FORM 1

FDNIN THE SUPREME COURT OF SOUTH AUSTRALIAIN THE CIVIL JURISDICTION

BETWEEN: NANOSECOND CORPORATION PTY LTDFirst Appellant

CLAYTON WALTER WENTWORTHSecond Appellant

and

GLEN CARRON PTY TDFirst Respondent

GARDEN GROVE PTY LTDSecond Respondent

CASE BOOK

THE ELECTRONIC COPY OF THIS CASE BOOK IS AVAILABLE AT:

http://www.tvotw.com/GlenCarron(underscore)GardenGrove(underscore)Case/

944(underscore)2017(underscore)Appeal(underscore)WebVersions/AppealDocuments/ Appeal(underscore)CaseBook(underscore)Final.doc

INDEX TO CASE BOOK

Item Description Date of Document

Page(s)

Originating process and pleadings

SUMMONS NANOSECOND CORPORATION PTY LTD FIRST PLAINTIFF – CLAYTON WALTER WENTWORTH SECOND PLAINTIFF AND GLEN CARRON PTY LTD FIRST DEFENDANT GARDEN GROVE PTY LTD SECOND DEFENDANT

10 August 2017

7.

PLEADINGS Third Statement of Claim 9 April 2018 8.

INTRODUCTION Background to the action. 27th June 2019

38.

Evidence

THIS COLUMN OF THE ELECTRONIC COPY OF THIS

DOCUMENT CONTAINS DIRECT LINKS TO EVERY RECORDING.

TRANSCRIPT – 1 Phone call Doug Harrold. 27th May 2016 41.

TRANSCRIPT – 2 Phone call with Mick Harrold – 1. 17th August 2016

46.

TRANSCRIPT – 3 Phone call with Mick Harrold – 2. 17th August 2016

47.

TRANSCRIPT – 4 Phone call with Mick Harrold. 18th August 2016

49.

TRANSCRIPT – 5 Phone call with Mick Harrold. 27th October 2016

51.

TRANSCRIPT – 6 Phone call with David Arbon. 17th March 2017

53.

TRANSCRIPT – 7 Phone call with Andy Gray. 17th March 2017

57.

TRANSCRIPT – 8 Phone call with Paul Page. 21st March 2017

60.

TRANSCRIPT – 9 Phone call with Paul Page. 23rd March 2017

61.

TRANSCRIPT – 9a Disputed section of 9 above repeated.

23rd March 2017

61.

2

TRANSCRIPT – 10 Face to face with Greg Arbon. 23rd March 2017

69.

TRANSCRIPT – 11 Phone call with Paul Page. 27th April 2017 83.

TRANSCRIPT- 12 Face to face with Greg Arbon. 27th April 2017 85.

TRANSCRIPT – 13 Phone call with Doug Harrold. 27th April 2017 91.

TRANSCRIPT – 14 Second phone call with Doug Harrold.

27th April 2017 93.

TRANSCRIPT – 15 Face to face with Doug Harrold. 16th June 2017 95.

TRANSCRIPT – 16 Phone call with Pat Harrold. 16th June 2017 98.

TRANSCRIPT – 17 Face to face with David Arbon. 2nd June 2017 102.

TRANSCRIPT – 18 Phone call with Bianca Schuller. 5th June 2017 106.

TRANSCRIPT – 19 Phone call with David Arbon. 5th June 2017 107.

TRANSCRIPT – 20 Face to face with David Arbon. 28th February 2018

108.

TRANSCRIPT – 21 David Arbon – evidence at trial. 2nd September 2018

109.

TRANSCRIPT – 22 Liz Martin – GrainFlow Mallala. 28th February 2018

110.

TRANSCRIPT Doug Harrold – evidence at trial. 3rd September 2018

113.

TRANSCRIPT – 23 Face to face with Leanne O’Leary - Mark Franke – Ridley – Murray Bridge.

28th March 2018

114.

TRANSCRIPT – 24 Phone call Cory Button. 6th September 2016

125.

Exhibits

3

P1 Email trail 27th April 2017

131.

P2 Email trail 5th April 2017 133.

P3 Incident report 26th April 2017

135.

P4 Email trail 23rd June 2017

138.

P5 Advertiser Newspaper report 27th April 2019

139.

P6 The new S52 , S18 ACL Sep/Oct 2011

142.

P7 Misleading or Deceptive Conduct Unknown 150.

Reasons for judgment of the primary Court or Judge

Judgement By Justice Doyle. 14th

December 2018

157.

4

6

7

FORM 1FDNIN THE SUPREME COURT OF SOUTH AUSTRALIAIN THE CIVIL JURISDICTION

SCCIV-944-2017BETWEEN

NANOSECOND CORPORATION PTY LTD (ACN 166 645 816)First Plaintiffand

CLAYTON WALTER WENTWORTHSecond Plaintiff

and GLEN CARON PTY LTD (ACN 007 743 866)First Defendant

and GARDEN GROVE HAULAGE PTY LTD (ACN 007 954 173)Second Defendant

THIRD STATEMENT OF CLAIM

Filed on behalf of the Plaintiffs, Nanosecond Corporation Pty Ltd (ACN 166 645 816) and Clayton Walter WentworthSuite 4, 74 Prospect RoadPROSPECT South Australia 5082Ph: 0403 503 498Email:

claytonwwentoworth@gmail.com

Date and time of filing:

26th February 2018

8

(a) Rules 91, 98 and 99.Statement of

Claim

(b) Form 18

THIRD STATEMENT OF CLAIM

(c) Introduction

This action arises from agreements both oral and implied between the parties in respect of the supply of haulage services in the market for the carriage and transportation of grain and associated products by truck in South Australia (“the market”) to the Defendants, and the management, conduct and subsequent termination of the relevant haulage work, and involves claims by the Plaintiffs for breach of contract, injurious falsehood, defamation, misleading and deceptive conduct in contravention of S18 (1) of the Australian Consumer Law and conspiracy by unlawful means all of which resulted in significant direct and consequential loss and damage.

The causes of action relied on are:

A. Breach of contract;

B. Injurious falsehood;

C. Defamation;

D. Misleading and deceptive conduct in contravention of S18 (1) of the Australian Consumer Law;

E. Conspiracy by unlawful means.

(d) Part 1

9

(e) Background and uncontroversial matters

1. The First Plaintiff Nanosecond Corporation Pty Ltd, ACN 166 645 816 (“Nanosecond”) was, at all material times, registered as a company under the provisions of the Corporations Act 2001 (Cth) and carried on business as a privately owned haulage services provider in the market;

2. The Second Plaintiff Clayton Walter Wentworth (“Wentworth”):

2.1 is a natural person, capable of suing and being sued;

2.2 is and was, at all material times; the sole director and shareholder of the First Plaintiff;

2.3 in the period from approximately 1st February 2015 to 27th April 2017 provided haulage services to the First and Second Defendants through the First Plaintiff and prior to that from approximately 15th March 2011 to 31st January 2015 in his capacity as a paid heavy combination professional driver employed by the Fischer Family Trust operated by (“Bill Fischer”). A period of over 6(six) years and 1(one) month in total;

2.4 was born on the 22nd June 1949 and at the time of commencing this action was 68(sixty eight) years old; and;

2.5 is currently unemployed.

3. At all material times referred to in this statement of claim;

3.1 the First Defendant Glen Carron Pty Ltd (ACN 007 743 866) (“Glen Carron”);

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3.1.1 was registered as a company under the provisions of the Corporations Act 2001 (Cth) and carried on business in South Australia as a privately owned bulk transport and haulage services provider in the market;

3.1.2 was represented by Douglas Harrold (“Doug”) with the prime point of contact between 15th March 2011 and approximately early 2016 being Pat Harrold (“Pat”) and thereafter until the date of termination on 27th April 2017 being Michael Harrold (“Mick”).

3.2 the Second Defendant Garden Grove Haulage Pty Ltd (ACN 007 954 173) (“Garden Grove Haulage”) was registered as a company under the provisions of the Corporations Act (Cth) and carried on business in South Australia as a privately owned logistics and bulk transport and haulage services provider in the market;

3.2.1 was represented by Paul Page (“Paul”) who was also the prime point of contact at all times between 15th March 2011 and the date of termination on 26th April 2017.

(f) Part 2

(g) Basis of causes of action and other material matters

(h) Contractual arrangements

(i) The initial Agreement – Garden Grove

The Offer

A. On or about 1st February 2015 Wentworth acting in his capacity as sole Director of Nanosecond contacted Paul from Garden Grove and

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advised Paul that he had acquired his own truck and semi-trailer and that in the future would be operating independently from Bill Fischer. Wentworth had completed significant work for and on behalf of Garden Grove in his capacity as a heavy combination professional driver employed by Bill Fischer going back to 15th March 2011.

B. In the above conversation Paul offered to provide work to Wentworth on an ongoing basis from that date forward.

(j) THE ACCEPTANCE

C. In order to work under contract to Garden Grove Wentworth agreed with Paul that he would comply with any and all terms and conditions imposed by Garden Grove.

D. Paul told Wentworth that he would be contacted by a person by the name of Ray Heinz “Ray” who was the company compliance officer for Garden Grove who would send through the necessary forms for him to complete before he could carry any loads under contract to Garden Grove.

E. The forms were duly received and completed by Wentworth and these will be produced at Discovery of this action.

(k) THE CONSIDERATION

F. As part of the offer process referred to in paragraph ‘B’ above Wentworth was advised by Paul that at the time of despatch he would be quoted a tonnage rate that would be the consideration Nanosecond would be paid for fulfilling and performing the contract.

G. The Implied terms of the Agreement were that:

(a.) Together with Glen Carron - Garden Grove holds a majority share of the total tonnage moved in the market in South Australia;

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(b.) Garden Grove requires the services provided by contractors such as Nanosecond in order to cover the tonnage that it is required to move for and on behalf of the grain storage and export companies in South Australia being Grain Flow hereinafter referred to as - (“Grain Flow”) owned by Cargill Australia (“Cargill”) and Viterra hereinafter referred to as - (“Viterra”) owned by Glencore Australia Holdings Pty Ltd (“Glencore”);

(c.) Garden Grove is required by law not to engage in exclusive dealing and is required and expected to treat any and all contractors in a like and similar fashion without prejudice or preference;

(d.) Nanosecond is operating under contract to Garden Grove;

(e.) Nanosecond will continue to operate under contract to Garden Grove as long as Garden Grove continues business in the market.

H. The Implied Terms are implied in the Agreement as they:

(f.) are reasonable and equitable;

(g.) are necessary to give business efficacy to the Agreement

(h.) are so obvious they go without saying;

(i.) are capable of clear expression , and

(j.) do not contradict any express term of the Agreement.

Performance of the Agreement

I. Nanosecond and Wentworth discharged any and all of their duties and obligations in accordance with the Agreement.

J. At no time from 1st February 2015 up to and inclusive of 26th April 2017 was it necessary for Nanosecond to claim against it’s insurance for any loss or damage sustained by Garden Grove or any of it’s

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clients due to the actions, conduct or negligence of Nanosecond or Wentworth.

K. At no time during the period 1st February 2015 up to and inclusive of 26th April 2017 was it necessary for Garden Grove to impose any sanction due to any failure to perform the agreement by Nanosecond or Wentworth.

L. No hard evidence was ever produced by Garden Grove during the period referred to in paragraph ‘K.’ of any failure on the part of Nanosecond or Wentworth to perform the Agreement.

(l) Breach of Agreement

M. Arbitrarily and without providing any justifiable reason for doing so on 26th April 2017 Paul from Garden Grove advised Wentworth by telephone that they were withholding supply to himself and Nanosecond permanently.

N. What makes the actions and conduct of Garden Grove referred to in paragraph ‘M’ above so more reprehensible and iniquitous is that the Injurious falsehood as communicated by Garden Grove to Mick referred to hereunder was used as the reason and pretext by Glen Carron for it’s breach of contract with Nanosecond.

O. By reason of the matters set out in paragraphs ‘G’ to ‘L’ inclusive above Nanosecond is contracted to Garden Grove and fully supported and evidenced over a period of more than 2 (two) years - and - at common law and in equity – Garden Grove is now and has been since 26th April 2017 - in breach of contract and liable for loss and damage resulting from the said breach.

(m) Loss and Damage

P. By reason of the breach of contract as set out in paragraphs ‘M’ to ‘O’ inclusive above the Plaintiff Nanosecond has suffered loss and damage comprising:

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Q. The loss and damage for the breach of contract by Garden Grove at paragraphs ‘M’ to ‘O’ inclusive is calculated and quantified as follows. The calculation also allows for the fact that even at the conclusion of these proceedings - Nanosecond is still excluded from this market - even if damages can provide and restore replacement equipment to Nanosecond - and also where Nanosecond is constrained from contracting with Garden Grove due to a complete lack and failure on the part of Garden Grove to transact in good faith and with that the total breakdown of any form of business relationship possible between the Plaintiffs and Garden Grove caused by these proceedings and previously. As a consequence of the preceding - the term shall include the period from 26th April 2017 to 25th April 2032.

R. Wentworth says he previously worked a 12 hour day - 6 day week. The tonnage rate from Crystal Brook to Port Adelaide is $22.00 (twenty two dollars) per ton and is subject to increase due to inflation.

S. Nanosecond supplied the contract with Garden Grove for 3(three) months but not in one continuous 3 month period of any 12(twelve) month period from Crystal Brook to Berth 29 at Port Adelaide. Collections were also made from Port Pirie and other sites as well. The remaining 9(nine) months were preoccupied fulfilling the contract with Glen Carron.

T. Allowing for the rate of $22.00 (twenty two dollars) per ton the calculation for the purposes of paragraph ‘BR’ using a road train configuration is represented as - 61.2ton x $22.00/ton x 2 runs = $2,962.08 per day. Over - 6 days = $17,772.48 weekly. 13(thirteen) weeks annually = $231,042.24. Over 15(fifteen) years = $3,465,633.60 (three million four hundred and sixty five thousand six hundred and thirty three dollars and sixty).

U. Nanosecond claims loss of income for breach of contract by Garden Grove for the period from 26th April 2017 to 25th April 2032 inclusive for a total - $3,465,633.60 (three million four hundred and sixty five thousand six hundred and thirty three dollars and sixty cents). Less

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expenses not incurred of fuel, tyres, servicing, registration, insurance and other - 30% of gross earnings - $1,039,690.08 (one million and thirty nine thousand six hundred and ninety dollars and eight cents) - for a nett - $2,425,942.52 (two million four hundred and twenty five thousand nine hundred and forty two dollars and fifty two cents).

(n) Injurious falsehood

V. Nanosecond is an excluded corporation under the Law.

W. On or about 17th March 2017 in response to a report from Mick that he had received an allegation from “Andy” from Garden Grove that Wentworth had allegedly tried to run Garden Grove trucks “off the road” Wentworth called Andy from Garden Grove on the phone to say that he had just received advice of a communication by Andy to Mick that Wentworth had allegedly tried to run his trucks off the road. As a consequence Andy had advised Mick that Wentworth was to be given no further work by Garden Grove. In addition – Wentworth had allegedly been banned from unloading at Berth 29 at Port Adelaide as well as being banned from collecting further loads from Grain Flow at Crystal Brook.

X. In the same call referred to in paragraph ‘W.’ above Wentworth also made reference to an allegation Mick said Andy had made that Wentworth had allegedly taken out a stobie pole at Grain Flow Crystal Brook. He also alleged during this same phone call that he had received complaints about Wentworth from Grain Flow Mallala. He further alleged that 3 (three) of his drivers had phoned him to say – “… they had to take evasive action around yer …” Furthermore – and in the same phone call - he alleged - "… On top of that - they're saying you take up to an hour to load yer truck. …" And at the end he alleged - "… I didn't say - 'you tried to run em off' - I said - 'you just did tho!' …" Not one single allegation made by Andy in any part of this paragraph is true and every single part of it is a total nonsense – a total fabrication - and a monstrous lie in it’s entirety. Evidence to be

16

adduced at trial will show unequivocally that every single part of it is a monstrous and evil conspiracy by unlawful means.

Y. On 21st March 2017 another phone call took place between the Second Plaintiff and Paul Page from Garden Grove.

Z. The Plaintiffs will show at trial that apart from the malicious and derogatory conduct of Mick from Glen Carron toward the Second Plaintiff going back to 18 August 2016 and thereafter - the major breakdown in the relationship between the parties can be taken from these malicious, wanton and entirely fabricated allegations and actions of Andy Gray from Garden Grove on the 17th March 2017 referred to in paragraphs ‘W.’ and ‘X’ above and Paul Page from Garden Grove on the 21st March 2017. During the course of this phone call - Paul Page made the allegation that the Second Plaintiff could no longer do any deliveries into Berth 29 at Port Adelaide for Garden Grove allegedly because he had been “banned from site” at Grain Flow Crystal Brook. This allegation constitutes a deliberate and wanton attempt on the part of Paul Page to illegally implicate Grain Flow and Cargill in the conspiracy by unlawful means and Injurious falsehood against the Plaintiffs at paragraphs ‘BJ.’ and ‘AL.’ below.

AA. Subsequent investigations with Grain Flow at Crystal Brook and others revealed that Grain Flow had at no time made a determination to ban the First or Second Plaintiff from that site – or any other Cargill site.

AB. These investigations together with other evidence to be adduced at trial revealed the following facts.

AC. The allegations contained in paragraphs W. to Z. inclusive are utterly and unequivocally untrue in their entirety.

AD. On 23rd March 2017 a meeting took place between Wentworth and a man known as Greg Arbon (“Greg”) at Berth 29 Port Adelaide. Greg is the night time supervisor for Patrick Ports & Stevedoring at Berth 29. Greg is also a first cousin to ‘Justin’ from Garden Grove. During that

17

face to face meeting with Greg he rang Justin who also independently rang and spoke to Paul. Justin called Greg back and claimed that Wentworth had been banned from unloading at Berth 29 allegedly because Wentworth had “tried to run his trucks off the road” on or about 17th March 2017. This allegation was entirely contrary and at odds with the excuse for maliciously withdrawing supply to the Plaintiffs referred to in paragraph ‘Z.’ above - that being that Wentworth had allegedly been “banned from site” at Grain Flow Crystal Brook.

