do you see the changes? They’re marked up in this version. Some words have been struck out, and some words have been added. The added words have underlining. When did you decide to change the words which you would attribute to Mr Chapman at this discussion?---Throughout this – throughout this period, I was – I was working through Wole Adebayo, who was coming in and out of Australia. I was talking over – over Skype calls and long-distance calls. So that is – and as far as I was concerned, there was no – if – if the material of the case was not – was not being changed in any way, then the fine details were something that – that I would leave to Wole Adebayo to sort out.

So you left it to Adebayo, did you, to draft the words that you were going to attribute to Chapman? Is that your evidence?---No.

So these are your words spoken to Adebayo; do you agree? You told Adebayo what Chapman had said to you; do you agree?---Yes. I remember saying to Wole Adebayo that as far as I was concerned, what Chapman had said to me was very clear.

Well, it was very clear in 2013, when this began; is that right?

DR WARD: I object.

THE WITNESS: Yes.

[COUNSEL]: And it’s different in 2015, two years later, when these changes are made; is that right?---The – the words that were decided by Wole Adebayo to – to represent what I was saying was different. Yes.

So these are Adebayo’s words in the particulars, not your words; is that your evidence?---Yes.

84    When it came to the last version of the pleading, the 2FASOC, the following evidence was given by Dr Berry in cross-examination (T159-160 29/08/17):

Now, turn to the last version of your claim… your second further amended statement of claim, dated 20 December 2016… you will see the changes that have been made between the version we have just looked at and a version which is your claim for the purposes of this case, Dr Berry…do you see that?---Yes, yes.

And then, paragraphs follow in connection with this new agreement that was supposedly handed to you on 24 February 2008. And then, if you look at paragraph 26D on page 49, you allege – you change the allegation about the copies, plural.

You say: Following execution of the new agreement by the first applicant, it was provided by the first applicant to Mr Chapman and the respondent for execution in Australia.

And the particulars have been changed again. You’ve removed the reference to the existence of two copies. You refer now only to the new agreement, one document, and that’s because you wanted to change your case back to there only ever having been one copy of this document in existence ever; correct?---I wasn’t trying to change any evidence. I was just being more specific. I had – I had found my old telephone, gone through some messages. I discussed it with Wole Adebayo and he said, look we must put this in. We were most specific on the date on which our meeting actually happened. Even though I could have worked it out on my passport and things, I had just not got down to doing that, and we were – and I remember very clearly that there was just one copy that I had signed; I would not sign two drafts and give them back. So I was asked to be more specific and say yes, there was only one copy….

That’s the same story you gave in relation to the last version of your statement of claim. So why was there a need to change these particulars?---Well, I was told by – when I sat down with Wole Adebayo and we were looking at this, and he said, “Look, just be a little bit more specific can you, please, Dr Berry?” And I said yes, sure.

So this change was made by Adebayo, was it?

DR WARD: I object.

THE WITNESS: It was made by me, but ---

DR WARD: I object, your Honour.

HIS HONOUR: Well, just a second.

DR WARD: I’ve been pretty generous, but I’m not going to allow purely privilege matters at this late stage of the preparation of the case to be led.

85    After this objection and a subsequent explanation of legal professional privilege given by the primary judge to Dr Berry, the cross-examination did not focus closely on what exactly was conveyed by Dr Berry to those preparing the various versions of the pleading either directly or through the involvement of Mr Adebayo; nor did it seek to pin Dr Berry down to having either seen or approved the versions of his case being put forward by his lawyers on his behalf.

86    Questions by the cross-examiner could have explored precisely what Dr Berry knew about what was being conveyed on his behalf at material times and as to whether the various versions reflected his considered recollection at various times. Properly framed, such an exploration could not have been resisted by a privilege claim. But this was not done, or at least done in a detailed way. It was for this reason that his Honour concluded the cross-examination on this topic was purposeless.

87    Although it is plain on the evidence extracted above that Dr Berry’s recollection at trial provided very considerable scope for a properly directed attack being made upon his credit, following a review of the transcript, it remains somewhat opaque as to what occurred precisely in relation to the conveyance of instructions to the Australian lawyers and the extent to which the pleadings produced by them reflected Dr Berry giving them a full and considered account of what occurred at the February Meeting. Although the apparent extent of involvement of Mr Adebayo in the particularisation process might be thought, prima facie, to be somewhat odd and the pleading of the allegations was less than adroit, there is no reasonable basis to suggest that those acting for Dr Berry and GSC did not subjectively consider that they had proper instructions to make the allegations that were made.

88    Although the primary judge was faced with a final pleading materially different to what had preceded it, his Honour noted Dr Berry gave evidence that he had “found my old telephone, gone through some messages. I discussed it with Wole Adebayo and he said, look we must put this in” (T160.14 29/08/17). In the course of submissions on the appeal, Dr Berry and GSC placed some reliance on this finding, noting that Dr Berry’s outline of evidence and the final version of the pleading was finalised in late 2016, after text messages had been recovered. No significance can be attached to this submission. The difficulty, to which we will return, is that there is nothing in the text messages which provides any direct corroboration of Dr Berry’s account as to the signing into the partnership agreement, and no text message is pointed to which provides any foundation for the final versions given by Dr Berry and explains why his memory was refreshed leading to an identified change in his account.

89    Notwithstanding this, Securency has failed to establish that it was not open for the primary judge to find that Dr Berry failed to pay close attention to documents drafted by persons whom he trusted, and that it was likely he adopted his lawyer’s phraseology because of a natural deference to the professional’s way of doing things. Once this is accepted, the existence of significantly different versions of what happened at the February Meeting does not, in and of itself, mean that Dr Berry’s recollection of the detail of that event in his oral evidence was not open to acceptance by the primary judge.

90    There is no doubt, however, that what occurred in relation to the evolving pleadings is disconcerting, and we will return to it at C.14 below.

C.9    Issues Relating to Dr Berry’s Credit

91    Reference has already been made to the favourable view the primary judge formed as to the general creditworthiness of Dr Berry. His Honour formed this view notwithstanding he found (at J[20]) that Dr Berry lied in his evidence about visiting Nigeria in the period between mid-2006 and mid-2010 and that he fashioned his evidence deliberately to create the false impression that a commercial and legal dispute with the Nigerian Government in which he was involved had not created any problem for him in visiting that country and performing his role as Securency’s agent.

92    Securency’s argument has two aspects: first, and most obviously, that this lie should have caused the primary judge to have grave suspicions about the veracity of Dr Berry and meant he should have rejected his evidence generally; and secondly, it should have caused his Honour to find that Dr Berry’s inability to travel to Nigeria provided a practical reason why acknowledging termination of the Agency Agreement was explicable and not irrational. It is convenient to deal with the second aspect of this argument in C.11 below, and focus presently on why the contention that his Honour failed to take sufficient account of the lie in forming his ultimate conclusion as to Dr Berry’s credit must be rejected.

93    It is not as if the primary judge was not sensible to the lie and its potential significance. Indeed, it is the first aspect of the evidence he dealt with when it came to addressing the general topic of credibility of witnesses. After noting his conclusion that in general he found Dr Berry to be an honest witness (at J[19]), his Honour turned to his “concern” relating to Dr Berry’s lie and highlighted that the lie related to an important issue (at J[20]), being Dr Berry’s capacity to act as an agent when he could not visit the principal area of his agency. Notwithstanding this, his Honour (at J[21]) did direct himself to: (a) assessing Dr Berry’s evidence and his credibility in the light of his preparedness to lie in the witness box; and (b) the importance of credit given the want of contemporaneous records, but notwithstanding these considerations made the finding that he accepted Dr Berry’s account (at J[22]).

94    It has been a long time since the maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) was part of the common law, its broad applicability having been rejected long ago (including by no less a judge than Lord Ellenborough CJ in R v Teal (1809) 11 East 307; 103 ER 1022). It is trite that the tribunal of fact (be it a judge or jury), having seen and heard the witness, is to decide whether the evidence of the witness is worthy of acceptance and this may involve accepting or rejecting the whole of the evidence, or accepting some of the evidence and rejecting the rest: Cubillo v Commonwealth [2000] FCA 1084; (2000) 103 FCR 1 at 45-47 [118]-[123]; Flint v Lowe (1995) 22 MVR 1; and S v M (1984) 36 SASR 316. It is for this reason a jury is directed that they may accept some parts of a witness’s evidence, but not other parts: Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155. This reflects the accumulated wisdom and experience of the common law that witnesses may lie about some things and yet tell the truth about others, and the tribunal hearing the evidence is best placed to fix upon the truth. The same can be said about a tribunal of fact assessing whether the balance of the evidence of a witness should be believed, when the witness has admitted an untruth after having been caught out in a deceit. This is precisely what his Honour did: although the role confronting the primary judge in this case was a challenging one, his Honour undertook an entirely orthodox approach to the evaluation of credibility, being a task particularly within the province of the trial judge.

C.10    Lack of Corroboration and Inconsistency with Text Messages

95    As explained above, part of Dr Berry’s case as ultimately pleaded asserted that a partnership agreement was reviewed at some length and signed at the February Meeting concerning the transfer of technology and the establishment of an opacification plant in Nigeria. The partnership agreement was to be taken to Australia and executed by Securency “straight away”. (2FASOC [26B]; T127.46-47 29/08/17).

96    Securency’s submission is that it is fantastic, having regard to the importance of the partnership agreement, that Dr Berry would not have made any later written demand to be provided with a copy. In this regard, Dr Berry was cross-examined at length as to why he did not follow up an executed or endorsed copy, especially when, on his pleading, it was to be executed very promptly.

97    It is fair to describe Dr Berry’s evidence in relation to the partnership agreement as somewhat all over the place. Apart from the important inconsistency to which we have already made reference at [38] above, initially it was said Dr Berry’s driver was sent to collect a copy of the partnership agreement from Mr Chapman’s house on 25 February 2008 (T166.44-47 29/08/17) but that, although the driver went, he did not collect it because Mr Chapman had suggested they meet at the airport (T167.1-7 29/08/17) and would then get copies of the document (T168.5-12 29/08/17). But no copy was supplied at the airport.