AE. In addition – at the meeting on 23rd March 2017 referred to above Greg also received an allegation from Paul communicated through Justin that Wentworth had also been driving for periods of up to 24 hours straight which is highly illegal under the heavy vehicle regulations.

AF. Furthermore – Greg claimed during the meeting of the 23rd March 2017 that Garden Grove were short of trucks for the runs from Crystal Brook to Berth 29.

AG. On 27th April 2017 another meeting took place between Wentworth and Greg at Berth 29 Port Adelaide at which time Greg claimed that he had been told earlier that same day that Wentworth had been - “banned from Grain Flow Crystal Brook and every Cargill site in Australia.” Grain Flow Crystal Brook is owned by Cargill.

AH. On or about 26th April 2017 Garden Grove revisited the allegations made in paragraph ‘W’ above with a further communication to Mick that Wentworth was banned from unloading at Berth 29 at Port Adelaide as well as entering Grain Flow at Crystal Brook or any other Grain Flow site in Australia and for allegedly working for 24 hours continuously contrary to the heavy vehicle driving regulations. In addition Wentworth was banned from doing any further work for Garden Grove period.

AI. Evidence to be adduced at trial will demonstrate and reveal a further additional history and litany of allegations by Paul Page and Andy

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Gray to that disclosed in paragraphs ‘W.’ to ‘Z.’, ‘AE.’, ‘AF.’, ‘AG.’ and ‘AH’ which were untrue in their entirety and which will expose unequivocally a malicious motive on the part of Paul Page and Andy Gray to injure the Plaintiffs by withdrawing supply on grounds known to be false.

AJ. The Plaintiffs say that the Injurious falsehood referred to above by Garden Grove was then used by Mick as the justification, reason and pretext for Glen Carron to then arbitrarily withhold supply permanently to Nanosecond and Wentworth from 27th April 2017.

(o) Loss and Damage

AK. By reason of the Injurious falsehood by Garden Grove as set out in paragraphs ‘W.’ to ‘Z.’, ‘AE.’, ‘AF.’, ‘AG.’, ‘AH.’, ‘AI.’ and ‘AJ’ inclusive above the Plaintiff Nanosecond has suffered loss and damage.

AL. Nanosecond claims loss and damage for Injurious falsehood by Garden Grove in the sum of $10,000,000 (ten million dollars).

DEFAMATION

AM. The facts referred to in paragraphs ‘W.’ to ‘Z.’, ‘AE.’, ‘AF.’, ‘AG.’, ‘AH.’, ‘AI.’ and ‘AJ’ inclusive above are repeated.

AN. Wentworth says that the allegation by Andy to Mick gives rise to imputations that Wentworth is both reckless in his driving and was engaging in criminal behaviour.

AO. By reason of the publications referred to in paragraphs ‘AM’ and AN’ Wentworth has suffered damage to his personal and professional reputation.

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(p) Loss and Damage

AP. Wentworth claims loss and damage in the tort of defamation from Garden Grove in the sum of $250,000 (two hundred and fifty thousand dollars).

(q) Consequential loss and damage

AQ. The Plaintiffs claim consequential loss and damage which includes the destruction of the credit history and credit worthiness of Nanosecond and Wentworth of $817,221.15 (eight hundred and seventeen thousand two hundred and twenty one dollars and fifteen cents) from Garden Grove.

AR. The Plaintiffs now have unpaid defaults recorded on their credit files and are now unable to obtain loans or advances for the smallest amounts.

Misleading and Deceptive Conduct

AS. On or about 25th March 2016 Wentworth on behalf of Nanosecond requested a letter from Garden Grove to support an application for finance for the supply of a replacement truck to Nanosecond – herewith exhibit marked “CWW_4”.

AT. The letter referred to in paragraph ‘AS.’ was requested by a prospective financier to confirm that Nanosecond had contracts providing an ongoing income stream for the term of the prospective loan which was 5(five) years.

AU. The facts delineated in paragraphs ‘AK.’, ‘AM.’, ‘AN.’, ‘AO.’, ‘AQ.’, ‘AR.’, ‘AS.’, ‘AT.’, above and ‘AV.’ to ‘BI.’ inclusive below - are repeated.

AV. The actions and conduct by Paul Page and Andy Gray from Garden Grove of entering into a conspiracy by unlawful means as delineated below at paragraph ‘AY.” to falsely accuse the Second Plaintiff of a

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variety of acts and conduct which at no time had any truth or basis in fact and were maliciously contrived by Paul Page and Andy Gray for the purpose of withholding supply to the First and Second Plaintiffs - and – where those said actions and conduct by servants of the Second Defendant were additional to and entirely inconsistent and at odds with and contrary to the spirit of the letter referred to in paragraph ‘AS.’ above and that when these facts are taken and applied both in isolation and in their entirety and joint meaning indicates a motive - intention and predisposition by Garden Grove as the Second Defendant not to act in good faith – and thereby represents and constitutes misleading and deceptive conduct contrary to the provisions of S18(1) of the Australian Consumer Law.

(r) Loss and Damage

AW. Nanosecond claims loss and damage for misleading and deceptive conduct by Garden Grove of $4,000,000 (four million dollars).

(s) Aggravated Damages

AX. Wentworth claims aggravated damages of $2,500,000 (two million five hundred thousand dollars) from Garden Grove.

(t) Conspiracy by Unlawful Means

AY. The facts in paragraphs ‘W.’, ‘X.’, ‘Y.’, ‘Z.’, ‘AA.’, ‘AB.’, ‘AC.’, ‘AD.’, ‘AE.’, ‘AF.’, ‘AG.’, ‘AH.’, ‘AI.’, ‘AJ.’, ‘AK.’, ‘AL.’, ‘AM.’, ‘AN.’, ‘AO.’, ‘AP.’ are repeated.

AZ. The facts as set out in paragraph ‘AY’ discloses a conspiracy by unlawful means by Paul Page and Andy Gray from Garden Grove to falsely accuse the Second Plaintiff of a variety of acts and conduct which at no time had any truth or basis in fact and were maliciously contrived by Paul Page and Andy Gray for the purpose of withholding supply to the First and Second Plaintiffs. The conspiracy was

21

intentional. It was wanton. It was premeditated. It was ruthless. It had no regard for the law. It had no regard for equitable principles. And – it was done with the full knowledge that any allegation directed at the Second Plaintiff were false in their entirety.

BA. The motive for the conspiracy referred to in paragraph ‘AZ.’ above by Paul Page and Andy Gray was grounded in malice toward the Second Plaintiff.

BB. The conspiracy was designed to injure and do irreparable financial harm and inflict the greatest amount of financial loss and damage possible to the First and Second Plaintiffs.

BC. Both Paul Page and Mick Harrold were advised by the Second Plaintiff in May 2016 that he had purchased a Transport Connection tri-axle dolly to convert his equipment into a road train. The road train configuration enabled the transporting of 61.2 tonnes of product compared to approximately 43.5 tonnes as a ‘B’ double.

BD. As a consequence of the conspiracy by unlawful means actuated by malice and implemented using the tort of fabricating, using and making false statements the Second Defendant has completely and fully extinguished the defence of qualified privilege.

BE. As a consequence of the facts delineated in paragraphs ‘AZ’. to ‘BD.’ above the Second Defendant has established a precedent wherein all interactions from the 17th March 2017 and thereafter between the Plaintiffs and the Second Defendant are tainted and characterized by a malicious motive to injure and do financial harm and damage to the Plaintiffs at the first and slightest available opportunity in the circumstance where both Paul Page Andy Gray and Mick from Glen Carron well knew that the Plaintiffs had been diligently waiting since May 2016 to be able to use the road train configuration referred to in paragraph ‘BC.’ above for the huge additional income it provided - and - in particular that any communications whatsoever between the Second and First Defendants where the Second Plaintiff was any part of the discussion was for the predetermined purpose of doing

22

maximum injury and harm to the Plaintiffs by preventing the use of their road train where possible. Despite constant requests to Mick since May 2016 the Second Plaintiff was constantly told – “there are no road train runs” – and on 21st March 2017 Paul Page embarked on a conspiracy by unlawful means with Andy Gray from Garden Grove to falsely accuse and withdraw supply of these road train runs from Grain Flow Crystal Brook to Berth 29 at Port Adelaide to the Plaintiffs. The above conduct was further confirmed and reaffirmed on 27 th April 2017 when the Plaintiffs completed the last load for Glen Carron from Ardrossan to Port Adelaide being the first and only time this road train was used on that particular run after the First Plaintiff had obtained a road train permit from the National Heavy Vehicle Regulator just 3 (three) days beforehand. The consequence - maximum harm. Maximum loss and damage to the Plaintiffs.

BF. The pleading in paragraph ‘BE.’ above was further confirmed and reaffirmed in the phone conversation with Paul Page on the 27th April 2017 at which time he stated – “…You don't work for us full time - ok. You only work for us when the boats are here. I'm - so you're banned from doin the boats - alright? …"

BG. The implication of the preceding determination made by Paul Page based upon grounds using false statements and false allegations in paragraphs ‘BE.’ and ‘BF.’ above and ‘BH.’ below was that the Second Plaintiff was banned from doing any and all Garden Grove work whatsoever and more particularly where the said determination was made by Paul Page personally and not Berth 29 at Port Adelaide or Grain Flow at Crystal Brook or any other party or person. The truth of the matter being that both Greg the supervisor at Berth 29 and Dave the manager at Grain Flow Crystal Brook stated unequivocally – “we have no problem here with you whatsoever.”

BH. Numerous instances will be adduced in evidence to demonstrate conclusively that Paul Page and Andy Gray from Garden Grove have conspired with and without the involvement of Mick from Glen Carron over a period of more than 12 (twelve) months prior to 27 th April 2017 to injure the First and Second Plaintiffs and that these actions were

23

also actuated by malice toward the Second Plaintiff including the tort of fabricating, using and making false statements for the purpose of withholding supply to the First and Second Plaintiffs.

BI. Moreover - the Defendants cannot take and use a conscious act and decision on the part of the Second Plaintiff to proactively protect and preserve his own legitimate and lawful interests and the fate of his very own life and future livelihood and economic well being by keeping a verifiable electronic record of the harm that was being done to him at the hands of the Defendants - and - where at all times is and was reasonably necessary for the protection of the lawful interests of the Second Plaintiff - and then try and claim that his reasons, motive or state of mind for taking the course of action that he did - was not for the protection of his own legitimate and lawful interests - but for something else – or – some other reason. These proceedings are one of the most important cases of major public interest ever to go to trial in Australia. This case has the potential of reducing the amount of litigation and the cost of litigation by more than 50% (fifty). It will totally transform the due process and implementation of the rule of law both in Australia and in other countries around the world. This fact is borne out and reaffirmed by the following opinion entitled – “Lawyers As The Enemy Of Truth” - by John O. McGinnis - George C. Dix Professor in Constitutional Law at Northwestern University. He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review. (https://www.questia.com/library/journal/1G1-103385042/lawyers-as-the-enemies-of-truth)

(u) Loss and Damage

BJ. The Plaintiffs claims loss and damage for the conspiracy by unlawful means by the Second Defendant of $10,000,000 (ten million dollars) which does not include any and all consequential loss and damage

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resulting from the termination of supply by the Second Defendant in particular where that said consequential loss resulted in the 100% permanent exclusion and entry by the Plaintiffs into the market in South Australia as owned and controlled by the silo and storage companies Glencore and Cargill. Whilst the enforcement of Misuse of market power comes within the ambit of the jurisdiction of the ACCC under section 46(1) of the Competition and Consumer Act 2010 Vol 3 - 3 March 2017 that does not make it legal for the Second Defendant to engage in the said conduct here and as such makes the Second Defendant liable for having employed the use of actions and conduct illegal and contrary to the provisions of S46(1) of the ACL to further a conspiracy by unlawful means to maliciously injure the Plaintiffs.

(v) The initial Agreement – Glen Carron

The Offer

BK. On or about 1st February 2015 Wentworth acting in his capacity as sole Director of Nanosecond contacted Pat Harrold from Glen Carron and advised Pat that he had acquired his own truck and semi-trailer and that in the future would be operating independently from Bill Fischer. Wentworth had completed significant work for and on behalf of Glen Carron in his capacity as a heavy combination professional driver employed by Bill Fischer going back to 15th March 2011.

BL. In the above conversation Pat offered to provide work to Wentworth on an ongoing basis from that date forward.

(w) THE ACCEPTANCE

BM. In order to work under contract to Glen Carron Wentworth agreed with Pat that he would comply with any and all terms and conditions imposed by Glen Carron which included the following:-

BN. Wentworth was advised that he would need to carry current policies of insurance in the following forms:-

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(a.) Full comprehensive insurance for all trucks and trailers to cover third party damage as well as his own;

(b.) Goods in transit insurance to the value of $50,000.00 (fifty thousand dollars) from any one claim;

(c.) Public liability insurance to the value of $20.000.000.00 (twenty million dollars) from any one claim.

BO. Wentworth was advised that all trucks and trailers were to be registered at all times which automatically includes third part bodily injury.

BP. All vehicles operating under heavy mass management had to be duly accredited with the National Heavy Vehicle Regulator.

BQ. Wentworth was instructed to contact Pat at the Logistics Office of Glen Carron each morning to obtain the details of today’s collections.

BR. Wentworth was advised that he was representing Glen Carron to those clients of Glen Carron that he was collecting from and delivering to.

BS. Wentworth was advised that any loss to the goods in transit such as that which occurred in the event of a roll over is a loss that would be claimed against Glen Carron by their client and as a result would in turn be a claim against Nanosecond by Glen Carron. Wentworth says that at all times up to and inclusive of 27 th April 2017 there was never even one incident or case where it was necessary to make a claim for loss and damage to either Glen Carron nor any of their clients for any load carried or contracted by Nanosecond.

BT. Wentworth was advised that all invoicing was to be emailed to the administration of Glen Carron at the completion of each week’s work and as at the last working day of the month.

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BU. Payment by Glen Carron would be made to the nominated bank account of Nanosecond 30(thirty) days after the date of invoice for any particular month.

BV. The appropriate PPE safety clothing and equipment was to be worn on all sites serviced by Glen Carron.

BW. Wentworth received very clear and explicit instructions from Pat that all trailers were to be meticulously swept or washed out where applicable before presentation at any loading site.

BX. All in all Wentworth and Nanosecond were expected to provide a professional first class presentation and service at all times when contracting to Glen Carron.

(x) THE CONSIDERATION

BY. As part of the offer process referred to in paragraph ‘BL’ above Wentworth was advised that at the time of despatch he would be quoted a tonnage rate that would be the consideration Nanosecond would be paid for fulfilling and performing the contract.

BZ. In or about early 2016 Pat left Glen Carron and the responsibility for the logistics despatch was then taken over by Mick Harrold. On or about Monday 30th May 2016 Wentworth spoke to Mick on the phone at which time Mick varied the original terms of the contract by stating that if he, Wentworth - ever did another job for Mick’s brother Pat – now the proprietor of Harrold Services, - he would never be given another job by Glen Carron.

CA. Based upon the demand and claim referred to in paragraph ‘BZ.’ above Wentworth was expected and considered to be under contract to Glen Carron exclusively and as such this had now become an express term of the Agreement.

CB. The Implied terms of the Agreement were that:

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(a) Glen Carron holds a majority share of the total tonnage moved in the market in South Australia;

(b) Glen Carron requires the services provided by contractors such as Nanosecond in order to cover the tonnage that it is required to move;

(c) Glen Carron is required by law not to engage in exclusive dealing and is required and expected to treat any and all contractors in a like and similar fashion without prejudice or preference;

(d) Nanosecond is operating under contract to Glen Carron;

(e) Nanosecond will continue to operate under contract to Glen Carron as long as Glen Carron continues business in the market.

CC. The Implied Terms are implied in the Agreement as they:

(a) are reasonable and equitable;

(b) are necessary to give business efficacy to the Agreement;

(c) are so obvious they go without saying;

(d) are capable of clear expression, and

(e) do not contradict any express term of the Agreement.

Performance of the Agreement

CD. Nanosecond and Wentworth discharged any and all of their duties and obligations in accordance with the Agreement.

CE. In the months prior to 27th April 2017 it became necessary for Wentworth to enter into a contract with Doug from Glen Carron for advances to be made on monies due to Nanosecond at the end of the month in order for the Plaintiffs to continue to perform the contract.

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Obligation to provide compensation for the equivalent of 15(fifteen) years of earnings

CF. It is an established fact that will be further confirmed at trial that Glen Carron has as long as it has operated and for as long as it will continue to operate that it will require and be entirely necessary to contract with contractors such as Nanosecond to be able to continue to properly service it’s customer base.

CG. By withdrawing supply from the Plaintiffs in circumstances which Glen Carron well knew that it would deny access to the market by the Plaintiffs thereby inflicting irreparable harm loss and damage and complete and total devastation to the financial viability of the Plaintiffs with this state of affairs being permanent and not salvageable in the term of Wentworth’s natural life.

CH. The length of time required by contractors such as the Plaintiffs in this action to amass the required capital of some $685,000.00 (six hundred and eighty five thousand dollars) for the equipment required can take nearly a whole life time or about 50(fifty years) to save up for.

CI. The term required by some financial contracts for the purchase of equipment in this market is up to 7(seven) years or 84(eighty four) months with many being taken out for 5(years) or 60(sixty) months. The operator is then required to use the following 5(five) years earnings after his current financial contract is paid out in order to save funds toward replacement equipment which would then be 10(ten) years old. In other words we have 10(ten) years of earnings for the whole cycle to take place. And – this is all predicated on a good credit rating.