98    When Dr Berry was then asked what efforts he made to get copies of the documents Mr Chapman had discussed the previous day, that is the termination letter and the partnership agreement, Dr Berry said “none at all” (T168.25). Securency submitted that it is passing strange that not only did Dr Berry never ask in writing for a duly executed counterpart, but there is no reference to the 35 to 40 page partnership agreement he signed in any subsequent document Dr Berry or his lawyers later prepared. The absence of any such request is said to be even more remarkable in light of the following evidence Dr Berry gave in chief: (T135.41-136.2)

Dr Berry, in the latter half of 2008, can you describe to the court the frequency with which you were contacted by Mr Chapman?—They were not contacting me at all. It was becoming very, very infrequent. I was told that by Peter that he was very ill and he had to be away in Brazil and he was – and he was not going to be available for long periods of time. Nothing was happening about the – the – the transfer of technology, the partnership agreement or the drafts that were supposed to come back from – from Australia. Nothing was coming back. I was under – under huge pressure from the – from the Nigerian authorities as to what was going on. …

99    Securency submits that the primary judge dealt with this submission as to the improbability of this evidence by what was submitted to be a surprising and sweeping generalisation at J[196]:

I think that Dr Berry’s habit of orality and personal one-on-one interaction in his day-to-day dealings, just as his cultural inclination to eat Indian food, as Indians do, with his fingers (as he said he did at the lunch on 24 February 2008), informed his explanation in his evidence of how he dealt with Mr Chapman. An Australian or English businessperson, and particularly a lawyer, frequently, if not habitually, will document requests and meetings, that persons from other cultural backgrounds will not. …

100    Further, Securency challenges the primary judge’s finding (J[197]) that the incomplete record of text messages recovered from Dr Berry’s old mobile phone and Securency’s records generally supported Dr Berry’s account as both factually wrong and incomplete (as it was not supported by identifying the text messages or records of Securency which were relied upon as being corroborative). In this regard, Securency points to 44 post-February Meeting text exchanges between Mr Chapman and Dr Berry in 2008, none of which refer to any partnership agreement having been executed or involve Dr Berry seeking to procure a copy or asking why no executed copy had been provided. In a similar vein, reliance is placed on two letters of 16 March 2008 sent by Securency to Dr Berry, the latter of which referred to “the conditions under which our Company would be prepared to consider negotiating a Memorandum of Understanding with your Company pertaining to the construction of an Opacification Plant in Nigeria” (Part B tab 163 at 2303).

101    This document, it might be thought, sits quite unhappily with the notion that a deal had been done. So does Dr Berry’s letter of demand of 29 September 2009 (Part B tab 160 at 2280) and a document dated 19 April 2010 (“Dispute Notice Pursuant to Agency Agreement Nigeria Dated 2nd February 2006 Between Securency Pty Limited and Benoy Berry/Global Secure Currency Ltd”) which make no reference to any partnership agreement being entered into in February 2008.

102    There is a final aspect to the implausibility argument advanced by Securency. A potential problem in establishing the case about the partnership agreement was the fact that no copy was in the possession of Dr Berry and no such document was said to exist by Securency. Consistently with this position, Securency did not discover, in any schedule to its list of documents, a document said to be the partnership agreement or any trace of it, such as metadata. It will be necessary to deal below with a number of his Honour’s findings as to a false paper trail and how this impacted upon the assessment of Mr Chapman’s credit, but of present importance is the primary judge’s apparent conclusion at J[191] that copies of the partnership agreement had been deliberately destroyed (or at least withheld from Securency’s solicitors).

103    After accepting Dr Berry’s evidence (at J[189]) that he handed over the signed partnership agreement without taking a copy, his Honour referred to evidence of Mr Brown that Mr Chapman handed him a thin envelope at Heathrow and Securency’s submission that this was at odds with the notion that this represented a substantial 35 to 40 page document which was given to Mr Brown by Mr Chapman to be taken back to Australia.

104    The primary judge dealt with this evidence of Mr Brown (to which he gave little weight) and the lack of any document meeting the description of the partnership agreement, by his finding that Mr Chapman’s use of the partnership agreement “was a ruse to procure Dr Berry’s execution of the termination letter” and that Mr Chapman “had no need to include an inconvenient document in the material that Mr Brown was to take to Australia”.

105    The primary judge continued at J[191]:

Securency argued that Dr Berry’s description of the second document as having “been about 35, 40 pages” was implausible since no such document had been discovered. However, the absence of any discovered record is consistent with what Securency did in not discovering any record of the draft memorandum of understanding that Mr Chapman left in 2007 with Dr Berry’s secretary…and the slippery and deceitful manner in which it set about procuring, and ultimately achieved, Dr Berry’s signature on the termination letter. Securency prepared a false paper or audit trail for how it replaced Dr Berry and GSC as its agent in Nigeria. The retention by Securency of any record, or reference to the existence, of a second document, just as with the draft memorandum of understanding, would have undone the purpose for which its officers (Mr Ellery, Mr Brown and Mr Chapman) created that false paper or audit trail of how JH Marketing and SPT came to be Securency’s Nigerian agents. It is not necessary for me to find how Securency came not to discover both the draft memorandum of understanding and the [partnership agreement] that Mr Chapman took to, and away from, the 24 February 2008 meeting. …

106    Needless to say, there were two explanations for why a copy of the partnership agreement or any trace of it did not exist. The first was that no such document ever existed (whatever may have been represented in general terms to Dr Berry at the February Meeting about Securency’s intentions concerning an opacification plant in Nigeria). The second was that copies and all traces of it were destroyed deliberately (or at least withheld to prevent disclosure) in furtherance of a dishonest scheme. The latter allegation was one of deliberate and calculated dishonesty and was embraced by the primary judge, notwithstanding the allegation of deliberate destruction was neither pleaded nor put to any witness.

107    These implausibility arguments advanced by Securency will be further addressed in C.14 below.

C.11    Error Relating to Motivation of Dr Berry

108    An aspect of the primary judge’s reasoning (at J[309]) was that there was no rational or other reason for Dr Berry to sign the termination letter, if he had understood it to have had its literal effect. This is linked to his Honour’s observation (at J[220]) that the “key” to how Dr Berry approached the signing of the termination letter was to be found in Mr Chapman’s evidence where he said “(i)t was all over within under a minute, really. It was like just doing a bit of routine admin, frankly” (emphasis by primary judge). This provided the basis upon which his Honour formed the view that Dr Berry had been “tricked deliberately” by Securency, through Mr Chapman, into signing the termination letter “by each of the representations that I have found, whether the effect of each representation is considered separately or combined” (J[309]).

109    This reasoning was taken a step further on appeal by Dr Berry and GSC and a recurring theme of the submissions was that it would be startling or inexplicable for the “very valuable entitlements” in the Agency Agreement to have been given up by the signing of the termination letter unless Dr Berry was deceived. Unlike the primary judge’s reasoning summarised above, this puts the point far too highly. It is critical to appreciate that the Agency Agreement permitted Securency to terminate the agency appointment at any time, for any reason, or for no particular reason at all, on 60 days’ written notice: cl 2.6. Properly analysed, Dr Berry and GSC had no “entitlement” to continue as agents, or to receive new commissions, for more than 60 days after any decision by Securency to terminate the agency.

110    Although there was nothing Dr Berry could do under the Agency Agreement to prevent its termination; that is not the point the primary judge was making. Although legally possible, as the primary judge went on to observe (at J[311]), there was “nothing routine” about terminating a complex and potentially profitable four year business relationship and Securency had made no suggestion to Dr Berry that it would or might terminate the Agency Agreement. Additionally, although Mr Chapman may have wished Dr Berry to be replaced as an agent from 2007, it is not as if he wanted Dr Berry to be alienated in the process. Despite Securency’s defence pleading (in response to the 2FASOC) that Dr Berry was “no longer able to be of assistance”, both Mr Chapman and Mr Brown accepted that Dr Berry continued to represent Securency to the Governor both shortly before (J[10], [23], [137]-[143]) and after (J[240]) the February Meeting, including by attending meetings in London in November 2007 and March 2008 and that GSC continued to provide infrastructure and assistance to Securency in its continuing activities in Nigeria after the purported termination (T96.25-96.41 28/08/17; T127.5-128.9 04/09/17; T233.19-234.10 05/09/17; T323.18-325.18 05/09/17).

111    His Honour described Securency’s conduct, through Mr Chapman’s representations, as “a shabby fraud”, but irrespective as to whether this opprobrious characterisation is embraced, it was clearly open for his Honour to have found that Mr Chapman had a motivation to mislead Dr Berry.

C.12    The Assessment of Mr Chapman’s Credit

112    Despite the multifaceted attacks on the primary judge’s adverse credit findings made against Mr Chapman, they can be dealt with relatively briefly save as to one aspect which requires closer consideration. As senior counsel for Securency accepted during the course of submissions on the appeal (T194.27 21/02/19), it was open to his Honour to form the view that Mr Chapman was a man of no credit. Disputes as to whether various matters were put to Mr Chapman or quibbles with findings as to isolated aspects of his evidence ultimately go nowhere in circumstances where it is accepted that his Honour was entitled to form the view that he was a witness of no credit and, more importantly, where the primary judge was affirmatively satisfied as to the truthfulness of the account given by Dr Berry.

113    Mr Chapman put in issue Dr Berry’s account of the February Meeting. The judge’s emphatic rejection of his evidence is at J[35]:

… Mr Chapman’s sense of business ethics as revealed in his paying bribes, obtaining secret commissions, creating a paper or audit trail… and dealings with Dr Berry, led me to the conclusion that wherever his evidence conflicts with that of Dr Berry, and unless I have made a specific contrary finding, I accept and prefer Dr Berry’s evidence as reliable and truthful. …

114    It was not in dispute that Mr Chapman was convicted in England of bribery offences being conduct which occurred between 8 January 2009 and 18 March 2009. His Honour’s detailed findings as to the conduct of Mr Chapman in his dealings with Dr Berry and the Nigerian authorities amply justified his ultimate conclusion as to his want of business ethics.

115    Having said this, there is an aspect of his Honour’s findings that does give reason for pause.

116    Securency submits a particularly serious error in the primary judge’s fact finding is found at J[114] and [170] where it was held that Mr Chapman and Mr Ellery (the Chief Financial Officer of Securency) manufactured a false paper trail of documents.

117    The relevant documents which were alleged to have been created after their stated dates were first, a 15 August 2007 memorandum from Mr Chapman to Mr Ellery and Mr Brown entitled “Nigerian Agency arrangements” found to have been created well after this date (see J[114]); and secondly, a handwritten note, dated 21 or 26 January 2008, from Mr Chapman to Mr Ellery and also found to have been created “well after its date” so as to create a false audit or paper trail (see J[170]).

118    Additionally, the primary judge held (at J[254]) that part of the paper trail “created” comprised a request dated 1 January 2008 for the appointment of an agent (although it was not found that this document had been backdated) and a letter from Mr Chapman of 15 January 2008 to Mr McKay of SPT Limited (copied to Mr Ellery and Mr Brown).

119    The difficulties with the findings as to the backdated documents are essentially threefold:

(1)    the false dating and false paper trail allegation had neither been pleaded at any stage of the proceeding nor was it a finding contended for by Dr Berry of GSC in any submission;

(2)    the failure to make the allegation may be partly explicable by the fact that the Statement of Agreed Facts and Dr Berry’s filed Chronology (at the very least implicitly) accepted that the documents were not part of a false paper trail; and

(3)    consistently with the position taken by Dr Berry and GSC before the primary judge, no suggestion of false dating was ever put to Mr Chapman, and Mr Ellery was not called to give evidence, a decision made against the background that no allegations of fraud or falsely dating documents had been made against him.

120    Similarly, as to the 1 January 2008 document, no questioning was permitted of Mr Chapman on the basis that it was created for the purposes of creating a false trail (see T397 06/09/17) and no such questions were put to Mr Brown. As to the 15 January 2008 letter, it was not put to either Mr Chapman or Mr Brown that it was written in order to create a paper or audit trail and no submission was made to this effect below.

121    Although the findings made in relation to the false dating of the documents in these circumstances are problematical, this is not to say that the representations contained in the documents were not rightly considered a legitimate matter of concern by the primary judge. In this regard it is important to recall that Securency’s pleaded case (not persisted in at the hearing) was that the termination of the Agency Agreement occurred because Dr Berry was suffering from ill health and was unable to continue to act as agent. The case of Dr Berry and GSC below was that throughout 2007 and early 2008, Mr Chapman falsely represented to Securency’s senior management in Australia that the basis for Dr Berry’s termination was Dr Berry’s “ill health”. The 15 August 2007 memorandum recorded Mr Chapman first internally raising the issue of Dr Berry’s ill health and the handwritten note of January 2008 requested that Mr Ellery prepare a “letter of release” for Dr Berry, explaining the “release” was needed because Dr Berry suffered from “continuing ill health which is necessitating extended hospital stays in India and preventing [Dr Berry] from travelling to Nigeria”.

122    Although the primary judge found the documents to have been written at a later point, it is plain beyond argument that the primary judge specifically rejected the entire narrative as to Dr Berry’s health being a reason why the Agency Agreement was terminated. There was ample evidence to support the primary judge’s conclusion that Mr Chapman’s “ill health” deception was false. This does not turn upon whether this excuse emerged for the first time in early 2008 or arose in August 2007 at the time of the memorandum.

123    Similarly, the finding as to the paper trail “created” by a request in January 2008 for the appointment of an agent and the later letter from Mr Chapman of 15 January 2008 to Mr McKay of SPT must be seen in the broader context of what was in issue and what his Honour actually found.

124    Securency contended that another company was to replace Dr Berry and GSC with Dr Berry’s knowledge. His Honour’s conclusion was that Mr Chapman’s assertions to this effect were unbelievable (J[219]). This conclusion is unsurprising given, among other things, the primary judge found (at J[243]) that Mr Chapman was intimately involved in the establishment of SPT and that Mr Chapman himself engaged in personal transactions with SPT (including receiving funds from SPT which he or a company associated with him used to pay bribes (at J[312])).

125    The conclusion that Mr Chapman had procured the removal of Dr Berry and GSC to make way for SPT to be the replacement agent was important contextually in the acceptance of Dr Berry’s account, but even if one accepts that it was not open to his Honour to find parts of the paper trail to be falsely backdated or fabricated, but rather were documents produced on the dates they bore, this error does not undermine the critical conclusion of the primary judge that Mr Chapman, as at the time of the February Meeting, wanted to replace Dr Berry and his company as agents for Nigeria, and that such an intention had nothing whatever to do with any ill health of Dr Berry.

126    Given that: (a) it was open to find Mr Chapman was a man of no credit whatsoever; (b) the primary judge was affirmatively satisfied of the account given by Dr Berry; and (c) the termination of the Agency Agreement occurred not because Dr Berry was suffering from ill health, but because the removal of Dr Berry and GSC was necessary to make way for SPT; any isolated errors in making individual adverse credit findings against Mr Chapman are of little moment.

C.13    Alleged Relationship between Acceptance of Dr Berry and Rejection of Mr Chapman’s Credit

127    This ground of appeal (Ground 2) can be dealt with briefly. It relies on an acontextual reading of J[35] where the primary judge noted that, as extracted at [113] above:

Mr Chapman’s sense of business ethics as revealed in his paying bribes, obtaining secret commissions, creating a paper or audit trail (as I have described below) and dealings with Dr Berry, led me to the conclusion that wherever his evidence conflicts with that of Dr Berry, and unless I have made a specific contrary finding, I accept and prefer Dr Berry’s evidence as reliable and truthful…

(emphasis added)

128    Securency refers to the truism that just because one witness may be disbelieved does not prove the opposite of what he asserted: Scott Fell v Lloyd (1911) 13 CLR 230 at 241 per Griffith CJ. It is contended the primary judge fell into the error of accepting Dr Berry’s evidence because Mr Chapman lacked credibility. That does not do justice to his Honour’s reasoning. The primary judge did not consider the decision as to who was to be believed to be binary in nature. This could not have been made plainer than when the primary judge at J[22] observed:

…my generally unfavourable view of the credibility of Mr Chapman and Mr Brown has not led me unthinkingly to accept Dr Berry’s evidence where their accounts conflicted. Rather, I found myself in the position where I have been satisfied affirmatively that Dr Berry’s account was more probably than not true.

129    This ground of appeal must be rejected.

C.14    The Central Findings Error Generally

130    It is now necessary to draw together the threads to assess whether matters identified while canvassing the grounds individually, when taken together, undermine the central findings. In doing so, it is useful to stress the nature of the broader forensic context before the primary judge. As we have explained, the case theories of the competing parties expressed at a level of generality were: on the one hand, there was no reason for Dr Berry to sign the termination letter, unless he thought it was routine which he did because of the representations conveyed; on the other hand, further to asserting Dr Berry and GSC had not made out their case, Securency advanced two alternative rationales. Initially, throughout 2007 and early 2008, it was Dr Berry’s “ill health”. Not surprisingly, although this theory remained part of the pleaded defence, given that there was no basis for suggesting Dr Berry was ill, this justification disappeared. The latter rationale (which was also pleaded and was the focus of the oral evidence of Mr Chapman and Mr Brown) was that the commercial dispute between Dr Berry and the Nigerian Government prevented travel by Dr Berry to Nigeria. This rationale not only faced the hurdle that Securency did not suggest this reason at the time of the proposed termination, but was also rejected because the evidence strongly suggested that SPT, associated with Mr Chapman himself, was to be substituted for Dr Berry and GSC and that this desire motivated Mr Chapman.

131    It was both open on the evidence and far from counter-intuitive for the primary judge to have concluded that Securency, through Mr Chapman, misled Dr Berry so as to procure the termination letter. But this conclusion is not determinative of the liability aspect of the appeal.

132    For reasons explained above, most of the individual attacks on the central findings of the primary judge are either misconceived or lack significance. These include: (a) that Dr Berry’s oral evidence, taken at its highest, was incapable of supporting the making of the representations; (b) the treatment of Dr Berry’s lie; (c) that rational reasons existed as to why Dr Berry would agree to a termination, hence undermining his Honour’s finding as to what occurred at the February Meeting; (d) that the individual complaints about the treatment of Mr Chapman’s evidence meant the primary judge’s highly adverse assessment of the credibility of Mr Chapman was not open; and (e) the assertion that the primary judge made the error of accepting Dr Berry’s evidence merely because Mr Chapman lacked credibility.

133    Two arguments, however, have more substance: that is, that a state of reasonable satisfaction that the pleaded contravening conduct occurred could not have been reached in accordance with principle given: (a) the multiple and radically inconsistent accounts of the February Meeting contained in different iterations of the pleadings and particulars; and (b) the lack of corroboration of Dr Berry’s account of the February Meeting, and its tension with such documentary evidence that does exist, including the absence of the existence of any copy of the partnership agreement, which the primary judge attributed to a calculated plan to destroy traces of that document’s existence (or at least to withhold its disclosure).

134    As to these matters, despite the troubling nature of the evolving inconsistent accounts of what happened at the February Meeting, given the state of the evidence, including the way Dr Berry was cross-examined, it was not an error justifying appellate intervention for his Honour to conclude that Dr Berry did not give informed instructions as to the admittedly inconsistent accounts to the extent that it fatally undermined the credibility of his account. Other tribunals of fact could well have reached a different conclusion on the basis of the same evidence, but that is not enough.