CJ. With the damage suffered to the credit history and credit worthiness as a consequence of the loss and damage suffered by the Plaintiffs it is not possible to repair that credit history and credit worthiness in Wentworth’s remaining natural life.

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CK. As a consequence of the facts contained in paragraphs ‘W.’, ‘X.’, ‘Y.’, ‘Z.’, ‘AA.’, ‘AB.’, ‘AC.’, ‘AD.’, ‘AE.’, ‘AF.’, ‘AG.’, ‘AH.’, ‘AI.’, ‘AJ.’, ‘AK.’, ‘AL.’, ‘AM.’, ‘AN.’, ‘AO.’, ‘AP.’, ‘AQ.’, ‘AR.’, ‘AY.’, ‘AZ.’, ‘BA.’, ‘BB.’, ‘BC.’, ‘BD.’, ‘BE.’, ‘BF.’, ‘BG.’, ‘BH.’, ‘BI.’, ‘BJ.’, ‘BZ.’, ‘CA.’, ‘CB.’, ‘CC.’, ‘CD.’, ‘CE.’, ‘CF.’, ‘CG.’, ‘CH.’, ‘CI.’ and ‘CJ.’ inclusive above the term Glen Carron is liable to compensate the Plaintiffs for the breach of contract is 15(fifteen) years as a minimum equitable term.

(y) Breach of Agreement

CL. Arbitrarily and without providing any justifiable reason for doing so on 27th April 2017 Mick from Glen Carron advised Wentworth by telephone that they were withholding supply to himself and Nanosecond permanently.

CM. What makes the actions and conduct of Glen Carron referred to in paragraph ‘CL’ above so more reprehensible and iniquitous is that the Injurious falsehood and false statements comprising a conspiracy by unlawful means as communicated by Garden Grove to Mick referred to above was used as the reason and pretext by Glen Carron for it’s breach of contract with Nanosecond.

CN. By reason of the matters set out in paragraphs ‘BK’ to ‘CK’ inclusive above Nanosecond is contracted to Glen Carron to the exclusion of others and fully supported and evidenced over a period of more than 2 (two) years - and - at common law and in equity - Glen Carron is now and has been since 27th April 2017 - in breach of contract and liable for loss and damage resulting from the said breach.

(z) Loss and Damage

CO. By reason of the breach of contract as set out in paragraphs ‘CL’ to ‘CN’ inclusive above the Plaintiff Nanosecond has suffered loss and damage comprising:-

CP. The loss and damage for the breach of contract at paragraph ‘CL.’ is calculated and quantified as follows. The calculation also allows for

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the fact that even at the conclusion of these proceedings - Nanosecond is still excluded from this market - even if damages can provide and restore replacement equipment to Nanosecond - and also where Nanosecond is constrained from contracting with Glen Carron due to a complete lack and failure on the part of Glen Carron to transact in good faith and with that the total breakdown of any form of business relationship possible between the Plaintiffs and Glen Carron caused by these proceedings and previously. As a consequence of the preceding - the term shall include each and every day from 27th April 2017 to 26th April 2032.

CQ. Wentworth says he previously worked a 12 hour day - 6 day week. The tonnage rate from Crystal Brook to Port Adelaide is $22.00 (twenty two dollars) per ton. The tonnage rate from Adelaide to Melbourne is $60.00 (sixty dollars) per ton. The tonnage rate from Adelaide to Sydney is $110.00 (one hundred and ten dollars) per ton. The tonnage rate from Adelaide to Brisbane is $130.00 (one hundred and thirty dollars) per ton These rates are subject to increase due to inflation..

CR. For 3(three) months and at different times of any 12(twelve) month period Nanosecond was preoccupied fulfilling the contract with Garden Grove for the runs from Crystal Brook to Berth 29 at Port Adelaide. Collections were also made from Port Pirie and other sites as well. The remaining 9(nine) months contracting to Glen Carron working on a - B Double load – from Adelaide to Sydney = 43ton x $110.00/ton x 1 run = $5,203.00 per day. Over 6 days - 2 runs there and back = $20,812.00 weekly. 39 (thirty nine) weeks annually -= $811,668.00. Over 15 years to 26th April 2032 = $12,175,020.00 (twelve million one hundred and seventy five thousand and twenty dollars).

CS. Nanosecond claims loss of income for breach of contract by Glen Carron from 27th April 2017 to 26th April 2032 inclusive for a total - $12,175,020.00 (twelve million one hundred and seventy five thousand and twenty dollars). Less expenses not incurred of fuel, tyres, servicing, registration, insurance and other - 30% of gross

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earnings - $3,652,506.00 (three million six hundred and fifty two thousand five hundred and six dollars) - for a nett - $8,522,514.00 (eight million five hundred and twenty two thousand five hundred and fourteen dollars).

(aa) Consequential loss and damage

CT. The Plaintiffs claim consequential loss and damage which includes the destruction of the credit history of Nanosecond and Wentworth of $817,221.15 (eight hundred and seventeen thousand two hundred and twenty one dollars and fifteen cents) from Glen Carron.

Misleading and Deceptive Conduct

CU. On or about 8th March 2016 Wentworth on behalf of Nanosecond requested a letter from Glen Carron to support an application for finance for the supply of a replacement truck to Nanosecond – herewith exhibit marked “CWW_3”.

CV. The letter referred to in paragraph ‘CU’ was requested by a prospective financier to confirm that Nanosecond had contracts providing an ongoing income stream for the term of the prospective loan which was 5(five) years.

CW. The facts delineated in paragraphs DI to DM below are repeated.

CX. The actions and conduct by Paul Page and Andy Gray from Garden Grove of entering into a conspiracy by unlawful means to falsely accuse the Second Plaintiff of a variety of acts and conduct which at no time had any truth or basis in fact and were maliciously contrived by Paul Page and Andy Gray for the purpose of withholding supply to the First and Second Plaintiffs. Pursuant to paragraphs ‘DA.’, ‘DB.’, ‘DC.’, ‘DD.’, ‘DE.’, ‘DF.’, ‘DG.’, ‘DH.’, ‘DI.’, ‘DJ.’ below - Mick from Glen Carron was a party to a conspiracy by unlawful means - and – where those said actions and conduct by Mick Harrold of the First Defendant were additional to and entirely inconsistent and at odds with and

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contrary to the spirit of the letter referred to in paragraph ‘CU.’ above and that when these facts are taken and applied both in isolation and in their entirety and joint meaning indicates a motive - intention and predisposition by Glen Carron as the First Defendant not to act in good faith – and thereby represents and constitutes misleading and deceptive conduct contrary to the provisions of S18(1) of the Australian Consumer Law.

(bb) Loss and Damage

CY. Nanosecond claims loss and damage for misleading and deceptive conduct by Glen Carron of $4,000,000 (four million dollars).

(cc) Aggravated Damages

CZ. Wentworth claims aggravated damages of $2,500,000 (two million five hundred thousand dollars) from Glen Carron.

Conspiracy by Unlawful Means

DA. The facts as set out in the following paragraphs discloses a conspiracy by unlawful means by Mick from Glen Carron and Paul Page and Andy Gray from Garden Grove to falsely accuse the Second Plaintiff of a variety of acts and conduct which at no time had any truth or basis in fact and were maliciously contrived by Mick, Paul Page and Andy Gray for the purpose of withholding supply to the First and Second Plaintiffs.

DB. The motive for the conspiracy referred to in paragraph DA above by Mick, Paul Page and Andy Gray was grounded in malice toward the Second Plaintiff.

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DC. The conspiracy was designed to injure and do irreparable financial harm loss and damage to the First and Second Plaintiffs.

DD. As a consequence of the conspiracy by unlawful means actuated by malice and implemented using the tort of fabricating, using and making false statements the First Defendant has completely and fully extinguished the defence of qualified privilege.

DE. As a consequence of the following facts delineated hereafter the First Defendant has established a precedent wherein all interactions from the 18th Aug 2016 and thereafter between the Plaintiffs and the First Defendant are tainted and characterized by a malicious motive to injure and do financial harm and damage to the Plaintiffs at the first and slightest available opportunity - and - in particular that any communications whatsoever between the Second and First Defendants where the Second Plaintiff was any part of the discussion was for the predetermined purpose of doing injury and harm to the Plaintiffs.

DF. The pleading in paragraph ‘DE.’ above was further confirmed and reaffirmed in the phone conversation with Mick on the 27 th April 2017 at which time he stated – “… We’ve been receiving complaints about you – so we’re drawing a line in the sand – and you will not be getting any more work from Glen Carron.”

DG. The allegation in paragraph ‘DF’ above by Mick was made less than 24 (twenty four) hours after receiving the same allegation by Paul Page referred to in paragraphs ‘M.’ and ‘BF’ above. The preceding determination was knowingly made by Mick which he well knew were based upon false grounds of false statements and false allegations in a premeditated conspiracy with Paul Page and Andy Gray to do maximum harm and maximum damage to the Plaintiffs. As stated earlier herein the Plaintiffs have established that the truth of the matter is that both Greg the supervisor at Berth 29 and Dave the manager at Grain Flow Crystal Brook stated unequivocally – “we have no problem here with you whatsoever.”

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DH. Numerous instances will be adduced in evidence to demonstrate conclusively that Mick from Glen Carron has conspired with and without Andy Gray’s involvement over a period of more than 12 (twelve) months prior to 27th April 2017 to injure the First and Second Plaintiffs and that these actions were also actuated by malice toward the Second Plaintiff including the tort of fabricating, using and making false statements for the purpose of withholding supply to the First and Second Plaintiffs.

DI. The Second Plaintiff has absolutely no idea what could have given rise to this motive of malice by Mick Harrold toward himself. The role of Mick Harrold in the First Defendant company had previously been filled by Pat Harrold and the relationship had at all times been cordial, friendly, professional and business like with the Second Plaintiff.

DJ. The following are examples where Mick from Glen Carron has deliberately and premeditatedly robbed the Plaintiffs blind behind their backs with the tonnage rates paid to Nanosecond as compared to the tonnage rates set by Pat Harrold when he was delegating the work to the Plaintiffs. The loss and damage as a result of this conduct over an extensive period amounts to tens of thousands of dollars. The conduct was at no time an oversight or an unintentional mistake. It has been revealed as a premeditated and very carefully orchestrated and deliberate plan to deceive and to do maximum harm to the Plaintiffs and the following extracts from actual Nanosecond to Glen Carron invoices speak for themselves. More importantly – these revelations go to – reveal and uncover – a deep malicious motive to harm. The conduct was fraudulent - audacious – brazen - outrageous and shocking - and displayed a criminal and blatant disregard for all acceptable norms of behaviour. The following demonstrates that by stealth and deception Mick has deprived the Plaintiffs of up to 50% of the gross sum paid by Glencore and Cargill to move this product where the Plaintiffs are providing ALL of the resource - in the form of hundreds of thousands of dollars in equipment such as truck - trailers - fuel - tyres and other wear and tear - driver's wages - registration - insurance - servicing and a myriad of other costs and overheads - and to be left with next to nothing or less - as a consequence of the

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larceny and crimes of a person lacking any semblance of honesty - decency - good faith and any moral fibre whatsoever. Material evidence referred to below has only recently become known to the Plaintiffs through the process of Discovery which has made it all the more necessary to file this amended statement of claim.

(a.) 12th Feb 2016 – Melbourne to Wasleys – Nanosecond rate - $39.00/ton – Glen Carron received - $60.00/ton – a mark down of 35.00% - conversely 65.00% for the Plaintiffs;

(b.) 15th May 2016 – Goondawindi to Bendigo – Nanosecond rate - $60.00/ton – Glen Carron received - $80.00/ton – a mark down of 25.0% - conversely 75.00% for the Plaintiffs;

(c.) 14th Sep 2016 – The Rock (NSW) - (Drove there empty from Tailem Bend (SA) – fuel alone – 780 kms/1.5ltr/km X $1.30/ltr = $676.00) - to Port Kembla – Nanosecond rate - $30.00/ton - Glen Carron received - $40.00/ton – a mark down of 25.0% - conversely 75.00% for the Plaintiffs.

(d.) 30th Sep 2016 – Ardrossan to Wasleys – Nanosecond rate - $8.00/ton – Glen Carron received - $16.00/ton – a mark down of 50.00% - conversely 50.00% for the Plaintiffs;

(e.) 9th Sep 2016 – (36.85 ton of the infamous sawdust at the rate paid by Mick) - Mt Gambier to Monarto (385.6kms) – Nanosecond rate - $20.00/ton – Glen Carron received - $26.00/ton – a mark down of 23.10% - conversely 76.90% for the Plaintiffs – or $810.70 (incl GST) for this particular load of 36.85 ton.

(f.) 16th Feb 2017 – Bordertown to Semaphore – Nanosecond rate - $25.00/ton – Glen Carron received - $34.00/ton – a mark down of 26.50% - conversely 73.50% for the Plaintiffs;

DK. The examples of tonnage rates set by Pat when he was delegating the work to the Plaintiffs.

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(a.) 16th Mch 2015 – Frances to Inner Harbour – Nanosecond rate - $30.00/ton – Glen Carron received - $32.07/ton – a mark down of 6.46% - conversely 93.54% for the Plaintiffs;

(b.) 12th Jun 2015 – Pinnaroo to Wasleys – Nanosecond rate - $26.00/ton – Glen Carron received - $28.00/ton – a mark down of 7.15% - conversely 92.85% for the Plaintiffs;

(c.) 25th Jun 2015 – Kapunda to Sidonia – Nanosecond rate - $60.00/ton – Glen Carron received - $65.00/ton - a mark down of 7.7% - conversely 92.3% for the Plaintiffs;

(d.) 26th Jun 2015 – Horsham to Outer Harbour – Nanosecond rate - $32.00/ton - Glen Carron received - $35.00/ton – a mark down of 8.58% - conversely 91.42% for the Plaintiffs.

(e.) 14th Nov 2015 – Coolaroo (Melbourne) to West Croydon – Nanosecond rate - $39.00/ton – Glen Carron received - $42.50/ton – a mark down of 8.25% - conversely 91.75% for the Plaintiffs;

(f.) 9th Sep 2016 – (The same load of 36.85 ton of the infamous sawdust referred to in sub paragraph ‘DJ.(f)’ above - at the rate paid by Pat from Harrold Services referred to at sub - paragraphs ‘15.q’, ‘15.w’, ‘15.y’ and ‘15.aa’ in the affidavit of Clayton Walter Wentworth dated 29th Jan 2018.) - Mt Gambier to Monarto (385.6kms) – Nanosecond rate - $25.00/ton – Harrold Services received - $26.00/ton – a mark down of 3.88% - conversely 96.12% for the Plaintiffs – or $1,013.38 (incl GST) compared to ‘DJ.(f)’ above - $810.70 – OR - $202.68 (two hundred and two dollars and sixty eight cents) more for Nanosecond for the same load from Harrold Services. The difference pays for NEARLY all of the fuel consumed by Nanosecond to deliver this particular load of 36.85 ton.

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(g.) The average retention rate for the Plaintiffs pursuant to sub paragraphs ‘DJ.(a)’ to ‘DJ.(f)’ inclusive is calculated as – (65% + 75%+ 75% + 50% + 76.9% + 73.5%/6 = 69.23%). The average retention rate for the Plaintiffs pursuant to sub paragraphs ‘DK.(a)’ to ‘DK.(f)’ inclusive is calculated as – (93.54 + 92.85 + 92.3% + 91.42%+ 91.75% + 96.12%/6 = 93.00%). The proportion of the retention rate which has been weighted against the Plaintiffs is represented by – 93.00/69.23 = 1.3433. Based upon an average monthly turnover by Nanosecond pursuant to invoices issued to the First Plaintiff of $32,000.00 – the estimated annual value of the theft and fraud as described in paragraph ‘DJ’ above is calculated as - $32,000.00 x 1.3433 = $42,985.60 – $32,000.00 = $10,985.60 x 12 = $131,827.20). The annual value put in this estimate does not allow for the deliberate withholding of work as described in paragraph ‘BE’ - or the often used reprehensible and unconscionable tactic of taking back a load from Nanosecond after it had been dispatched – and after having driven considerable distances - and giving the load to another driver.

DL. As a consequence of being a party to the conspiracy by unlawful means actuated by malice and implemented using the tort of fabricating, using and making false statements the First Defendant has completely and fully extinguished the defence of qualified privilege.

(dd) Loss and Damage

DM. The Plaintiffs claims loss and damage for the conspiracy by unlawful means by the First Defendant of $8,000,000 (eight million dollars) which does not include any and all consequential loss and damage resulting from the termination of supply by the First Defendant in particular where that said consequential loss resulted in the 100% permanent exclusion and entry by the Plaintiffs into the market in South Australia as owned and controlled by the silo and storage

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companies Glencore and Cargill. Whilst the enforcement of Misuse of market power comes within the ambit of the jurisdiction of the ACCC under section 46(1) of the Competition and Consumer Act 2010 Vol 3 - 3 March 2017 that does not make it legal for the First Defendant to engage in the said conduct here and as such makes the First Defendant liable for having employed the use of actions and conduct illegal and contrary to the provisions of S46(1) of the CCA 2010 Vol 3 - to further a conspiracy by unlawful means to maliciously injure the Plaintiffs.

PART 3.

DN. If this action was being brought in the U.S. the damages sought would be at least five times the amount claimed in this action. More than 21 years ago on 11th February 1997 the civil damages award against O.J. Simpson was made out by a jury for - US$33,500,000 (thirty three million five hundred thousand US dollars). The award was based on the estimated net worth of Simpson at that time. http://www.nytimes.com/1997/02/11/us/jury-decides-simpson-must-pay-25-million-in-punitive-award.html

DO. The estimated joint asset value including land, real property, trucks, trailers and other vehicles and plant and equipment of the Defendant companies in this action is far greater than the estimated net worth of Mr Simpson referred to in paragraph ‘DN.’ above - and is conservatively put at A$400,000,000.00 (four hundred million dollars) in February 2018 with estimated joint net earnings over the next 15 (fifteen years) of A$4,200,000,000.00 (four billion two hundred million dollars) and this sum does not allow for anticipated additional expansion over that period.