135    The observations of McClelland CJ in Eq in Watson v Foxman have assumed canonical status because they reflect the sagacity of recognising the frailty of human memory and the subtle nuances of oral communication. The Chief Judge did not seek to lay down some rule of universal application that a tribunal of fact must always be convinced that precise words were conveyed in order for contravening conduct to be made out. It all depends upon the circumstances of the case. In some misleading and deceptive conduct cases, often quite subtle differences in idiom or syntax might change the sense of a statement in a way that will be determinative to the characterisation of whether the statement was likely to mislead and deceive. This is not such a case.

136    One thing is pellucid: his Honour was convinced, having heard from both Dr Berry and Mr Chapman, that Dr Berry was telling the truth when he said that Mr Chapman misled him as to the routine nature of the termination letter, that he would continue to be able to receive the benefit of the commission entitlements he had under the Agency Agreement, and that comfort of some sort was given to Dr Berry about Securency giving active consideration to an opacification plant being built in Nigeria. Upon a close review of the evidence, there is little doubt that such a finding, expressed in these terms, was clearly open on the evidence and that this “business as usual” conclusion was not undermined fatally by the limited documentary record following the February Meeting.

137    Either something was said to the above effect or it was not. The inherent probabilities convinced his Honour that it was. This conclusion was not glaringly improbable nor contrary to compelling inferences. Indeed, the contrary is the case. It was also sufficient to make out the Renewal Representation.

138    Given that no error justifies interfering with the conclusion that the Renewal Representation was made and that there is no issue that, if made, it was misleading, the primary judge did not fall into error in finding that Securency engaged in conduct which was contrary to s 52 of the TPA. The fact that his Honour also went further and found the conduct was fraudulent was unnecessary to establish liability and is neither here nor there in assessing whether Dr Berry and GSC were entitled to the relief they sought in the further amended originating application.

139    In these circumstances, it is strictly unnecessary for us to form a conclusion about whether error is established when one comes to the second aspect of the pleaded case as to the February Meeting and comparing what was open to be found with what was pleaded as being the Second Representation. Having noted this, we do not consider that it was open to the primary judge to find that the Second Representation was conveyed as pleaded or that a representation as to Securency’s intentions as to being involved in a possible opacification plant in Nigeria going forward was conveyed, except in the most general terms.

140    This is not to say that we are satisfied that nothing was conveyed about Securency’s intentions as to an opacification plant. The inherent probability, as the primary judge recognised, was that the prospect of an opacification plant remained of significance to Dr Berry and that Securency (and Mr Chapman in particular) was prepared to dissemble about this topic to both Dr Berry and the Nigerian Government. But when it comes to the case advanced on the topic of the partnership agreement by Dr Berry and GSC, it was highly unsatisfactory. Although we have explained that error is not established in the primary judge’s finding that Dr Berry was uninvolved in providing detailed instructions as to the pleadings, the pleading of fundamentally inconsistent detailed accounts was enough to cause real pause. For reasons explained by the primary judge and evident on our review of the materials, Dr Berry’s account was entirely plausible in its essential characteristics and had verisimilitude given the broader context of the dealings before the February Meeting and the intentions of Securency as revealed in the evidence. The notion that some comfort was given to Dr Berry as to an opacification plant was probable. Despite this, there were real reasons to conclude that Dr Berry by the time of the trial did not enjoy a clear recollection of the precise events that occurred.

141    Dr Berry’s evidence as to the Second Representation must be viewed through the prism that a recollection of a separate partnership document being presented at the February Meeting was only raised, for the first time, years after the event and in the third iteration of the pleaded case. The specific recollection was that Mr Chapman provided the partnership agreement to Dr Berry at the February Meeting and said that if Dr Berry signed the partnership agreement then it would be taken back to Australia and be executed by Securency straight away (2FASOC [26B]).

142    It was not necessary for Dr Berry and GSC to plead such a specific representation, but they chose to do so. Apart from the belated emergence of the specifics, the problem is worse, however, because Dr Berry’s specific evidence as to this document at this meeting is inherently improbable and conflicts with such of the contemporaneous record that does exist as explained in C.10. Further, the absence of any trace of the partnership agreement could only be explained away by accepting an allegation of venal conduct which was never put to any witness.

143    In our view, with respect to the primary judge and while recognising the careful and detailed way his Honour approached his findings, it was contrary to compelling inferences that such a specific representation at the time of handing over a partnership agreement was made. Hence, although the Renewal Representation finding was clearly open (and indeed the dealings between the parties at the February meeting and the signing of the termination letter make little sense if this representation was not made), the Second Representation falls into a quite different category.

144    Before coming to the question of damages, for completeness, it is necessary to deal briefly with some miscellaneous liability grounds, including as to reliance, which do not impact upon our conclusion that there was evidence available to his Honour to be satisfied that a case of contravening conduct in making the Renewal Representation was proven on the balance of probabilities.

D    OTHER LIABILITY GROUNDS

D.1    Miscellaneous Evidentiary Grounds

145    Ground 10 is a complaint that Securency was prevented from asking Mr Chapman whether he recalled any discussion with Mr Ellery of what Securency would do in the event that Dr Berry had not agreed to sign the termination letter. This question was disallowed because the primary judge observed that Mr Chapman was not a decision maker and therefore his evidence of his internal discussions with Securency relating to the counterfactual was not probative.

146    Although there was some evidence from Mr Beeby (who had been on the board of Securency and had been CEO of Innovia Films) that it was for Mr Chapman to make a recommendation as to the hiring and firing of agents before it was endorsed by senior management, the ruling (which is justifiable on hearsay grounds to the extent that evidence was being sought to prove the truth of representations by Mr Ellery), was hardly central to the liability issues in the case. It would have been open for differently formulated questions to seek to adduce evidence as to what Mr Chapman would have done and no error is demonstrated.

147    Each of the other miscellaneous grounds suffers from the vice that none of the contended errors were material to the affirmative conclusion drawn by the primary judge that he believed the account given by Dr Berry and therefore do not undermine the central findings.

148    Ground 11 suggests that the primary judge erred at J[31] in drawing an adverse inference from the absence of evidence from Mr Ellery in circumstances in which Mr Ellery’s employment had been terminated by the appellant in March 2010. Irrespective of whether the absence of Mr Ellery from the witness box was explained, even if a Jones v Dunkel inference should not have been drawn, the complaint ultimately goes nowhere.

149    Ground 12 attacks the primary judge’s finding at J[23] that there was no evidence that the nature of Dr Berry’s dispute with the Nigerian government inhibited his ability to perform his obligations pursuant to the Agency Agreement. It might be thought that given that Dr Berry had deliberately lied on oath about his ability to travel to Nigeria between 2006 and 2010, Dr Berry subjectively believed that his inability to be present in Nigeria may well have inhibited his ability to perform his functions. There was also some further evidence, from Mr Brown (T327.3-18 05/09/17), which would support such a conclusion. Be that as it may, the true liability issue was whether or not the representations had been made and his Honour found that the supposed inability of Dr Berry to perform his functions was an excuse invented after the fact to justify termination when the ruse of using the alleged illness of Dr Berry was no longer tenable.

150    Ground 14 is a further complaint that the primary judge fell into error at J[94] in not accepting Mr Brown’s account that Dr Berry indicated that he was taking the Agency Agreement signed by Mr Brown “off to see his lawyers” in circumstances where a contemporaneous email of Mr Brown recorded “I handed BB a copy of our latest agreement (prepared by Middletons). He is studying this with his lawyers”. Again, this is a further example of Securency focusing on a finding by his Honour that was not material to his ultimate conclusion. Any such error could not provide a basis for appellate intervention given the way the issue was joined as to what occurred at the February Meeting.

151    Similarly, Ground 15 focuses on findings at J[122] that no document in evidence refers to any company named “SPT Limited” or “SPT” that was based in South Africa. Although Securency points to a letter from Mr Chapman to Mr MacKay dated 15 January 2008 which was the subject of an agreed fact between the parties and was addressed to a director of “S.P.T LTD”, any such error does not undermine his Honour’s conclusion that Mr Chapman perceived it financially expedient to bring Dr Berry and GSC’s agency to an end. The further assertions, being: (a) Ground 16 relating to a finding at J[123] that there were no documents to support the evidence of Mr Brown that SPT was intended to be a hub for Africa as part of a larger Securency global strategy; and (b) Ground 17 relating to a finding at J[124] that Mr Chapman, Mr Brown and Mr Ellery knew that there was no company with the name of SPT until Mr Chapman caused another company to change its name in 2008, may be open to question (including in circumstances where it was an agreed fact that Mr Chapman wrote to Mr Ellery and Mr Brown in August 2007 proposing the appointment of SPT) but again, any such error goes ultimately nowhere for reasons that have already been explained.

D.2    Procedural Fairness Grounds

152    Ground 7 complains that the primary judge made numerous findings of fraud or dishonest conduct that had not been pleaded: see J[11]-[12], [35], [56], [58], [114], [166], [168], [170], [191], [223], [254], [311], [313], [320], [322] and [334]. Grounds 21 and 25 are to a similar effect. Some of these findings as to a false paper trail and document destruction have already been remarked upon, and do have some significance.

153    As to the ultimate finding of fraud, Securency points to the fact that leaving aside that fraud was unpleaded, in Dr Berry and GSC’s opening written submissions, the term fraud was not mentioned and that Securency in its opening stressed it was holding Dr Berry and GSC “to their pleaded case”.

154    Although it is unusual for fraud to have been found in circumstances where: (a) fraud was unpleaded and findings of fraud were not expressly sought; (b) contrary to J[15], there was no claim for common law damages for deceit (as Dr Berry and GSC accepted on appeal); and (c) it was unnecessary in determining issues of liability to find fraud, these were not usual circumstances.

155    When one has regard to the record, the forensic battleground below was clear. Indeed, the opening words of senior counsel for Securency in closing submissions were (at T526.20): “(w)e commence, your Honour, with the obvious proposition this is, in substance, a fraud case; we accept fraud is not in terms alleged, but there has been a fair old hint of something very close to a fraud case. It is, on its face, a case of deliberate trickery, near enough to an old common law deceit case”.

156    No doubt that submission was adopted by experienced counsel because it was perceived to be forensically advantageous. It brought into immediate focus the necessity for the primary judge to approach his findings of fact conscious of the seriousness of the central allegation in the case. The point, put bluntly, was that that Dr Berry and GSC had to surmount a high bar.

157    This submission is unsurprising given that, from the outset, it was always Dr Berry and GSC’s case that the termination was sought to be justified on the basis of a pretext, that is, that Dr Berry was ill. Similarly, the case was that this was an untruth known to Securency and the actions of Mr Chapman were not inadvertent but were pursued in order to secure a perceived financial advantage. This was the whole reason why the contravening conduct occurred on the applicants’ case and this is how the parties fought the case (see J[300]). Despite Securency’s submission that the seriousness of the findings sought should have caused his Honour to be chary, the primary judge was prepared, in accordance with s 140(1) of the EA, to make findings amounting to conscious wrongdoing. While fraud was not a necessary integer of the misleading and deceptive conduct case pleaded, no prejudice was suffered by the primary judge recognising the way the case was run (as urged upon his Honour by senior counsel for Securency) and making findings accordingly.

158    The basal function of a pleading is to state with sufficient clarity the case that must be met, hence serving to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against it and, incidentally, to define the issues for decision: Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 286. This function was not undermined in circumstances where Securency plainly understood what was being put by Dr Berry and GSC and it cannot now complain that unpleaded findings of fraud were not open (notwithstanding they were unnecessary for the disposition of the primary liability issue in a misleading and deceptive conduct case).

D.3    Reliance Grounds

159    Grounds 28-29 deal with questions of reliance. They are misconceived and can be dealt with together and briefly. The grounds rely on two aspects of the evidence of Dr Berry: first, that the existing terms of his Agency Agreement would not continue and the “new agreement” was “totally” different to his existing Agency Agreement; and secondly, the “partnership agreement” was merely a non-binding draft that was “fundamentally deficient”, of no particular relevance to him, and that there were “longer issues” that needed to be discussed.

160    It is said, in the light of this evidence, that the representations did not in fact mislead Dr Berry, or induce him to terminate the Agency Agreement and that the primary judge “does not give reasons explaining his apparent finding to the contrary”. This is allied to Securency’s submission, already considered above, that Dr Berry otherwise had good reason to sign the termination letter.

161    As to the first aspect of evidence relied upon, we have already explained that the evidence that the “new agreement” was totally different to the existing Agency Agreement makes sense when one does not confuse Dr Berry’s references to the proposed renewal agreement and his evidence as to the partnership agreement. Although we consider the primary judge’s conclusion that a representation similar to the pleaded Second Representation was made is erroneous, as we have explained, the evidence given by Dr Berry reflects the likelihood that comfort of some sort was given about Securency’s intentions as to the prospect of an opacification plant in Nigeria going forward (consistent with his Honour’s findings set out at [12]-[14] above about the provision of a draft of a misleading letter (J[144]-[145])).

162    The second aspect of the evidence is, obviously enough, part of the confusion as to the state of the partnership agreement that, taken in combination with other factors, demonstrates the implausibility that a representation in a form materially similar to the Second Representation was conveyed at the February Meeting.

163    But none of this matters to reliance, or, more properly, to causation. His Honour’s reasons were clear as to why the termination letter was signed. It was by reason of the renewal representation and Dr Berry’s belief based on that representation, that the termination letter was not to have its literal effect (see J[220] and [309]). The notion that the conduct found (which was contrary to s 52 of the TPA) did not materially contribute to Dr Berry signing the termination agreement is untenable on the factual findings of the primary judge. The loss and damage then flowing is the topic to which we now turn.

E    DAMAGES

E.1    Statutory Compensation

164    As noted at [1] above, it was expressly agreed between the parties on the appeal that consistently with the relief sought by Dr Berry and GSC below, the amount to be assessed was statutory compensation caused by conduct found to be in contravention of s 52 of the TPA. Section 82 of the TPA provided that a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of, relevantly, Part V may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

165    Principles of the common law relating to assessing damages in contract or tort are not directly on point, although they may provide guidance: Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 470 [18] per Gleeson CJ. The focus is on the causal connection between contravention and loss or damage.

166    We accept that the general approach, adapted to the present circumstances, is to determine how much worse off the respondents are than they would have been had they not relied on the alleged misrepresentation and entered into the transaction: Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 535 per Brennan J, 526 per Mason CJ, Dawson, Gaudron and McHugh JJ; see also Henville v Walker at 502 [132] per McHugh J, 509 [162] per Hayne J and 507 [153] per Gummow J.

167    As noted by the primary judge at J[15]-[16], Dr Berry and GSC relied on the provision in the Agency Agreement for its automatic renewal every two years to contend, principally, that damages or compensation would be payable on Securency’s invoiced sales in perpetuity, or at least until June 2010, when Securency terminated all of its agency agreements, and for a loss of opportunity to earn commission thereafter. Securency argued that, had Dr Berry not signed the termination letter, it would have terminated the Agency Agreement on 60 days’ notice under cl 2.6, or within 30 days before its expiry and automatic renewal on 30 June 2008 under cl 3.2, or, alternatively, when its board resolved to terminate all of its agency agreements in June 2010. The reason for that board resolution was Securency’s involvement in a scandal that became public in about May 2009.

168    The relevant provisions of the Agency Agreement set out in greater detail were as follows:

2.6    Termination of Agency

The Agent acknowledges and agrees that its appointment as Securency’s agent will terminate immediately upon the earlier of:

(a)    Securency providing the Agent with 60 days written notice terminating the Agent’s appointment as its agent; or

   (b)    the termination of this Agreement.

…

3.2    End of Term

This Agreement will continue until terminated by 30 days' written notice given by either party to the other party, which notice may be given at any time on or after the date which is 30 days before the Expiry Date.

169    By Item 2 of Schedule 1, titled “Expiry Date”, the Agency Agreement provided that it remained valid until 30 June 2008 “and will be automatically renewed for further terms every two years unless terminated as per the Termination clauses contained in the contract”.

170    It is also convenient to set out the provisions of the agreement relating to the calculation of commission. By cl 8.2, in respect of each month, commission was to be calculated in accordance with the following formula:

A = B x (C - D)

where:

A = the Commission payable in respect of that month;

B = the Commission Rate;

C = the Invoice Sales paid by customers to Securency during that month; and

D = the sum of the following amounts:

(a)    any part of the Invoice Sales properly refunded to customers during that month as a result of valid Product returns during that or the previous month (Relevant Product Returns);

(b)    any part of the Invoice Sales (less any Relevant Product Returns) that represents an amount for any goods and services tax, sales tax, wholesale tax or other value added tax imposed on or in respect of the sale or supply of the Products during that month (Tax Charges);

(c)    any part of the Invoice Sales (less any Relevant Product Returns) that represents Seller Costs, but not including any such Seller Costs that are Tax Charges; and

(d)    any part of the Invoice Sales in respect of which the Commission has already been paid for a previous month.

171    “Invoice Sales” were defined in cl 1.1 to mean the amount of all invoices rendered by Securency to customers, and paid by customers, relating to sales of “Products” in the “Territory” where either: the Products have been ordered through the Agent; or the Products have been ordered directly from Securency by an existing customer located within the Territory that was originally referred to Securency by the Agent.

172    By cl 8.4, within 10 business days after the end of each month, the Agent was required to forward to Securency a statement setting out in reasonable detail the manner in which the Agent had calculated the commission for that month; for each type of Product, that part of the Invoice Sales applicable to that Product, that part of the Relevant Product Returns applicable to that Product, that part of the Tax Charges applicable to that Product, that part of the Seller Costs (not including Tax Charges) applicable to that Product; and any other information reasonably required by Securency to verify the accuracy of the calculation of the commission.

173    By cl 8.5, the commission for each month was to be paid in full by Securency within 20 business days after receiving the statement in the form required by cl 8.4.

174    The primary judge, at J[301], noted two of Securency’s defences, namely:

(1)    it could have brought the Agency Agreement to an end had Dr Berry not signed the termination letter by use of its powers to terminate without cause on 60 days’ notice, under cl 2.6, or on 30 days’ notice before the Agency Agreement would have expired on 30 June 2008, under cl 3.2;

(2)    its board had made a policy decision to terminate all agencies, in about July or August 2010, well after the bribery scandal had become notorious, and as a result Securency would have terminated any agency agreement that may then have existed with Dr Berry and GSC.

175    The primary judge noted, at J[302], that Securency’s argument that it would have terminated the Agency Agreement, had Dr Berry not signed the termination letter, relied in support on the following assertions by Mr Brown in his oral evidence. First, (as the primary judge found) Mr Brown was party with Mr Chapman to the decision to seek Dr Berry’s signature on the termination letter, because they had recommended this to “the senior management”, being Messrs Curtis, Ellery and Mamo. Secondly, Mr Brown asserted in the witness box that this was because:

Dr Berry was not travelling into Nigeria, as far as we were concerned, and therefore he was not carrying out his functions as agent …. He was uncontactable and also we believed that he was ill and was hospitalised in India … and most compelling of all, was that he had started proceedings against the Nigerian government … we felt that would have denigrated his ability to perform for Securency.

176    At J[314]-[319], the primary judge stated he did not believe Mr Brown’s assertion that, as set out at [175] above, had Dr Berry not signed the termination letter, Securency would have exercised one of its powers to terminate the Agency Agreement. The primary judge gave a number of reasons for this conclusion.