DP. This third amended statement of claim is filed as a consequence of the Second Plaintiff having received a phone call from counsel for the First Defendant Charles Moran on or about 22nd January 2018 at which time he said to Wentworth quote – “… my client and I are having considerable difficulty in seeing how my client is in any way liable to you. …”

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DQ. The Plaintiffs trust that this amended statement of claim will remove any and all doubt or misunderstandings that counsel - or both Defendants – or the Court - may have on that very question of the legal liability as pleaded of both Defendants to the Plaintiffs.

DR. The total of the claim excluding interest and costs is - $23,839,735.15 (twenty three million eight hundred and thirty nine thousand seven hundred and thirty five dollars and fifteen cents) against Glen Carron and excluding interest and costs is - $29,993,163.67 (twenty nine million nine hundred and ninety three thousand one hundred and sixty three dollars and sixty seven cents) against Garden Grove for a total $53,832,898.82 (fifty three million eight hundred and thirty two thousand eight hundred and ninety eight dollars and eighty two cents).

DS. The Plaintiffs claim interest.

DT. The Plaintiffs claim costs of this action.

Certificate:

This pleading is put forward in accordance with the instructions of the Plaintiffs Nanosecond Corporation Pty Ltd and Clayton Walter Wentworth and it complies with the Supreme Court Civil Rules 2006.

Date: …26th February 2018…………………………………………………………

Signed by Clayton Walter Wentworth …………………………………..………….

………………………………………………..……………………………..………….

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INTRODUCTION

38. On or about 27th May 2016 the Second Appellant received allegations of wrong doing by servants of the First Respondent in the performance of his duties as a Multi Combination Professional Driver. The said wrong doing was alleged to have a negative reflection and impact upon the reputation and goodwill of the First Respondent. The allegations against the Second Appellant were at all times false – fabricated and contrived.

39. On or about 16th March 2017 the Second Appellant received allegations of wrong doing by servants of the Second Respondent (namely Paul Page and Andy Gray) in the performance of his duties as a Multi Combination Professional Driver. In this case the allegations which were numerous – and all allegedly took place over the space of just 3 or 4 days. The first took the form of having taken out a stobie pole at Grain Flow Crystal Brook. This allegation was certified unequivocally as false by the manager of Grain Flow Crystal Brook David Arbon at paragraph (69.) herein. Multiple allegations were also made by Andy Gray including allegedly “running trucks owned by the Second Respondent off the road” – other complaints (never specified as to what form they comprised) from Grain Flow Crystal Brook and Grain Flow Mallala – taking up to an hour to load the truck – and deliberately blinding oncoming drivers of the Second Respondent using very powerful high beam driving lights used by the Second Appellant. These allegations against the Second Appellant were at all times false – fabricated and contrived.

40. As a consequence of the allegations contained above the Second Appellant was permanently banned from making collections from Grain Flow Crystal Brook

41. Paul Page and Andy Gray were well aware that the allegations were at all times false - fabricated and contrived because they were the source and fomenters of the allegations.

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42. Paul Page and Andy Gray were well aware at all times that this ban would result in the loss of income to the Appellants over a number of years measured in the tens of millions of dollars.

43. Paul Page and Andy Gray were well aware that this ban would result in the liquidation and bankruptcy of the First Appellant company and the Second Appellant personally.

44. As a consequence of the facts referred to above the Second Appellant resolved to keep a true and accurate record of all interactions between the parties and to somehow protect his legitimate lawful interests.

45. The following evidence comprise transcripts of a number of conversations both over the phone and person to person with a variety of different people.

46. This evidence provides the best and most accurate record of who said what over an extended period. The evidence discloses malice against the Second Respondent. The evidence discloses beyond all doubt – supposition – or speculation of any kind that the allegations being brought against the Second Appellant were at all times false – fabricated and contrived.

47. The evidence discloses that allegations being brought by the conspirators either clashed – or was contrary to earlier allegations and reasons supplied – which removed all doubt that the allegations were being made - “on the run” – and because they have been proved to be inconsistent was all the proof needed that the allegations were all fabricated – and – at all times had no basis in truth whatsoever.

48. If the allegations are at all times false. If the allegations are all the same and coming from more than one source – or person – it becomes a conspiracy by unlawful means.

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49. In addition – if the allegations are at all times false and designed to do financial damage or harm to the First Appellant a cause of action under the provisions of Injurious falsehood exists.

50. To make matters worse the trial judge refused to allow the Second Appellant to give testimony in the witness box of what he heard with his own ears and knew to be true of his own personal knowledge which is unlawful.

51. Furthermore – the trial judge refused to allow the Second Appellant to play the recordings in open court. Recordings are vital in cases such as this to enable a jury – or judge – to determine the demeanour of the person speaking.

52. In short – it enables an outside observer to determine the truth of what is truly going on and who is to be believed as to the correct version of events. If there is no truth in the administration of the law. There is no justice.

53. The following comprises edited transcripts of evidence collected in chronological order commencing on the 27th May 2016 together with oral evidence taken from witnesses at trial.

54. A detailed examination and analysis of this evidence follows and will complete this Case Book and argument and legal submissions for this appeal.

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55. On 27th May 2016 a telephone call took place on the number - 0419 829 197 - between Wentworth and Doug. The following is an edited transcript of the conversation:- To listen - you only need to click - ONCE ONLY - here. – or – from a printed copy of these pleadings - for Court use - type in to your browser the following URL - http://www.tvotw.com/GlenCarron_GardenGrove_Case/944_2017_Appeal_WebVersions/AppealDocuments/Recordings/1_Doug_SawdustCall_0021_27May16_Amplified_mp3.mp3

(55.a) Wentworth said: "… Yeah Dougie …"

(55.b) Doug said: "… I was just talking to Michael …"

(55.c) Wentworth said: "… Yeah …"

(55.d) Doug said: "… and you were meant to do a load out of Ardrossan today …"

(55.e) Wentworth said: "… No - I wasn't - no …"

(55.f) Wentworth said: "… You there - I don't know what happened to the phone …"

(55.g) Doug said: "… Ardrossan to Two Wells today …"

(55.h) Wentworth said: "… Yeah - No - he never called me back and told me I could go and do the Ardrossan to Two Wells. …"

(55.i) Doug said: "…you were supposed to be just doin it. That was the - that was the deal - you were just doin it. …"

(55.j) Wentworth said: "… No - he said to me. He said to me - 'I've already given this work to Bill Fischer tomorrow. …"

(55.k) Doug said: "… ah - what ever happened - everyone in the office - there's somethin wrong with your phone. … "

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(55.l) Wentworth said: "… No - there's nothing wrong with my phone. … "

(55.m)Doug said: "… It's squeakin in my ear. … um - they all thought that you were doin one out of Ardossan to Two Wells which means we pulled up a load short outa there - but that's alright - we'll do that Monday. Um - … "

(55.n) Wentworth said: "… Mick hasn't spoken to me since yesterday. …"

(55.o) Doug said: "… Go and do your load for - go and do your load of sawdust for Pat tomorrow. Because it's booked in under Pat or you've obviously organized it with Pat - or somebody's organized it with Pat. So - you'll have to do the load for Pat. …"

(55.p) Wentworth said: "… coz as I said to you - erm - I've not done any work for Pat at all before. …"

(55.q) Doug said: "… Well somehow Pat's found out about this sawdust job. I dunno how he found out about it? But he has - erm - so - go and do the load of sawdust for him. Either Bill's told him - or you've told him - or somebody's told him about this sawdust. So - he's jumped on the bandwagon. Erm - yeah - so go and do the load for Pat and - you know - then unload Monday and then - we'll see what's happening next week. …"

(55.r) Wentworth said: "… Well - like I said - er Mick never told me to go to bloody - to Ardrossan. …"

(55.s) Doug said: "… Well - all three of them in the office had you written down - as far as Mick's concerned - I was talkin to Mick then when you tried to ring him and he said - 'what does Clayton want? As far as I'm concerned he's unloading at Two Wells today and he's empty in Adelaide - ready for - ready for er - to start Monday.' and I said - 'no - he didn't do that

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Ardrossan load - he's doin a load of sawdust for Pat.' And he goes - 'I know' - because Mick and Abber are best of mates - so Mick knew that there was a truck doin a load of sawdust at 4:00 o'clock this afternoon. He said - your mate in the Scania. He said to Mick tonight - coz Mick was there gettin a bit of firewood - erm - 'I can't load your bloody sawdust mate tonight because he didn't get his grain unloaded in time - I gotta load him tomorrow now.' Mick knew - he knew through Abber …"

(55.t) Wentworth said: "… Who's Abber? …"

(55.u) Doug said: "… Abber's the bloke who's goin to load you with your sawdust tomorrow. He owns the sawdust mill. The bloke that owns that sawdust mill in Mount Gambier is best mates with Mick. …"

(55.v) Wentworth said: "… Oh - ok …"

(55.w) Doug said: "… I don't know how - I don't know - you know er what planted the seed with Pat for you to do the sawdust whether you told him you could do your own sawdust or - could you get a load of sawdust or whether Bill Fischer and Pat have been talking about sawdust. But either way - they rang us three months ago - could we do all the sawdust? And now suddenly - Pat's got his foot in the door. So - I don't know how that's happened but either way Bill and Pat can do it. Go and do it for Pat. …"

(55.x) Wentworth said: "… And - then he said - erm - er - and when you've dropped the gypsum and the bloody lentils off - go down and pick up a load'a sawdust and take it back. Well it wasn't - I'm not to know who - you know - whether he supposed to be pickin up sawdust - or not pickin up sawdust or whatever - but apparently he must be doin it already - by the sound of it because er - he obviously must be pickin it up - because that's what he told me to do. I only ever work - all of my work basically is with Glen Carron …"

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(55.y) Doug said: "… And when you're in bloody Portland next week - and you say to me - 'have you got any sawdust - I'll say I dunno - ring Pat he's the sawdust king.' …"

(55.z) Wentworth said: "… No - well we don't need for that because I mean - obviously - er - you know - I only ever - all of the work I do Dougie is for Glen Carron. …"

(55.aa) Doug said: "… It's not Pat - It's the sawdust - alright. It's not Pat that's upset me - it's the sawdust. …"

(55.ab) Wentworth said: "… Well I dunno - because - I mean - he must have been pickin it up for ages. …"

(55.ac) Doug said: "… I don't think so. We thought you were doin Ardossan to Two Wells and then you'd be right to go Monday. But anyway - go and do your sawdust - tip that off Monday - and then - er - you know - we'll see what we got for next week. …"

(55.ad) Wentworth said: "… I waited all last night - and I've got texts on the phone here where I said to Mick - 'please let me know Mick if I'm going to Ardrossan because I want to go now - tonight - I want to be there tonight so that I can - er - be in the line-up ready to leave out in the morning.' And he never even called me back or text me back - or nothin. …"

(55.ae) Doug said: "… Well I don't know what happened there because all three of them in the office thought you were doin Ardrossan to Two Wells. …"

(55.af)Wentworth said: "… No - No - I've got the texts there for you. And you can look at em - you can look at em Dougie where I said to him - I pleaded with him and I'll tell you exactly - I'll tell you exactly what I said - let me go to my texts …"

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(55.ag) Wentworth said: "… he said ring up Andrew. …"

(55.ah) Doug said: "… Hey? …"

(55.ai)Wentworth said: "… he said ring up Andrew which turns out to be Garden Grove. Andrew knew nothin at all about any work. And then the next thing you know Mick rings up and says well I've got these Ardrossan's that I've just given em to Bill Fischer. He said - 'do you want me to take the jobs off Bill Fischer? And - I said - 'well all I know is - I just want a job.' So then - I sent this text message that I just read to you - and I said to Mick - 'If I'm gunner go Mick - I'll head up there tonight - …"

(55.aj)Doug said: "… Yep …"

(55.ak) Wentworth said: "…I sent that text message - and I did not get a reply or a phone call back from Mick. …"

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56. The preceding phone call and allegations were made on a totally false premise by Doug Harrold. Doug well knew that the Second Appellant had never been dispatched to Ardrossan and the entire charade was a means of punishment and embarrassment to the Second Appellant for having collected a job for Doug Harrold’s brother Pat - which said job - Doug considered to be part of a contract belonging to the First Respondent.

57. This long standing grudge against the Second Appellant was exposed at sub paragraph (122.ag) when Doug said - "… I probably - wouldn't - I wouldn't do too much if I was you Clayton - because - we both know you told Pat about the sawdust - and we both know - we don't do the sawdust now - so. …"

58. At no time did the Second Appellant tell Pat Harrold about anything in relation to the sawdust contract. Pat Harrold is the person who instructed the Second Appellant to collect from the sawdust mill at Mount Gambier after dropping off at Padthaway on 27th May 2016. The Second Appellant had collected sawdust many times and innocently assumed that a number of different companies were making deliveries of sawdust.

59. The following is an edited transcript providing full confirmation of the actual instructions given by Mick Harrold over the phone - at the time of dispatch to a job on 17th August 2016. The truth of what took place is entirely contrary to the account given by Mick Harrold in Court. It confirms that not one thing in the evidence of Mick Harrold can be believed. It has tainted the whole case of the First Respondent to the core. It provides full confirmation once again that every single piece of evidence by the Second Appellant has been the truth - with positive proof of such. The electronic copy of the recording is here.

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60. EDITED AUDIO AND TRANSCRIPT OF PHONE CONVERSATION - 1 - WITH MICK HARROLD - 17TH AUGUST 2016

(60.a) Mick said: "... hey Claydo. ..."

(60.b) I said: "... Mickster - how yer going? ..."

(60.c) Mick said: "... Yeah good. ..."

(60.d) I said: "... About tomorrow? ..."

(60.e) Mick said: "... I got heaps of stuff over the other side of the border - but I haven't got anything getting there at the moment Clayton. ..."

(60.f) I said: "... ... You got stuff over the other side of the border? ..."

(60.g) Mick said: "... Yeah. ..."

(60.h) I said: "... Whereabouts?"

(60.i) Mick said: "... Numurkah. ..."

(60.j) I said: "... Where's that gotta go? ..."

(60.k) Mick said: "... er - I got Numurkah to Geelong - back and forth - back and forth - back and forth. - Well give me a half an hour there's two hundred and fifty jobs down here. ..."

61. EDITED AUDIO AND TRANSCRIPT OF PHONE CONVERSATION - 2 - WITH MICK HARROLD - 17TH AUGUST 2016

The electronic copy of the recording is here.

Thirty minutes later the Second Appellant and Mick spoke again on the phone:

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(61.a) I said: "... Numurkah in the morning - right? ..."

(61.b) Mick said: "... Yeah. ..."

(61.c) I said: "... Not a problem. ..."

(61.d) Mick said: "... Then we'll load down to Geelong. ..."

(61.e) I said: "... Yep. ..."

(61.f) Mick said: "... Then go back and get another one. Go Numurkah to Geelong. Then go back and get another one. Numurkah to Geelong - then we'll load yer home Friday after lunch. - It's only Numurkah to Geelong. You'll get two done tomorrow - one done friday mornin - then load home. ..."

(61.g) I said: "... Well - I'll try for that - but I don't know if I'll get more than one done a day. It's a long way from Numurkah to Geelong. "

(61.h) Mick said: "... nah - you'll be surprised - not that far - it's only two hundred and fifty k's. ..."

(61.i) I said: "... I'll see how I get on - no problem. ..."

62. Significant note - and attention needs to be given to the change in the demeanour of Mick Harrold in the conversations of the afternoon of 17th August 2016 - as compared to the following morning - the 18th August - keeping in mind that the two individuals did not speak once during that intervening 15 hour period. The change in the tone and demeanour of Mick Harrold defies description - and his treatment of the Second Appellant is totally unforgivable. Such treatment and attitude is completely contrary to all the established norms of acting in good faith in business relationships. It demonstrates much contempt and disregard for the Second Appellant and is indicative of significant malice against the Second Appellant.

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63. Furthermore - Mick well knew the Second Appellant was in Tailem Bend at 17:00hrs on 17th August 2016 and sub paragraph (61.f) above shows complete disregard by Mick Harrold for the driving hours regulations by instructing the Second Appellant to do two illegal runs to Geelong on the 18th August - after driving nearly 700 kms and arriving at Numurkah at 3:00am that morning. If caught out under the Chain of Responsibility legislation - the First and Second Appellants - and others - would have suffered fines in the ten's of thousands of dollars.

64. At 8:15am on 18 Aug 2016 during the collection referred to in paragraph 61 above at Numurka another phone conversation took place with Mick Harrold. Here is an edited transcript of that conversation.

(64.a) I said: "… yeah I'm here yep … yeah I'm all loaded no problem … no - before I go anywhere - why were you abusing me before …"

(64.b) Mick said: " … coz you're an idiot - you're an absolute fool …"

(64.c) I said: "… No - no - no such thing as that. …"

(64.d) Mick said: "… You are the worst one I deal with. …"

(64.e) I said: "… You called me - you sent me down here at five o'clock yesterday afternoon and I'm looking at my phone in the text messages that I've got Mick - there's no mention there and there's been no mention audibly on the phone about any form of induction. I mean if you don't tell me - why would you wait until I'm actually physically on the weighbridge after drivin here and gettin here at quarter to three this morning and you're telling me for the very first time that you wanted me to get an induction? Why would you do that? …"

(64.f) Mick said: "… You're a pig - you're a jerk. …"

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(64.g) I said: "… Why are you abusing me like that Mick?