177    Those reasons were, in summary, as follows. First, a unilateral termination would have converted Dr Berry from a person who was using his influence with the Governor and other senior Nigerian officials to advance Securency’s interests, into a person who would be likely to impede those interests. Secondly, after 15 May 2007, Securency, through Mr Chapman, had recently extended, by his handwriting on the second version of the signed Agency Agreement, its territory to include the ECWAS. Dr Berry had been consistent in urging Securency to develop a proposal for the opacification plant, which the Governor also wanted. Thirdly, there was no evidence to support Mr Brown’s assertion that Dr Berry’s and Contec’s legal issues or the arbitration had had any effect on his other relationships with the Nigerian Government or his capacity to do business with it. Fourthly, there was no evidence that Dr Berry was inhibited, or contemporaneous evidence that Securency in 2007 and 2008 perceived him to be inhibited, in performing the agency at all, by reason of his inability, unwillingness or failure to travel to Nigeria. Fifthly, Mr Brown’s suggestion that Dr Berry was in ill health or hospitalised had no evidentiary basis. Nor was Mr Brown’s asserted reasoning consistent with his request for, and use of, Dr Berry in the November meeting which was an important step in procuring a January 2008 order from the Nigerian Government Mint. Sixthly, Securency’s action in tricking Dr Berry into signing the termination letter at the February Meeting suggested that it was not prepared at the time to use its contractual right to terminate. Generally, the policy of the law is that a court will be disinclined to allow a party to a contract to take advantage of its own wrongdoing.

178    At J[322], the primary judge concluded that Securency, having committed the fraud that the primary judge found by making the two false representations, could not now be permitted to assert that it had a lawful alternative path, that it chose not to take (viz, terminating the Agency Agreement under cll 2.6(a) or 3.2), to achieve the very position that its fraud procured.

179    As to the policy decision made by Securency’s board in about July or August 2010 to terminate all agencies, the primary judge said, at J[325], that had Securency engaged in honest dealing in Nigeria and with Dr Berry and GSC, it was likely that they would have had the opportunity to construct and operate an opacification plant there. Of course, if that occurred then the Agency Agreement (or its promised replacement) would have no further work to do at the point when the plant began operating. Dr Berry and GSC would have had to make the capital investment to construct and then operate the opacification plant. The primary judge went on to say, at J[326]-[327], that in circumstances where it was not readily possible on the material before him to assess any loss flowing from the loss of the opportunity to construct and operate an opacification plant, his preliminary view was that damages should be assessed by reference to the presumed continuation of the Agency Agreement, as automatically renewed, based on the actual sales to Nigeria that Securency had made, less just allowances for expenses Dr Berry and GSC did not have to incur. That preliminary view does not appear to have been disturbed by the time judgment was delivered concerning the quantum of damages to be awarded, which was on the basis of a figure agreed between the parties said to represent a total of unpaid commissions earned up to 20 May 2018 (which was 60 days after Securency provided the notice referred to at [181] below): see Berry v CCL Secure (No 2) [2018] FCA 1351 at [4].

180    At J[333], the primary judge said that because he had found that the termination letter was ineffective, the Agency Agreement should operate according to its terms, including in respect of the rate of commission and provision for automatic renewal.

181    It should be noted that following the indication by the primary judge at J[320] and [333] that he regarded the 24 February 2008 termination letter as ineffective, on 13 March 2018 Securency terminated the agency agreement in accordance with its notice provisions. The primary judge made a declaration that the Agency Agreement was terminated by that written notice effective from 20 May 2018.

182    We consider first the finding that Securency would not have terminated the Agency Agreement in mid-2010, at the time it terminated its other agreements.

183    Securency submitted the respondents’ damages case was couched in terms of loss of commission payments in the period 31 December 2007 to at least 30 June 2010 and then, further or alternatively, the loss of a chance to continue to represent Securency as agent (and hence earn commissions) in the period “after 31 December 2007 to date”; this plea recognising the ability of Securency to terminate the agency agreement without cause. In his opening submissions at trial, Dr Berry’s counsel recognised in this context that there were “progressively diminishing returns of a chance in every two-year period from 2010 onwards” (T51.46 28/08/17). Securency submitted that there was very clear and unchallenged evidence given by Mr Beeby, which included the following (T410.45-411.19 31/08/17):

… So I think around July/August of that year – 2010 – we actually determined that the best thing to do was to halt the uses for agents altogether. And we wrote to every agent who we had terminating their agencies. We had – our commercial arrangements with agents was that we could terminate without cause, but with notice. The notice was typically quite short – I think between a month and three months. And so we wrote to them all in the summer and we terminated all agencies. … we wrote to them – and I can't say specifically when the letters went out – I think they were either August or September. So what I can say with confidence is that by … the end of the year 2010, all agencies had been terminated without exception.

And as you understood it, terminated in accordance with termination provisions in each agreement; is that---?---Absolutely.

184    Securency noted that no attack was made on Mr Beeby’s credit, and no adverse credit finding was made in respect of this evidence.

185    It followed, it was submitted, that the primary judge should have accepted Mr Beeby’s evidence and hence there was no proper basis for the damages to exceed those that could have been earned under the Agency Agreement until it would have been terminated, as were all other Securency agency agreements, by, at the latest, the end of 2010. Allowing Dr Berry to recover damages based on eight further years of sales represented a complete and illegitimate windfall.

186    Securency submitted that, had the primary judge found that the agreement would have been terminated at the latest by 29 November 2010 (being 60 days after 30 September 2010, the latest date that a termination letter would have been sent according to the unchallenged evidence of Mr Beeby) the principal damages would have been approximately $27,078,507. Alternatively, given Mr Beeby’s evidence that termination letters in respect of all existing agency agreements were sent between July and September 2010, assuming a termination letter of 31 August 2010, termination on 31 October 2010 would have produced principal damages of approximately $26,407,209.

187    Instead, Securency submitted, the primary judge at J[325] speculated that it was likely that the respondents would have had the opportunity to construct and operate an opacification plant in Nigeria but then noted, at J[326], that it was not readily possible to assess any loss flowing from this loss of opportunity, noting that Dr Berry did not lead evidence of any of these matters.

188    Securency further submitted that the primary judge did not explain why the continuation of the Agency Agreement as automatically renewed should be “presumed” (especially in the light of the unchallenged evidence of Mr Beeby) and that the finding by the primary judge at J[333] that the termination letter was ineffective did not deal with the argument that the Agency Agreement would have been terminated as all other agency agreements were in 2010.

189    The respondents submitted that Securency did not issue any letter of termination until 13 March 2018. The primary judge was, it was submitted, correct to conclude that were it not for the wrongful action of Securency in February 2008, the special nature of the relationship between Dr Berry and the Nigerian Government, and Securency, together with the success achieved in Nigeria and the ongoing expectation of opacification, Dr Berry and GSC would have remained in place as agents in Nigeria for many years. The primary judge offered six reasons for rejecting Securency’s argument that there was evidence from the board of Securency of the policy decision in July or August 2010 to terminate all agents after the scandal of its extensive corrupt conduct became public: it was wrong, the respondents submitted, to say that the primary judge did not engage with this argument.

190    Dr Berry and GSC submitted that the primary judge’s findings of fraudulent conduct formed the basis for his Honour’s conclusion at J[322] that Securency “cannot now be permitted to assert that it had a lawful alternative path, that it chose not to take … to achieve the very position that its fraud procured”. That conclusion was sufficient to refute Securency’s argument that the policy decision taken by the board in July or August 2010 was to terminate all agencies including Dr Berry and GSC.

191    Dr Berry and GSC further submitted that the primary judge considered that if the misleading and deceptive conduct had not taken place, it was likely that Dr Berry, GSC and Securency would have had an opportunity to construct and operate an opacification plant which would have continued to operate irrespective of any agency agreement (as with a similar plant operated in Mexico). The primary judge considered the lost opportunity analysis could be undertaken “by reference to the presumed continuation of the Agency Agreement, as automatically renewed, based on actual sales to Nigeria” (at J[327]). It was submitted that in the circumstances of this case, that was the correct analysis.

192    Dr Berry and GSC submitted that the appellant’s argument that the primary judge’s conclusion was an error of law ought to be rejected. The authorities cited by the primary judge clearly supported the proposition. To appropriate Suttor v Gundowda (1950) 81 CLR 418 at 441-2: if one party (Securency) has a right to terminate the contract and “does not clearly exercise that right”, the other party (GSC and Dr Berry) may enforce the contract against him. Secondly, any complaint about the primary judge’s findings of fraud were, it was submitted, a red herring on this appeal. Even if the Full Court did not embrace the reasoning of the primary judge concerning the fraud, the respondents were clearly entitled to significant damages beyond November 2010 on a loss of opportunity analysis. Even if Securency was to succeed in overturning a finding of fraud, or the consequences of that finding, the respondents submitted the loss of opportunity analysis (to be undertaken by this Court or by the primary judge on remittal) would need to account for the counterfactual by which Dr Berry remained the agent, and Mr Chapman would not have made the corrupt bribe which was a factor that contributed to the board’s subsequent policy decision to terminate all agency agreements. Such a hearing would also need to consider the effect, by way of fresh evidence, of the recent lifting of suppression orders relating to the corporate conduct of Securency and individuals of Securency.

193    In its written reply, Securency submitted that the respondents’ proposition that they “would have remained in place as agents in Nigeria for many years” was not supported by the evidence. It was also incongruous with the notion that Securency had been plotting and laying the groundwork to remove Dr Berry and replace him with other agents from mid-2007. The probabilities were that Securency would have exercised its right to terminate the Agency Agreement on 60 days’ notice in any event. Further, even if the respondents had somehow continued as agents beyond 2008, there was no reason to doubt that their agency appointment would have been terminated in October 2010, when every other agent of the appellant had its agency terminated. There was unchallenged evidence at trial that Securency “wrote to every agent who we had terminating their agencies … we wrote to them all in the summer [2010] and we terminated all agencies … by the end of the year 2010, all agencies had been terminated without exception”. There was no basis in the evidence to find that the respondents would have been the sole exception to the action that Securency actually took in 2010.

194    Securency further submitted that the respondents had not identified any authority which supported the proposition that, since Securency was found to have made fraudulent representations, it was precluded from asserting that it could and would have terminated the agency lawfully in any event.

E.2    Consideration

195    We agree that the date of termination would have been no later than 29 November 2010. We do not accept the respondents’ submission that there was no evidence that anybody in a decision-making role in Securency would have terminated Dr Berry and GSC were it not for the wrongful and false proposition that he wished to be released from the Agency Agreement.

196    To the extent, as submitted on behalf of Dr Berry and GSC, that the primary judge approached the case as being one in which the chance of Dr Berry and GSC surviving the 2010 purge was greater than the ordinary agent because of the particular relationships that they had and because Dr Berry was an honest agent and was known to be so within Securency, we disagree. We see no cogent basis for concluding that Dr Berry and GSC would have survived the worldwide agency terminations. In our opinion, the worldwide terminations would have been made, and were made, absent the contravening conduct. Contrary to the submissions on behalf of Dr Berry and GSC, we do not see a basis for placing a percentage chance on their prospects of survival of those terminations.

197    We do not accept the submission that Dr Berry was a special case in this respect. It was not put to Dr Berry that he was a special case and we see no force in the argument that Mr Beeby did not give evidence that he would have terminated Dr Berry specifically. Mr Beeby’s evidence was that a decision was made to halt the use of agents altogether and consequently all of Securency’s agents were terminated. It was not put to him that Dr Berry would not have been terminated at that time. We do not accept that Dr Berry had a chance of survival.

198    We also note that Dr Berry and GSC accepted, contrary to what the primary judge said about the loss of an opportunity to construct the opacification plant, that at trial Dr Berry and GSC did not ask for their loss to be assessed on that basis, that the loss of opportunity to construct and operate the opacification plant was not part of their case, and to that extent the primary judge was in error. In any event, as outlined at [179] above, the primary judge did not attempt to directly value the loss of that opportunity, proceeding instead to assess loss by reference to the presumed continuation of the Agency Agreement until 20 May 2018.

199    Having found that Dr Berry’s and GSC’s agency would have been terminated at the latest during the worldwide terminations, in our opinion, 29 November 2010 (being 60 days after 30 September 2010) is the latest possible end date for the assessment of compensation. We therefore consider that the primary judge erred in assessing compensation on the basis of the presumed continuation of the Agency Agreement until 20 May 2018.

200    However, we also agree with Securency’s submission that, given Mr Beeby’s evidence that termination letters in respect of all existing agency agreements were sent between July and September 2010, the assumed date of a letter to the respondents terminating their agency as part of the worldwide terminations should be 31 August 2010, giving a termination date of 30 October 2010.

201    Having rejected the submission that Dr Berry and GSC stood outside the worldwide terminations and were a special case, there is logic in making the assessment of quantum and interest by reference to the midpoint of the period during which termination letters were sent. There is no basis for concluding that a termination letter to Dr Berry and GSC sent during the worldwide terminations would have been sent on the first day of the period or on the last day of the period. That midpoint is 31 August 2010 and a termination consequent upon a letter of that date would therefore have occurred on 30 October 2010.

202    Having concluded that the primary judge was in error in assessing damages by reference to a presumed continuation of the Agency Agreement until 20 May 2018, and having concluded that 30 October 2010 was the latest date for termination, we now turn to consider the correct basis for the calculation of quantum and interest.

203    The nature of the task must be clearly kept in mind. The pleaded claim for relief was statutory, being a claim for statutory compensation by reason of misleading or deceptive conduct. Compensation is to be assessed by reference to the position the respondents would have been in, absent the offending conduct. Absent that conduct, would the Agency Agreement have been terminated without cause on 60 days’ notice in 2008? Would the Agency Agreement have been terminated with 30 days’ notice prior to its expiry or automatically renewed every two years from 2008?

204    Securency submitted that in circumstances in which it patently wished to terminate the Agency Agreement (in particular having regard to its attempts to do so), where Dr Berry was unable to fulfil his obligations as a result of his ongoing dispute with the Nigerian Government, and where Securency had in fact appointed other entities to act as its agents in the region, the overwhelming likelihood was that it would have exercised its unhindered right to terminate the Agency Agreement. That termination, it submitted, would have occurred either 60 days after Dr Berry had notionally refused to sign the termination letter (in the counterfactual where he was not induced by the contravening conduct), or at the absolute latest on 30 June 2008 by giving 30 days’ prior notice.

205    Contrary to the reasons of the primary judge at J[314], Securency submitted, there was no evidence to suggest termination of the Agency Agreement would have caused Dr Berry and the Governor to react adversely to Securency or otherwise impede its interests. The reasons at J[315] were, Securency submitted, a non sequitur, and the reasons at J[316]-[317] were contrary to the evidence and to the express finding of the primary judge at J[19] that Dr Berry lied in order to create the false impression that his evolving commercial and legal dispute with the Nigerian Government had not created any problem for him in visiting that country and dealing there with both its officials and his own business or in performing his role as Securency’s agent. Contrary to J[319]-[322], Securency submitted, there is no principle to the effect that where false representations are found to have been made, a party is precluded from making contentions on matters going to causation or damages, and the authorities cited by the primary judge did not support such a proposition.

206    Securency submitted that had the primary judge found that the Agency Agreement would have been terminated by 25 April 2008 (24 February 2008 plus 60 days per cl 2.6), or 30 June 2008 (per cl 3.2), no damages would arise as no commission payments would otherwise have been payable in that period. Further and in the alternative, Securency submitted, Dr Berry had never sought orders setting aside the 24 February 2008 agency termination letter or a declaration that it was void or of no effect.

207    Securency referred again to the evidence given by Mr Beeby.

208    Dr Berry and GSC relied on the reasoning of the primary judge in a submission summarised at [190]-[192] above.

209    We do not agree with the approach of the primary judge at J[333] that, because the termination letter was “ineffective”, the Agency Agreement should operate according to its terms, including in respect of the rate of commission and provision for automatic renewal, for the purpose of assessing damages. In our opinion, this gives insufficient weight to the counterfactual and its inherent probabilities.

210    Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 does not support the primary judge’s approach. The dicta relied on by Dr Berry and GSC concerned a clause of the contract which provided for an automatic avoidance of the contract on the occurrence of a specific event, the Treasurer’s consent. The High Court, at 441, said that the provision was to be construed as making the contract not void but voidable. Their Honours said:

The question of who may avoid it depends on what happens. If one party has by his default brought about the happening of the event, the other party alone has the option of avoiding the contract. If the event has happened without default on either side, then either party may avoid the contract. But neither need to do so, and, if one party having a right to avoid it does not clearly exercise that right the other party may enforce the contract against him.

211    This was not the appropriate perspective from which to assess loss or damage when a contract has been terminated by reason of misleading or deceptive conduct. The question is, as we have said, how much worse off is the relevant party than that party would have been had the misleading or deceptive conduct not occurred. This directs attention to what would have happened as a matter of probabilities had the offending conduct not occurred, not to the legal effect of that conduct.

212    Gnych v Polish Club Ltd [2015] HCA 23; (2015) 255 CLR 414 at 427-8 [45] per French CJ, Kiefel, Keane and Nettle JJ, cited by the primary judge on this point, concerned a matter of legislative construction and the likelihood of adverse consequences for the “innocent party” to a bargain having been recognised as a consideration tending against the attribution to the legislature of an intention to avoid the bargain. We do not consider that authority to be of assistance in the present task.

213    The primary judge referred also, at J[320], to Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-13; Farley (Aust) Pty Ltd v JR Alexander & Sons (Queensland) Pty Ltd (1946) 75 CLR 487 at 493 and SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at 196 [15].

214    Lazarus Estates concerned whether, under the Housing Repairs and Rents Act 1954 (2 & 3 Eliz. 2, c. 53), a tenant was precluded after 28 days from challenging a declaration purporting to comply with the provisions of the Act, declaring that repair work to a particular value had been carried out in a specified period, on the ground that the declaration was fraudulent. The case turned on the effect of paragraph 5 of Schedule II which provided that where the tenant did not apply within 28 days, the service of the declaration was itself to be treated as the production of satisfactory evidence that the work specified in it had been done. It was held by the Court of Appeal, by majority, that the tenant was permitted to raise the defence of fraud. We do not regard that case, or the general observations made as to the effect of fraud on various transactions, as relevant to the assessment of loss or damage in circumstances where the court needs to assess what would have happened if the misleading or deceptive conduct, or fraud, had not occurred.

215    Farley concerned the registration of a trade mark procured by fraud. The High Court, in its original jurisdiction, was constituted by Williams J. The application was for the removal from the register of a trade mark registered by the respondent who claimed to be the proprietor of the mark. The notice of motion was not filed until a period of more than seven years had expired from the date of the original registration. The respondent had continuously used the mark since the date of registration. His Honour held that the word “fraud” in s 51A of the Trade Marks Act 1905 (Cth) was not limited to fraud on the Registrar but applied to registration of trade marks procured by fraud upon either the Registrar or other traders. It was held that a registration of a trade mark procured by such a fraud could be the subject of an application for rectification after seven years. Where the original registration was procured by fraud, the use to which a monopoly so obtained was subsequently put could not cure the initial invalidity. The crucial date was the date of the application for registration. The order of the Court was that the register of trade marks be rectified by expunging the trade mark. Again, we do not regard that case, or the passage cited by the primary judge, as relevant to the assessment of statutory compensation.