(64.h) I said: "… No - you've abused me here this morning …"

(64.i) Mick said: "… coz you deserve it. …"

(64.j) I said: "… I do do I? …"

(64.k) Mick said: "… Coz you're an idiot - coz you're an idiot. …"

(64.l) I said: "… Am I?. …"

(64.m)Mick said: "… You are - you are. You ring me in Geelong. …"

(64.n) I said: "… You haven't given me the address in Geelong. …"

(64.o) Mick said: "… I'm not giving you - you're right - I'm not giving you the address - coz you're an idiot. …"

65. On or about 27th October 2016 the Second Appellant was dispatched by Mick Harrold to collect a load from Bordertown and take it to Ingham Chickens at Mile End. More than two hours later after having travelled more than 100 kilometres toward Bordertown the Second Appellant received a phone call from Mick Harrold wherein he initially claimed that – “the job had fallen through”. After seeking an explanation as to whether the delivery to Ingham Chickens was no longer going to take place – Mick Harrold eventually admitted that he had covered the job by giving it to another truck. This was not at all necessary for logistical reasons as the job was not scheduled to be collected until the following morning anyway.

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66. The following is an edited transcript of that phone conversation of the 27 th October 2016.

(66.a) I said: "… Hello … "

(66.b) Mick said: "… Claydo … "

(66.c) I said: "… Yep - I'm here … "

(66.d) Mick said: "… What's happening - just returning your call … "

(66.e) I said: "… No - I was leaving Adelaide. I had already left home because I'm 35 - 40 kms north of Adelaide. So I drove down to pick the fuel up … "

(66.f) Mick said: "… Yeah… "

(66.g) I said: "… and I was going straight down to Bordertown this afternoon so that I could just go down there slowly and er be there ready for the morning. … "

(66.h) Mick said: "… ah righto roger - yep - no - well it's fallen through so … "

(66.i) I said: "…you're telling me what - this canola's not gunner go to Inghams? ..."

(66.j) Mick said: "… What's that? … "

(66.k) I said: "… The canola's not going to Inghams? ..."

(66.l) Mick said: "… Inghams? - no I got it covered - I got it covered… "

(66.m)I said: "… what do you mean you got it covered? You gave it to me. I mean just what are the limits Mick? I mean - how far do I

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have to drive? You know I've been accepting jobs over a two way radio or a mobile telephone for forty years. And once the job's been despatched by the er - logistics operator the jobs never ever get taken back ever. ...”

(66.n) Mick said: "… yeah …"

(66.o) I said: "…You know - you're despatched with the job and you go and do it ..."

67. On or about 16th March 2017 the Second Appellant received a phone call from Paul Page from the Second Appellant company at which time the allegation referred to at paragraph (39.) in relation to a stobie pole at Grain Flow Crystal Brook was made. From personal first hand knowledge the Second Appellant knew the allegation to be at all times false.

68. The following is an edited transcript of a phone conversation with the manager of Grain Flow Crystal Brook David Arbon on 17th March 2017. David Arbon had no idea of what the Second Appellant was talking about and provided unequivocal evidence that no-one – in particular and let alone the Second Appellant - had ever taken out a stobie pole at GrainFlow Crystal Brook. He asked the Second Appellant if he was sure it was GrainFlow – and not Viteera Crystal Brook that he should be speaking to?

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69. The following is an edited transcript of the 17 th March 2017 phone conversation with David Arbon.

(69.a) David said: "… GrainFlow - Crystal Brook - Dave speaking. …"

(69.b) I said: "… Dave - is it? …"

(69.c) David said: "… Yeah. …"

(69.d) I said: "… Dave - is that Crystal Brook? …"

(69.e) David said: "… Yeah. …"

(69.f) I said: "… er Dave - are you the Manager there? …"

(69.g) David said: "… Yes mate. …"

(69.h) I said: "… Now tell me Dave - have you had any report during the past - say - week - of any truck that came in there to do a load - and allegedly took out a stobie pole? …"

(69.i) David said: "… Where to? …"

(69.j) I said: "… At the er - at the bunker site at the Brook there? …"

(69.k) David said: "… A stobie pole? …"

(69.l) I said: "… Yeah. Do you know anything about that? …"

(69.m)David said: "… No mate. You haven't got Viteera have yer? …"

(69.n) I said: "… No. I've got er GrainFlow. …"

(69.o) David said: "… A stobie pole got taken out here at GrainFlow? …"

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(69.p) I said: "… It was extremely worrying to me Dave when er - I had this alleged report that was relayed back to me …"

(69.q) David said: "… Yep…."

(69.r) I said: "… by Garden Grove. You don't know anything about any alleged stobie pole being taken out - do you? …”

(69.s) David said: "… No - No - not at all mate. Well - no. Erm - was this - this last week? …."

(69.t) I said: "Just in the last few days. Yep - It was early last week - I did a run for you from er - the Brook there down to er Semaphore Containers mate. …"

(69.u) David said: "… Yeah. Righto. …"

(69.v) I said: … "Yeah - and it was with a road train - and I was talking to Garden Grove later in the day and the allegation was made supposedly that they'd received a phone call from Crystal Brook to say that I had taken out a stobie pole. And I said to Paul - I said - 'Paul - it must be somebody else if a stobie pole got taken out - because it's impossible - you know - that it could have been me because for a start there aren't any poles on any part of the route I take and I've got out of the truck and inspected my trailers most meticulously to find out whether there are any scratches, dents or marks in any way shape or form on my trailers Dave - and there's nothing there mate. And that's why I thought - well - I'd better ring you - you're right there - you would know about it - if you're the Manager of the site - …"

(69.w) David said: "… Yep - yep. …"

(69.x) I said: "… and you know nothing about it no? …"

(69.y) David said: "… Right. …"

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(69.z) I said: "… Ok. Dave. Well - if you don't know anything about it - well no-body's going to know anything about it - are they? …"

(69.aa) David said: "… No - just hang on - yeah hang on - I - I - there's a coupla shifts we work you see. …"

(69.ab) I said: "… Yeah. …"

(69.ac) David said: "… Right. Just hold the line mate. …"

(69.ad) I said: "… It was during the day Dave. …"

(69.ae) David said: "… During the day? …"

(69.af)I said: "… It was during the day. Yep. You would have been there. …"

(69.ag) David said: "… Yeah. …"

(69.ah) I said: "… Yeah. - No - I had a phone call from Garden Grove …"

(69.ai)David said: "… Yeah - that they had a phone call from Crystal Brook. …"

(69.aj)I said: "… they allegedly had a phone call from the Brook to say that I - no-one else - but it was me that did it - allegedly took out a stobie pole. …"

(69.ak) David said: "… Nah - don't know nothin about that. Just hang on. … Kylie - You know anything about a stobie pole being taken out at Crystal Brook do yer? … No. …No. No mate - we know nothin about that. …"

(69.al)I said: "… No worries. …"

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(69.am) David said: "… Yep. …"

(69.an) I said: "… Ok Dave. Anyway - you're back on for Tuesday night with a new ship that's going back to Berth 29? …"

(69.ao) David said: "… That's correct - Mate - Yep - Yep. …"

(69.ap) I said: "… Thanks Dave. …"

(69.aq) David said: "… Good on yer mate. …"

(69.ar) I said: "… Cheers. …"

(69.as) David said: "… See yer mate. …"

(69.at) I said: "… Bye …"

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70. Later on the 17th March 2017 the Second Appellant spoke on the phone to Andy Gray from the Second Respondent company. The following is an edited transcript of that conversation.

(70.a) Andy said: "… Clayton …"

(70.b) I said: "… Andy - how are yer Andy? …"

(70.c) Andy said: "… Alright -- what's goin on? …"

(70.d) I said: "… Well - that's what I'd like to know Andy? I just had a very very disturbing phone call from er - Glen Carron. …"

(70.e) Andy said: "… Yeah. What's that about? …"

(70.f) I said: "… They reckon - you rang em up - and that er claimed that er I wasn't to be doin any more Garden Grove work? …"

(70.g) Andy said: "… Look - I've had a phone call from both sites this week - erm take - Crystal Brook last week and Mallala this week - er 'what's goin on? - And on top of that - yer ran two of my trucks off the road this week. …"

(70.h) I said: "… What do you mean - 'run em off the road? Because that's total nonsense Andy? …"

(70.i) Andy said: "… Ah. … "

(70.j) I said: "… I've just spoken to the Manager at the Brook because - I tell yer what - the last run that I did was about Tuesdee or thereabouts last week from the Brook down to Semaphore Containers. … "

(70.k) Andy said: "… Yep. … "

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(70.l) I said: "… and later on that day - I happened to be speaking to Paul and he said we've got a call from the Brook to say - that you've taken out a stobie pole - now - I've just rung em up - and they said to me - nothing at all - they said - no way has anything been taken out in the way of a stobie pole. - He said - 'don’t worry about it Clayton. I only went in there for one load I think it was? - The one going to Semaphore Containers. I drove straight to the sample - straight to the weighbridge - and then drove out of the place. ”

(70.m)Andy said: "… I've had three drivers ring me to say - they've been - er - er - had to take evasive action around yer. … "

(70.n) I said: "… Nah - Nah - Nah - I dunno where this could have been? - because - let me tell yer - there weren’t that many trucks around last night Andy - er there was only a couple'a Garden Grove trucks that I ran into - because - I came er - I came in after the bulk of the trucks had already gone - I got there about ten past eight - quarter past eight. The other trucks had left - and then by the time I got down the Port - they were all in front of me - and they left. So - erm - this is nonsense Andy. …"

(70.o) Andy said: "… On top of that - they're saying you take up to an hour to load yer truck. … "

(70.p) I said: "… Sorry? - Take up to an hour to the load the truck? …"

(70.q) Andy said: "… Yeah. …"

(70.r) I said: "… Ah - for fuck sake Andy! …"

(70.s) Andy said: "… Clayton - I'm just goin on all the reports I'm gettin in mate. …"

(70.t) I said: "… That's total nonsense mate! When I get a call from - er - from - Glen Carron to say that - you yourself rang em up

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and told em that this is allegedly what had happened last night - that I'd tried to run two of your trucks off the road. …"

(70.u) Andy said: "… I didn't say - 'you tried to run em off' - I said - 'you just did tho!' …"

71. On Tuesday 21st March 2017 the Second Appellant rang Paul Page to confirm whether he was going to be collecting that night from GrainFlow Crystal Brook to go to Berth 29 at Port Adelaide? The following is an edited transcript of that conversation at which time Page claimed that the Second Appellant was permanently banned from making collections from GrainFlow Crystal Brook. The Second Appellant well knew that a permanent ban from doing this road train work would amount to losses of tens of millions of dollars over the remaining years to retirement.

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72. The following is an edited transcript of that conversation on 21 st

March 2017 with Paul Page.

(72.a) Paul said: "… Hey Clayton. How are yer mate? …"

(72.b) I said: "… How yer goin Paul? …"

(72.c) Paul said: "… Good mate - what's goin on? …"

(72.d) I said: "… Just confirming about Berth 29 for tonight? …"

(72.e) Paul said: "… Er - no - I don't reckon you're on that Clayton. I don't reckon they want you on that one there. …"

(72.f) I said: "… Sorry? …"

(72.g) Paul said: "… I don't reckon they want you on that one there. …"

(72.h) I said: "… Who's that? …"

(72.i) Paul said: "… er - er - Crystal Brook. …"

(72.j) I said: "… Crystal Brook? …"

(72.k) Paul said: "… Yeah - yeah. I think you've been banned from site on that one there. …"

(72.l) I said: "… No - that's not true - I've spoken to the Manager there - and he has no issue at all - whatsoever - with me. …"

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73. On 23rd March 2017 another phone conversation took place with Paul Page at which time Page refused to allow the Second Appellant to make any collections from GrainFlow Crystal Brook. The following is an edited transcript of that conversation.

(73.a) Paul said: "… g'day Clayton - how are yer?…"

(73.b) I said: " … Paul - how yer going? …"

(73.c) Paul said: "… Alright mate - what's goin on? …"

(73.d) I said: "… Well you were going to call me back yesterday afternoon and confirm - inaudible. …"

(73.e) Paul said: "… Yeah - na - still - still not happening at the moment but I have got a bit of - er Mallala in - sorry - bit of Roseworthy into Wasleys tomorrow morning if you're keen on that? …"

(73.f) I said: "… No - I'm looking at the Crystal Brook to Berth 29. …"

(73.g) Paul said: "… Yeah - na - …"

(73.h) I said: "… Yeah - I'm working during the day at the moment - unless I'm going to be doing this er - road training at night time. …"

(73.i) Paul said: "… yeah - na - it's alright - keep working during the day at the moment buddy. …"

(73.j) I said: "… So - what's happening with the Berth 29 run? …"

(73.k) Paul said: "… Yeah - na - we've got enough on at Crystal Brook at the moment - so. …"

(73.l) I said: "… You've got enough what sorry?. …"

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(73.m)Paul said: "… Yeah - na - we've got got Crystal Brook covered at this stage. …"

(73.n) I said: "… Well you promised me I was gunner be doin that - I mean - that's worth $3,000 dollars a day to me Paul . …" (For clarity - the preceding is repeated here.)

(73.o) Paul said: "… I understand that - I understand that - but er - er - unfortunately we can't put you on there at the moment mate. …"

(73.p) I said: "… Well - Paul we're gunner have a problem you know. Because - erm - I heard what yer say before - said yesterday and and at other times that yer reckon that I'm banned from the Brook - well for a start that's nonsense - we know it's nonsense - and all I know is that I was doing Mallala to Berth 29 all last week - up and down - up and down - up and down - there was absol - and there's absolutely no issue whatsoever - with any part of my operation and you do not have one single skerrick of evidence - to get there and suggest - that I shouldn't be able to do any work at all. I'm doing er Ardrossan at the moment but the point is that I'm supposed to be doing Crystal Brook to Berth 29 …"

(73.q) Paul said: “… Yeah - I can't help you on that one for this particular vessel. …"

(73.r) I said: "… Sorry? …"

(73.s) Paul said: "… I can't help you on that one Clayton for this vessel we sorter got to - yeah no well - we're not gunner put yer on Crystal Brook. …"

(73.t) I said: "… Are you saying that it's on - or it's not on? …"

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(73.u) Paul said: "… No - no - Crystal Brook is not on at the moment. …"

(73.v) I said: "… Well - no - er that's not the main thing - because the main thing is I've got $50,000 dollars worth of tri-axle dolly there that I'm supposed to be using - …"

(73.w)Paul said: "… mm - mm …"

(73.x) I said: "… when there's road train work available. And then you ring me up and say - 'no Clayton er you've been banned from the Brook - er - we can't send you there - and then come along with some other nonsense about supposedly running trucks - your trucks off the road or something on the runs up there at Mallala - which again is total nonsense. …"

(73.y) Paul said: "… The work I am offering at the moment is Roseworthy into Wasleys. …"

(73.z) I said: "… Roseworthy to Wasleys. (laughing). You can't be serious Paul? …"

(73.aa) I said: "… I'm not going to take lying down when I am told that I am banned - you know - er and that I won't be doing any more work - and in particular - when I get a message from …"

(73.ab) Paul said: "… Na - you weren't told - you're not getting any more work. …"

(73.ac) I said: "… Yes - I was told - no - Mick from Glen Carron had a call from Andy to say - Çlayton is banned and won't be doin any more work - fer for Berth 29 - and I've got that from the horse's mouth. …"

74. As can be seen – Page acknowledged the amount of the daily loss to the First Appellant by this ban – in addition to refusing to provide any

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justification for the ban. The Appellants say that between them - Paul Page and Andy Gray had been the instigators and the fomenters responsible. The reason for the ban was at all times false – fabricated and contrived and as such - comprised a conspiracy by unlawful means. It was designed to do the greatest financial harm and damage possible to the Appellants and both Page and Gray well knew that such a ban would destroy both Appellants financially – and with that - their credit worthiness and credit history with banks and financial institutions they dealt with.

75. Furthermore – Page also lied and claimed that Crystal Brook was not running that night. (73.t) I said: "… Are you saying that it's on - or it's not on? …"(73.u) Paul said: "… No - no - Crystal Brook is not on at the moment. …"

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2. However – this conversation with Paul Page also goes to the heart of this action – and to the conduct of this case by the trial judge – and to the alleged credibility or - lack of it – on the part of the Second Appellant – and at paragraph 199 of the judgement the allegation by the judge that –

“… Some aspects of that cross-examination were illustrative of the approach taken by Mr Wentworth to the presentation of the plaintiffs’ case more generally. …”

and at paragraph 200 of the judgement – the Second Appellant is falsely accused by the Respondents and the trial judge in the following terms of alleged – “dilusional” – behaviour - and – “an illustration of Mr Wentworth’s stubborn refusal to accept any mistakes on his part …” – The relevant portion of paragraph 200 took the following form:-

“… However, when it was pointed out to Mr Wentworth that the transcript did not include any reference to the word “promised” in that passage, Mr Wentworth challenged the accuracy of the transcript, and insisted that the tape recording be played to the witness. It was played, and when counsel for the defendants and I each confirmed that we had not heard the word “promised” used, Mr Wentworth insisted that it was used. The tape was played again. There was no doubt that Mr Wentworth was wrong and that the word “promised” was not used. However, Mr Wentworth refused to accept this. It remains unclear to me why Mr Wentworth refused to accept that he was wrong about whether the recording included the word “promised” in this exchange. The defendants gave this as an illustration of what they contended was Mr Wentworth’s delusional behaviour. I consider it more likely that this was merely an illustration of Mr Wentworth’s stubborn refusal to accept any mistakes on his part. …”

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77. The facts and the evidence of paragraph 76 above - are indicative of a much more serious aspect to this case. Material evidence tendered in this Court has been surreptitiously and clandestinely altered - after the material was filed and placed into the custody of the Court by the Second Appellant. This fact is beyond speculation – or supposition – of any kind. It is not at all a case of misinterpretation of the evidence. It is there for all to hear - and read – in the written transcripts as supplied in affidavit form over the past two years since the filing of the originating summons and all documents that followed thereafter.