216    In SZFDE, the High Court held that the fraudulent conduct of a person who posed as a solicitor and immigration agent and who had advised the family not to attend the hearing of the Refugee Review Tribunal in response to an invitation made under s 425(1) of the Migration Act 1958 (Cth) was fraud perpetrated “on” the Tribunal as well as on the appellants with the result that, in law, the jurisdiction of the Tribunal remained unexercised. At 206 [51], the High Court said that the concomitant of Mr Hussain being fraudulent in his dealings with the appellants was the stultification of the operation of the critically important natural justice provisions made by Div 4 of Pt 7 of the Act. In short, the High Court continued, “while the Tribunal undoubtedly acted on an assumption of regularity, in truth, by reason of the fraud of Mr Hussain, it was disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review.” That state of affairs merited the description of the practice of fraud “on” the Tribunal.

217    Although the High Court, at 196 [15], cited both Lazarus Estates and Farley, their Honours said, at 196 [16], that the vitiating effect of fraud is not universal throughout the law and, at 200-201 [29], that any application of the principle that “fraud unravels everything” required consideration first of that which was to be “unravelled”, and second of what amounted to “fraud” in the particular context. It then was necessary to identify the available curial remedy to effect the “unravelling”.

218    In the present case, the “fraud” sufficed to invalidate the termination notice but it did not, in our opinion, obviate the need, in the assessment of statutory compensation under s 82 of the TPA, to consider, on the balance of probabilities, what the appellant would otherwise have done if the wrongful conduct had not occurred, that is, in the counterfactual.

219    We do not accept Securency’s contention that the appropriate finding was that notice of termination would have been given on 24 February 2008 and thus that the Agency Agreement would have been terminated by 25 April 2008 as per cl 2.6. We think there is no error in the conclusion of the primary judge that if that had been Securency’s intention then there would have been no need to engage in what the primary judge found was the misleading or deceptive conduct at the February Meeting on the same date.

220    Next to be considered is the suggested date of termination of 26 May 2008 in consequence of a suggested termination notice issued on 26 March 2008 with a 60 day notice period as per cl 2.6. We do not accept this contention, for the same reason. If the appellant should be taken to have been intending to issue a termination notice on 26 March 2008, only four weeks after the meeting on 24 February 2008, there would have been no need to engage in the misleading and deceptive conduct.

221    Next to be considered is the suggested date of termination of 22 June 2008 in consequence of a suggested termination notice issued on 22 April 2008 with a 60 day notice period as per cl 2.6. Again, in our opinion, a termination notice intended to be issued only eight weeks after the February Meeting would have meant that there was no need for Securency to engage in the contravening conduct.

222    We next turn to the suggested date of termination of 30 June 2008 in consequence of a (notional) termination notice issued on 1 June 2008 with a 30 day notice period as per cl 3.2.

223    In our opinion, the starting point must be the terms of the Agency Agreement. By virtue of the terms of cl 3.2, the agreement did not provide security for either party on a “rollover”. Further, Dr Berry was always subject to a 60 day written notice terminating his appointment which notice could be given at any time under cl 2.6.

224    Next to be considered is that it is clear that Securency wanted to end its agency with Dr Berry. As we have said, it was entitled to do so for good reason or for no reason. Senior Counsel for Dr Berry and GSC accepted that Securency could have terminated the agency if it thought that it could make more money without Dr Berry.

225    In our opinion, once the lack of internal logic has been exhausted with reference to the misleading or deceptive conduct, which we have considered in the immediately preceding paragraphs, there is no reason to assume in the counterfactual that Securency would not have acted to terminate the Agency Agreement at the time when that agreement would otherwise have been automatically renewed for a further term of two years.

226    As we have said, if Securency wanted to engage another agent it was free to do so and it is clear that in the first half of 2008, it did want to do so. We note, for example, that, on the findings of the primary judge at J[174]-[178], on 5 or 6 February 2008, JH Marketing (Africa 2000) Ltd executed an agency agreement for the territory of Nigeria and the ECWAS which was, by 14 February 2008, countersigned by Securency. As recorded at J[222] and J[255], on about 6 August 2008, Securency terminated the agency agreement with JH Marketing (Africa 2000) Ltd and entered into a replacement agency agreement with JHM Global (FZC). We do not see it as significant whether or not Dr Berry was in any relationship with JHM whereby he would be doing work for them. As we noted at [110] above, one of the practical consequences of the contravening conduct was to bring Dr Berry’s agency to an end without unnecessarily alienating him, which allowed Securency to continue to make some limited use of Dr Berry possibly including a meeting between Mr Chapman and Dr Berry as late as November 2008 (although, as the primary judge noted at J[271], there was no evidence of what transpired at that meeting).

227    Although the primary judge said that Dr Berry’s texts with Mr Chapman and his requests for information and meetings was a demonstration that he was not acting as if his agency had been terminated and Mr Chapman was not treating Dr Berry as if it had, in our opinion the text messages themselves record no more than logistical details of setting up a meeting, and pleasantries. What is evident is that any post February Meeting involvement of Dr Berry was limited and although the misleading conduct of Securency made that limited involvement possible, in the counterfactual, absent the misleading conduct, the factors that motivated the replacement of Dr Berry would have ensured that his agency would have been brought to an end. Ultimately, without evidence of positive and substantive involvement of Dr Berry in Securency’s business, we consider no more should be made of evidence such as Dr Berry’s texts and his requests for information and meetings, in terms of proving that in the counterfactual Dr Berry would have continued to act as Securency’s agent.

228    We therefore find, for the purpose of assessing quantum that, absent the contravening conduct, the Agency Agreement would have terminated on 30 June 2008.

229    Last to be considered, in the alternative, is the suggested date of termination of 30 June 2010 in consequence of a suggested termination notice issued on 1 June 2010 with a 30 days’ notice period as per cl 3.2. Our reasoning in relation to the 30 June 2008 date of termination applies a fortiori. Further, events occurred after 1 June 2008, such as commission payments to SPT, which, if we are wrong as to termination on 30 June 2008, would lead us to the same conclusion for termination on 30 June 2010.

230    Our conclusions do not depend on the evidence of Mr Brown. Strictly therefore it is unnecessary to address the reasons of the primary judge at J[314]-[323] that he did not believe Mr Brown’s assertion that had Dr Berry not signed the termination letter, Securency would have exercised one of its powers to terminate the Agency Agreement. For completeness however, we note that the fact that Securency did not issue another written notice until 2018 suggests that it regarded the wrongful termination as effective, rather than supporting an inference that Securency would not have terminated the Agency Agreement. Also, we note that Securency, through Mr Chapman, continued to make use of Dr Berry after the February Meeting, including by having him meet with the Governor in London on 24 March 2008, which was still some months before the date of 30 June 2008, being the date we have found for the purpose of assessing quantum that, absent the contravening conduct, the Agency Agreement would have terminated. As to the factor that a unilateral termination would have converted Dr Berry into a person who would be likely to impede Securency’s interests rather than advance them, in our view, this is a neutral consideration since the wrongful termination would also have had that effect. Lastly, we also regard the factor of Securency recently extending its territory to include the ECWAS states as neutral, as the clear inference is that Securency did not want Dr Berry to continue in that role: the Agency Agreement would not have been terminated, fraudulently or otherwise, if Securency wanted Dr Berry to continue that role.

231    The parties were able to agree on the sums yielded by the various permutations. They filed calculations, by leave after the conclusion of argument, as follows:

Quantum and interest calculations (AUD)

1    Termination notice issued on 24 February 2008 with 60 days’ notice period (clause 2.6; Appellant’s submissions [85])

2    Termination notice issued on 26 March 2008 with 60 days’ notice period (clause 2.6)

3    Termination notice issued on 22 April 2008 with 60 days’ notice period (clause 2.6)

4    Termination notice issued on 1 June 2008 with 30 days’ notice period (clause 3.2; Appellant’s submissions [85])

  5    Termination notice issued on 1 June 2010 with 30 days’ notice period

6    Termination notice issued on 31 August 2010 with 60 days’ notice period (clause 2.6; Appellant’s submissions [91])

7    Termination notice issued on 30 September 2010 with 60 days’ notice (clause 2.6; Appellant’s submissions [91])

  8    Termination notice issued on 1 June 2012 with 30 days’ notice period

  9    Termination notice issued on 1 June 2014 with 30 days’ notice period

 10    Termination notice issued on 1 June 2016 with 30 days’ notice period

 11    Per judgment of Rares J dated 17 August 2018 (Berry v CCL Secure Pty Ltd (No 2) [2018] FCA 1351 at [4]) 

232    It is therefore not in issue that the quantum of loss suffered by Dr Berry was $1,205,579 (plus $575,279 for pre-judgment interest) on the assumption that, absent the misleading and deceptive conduct, the Agency Agreement would have terminated on 30 June 2008. As we have found that agreement would have terminated on that date, this is the appropriate amount to award by way of statutory compensation pursuant to s 82 of the TPA.

F    ORDERS

233    The parties should bring in short minutes of orders to reflect these reasons within seven days. Given the quantum of the judgment against Securency will need to be varied, it is necessary to set aside Order 2 made by the primary judge on 17 August 2018. No error has been demonstrated in relation to the declaration made the same day, to the effect that the termination letter is of no effect having been procured by fraud, and this declaration should be left undisturbed. A possible consequence of the variation of the judgment sum is that costs orders made by the primary judge may need to be revisited because of the existence of without prejudice communications as to costs (admissible on any costs argument pursuant to s 131(2)(h) of the EA). Issues also arise as to the appropriate costs order in relation to this appeal. In this regard, although Securency has been largely successful in relation to the damages aspect of the appeal, it was unsuccessful in its attempts to have the primary judge’s findings on liability reversed and the prolix and unnecessarily complex notice of appeal has increased the time taken to hear and dispose of the appeal.

234    If orders reflecting these reasons can be agreed, then they should be provided to the Court within seven days. If not, then competing minutes of orders should be filed within seven days together with any evidence relating to costs and any submission (limited to two pages) setting out the reasons why the orders for which the party contends should be made. Subject to any application, following receipt of material from the parties, the present intention of the Court is to make orders on the papers.

Associate:

Dated:    24 May 2019