78. The original edited recordings – and all transcripts as filed for sub paragraph (73.n) – (paragraph 14 of the judgement) - herein contain the wording – “I said: "… Well you promised me I was going to be doing that - I mean - that's worth $3,000 dollars a day to me Paul. …"

79. The wording now being used by the trial judge reads as follows – “Well you were saying to me I was going to be doing that, I mean that’s worth $3,000 a day to me Paul.”

80. It can be clearly seen that the word - “promised” - has been replaced with the three words – “were saying to”.

81. This Appeals Court needs to determine how this alteration and change could have been made to the material evidence as supplied by the Second Appellant to the Court. Because what it does is to remove any doubt as to the credibility and veracity of every other part of the evidence – and findings of fact – in relation to the Appellants case.

82. The evidence and the findings of fact therefrom - cannot - at any time support findings of any level of negative connotations made by the trial judge against the Second Appellant in this case. The Second Appellant has diligently sought a reason for this attitude and it is clear that given - the Second Appellant has made it known in a number of documents filed in this case - in no uncertain terms - of his work on the Internet as - chief researcher and mentor to The Voice Of The World and The Global Fund For Peace, Justice And Development –

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an honorary position attracting no remuneration. Those disclosures also made it clear that TVOTW was about to release to the world revelations and evidence that the events of 11th September 2001 in the United States (911) involves a conspiracy at the highest levels of the U.S. Government and that key participants in that conspiracy were George W. Bush and Vice President Richard Cheney. The events of 911 - at no time – involved - or had anything whatsoever to do with Osama Bin Laden – Afghanistan – or - Iraq. Furthermore – that Bush, Cheney and others well knew before the morning of 911 as to what was about to take place – and more importantly – who the real perpetrators of the crimes were – and deliberately did nothing to prevent it from happening. Everything that followed thereafter – including the murder of nearly two million people in Afghanistan and Iraq – and the destruction of trillions of dollars in property both real and personal - belonging to private interests – and to those states – and was carried out under totally false pretences and justifications. U.S. – U.K. and other service personnel from Western countries have also died under entirely false pretences. In the absence of evidence to the contrary – it would appear that this unprecedented bias and prejudice against the Second Appellant was designed to set an example of the Second Appellant – by “hanging him out to dry” – in the findings and judgement against – and to the detriment - of the plaintiffs in this case.

83. Above all else – it goes much further than what is contained in the written transcript at sub paragraph (73.n). The Second Appellant is the person who uttered those words – and he well knows what he said to Page – and his testimony of what he said must count beyond all else – as well –it is fully affirmed – and reaffirmed – for all to hear – in the original recording itself – which was not subject to tampering. The judge was using the versions as supplied by the Respondents – so if the material was not tampered with during the time it was in the possession of the Court – the only other place it could have been tampered with was during the time it was in the possession of the Respondents. As further proof of the recording’s contents – at (9.a) of the index – the actual section - the subject of conflict and question - has been reproduced and then folded back and repeated 8 (eight)

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times to allow this Court and any member of the mass media - or public – to vet the material for themselves. The actual words spoken are beyond doubt – or supposition – of any kind whatsoever. As a consequence – the Respondents have forfeited the right to object to – or question 2 (two) points of law. The only material that can be relied upon – is the material supplied by the Second Appellant to the Court – and – secondly – all recordings – every one of them supplied to the Court should be accepted into evidence and their contents should be given full weight as to findings of fact by the judges dealing with this appeal. Furthermore – it provides total and full confirmation as to why a court of law must allow recordings of this nature into evidence. It removes ALL doubt of who is providing the court with the truth and veracity of such an important body of evidence. The audio of the contested section of the recording with Paul Page referred to in sub paragraph (73.n) is in the following URL file named (which is working) -

http://www.tvotw.com/GlenCarron(underscore)GardenGrove(underscore)Case/944(underscore)2017(underscore)Appeal(underscore)WebVersions/AppealDocuments/Recordings/9a(underscore)PaulPage(underscore)Promise(underscore)23March17(underscore)Amplified(underscore)mp3.mp3 - and in the electronic copy of this document here.

84. It removes all doubt that every single part of the findings of fact as to whether the allegations being made against the Second Appellant right from the first allegation of having taken out a stobie pole at GrainFlow Crystal Brook were at all times false – fabricated and contrived. And – that because that allegation was used in a conspiracy by unlawful means to permanently withdraw supply to the Appellants which over the period to retirement resulted in loss and damage to the Appellants of tens of millions of dollars.

85. Furthermore – and more importantly it goes to the core of the case as to the hidden agenda and motives of the Respondents and the accompanying malice as alleged by the Appellants and by virtue of

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the personal first hand knowledge of the Second Appellant which were always known to be true as far as the various causes of action were concerned. If the fabricated stobie pole allegation was at all times – an event which NEVER took place – was comprised of allegations which were at all times false – fabricated – and contrived – then who were the people that were responsible for the creation of this conspiracy by unlawful means? Paul Page, Andy Gray and Kylie Lord.

86. As a result the Second Appellant had no other option than to protect his legitimate lawful interests and to gather as much reliable first hand material that could substantiate what he was being told as being reliable – truthful – and to at all times corroborate the truth of what he was hearing with his own ears. It is not possible to write down and keep notes of a conversation contemporaneously when that conversation is taking place – or in front of the person making those charges and allegations. A person cannot write that fast – nor can he retain every word spoken – unless he can refer back later to an actual recording and reduce it to a precise and accurate written transcript. Once again – the Surveillance Devices Act 2016 SA – - cannot be used for an illegal purpose. Once again – the law provides at all times that a person is entitled to provide oral evidence in Court of what he heard - (as spoken) with his own ears.- by a witness – by a perpetrator of a crime – by a victim – who desperately needs to see justice done – and the guilty held to account.

87. The measure of quantum in the Third Statement of Claim obviously has regard to the allowance for punitive – or – exemplary damages (sometimes called - ‘aggravated’ - damages). Who would deny that a plaintiff is entitled to damages as punishment against a defendant who deliberately and falsely accused a person of wrong doing – then pursued a course of action designed to inflict maximum loss and harm to the plaintiff which had the obvious consequence of the destruction – and loss - of the plaintiffs assets – credit worthiness and credit history – and of his health as well - which has now seen outcomes directly threatening the very physical life of the Second

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Appellant. Symptoms of major organ failure are now presented to the Second Appellant – and his medical professionals.

88. As if the above were not bad enough – on 27th February 2019 the Advertiser Newspaper published a most damning indictment against the Second Appellant. The article – (exhibit P5 on page 134) - represented a most grievous attack upon the general reputation and goodwill of the Second Appellant and that of his company Nanosecond Corporation. This attack was based upon false grounds – false evidence and at no time is consistent with the evidence supplied at trial. The report purports to represent an accurate portrayal of the conduct of the Second Appellant in the events leading up to this court action - both personally and professionally – and particularly in the conduct of this Supreme Court case. It represents the greatest travesty of justice – and provides full support and confirmation that the judgement of 14th December 2019 was not just a total farce – but it has added significantly to the consequential loss and damage – and the harm done to the reputation – goodwill – and health of the Second Appellant over and above that caused by the actions of the Respondents for which they are being sued. How much suffering is one man expected to endure – on false – fabricated – and contrived grounds? As a result of conduct which was at all times – criminal. The Second Appellant has put this into the following context more than once in this case. It can be likened to a person - metaphorically speaking – taking a knife and cutting his throat financially – as we watch his life’s blood run down the gutter. It is impossible for the Second Appellant to describe the level of anger toward the perpetrators who have destroyed every aspect of the Second Appellants life - after the resource required to purchase the equipment for this business came by way of a once in a lifetime inheritance after the death of both his mother and father - in a head-on car crash. And counsel for the Respondents have the audacity and the total lack of empathy or understanding of any kind to accuse the Second Appellant of being too emotionally entangled in this matter. This anger has been compounded many times over by the modus operandi of counsel for the Respondents by attacking the professional competence and personal credibility of the Second Appellant to try

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and bolster – on entirely false grounds - a defence which is wholly tainted and with no credibility whatsoever. In summary - the criticism by the trial judge against the Second Appellant was entirely misdirected – and - it is not borne out or upheld by the evidence. A proper examination of the facts show the exact opposite to be the case.

89. So the Second Appellant said to himself – “take 10 steps back and imagine you are counsel for the Appellants (Plaintiffs).”

“I know that right from day one - all of the allegations - every single one of them - from the fictitious stobie pole forward were at no time true - were fabricated - manufactured and contrived.”

“But from the outset – the Respondents were playing sick games by filing applications and motions to have the case thrown out allegedly because it had no chance of success- or - they want it stopped by asking for security of costs when they full well knew the Plaintiffs don’t have anything as a consequence of the actions of the Defendants.”

“But the acid test came – when Judge Bochner after having seen the majority of the evidence contained in the recordings - said to the Defendants counsel – ‘don't even go down that track.’

“But now we have the obvious bias and predisposition against the Second Appellant on the part of the Advertiser report.”

“So what does all this mean?”

“No part of the case can withstand close scrutiny. The Respondents case is so tainted - there is no credibility or justification for having withdrawn the supply to the Appellants - at any time. It was clearly a conspiracy by unlawful means designed to do the maximum amount of harm and damage possible.”

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90. On the evening of 23rd March 2017 at approximately 21:00hrs the Second Appellant drove to Berth 29 at Port Adelaide in his car and spoke face to face with the supervisor Greg Arbon. The purpose of the meeting was to enable the Second Appellant to confirm whether Greg Arbon had any issues with the Second Appellant – or any reason that he might have of preventing the Second Appellant from making deliveries to Berth 29. Greg Arbon stated that – "… You haven't done nothin wrong here mate. …" The following is an edited transcript of that conversation.

(90.a) I said: "… Greg. …"

(90.b) Greg said: "… How yer doin Clayton? … "

(90.c) I said: "… How yer goin? …"

(90.d) Greg said: "… Alright - what's goin on? … "

(90.e) I said: "…Guess what er Greg - I need yer help mate. …"

(90.f) Greg said: "… What are yer done? … "

(90.g) I said: "… I've done nothin. …"

(90.h) Greg said: "… What's wrong? … "

(90.i) I said: "… Guess what? …"

(90.j) Greg said: "… What? … "

(90.k) I said: "… They reckon I'm barred from comin here. And I wanted to come and see you - so you could conf - …"

(90.l) Greg said: "… Well - why - why - are yer barred? … "

(90.m)I said: "… That's what I mean. I come in here -how many nights last week from the Brook - then I went and did Mallala to here.

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Now - Greg you can confirm - I'm sure - that I run a first class professional operation? …"

(90.n) Greg said: "… Yeah but why - why have they barred yer? … "

(90.o) I said: "… I dunno - well they're tryin to say that I'm barred from the Brook. I've spoken to Dave at the Brook Greg - …"

(90.p) Greg said: "… Yeah. … "

(90.q) I said: "… and this is three thousand dollars a night - that I am missing out on - because - somebody at Garden Grove has decided that they want to get there and deliberately bury me against the wall. I've rung Dave at the Brook - he's the Manager - I rang Dave and I said - 'Dave - can you check with your boys there - or check with your staff - or - do you know offhand - of anything that's happened in the last couple of weeks with any particular truck or driver - which would give you any reason to barr - that driver from coming into the place. He said - 'No' - he said - 'don't worry about it - you haven't done nothin wrong.' - This is what I'm up against Greg. - And - this mob reckon that they can do what they like. - … Greg - is there anything that you can do - from your point of view - and in your capacity here - as the Manager of this operation - to be able to say to erm - Garden Grove - 'I'm Greg so and so - from down the Port?' …"

Greg dials a number on his phone.

(90.r) Greg said: "… Hey - I wanna ask you some-in? - I got an old fella here at the gate - called - called Clayton - how come he's not allowed back to work? - Well - he's here nearly in tears asking if he's done anything wrong? - And I said - 'no mate - not to my knowledge.' - and - erm he's rang the bloke at Crystal Brook from Cargill and asked him - if he's done anything wrong - and they said - 'no' - but apparently Garden

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Grove have told him - he's not allowed'a back on site or somein. What's yer name - Clayton? … "

(90.s) I said: "… Clayton Wentworth. …"

(90.t) Greg said: "… Clayton Wentworth - old fella - thank you. Yeah - …"

(90.u) I said: "… Who's that? …"

(90.v) Greg said: "… One of the bosses from Garden Grove.

(90.w) I said: "… A boss from Garden Grove. Is it really? …"

(90.x) Greg said: "… Yeah. …"

(90.y) I said: "… What's his name - Bradley? …"

(90.z) Greg said: "… Na - Justin. Bradley's the owner. …"

(90.aa) I said: "… Bradley's the owner - I know that - yeah. …"

(90.ab) Greg said: "… Bradley doesn't handle shit. …"

(90.ac) I said: "… " What does Justin do? …"

(90.ad) Greg said: "… he's one of the bosses - one of the Managers. …"

(90.ae) I said: "… Is he? …"

(90.af)Greg said: "… yeah - he's gunner ring me back in a minute. - So - I'll be able to tell yer. …"

(90.ag) I said: "… Do you know him well? …"

(90.ah) Greg said: "… yeah. …"

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(90.ai)I said: "… Because - er - I mean - I was gob-smacked Greg - I was gob-smacked - because all I did was goin - up and down - up and down - up and down - all last two weeks. …"

(90.aj)Greg said: "… What - did you pull up - up there. How'd you find out yer weren't allowed in? …"

(90.ak) I said: "… Well - Friday - I get this bloody phone call to say - you've been banned from the Brook. I said - 'why is that?' …"

(90.al)Greg said: "… So - you weren't banned from here - you were banned from the Brook? …"

(90.am) I said: "… Banned from the Brook. …"

(90.an) Greg said: "… It's obviously someone that works at Crystal Brook that said that? …"

(90.ao) I said: "… No - I rang Dave - at the Brook - and he said - no. …"

(90.ap) Greg said: "… Someone must have - they wouldn't just - hey - they're short on trucks so they're not just gunner fucken ban people? …"

(90.aq) I said: "… That's what I mean. …"

(90.ar) Greg said: "… What have Glen Carron told yer? …"

(90.as) I said: "… Guess what? Mick from Glen Carron rang me up - and he said ah - 'I just a phone call from Andy from Garden Grove.' He said - ah 'you're banned from doin any more Berth 29 work.' I said - 'what' - I said - 'yer have to be jokin' - and that's the first I've heard of it. I've done nothin to no-one Greg. Truly. Nothin at all happened - on any of those nights.

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And most of the nights any Garden Grove trucks - I think - had gone in earlier and they were in front of me - so that they would have been half way here - or here - when I was loadin up - at Mallala - and the Brook was the same. - I don't think I even saw a Garden Grove truck. So - erm - but I mean - I - I'm not jokin - I was in tears Greg - because yer know what - I got - my overheads run at over fifteen hundred dollars a day. In loan repayments - overheads, - fuel - everything else. Loan repayments and other stuff - and I need - I need this bloody - I've been waitin for six months since I bought my tri-axle dolly for fifty grand - for any bloody road train work that I could get Greg - and I knew that they was gunna be coming up with some work - coming down here at twenty nine. …"

(90.at) Greg said: "… Yeah. …"

(90.au) I said: "… And - you know - at my age Greg - you know - you don't muck around - because - you know - life's too serious mate. …"

(90.av) Greg said: "… Yeah. …"

(90.aw) I said: "… To have anyone turn around - and sort of take exception to any of your work - or you’re attitude - or anything else. And - as you know - I was happy as larry down here every other night of the week - in all of the time I was here - no problem whatsoever.

(90.ax) Greg said: "… You haven't done nothin wrong here mate. …"

(90.ay) I said: "… Nothin at all mate. No. …"

(90.az) Greg said: "… Like I said - if - I don't know the reason - but if they've - yeah - there's not much I can do - I can only ask. …"

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(90.ba) I said: "… The first thing that came up - the first thing that came up - was er - might have been the day before or something - Garden Grove - I was speakin to on the phone - it might have been Paul - and he said er - he said I dunno er - I've just got this er report here at the moment where you tried to run two of our trucks off the road last night. I said - 'what?' I said - 'you can't be serious?' …"

(90.bb) Greg said: "… That's what I mean. - But that side of it's out of my control hey. I can't - I can't tell them what to do. I can ask why - and I'll get an answer in a minute. But - there's not a lot I can do about it. If you've done nothing wrong here - or nothing wrong at the Brook. …"

(90.bc) I said: "… Nothing wrong at the Brook mate - nothing at all. No. ..."

(90.bd) Greg said: "… Like I said - I asked him - and he's gunner find out. …"

(90.be) I said: "… Justin? ..."

Greg's phone ringing with incoming call.

(90.bf) Greg said: "… Here he is - yeah mate. …"

(90.bg) Greg said: "… Apparently you can call Paul Page again tomorrow - but apparently it's because yer ran his drivers off the road. …"

(90.bh) I said: "… Is that what he said? ..."

(90.bi)Greg said: "… Yep. …"

(90.bj)I said: "… You're joking. ..."

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(90.bk) Greg said: "… No - that's what he just said. Like I said - I don't have a problem with yer. …"

(90.bl)I said: "… No. ..."

(90.bm) Greg said: "… And I just told him that. Were yer workin twenty four hours or somein? …"

(90.bn) I said: "… Hey - no - I was only workin the nights when - you know - you were down here. ..."

(90.bo) Greg said: "… I was gonner say - that's what - he said that to me and I said - I don't know about that. - What did Glen Carron say?…"

(90.bp) I said: "… Well - all they did was to relay - was to relay - what they were told - which is even more concerning to me Greg because what happens if Glen Carron were to turn around and say to me - well - based on what they're saying we can't give you any more work either. Imagine that? …"

(90.bq) Greg said: "… Bit harsh …"

(90.br) I said: "… Isn't it?

(90.bs) Greg said: "… Especially seein there's gunner be so much of it - the next couple'a years. Did you get up there to load? … "

(90.bt) I said: "… Today? …"

(90.bu) Greg said: "… Last night. …"

(90.bv) I said: "… No - no - I didn't go there last night coz he claimed at four oclock last night - that Crystal Brook wasn't on last night. He said - 'we've got Pinnaroo on - but Crystal Brook is not on tonight - probably start tomorrow' - or something like

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that. - That's not true? They were here from the Brook last night? …"

(90.bw) Greg said: "… Yeah. …"

(90.bx) I said: "… Yeah. …"

(90.by) Greg said: "… Twenty four hours. …"

(90.bz) I said: "… Twenty four hours a day? …"

(90.ca) Greg said: "… They open for twenty four hours at Crystal Brook. …"

(90.cb) I said: "… Not just from eight to eight? …"

(90.cc) Greg said: "… No - twenty four hours. …"

(90.cd) I said: "…But that's a fact. Who told you - Justin told you they were short of trucks? …"

(90.ce) Greg said: "… I know they're short of trucks. …"

(90.cf)I said: "…Are they?…"

(90.cg) Greg said: "… Yeah. …"

(90.ch) I said: "… How do you know that? …"

(90.ci)Greg said: "… Well - fuck - coz there's none here for half the night. …"

91. As can be seen from sub paragraph (90.bg) above – the excuse given by Paul Page for banning the Second Appellant from collecting at GrainFlow Crystal Brook was not for allegedly taking out a stobie pole – but the reason was now changed by Page to – “but apparently it's because yer ran his drivers off the road. …"

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92. In addition – another totally false – fabricated and contrived allegation was made by Paul Page at sub paragraph (90.bm) - that the Second Appellant had allegedly been driving for 24 (twenty fours) hours straight. The preceding is fanciful in the extreme by Page and is not only at all times false – but there is not the slightest bit of evidence to support such an outrageous allegation. As with each and every single allegation against the Second Appellant it provides full and complete confirmation of a conspiracy by unlawful means against the Second Appellant. Other instances of conflicting claims and allegations by participants in the conspiracy will be highlighted later herein.

93. In the judgement delivered on 14th December 2018 – and throughout the judgement the trial judge has without any evidence or foundation for doing so - has repeatedly stated that the Second Appellant was – in fact – responsible for damaging a gate at GrainFlow Crystal Brook. This finding was consistent with other groundless findings by this judge as to the competency of the Second Appellant as a Heavy Combination Professional Driver– as well as the credibility of his evidence. If - through his own first hand knowledge the Second Appellant knows nothing more about damage to a gate than he does of a fictitious stobie pole – nothing on God’s earth can change that fact in the eyes of the Second Appellant. In principle this fact is relevant to every single allegation made against the Second Appellant if he well knows that any given allegation is false.

94. The truth in relation to a gate being damaged goes to the very core of this case and that truth not only exonerates the Second Appellant for any wrong doing – not only exposes the conspiracy by unlawful means – but the truth is manifested in the following extract from the judgement of the 14th December 2018 at paragraph 178 under the heading of “Evidence from Crystal Brook.” in the following terms. In any event - the statement is nothing more than unsubstantiated heresay – but the judge has used it as substantial hard evidence to the detriment of the Second Appellant’s credibility and truthfulness in circumstances where the laws of evidence prevents him from doing so.

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“She was told by an employee - (unsubstantiated hearsay and in no way admissible – Lord is making it up entirely) - that the damage had occurred in the morning while Mr Wentworth was parked outside the gate waiting for it to open. He had been asleep in his truck which was parked up against the gate so that it could not be opened.”

95. This account - as set out - is proof in itself of any responsibility – or culpability – on the part of the Second Appellant. For a start – the night in question represented the one and only night the Second Appellant had ever spent at GrainFlow Crystal Brook and he remembers it well. The account delineated above is at all times false. When he woke the following morning the front gate was already open – and all of the staff had already entered the facility in their own cars. The width of the opening provided by the gate is more than 3 (three) trucks wide. The Second Appellant’s truck was parked in the middle of the entranceway. The gates were fully opened by the staff. It is impossible for any part of the Second Appellant’s truck to come into contact with the gate.

96. If we accept the account set out in the judgement as being accurate or truthful – (allegedly given in the evidence of Kylie Lord) - it means that if the Second Plaintiff’s truck was that close to the gate – “so that it could not be opened” – the staff would then be required to first waken the driver – and then wait until he had moved his truck before they could open the gate – and before they could drive their own vehicles into the complex. Every movement made by the Second Appellant in his truck would have been completed in full view of every worker waiting to enter. Any damage – if there was damage to the gate by the Second Appellant would have been witnessed by all present – AND – it would immediately have been brought to the attention of the Second Appellant. THAT DID NOT HAPPEN – ENOUGH SAID – END OF STORY – END OF ANOTHER FALSE ALLEGATION against the reputation of the Second Appellant.

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3. By Saturday 25th March 2017 – and after receiving confirmation from the manager David Arbon at GrainFlow Crystal Brook that the Second Appellant was at no time banned from making collections there – the Appellants resumed with the runs from Crystal Brook to Berth 29. However – the same ban was revisited against the Appellants by Paul Page from the Second Respondent company on 27th April 2017. There were no issues with the Appellants during the period that followed 25th March 2017. This time – the same excuse given was that the Second Appellant was banned from making any collections from GrainFlow Crystal Brook – but this time – he was allegedly banned from all GrainFlow sites in Australia. This allegation by Paul Page and the Second Respondent was also at all times false – fabricated and contrived. Other false and contrived allegations by Enzo Collabro at Berth 29 - were made in relation to so-called – “spills of grain” – on the drive over hopper at Berth 29 which were impossible due to the fact that the Second Appellant only ever unloaded through the grain doors of the trailers and the flow rate is controlled down to as little as one kilogram per second by the grid operator. Collabro is a mate of Andy Gray from Garden Grove. The Second Appellant observed Gray and Collabro gossiping out front of the Supreme Court building on the day of Collabro’s appearance. Gray was not even supposed to be at the Court on that day. His evidence was taken the day before. An email (P2) of 5th April 2017 from Collabro at paragraph 128 herein - just days after recommencing operations on 25th March 2017 contained the following false claim.

“… Garden Grove driver (Clayton) tipped too fast causing a spill. … there weren’t any truck delays however this operator has a tendency to have minor spills/incidents …”

The Second Appellant knows from first hand knowledge. These allegations are at all times false. The flow rate is controlled by the grid operator – not the driver – and through the grain door - as instructed by the Second Plaintiff to prevent any spill. Other spurious – and false allegations by Collabro were made against the Second Appellant allegedly for not aligning properly with the hopper opening

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– failing to follow directions of the grid operator – and blinding other drivers with his high beam driving lights on the open road. The latter is all impossible because the Second Appellant is acutely aware of the strength of his lights – in addition to the fact that as a matter of unconscious habit – the Second Appellant without thinking - dips his lights the moment another car or truck approaches from the opposite direction. These driving lights are so powerful that they illuminate the road ahead – and – to both right and left hand shoulders of the road deep into the trees - for more than three kilometres. Not to dip these lights would also be suicidal for the Second Appellant as oncoming traffic are completely blinded and could easily stray onto the opposite side of the road into the path of the Second Appellant resulting in a head-on collision at a combined road speed in excess of 210 (two hundred and ten) kms per hour. The Second Appellant has been driving from the age of 8 (eight) years on the farm – and there is nothing he can be told – or faulted on - in relation to every part of driving any road vehicle. Before these false and unsubstantiated allegations made over the space of a few days in late March 2017 by Paul Page and Andy Gray – together with other allegations by Collabro in early April 2017 - no-one has ever found fault with the driving ability of the Second Appellant in 54 (fifty four) years of driving. These facts were presented to the court in a variety of different forms in affidavit and oral evidence at trial yet the trial judge chose to ignore the evidence of the Second Appellant and to attack his credibility.

98. This is the reason the second Appellant chose to record all of the interactions with the participants when he learnt that these allegations were at all times false. Facts which should have been extremely revealing to the court were deliberately hidden and excluded from the evidence at trial by the refusal to allow the majority of the recordings into evidence as well as a refusal to allow the recordings to be played in open court – as well as a refusal to allow the Second Appellant to give evidence in the witness box of what he heard with his own ears. This is entirely contrary to well established legal principles. If a course of conduct was being undertaken against the Second Appellant which he knew to be at all

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times false – he is both obligated and fully authorised to take appropriate steps to protect his own lawful interests – financial welfare – and personal health and well being.

99. As it is now – apart from the total destruction of the financial state of both Appellants the health of the Second Appellant has been decimated. The Second Appellant suffers from significant neuropathy in the lower extremities due to complications of diabetes. Blood is now being expelled in urine which suggests possible kidney or liver damage with the possibility of cancer. There is an appointment with the urology section of the Royal Adelaide tomorrow the 25th June 2019. Diabetic macular edema now requires eye injections. All of these serious health outcomes have been exacerbated by stress levels beyond the coping mechanisms of the majority of people. The Second Appellant is required to live in conditions of abject poverty worse than that found in countries like Bangladesh and India. No furniture – no cooking facilities of any kind – no sink – no running water – no laundry – an open sewer within 3 (three) feet of the front door. Showering at a truck stop once every four to six weeks. The layers of dead skin on his lower legs, ankles and feet can be felt under his finger tips as he washes those areas in the shower. No social life of any kind. No visitors as it is not possible to have anyone attend such appalling domestic conditions. No where to sit – no TV – and sleeping in the same clothes as worn every day. No blankets – no sheets and a pillow now dark brown from perspiration and sweat going back years. It is the most wretched existence ever seen in this country.

100. For all of the above reasons the Second Appellant is obviously extremely angry at what the Respondents have done to destroy his financial well being and that of his company and it is absolutely unacceptable for this court to allow the Respondents to employ any dishonest means possible to stave off a damages claim of this magnitude. The only thing the Appellants ask for is a proper examination of the evidence which removes any doubt to the liability for the causes of action as pleaded. This case will be determined by principles and fundamentals. Judges who have the care and

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management of this appeal should not be played for fools by counsel for the Respondents. This is exactly what they have sought to do thus far with the conduct of this case. Their whole modus operandi has been to attack and denigrate the competence and credibility of the Second Appellant in a most feeble attempt to divert attention and focus on the wrong doing of the Respondents.

101. What is most revealing is that the majority of the allegations against the Second Appellant have not seen the light of day until recent times. Until the full force and magnitude of this claim became clear after the action was filed. So they think the only way to defend the claim is to falsely denigrate and destroy the driving competence of the Second Appellant - so as to justify their actions to withdraw supply on what they know to be false grounds.

102. Over a period of 12 (twelve) years between November 1998 and November 2010 – all of the work of the Second Appellant in the United States – the U.K. – and Europe involved driving as a professional. All of it. Not once has there ever been question or criticism of the driving ability of the Second Appellant. NOT ONCE IN 54 (FIFTY FOUR) YEARS OF DRIVING - OVER 5 (FIVE) MILLION KILOMETRES.

103. The above was evidenced in testimony by Doug Harrold in Court (set out in paragraph (137.) below when he admitted the Second Plaintiff had not done anything – nothing - to justify any form of ban – let alone the permanent withdrawal of supply - for a whole year prior – 30th April 2016 to 27th April 2017. Even after having been put on notice that the permanent ban by the Second Respondent had been made on false grounds – Doug Harrold and Mick Harrold chose to engage in the conspiracy by unlawful means with Page and Gray and to continue with their own permanent ban on the Appellants.

104. Between the two Respondents there is a claim for a total $53,832,898.82 (fifty three million eight hundred and thirty two thousand eight hundred and ninety eight dollars and eighty two cents). This represents nearly fifty four million reasons to fabricate

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and lie about every single part of the claim. The root and origins of the entire case is founded upon the indisputable and unequivocal fact identified by the Second Appellant from the moment of the first – and false – allegation of having taken out a stobie pole at Crystal Brook. That false allegation was created and used by Paul Page and Andy Gray for what they believed was going to be a permanent ban against the Appellants to collect product from GrainFlow Crystal Brook. Page and Gray well knew the ban would result in the loss of income to the Appellants of tens of millions of dollars. Page and Gray well knew the ban would financially destroy the Appellants. As clearly stated by Page at paragraph (106.o) below - he well knew the only work the Appellants were doing for the Second Respondent was the road train runs from GrainFlow Crystal Brook to Berth 29. By withdrawing supply for the runs to Berth 29 Page was effectively banning the Appellants from all Second Respondent work.

“…You don't work for us full time - ok. You only work for us when the boats are here. I'm - so you're banned from doin the boats - alright? …"

Page and Gray as instigators and fomenters of this ban well knew at all times that the grounds for the ban were at all times false. The evidence shows it to be false. The Second Plaintiff from his own personal knowledge knows the grounds to be false.

105. As much as counsel for the Respondents will object and try to prevent it from happening – this appeal will examine every single part of the evidence in the most exacting detail to show the grounds for the withdrawal of supply to be false.

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106. The following is an edited transcript of the phone conversation with Paul Page on 27 th April 2017.

(106.a) Paul said: "… Yeah …No - I understand what you're saying - at this stage you're banned - ok. …"

(106.b) I said: "… Who am I going to speak to about that? …"

(106.c) Paul said: "… Me. …"

(106.d) I said: "… Hey? …"

(106.e) Paul said: "… Me. Yer banned at this stage. …"

(106.f) I said: "… Well the supervisor from Berth 29 said to me - 'Clayton - we are not banning you. …"

(106.g) Paul said: "… No - yer banned - yer banned. …"

(106.h) I said: "… He said - 'we are not banning you at all' - and I said - 'it depends entirely upon what you say to them.' …"

(106.i)Paul said: "… No - we're banning you. At this stage you are banned. We are banning you. With what's happened with a few incidents - we're banning you. So it's coming from here. This voice right now - is talkin to you. …"

(106.j)I said: "… You mean - noone else's got anything to do with it? …"

(106.k) Paul said: "… No - no - this is feedback from - from - Cargill's - from the wharf - from the - from the sites - so - it's all built up - Clayton. At this stage - …"

(106.l)I said: "… Nothing's built up - because nothing else has happened. …"

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(106.m) Paul said: "… Clayton - Look - I'm not gunner get into a stouch with you. At this stage you're banned - alright mate. …"

(106.n) I said: "… Well - all I'm sayin to yer Paul is - please very careful about what yer gunner - what stance yer gunner take on this - because - I cannot have a situation where I'm banned from doing work - for no good reason. …"

(106.o) Paul said: "… I'm not - I'm banning you from work we employ you to do. It's as simple as that. You don't work for us full time - ok. You only work for us when the boats are here. I'm - so you're banned from doin the boats - alright? …"

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107. As a consequence of the above – on the evening of 27th Aptil 2017 - the Second Appellant again drove to Berth 29 and spoke to the supervisor Greg Arbon. Greg Arbon confirmed that there had been no reason for a ban on the Second Appellant to deliver to Berth 29 – but he had allegedly been told by servants of Garden Grove the Second Respondent company that the Second Appellant was again banned from collecting from GrainFlow Crystal Brook – but this time – and in addition – he was banned from collecting from any GrainFlow site in Australia. The following is an edited transcript of the exchange.

(107.a) Greg said: "… How yer goin boss? …"

(107.b) I said: "… I just thought I'd let yer know what's happening. …"

(107.c) Greg said: "…What's happnin mate. - What's goin on? …"

(107.d) I said: "… Well er - … "

(107.e) Greg said: "… How'd yer get on? …"

(107.f) I said: "… Greg - Garden Grove … "

(107.g) Greg said: "… Yep …"

(107.h) I said: "… have banned me - not just from here - but they're not gunner give me any work for nothin - at all - no work … "

(107.i)Greg said: "… Well do yer know what - I'll tell yer somein. You were banned before yer even got here. …"

(107.j)I said: "… by whom? … "

(107.k) Greg said: "… Somethin yer done at Crystal Brook. …"

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(107.l)I said: "… I didn't do nothin at the Brook. … "

(107.m) Greg said: "… Well yer obviously did. …"

(107.n) I said: "… Well - I'll be speakin to the Brook. I know David there. - I haven't even told yer half of it … "

(107.o) Greg said: "… Yeah - but I know the lot of it. …"

(107.p) I said: "… No - you don't know half of it. … "

(107.q) Greg said: "… I do! I do! …"

(107.r) I said: "… Coz what's happened now is - Garden Grove … "

(107.s) Greg said: "… Yeah …"

(107.t) I said: "… have got onto the fucken logistics guy at bloody Glen Carron - who I do nearly all of my work for - because all of my work for the most part Greg - is for Glen Carron. …"

(107.u) Greg said: "… Yeah …"

(107.v) I said: "… I work for Garden Grove - and that's why I bought my dolly - specifically - fifty grand's worth of dolly to do the work from the Brook to Berth 29. That's why I bought that dolly. Now - not only have Garden Grove said - 'you're not getting any work at all' - Greg …"

(107.w) Greg said: "… Yeah …"

(107.x) I said: "… they've gone and got into the ear of Glen Carron - guess what? This morning the guy at Glen Carron said – erm 'we've been gettin some bad reports about yer - we haven't got any more work for yer either'- Greg …"

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(107.y) Greg said: "… Shit! …"

(107.z) I said: "… 'we have told Clayton' - which you told me - 'ýou are not banned from here' …"

(107.aa) Greg said: "… Mate - you were banned - you were sacked - I'll tell yer now - they've got you on dashcam side-swipe-in trucks off the road and everything up there - and that's why you haven't got a job …"

(107.ab) I said: "… side-swipe-in what? …"

(107.ac) Greg said: "… Well - I don't know. They've got you on dashcam goin from one side of the gravel to the other - and …".

(107.ad) I said: "… Na - that's bullshit. …"

(107.ae) Greg said: "… What yer done here - is only - that much of it. (says Greg holding up his thumb and forefinger with a gap of a quarter of an inch between the two). …" (Insert - referring to a small mis-alignment to the right - of the truck on the grid - that required a tow from a loader because of a loss of traction due to the weight of the 'B' trailer to be pulled over the hump of the grid.)

(107.af) I said: "… What do yer mean - that much of it? …"

(107.ag) Greg said: "… Yer were gone - before yer even got here. You know - I asked you - if you were banned from Crystal Brook …"

(107.ah) I said: "… Yeah. - Course I'm not! …"

(107.ai) Greg said: "… Well - you were banned. You weren't even supposed to get that load from Crystal Brook apparently. - Well

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I heard today - they said … and I said - 'well it's sad that you're banned from every Cargill site in Australia.' . …"

(107.aj) I said: "… Why is that? …"

(107.ak) Greg said: "… I don't fucken know. That's what I mean - you tell me. Like - if you talk to Garden Grove. Like I said to you - you gotta sort it out with Garden Grove. … You were banned from all Cargill sites before you took this load thru here. - Listen - get it through your fucken head…"

(107.al) I said: "… Yes. …"

(107.am) Greg said: "… You were sacked before you even done this job. … Like I said mate - you've gotta go to Crystal Brook before us. …"

(107.an) I said: "… There's no problem with the Brook. I've got no worries about the Brook. …"

(107.ao) Greg said: "… Well - there is. …"

(107.ap) I said: "… David's the Manager there - and he said - no - …"

(107.aq) Greg said: "… David's away - David's away. …"

(107.ar) I said: "… yes - and he said to me the last time I spoke to him - he said - 'Clayton we haven't got any issues with you.' …"

(107.as) Greg said: "… I said that to you too. … I don't have an issue with you either. - I've told yer that. …"

108. Three vitally important facts are confirmed by Greg Arbon in the above exchange. Firstly - at sub paragraph (107.k) it is falsely alleged that the Second Appellant had done something at Grain Flow Crystal Brook to justify being banned from there. The manager had already

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testified prior to this date – and since in sworn evidence at trial - that the Second Appellant was in no way banned from GrainFlow Crystal Brook.

109. Two – the Second Respondent allegedly has dash cam footage showing the Second Appellant – “(107.aa) Greg said: "… Mate - you were banned - you were sacked - I'll tell yer now - they've got you on dashcam side-swipe-in trucks off the road and everything up there - and that's why you haven't got a job …" (107.ab) I said: "… side-swipe-in what? …" (107.ac) Greg said: "… Well - I don't know. They've got you on dashcam goin from one side of the gravel to the other - and …".

110. The Second Appellant filed Interlocutory applications in court for the alleged dash cam footage to be produced in discovery. The footage was never forthcoming – and never produced. This provides full confirmation as evidenced in testimony by the Second Appellant. The driving conduct as alleged by the Second Respondent never took place. The Second Appellant knows from his own first hand knowledge that it never took place. It represents major hard evidence of the conspiracy by unlawful means against the Appellants.

111. Thirdly – Greg Arbon states at sub paragraph (107.as) that - "… I said that to you too. … I don't have an issue with you either. - I've told yer that. …" In other words there is full and open disclosure and confirmation that Greg Arbon as the supervisor for all night time operations at Berth 29 – that he has no issue with the Second Appellant – and by extension – no reason to deny the Appellants from unloading at Berth 29 at Port Adelaide.

112. Therefore - on the evidence – if the Second Appellant is not banned from Berth 29 – and not banned from GrainFlow Crystal Brook – it removes all doubt or supposition of any kind. The allegations by the Second Respondent are – at all times false. Because the source of the allegations has come from four people being Enzo Collabro - Kylie Lord - Paul Page and Andy Gray - we have a conspiracy by unlawful means.

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113. It has already been established that the evidence supplied by Kylie Lord was at all times false. Exhibit P1 – an email of 26th April 2017 on page 126 – contains an allegation by Lord which took the following form.

“Thanks Andy. As you are aware he also has a lifetime ban from all GrainFlow sites, I am just happy he didn’t kill someone in the process as that was where he was heading.”

114. Lord admitted in the witness box that she was unable to shed any light on the source of this most damning allegation – and – further admitted that it was not at all true. In other words – there was no grounds for making the allegation – and that it was at all times entirely false – fabricated - and contrived. Full confirmation of the reason and decision by Alister Boyd from GrainFlow (Cargill) to terminate Lord referred to in paragraph (115.) below.

115. After trying unsuccessfully to visit Lord at GrainFlow Pinnaroo on 28 th

March 2018 - the Second Appellant wrote to Alister Boyd from Cargill in Melbourne asking him to take action against Lord. Half way through the trial process - the Second Appellant made another special trip to Pinnaroo to see Lord for the purpose of serving a subpoena. Lord was home. Lord claimed that she had been sacked by Cargill. Lord claimed she had been terminated after being poisoned by Phosphine gas used at GrainFlow Pinnaroo. When asked in Court at trial for the reason of the dismissal - she claimed she used a company credit card for personal use. There is no doubt the conflicting versions for the sacking of Lord and other conflicting evidence and allegations by Lord as shown above in paragraph (114.) - were used to hide the truth of action taken by Alister Boyd for the entirely false – damning and defamatory allegations against the Second Appellant contained in the email P1 of 26th April 2017.

116. For the above reasons there is no reliance whatsoever that can be attributed to any part of the evidence of Lord.

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117. But it gets worse. These false allegations were communicated to the First Respondent by Gray from the Second Respondent. The First Respondent was put on notice by the Second Appellant that the allegations were at all times false. The First Respondent took no steps to confirm the truthfulness or veracity of the allegations against the Appellants and because Doug Harrold and Mick Harrold knew the allegations to be false - engaged in the conspiracy by unlawful means with Paul Page and Andy Gray and withdrew the supply of the service to the Appellants permanently as well.

118. The night before withdrawing supply – on 26th April 2017 - Doug Harrold in a phone conversation with the Second Appellant discussed in intimate detail - the commitments and monthly outgoings the Second Appellant was facing – and - liable for.

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119. As a consequence – not only did Doug Harrold know the allegations by the Second Respondent to be false – he knew that if the First Respondent were to proceed with a permanent ban against the Appellants – it would result in the financial destruction of both Appellants.

120. The following is an edited transcript of the first of two phone conversations on 27 th April 2017 between Doug Harrold and the Second Appellant.

(120.a) I said: "…did he - say anything to you? …"

(120.b) Doug said: "… Ah - only just that it was a bit quiet. …erm the weather's quietened em down - I know they had about twenty loads cancelled yesterday - but - yeah - things are a little bit quiet at the minute. …"

(120.c) I said: "…Well - that's not what he said to me. …"

(120.d) Doug said: "…What did he say to you? …"

(120.e) I said: "…Well - that he's not giving me any more work. …"

(120.f) Doug said: "… Ah righto - because it's quiet? …"

(120.g) I said: "… No - because apparently he reckons that er - there's been a number of complaints about me which there hasn't been at all. Not one single complaint from any person that I've done any work for Glen Carron for. …"

(120.h) Doug said: "… Yeah. …"

(120.i)I said: "… Nothing whatsoever. And now - Mick's cut me off completely from any - and all Glen Carron work. …"

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(120.j)Doug said: "… Ah righto. …"

(120.k) I said: "… But he's already admitted to me that he's been speaking to Andy from Garden Grove. …”

(120.l)Doug said: "… Yep. …"

(120.m) I said: "… And - er - you know - he's now telling me that er because of a number of complaints - and that allegedly I've been banned from Crystal Brook which is a total load of rubbish. Erm - you know - …"

(120.n) Doug said: "… That's an AWB site isn't it? …"

(120.o) I said: "… Yeah. …"

(120.p) Doug said: "… Yeah. - so who told you - you were banned from Crystal Brook? …"

(120.q) I said: "… Mick did. …"

(120.r) Doug said: "… Yeah. … ”

(120.s) I said: "… Which is nonsense coz I picked up at Crystal Brook last night - night before - and ran down to Berth 29. …"

(120.t) Doug said: "… Yeah. … "

(120.u) I said: "… I can't have this Dougie. I can't be told that you know - all of my work - totally - it has been cut off because we gunner end up in the Supreme Court. - I can't have that Dougie. I've not done anything wrong. - I haven't done anything wrong for you as a company - to ban me from any work. …"

(120.v) I said: "… Well - he tells me - I'm not gettin any more work from Glen Carron allegedly because of complaints that

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have been made against me. I can't have that Dougie - coz it's not true. I just do my work in and out every day of the week - and - only last night you and I were talkin about how much money I gotta make every month to be able to pay my bills - and loans and shit. And the very next morning Mick rings up and says - 'you're not gettin any more work from us.' …"

(120.w) Doug said: "… mmm. … "

(120.x) I said: "… I can't have that Dougie. Dougie there's gotta to be other work around - everybody knows that it is flat chat. And I can't have a situation where you say to me - no -we're not gunner give you any more work period. …”

(120.y) Doug said: "… mmm. … "

(120.z) I said: "… Coz - we'll end up in a big yike. …"

(120.aa) Doug said: "… well … "

(120.ab) I said: "… You know - I can't have that Dougie. You and Garden Grove are the two main logistics companies in South Australia and traditionally I do all of my work - except for an isolated bit of running - and they are isolated - on the odd occasion that Garden Grove get the boat in to Berth 29 - so I can use my road train. …"

(120.ac) Doug said: "… yeah … "

(120.ad) I said: "… And now that I've got my permit for Ardossan - then I expected to be able to do that continuously - whenever there were any orders that were coming down from Ardrossan. But there's gotta be other work - isn't there? …"

(120.ae) Doug said: "… yeah …"

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121. The following is an edited transcript of the second phone conversation on 27 th April 2017 with Doug Harrold.

(121.a) I said: "… he's already told me that I'm not gettin work allegedly because of complaints that were made against me. - And so - we're banning yer. That's out of Mick's mouth. And - Mick's now telling me that I can't do any work. He's not giving me any more work - period. …"

(121.b) Doug said: "… yeah but the customers say - that - you know - we can't load yer. …"

(121.c) I said: "… No - no-one said - 'they can't load me'. You tell me - which customer has said - 'they can't load me?' …"

(121.d) Doug said: "… Crystal Brook. …"

(121.e) I said: "… No they haven't. … "

(121.f) Doug said: "… Ring Garden Grove and ask em - they have. That's what they've told us - Garden Grove have told us that. …"

(121.g) I said: "… Garden Grove have told you? … "

(121.h) Doug said: "… Yeah - correct. …"

(121.i)I said: "… That I've been banned from the Brook? … "

(121.j)Doug said: "… Correct. - And that's what they've told us. …"

(121.k) I said: "… Well obviously they've been telling you things which - which are not true. Apart from the fact that they've been talking to Mick and saying one thing or another which - er - have got no basis in fact whatsoever. … "

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(121.l)Doug said: "… Well - I can only go on what I've been - you know - told by Michael - and that's what he's told me. - My suggestion would be to ring - erm - Garden Grove. … "

(121.m) I said: "… Which ever way it goes - Dougie - irrespective of what ever Garden Grove say - that has nothing whatsoever to do with my relationship with Glen Carron. Because we can't have Garden Grove making a claim - that I have been banned from a site - if it's not true - and then in particular - your people - your logistics despatchers using that as grounds - for refusing to give me work. That just doesn't wash. That's not on. …"

(121.n) Doug said: "… I'm only going on what I have been told. …"

(121.o) I said: "… And I've done nothing at AWB Crystal Brook - or GrainFlow - to be banned in any way shape or form. …"

(121.p) Doug said: "… Well - I'd ring Garden Grove and ask em - because that's where the directive's come from. …"

(121.q) I said: "… What - from - from - Crystal Brook? …"

(121.r) Doug said: "… From Garden Grove. Garden Grove have told us - and that's where it's come from. So - go to the source - go to Garden Grove. …"

122. On 16th June 2017 the Second Appellant met by accident - Doug Harrold at Transport Connections at Wingfield. The following is an edited transcript of that face to face exchange.

(122.a) I said: "…They told me you'd left. ….Well - I was gunner give you a ring. …"

(122.b) Doug said: "… Yeah …"

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(122.c) I said: "…Because - something's gotta be done Dougie - you and I have known each other for a long time which you well know. I was driving for the company before when Pat was doin it. …"

(122.d) Doug said: "… Yeah …"

(122.e) I said: "… All the despatching. …"

(122.f) Doug said: "… Yeah …"

(122.g) I said: "… And I'm waiting for the call - because I was waiting to be told that I could go and pick up from Ardrossan to come back down to the Port. …"

(122.h) Doug said: "… Yeah …"

(122.i)I said: "… You know that I've been waiting for how long - how many years - to get that permit organized for my dolly. …"

(122.j)Doug said: "… Yeah …"

(122.k) I said: "… And now - you know - between you and Mick - the total business has been fucked up.

(122.l)Doug said: "… Yep …"

(122.m) I said: "… Erm - there's been a lot that's gone on between yourselves and Garden Grove. …"

(122.n) Doug said: "… Yes …"

(122.o) I said: "… That's just totally out of order - and it can't happen Doug. …"

(122.p) Doug said: "… Yep …"

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(122.q) I said: "… And - you know - the last thing I wanted us to get into was a fucken gigantic yike. …"

(122.r) Doug said: "… Well …"

(122.s) I said: "… And the whole purpose of me speakin to you - right here and now - this is the last chance that we're gunner have Doug - to get this sorted - otherwise - I've done all the preliminary work - I've gotta tell you this - in all seriousness - I've done all the preliminary work to prepare writs in the Supreme Court. …"

(122.t) Doug said: "… Well - I can't help that Clayton. …"

(122.u) I said: "… If you wanna go down that road - that's fine - but - you know – erm I hope you realize - how much trouble people are in - and - I've got more than enough evidence to show collusion and conspiracy between Garden Grove and yourselves. …"

(122.v) I said: "… Because you know that the fucken night before -you got on the phone and we went through every single item as to how much I had to find every month. …"

(122.w) Doug said: "… Well - I can't help that Clayton. …"

(122.x) I said: "… - trucks - trailers - dolly's and everything else. Let me tell yer - I picked up that last job in the afternoon up from Ardrossan - and I was on the way down before I got to Port Wakefield - I rang him and I said - 'do we go back there in the morning? Ah - I'm not sure yet.' …"

(122.y) Doug said: "… Well - it changes all the time. …"

(122.z) I said: "… he says - so - come tomorrow morning - I ring him up - ah - and he said nothin to me the day before when I

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was doin that job from Ardrossan - is there anything untoward goin on. …"

(122.aa) Doug said: "… There was nothin untoward goin on. …"

(122.ab) I said: "… yeah - and the next morning - yes there is - because the next morning - he said when I rang him - I'll call you back in a minute - I'll call you back in 5 minutes. Just didn't come straight out and say - 'head up to bloody Ardrossan and we'll do another one'. - I had to ring him back again Doug - and the first thing he says is - 'we've had complaints about you - and - we're drawing a line - and you're not gettin any more work. Period. …"

(122.ac) Doug said: "… Are you sure? …"

(122.ad) I said: "… Yes - one hundred percent. Yer not getting any more work. And - he's been pullin shit on me for ages. How many times Doug - has he given me a job - and I've driven a hundred k's - and he get's there and fuckin takes it off me - and gives it to another driver.

(122.ae) Doug said: "… I don't know - I don't know. …"

(122.af) I said: "… How many times has he sent me fucken that far - empty - to pick up a job - when - everybody knows - you don't drive that far empty. You know - when - if it was one of your trucks - you'd give him another job to take him over there - and then you'd give him somethin to follow on with. And - how many times before he bloody put the phone down - have I heard him laughin behind my back because he's bloody shoved it up me. I don't know how many times that's gone on Doug? …"

(122.ag) Doug said: "… I probably - wouldn't - I wouldn't do too much if I was you Clayton - because - we both know you told

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Pat about the sawdust - and we both know - we don't do the sawdust now - so. …"

(122.ah) I said: "… I never told him at all about the sawdust. - No – Doug - Doug . …"

(122.ai) Doug said: "… yer lyin - yer lyin - I know the story. …"

123. Later in the afternoon of 16th June 2017 the Second Appellant had a phone conversation with Pat Harrold. Pat Harrold is a brother to Doug Harrold and Mick Harrold. The following is an edited transcript of the phone conversation with Pat Harrold.

(123.a) I said: "… You there Pat? …"

(123.b) Pat said: "… How are yer Clayton? …"

(123.c) I said: "… Can you talk? … "

(123.d) Pat said: "… Yes mate. …"…

(123.e) Pat said: "… No – we had been carting sawdust out of Tarpeena for S.A. Sawdust Sales before that. …"

(123.f) I said: "… That’s right. I remember – I used to pick up there myself yep … "

(123.g) Pat said: "… Yeah – well I was carting out of there before Glen Carron. …"

(123.h) I said: "… Were you? … "

(123.i)Pat said: "… I was carting out of ah McDonald’s mill. I was carting out of Mount Gambier and carting out of ah Tarpeena. …"

(123.j)I said: "… Yep … "

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(123.k) Pat said: "… - before then. …"

(123.l)I said: "… Right. … "

(123.m) Pat said: "… S.A. Sawdust South Australia South Australia said they had no favouritism between me or Glen Carron.

(123.n) I said: "… Yes. … "

(123.o) Pat said: "… Whoever could shift their product to Adelaide and do a good job – got a load – so – but what he’s carrying on about is just made up blatant lies. …"

(123.p) I said: "… Well – of course – because – you know - but then he turns around to me and abuses me by accusing me to my face that I’m lying. He says – ‘you’re lying – you’re lying’. I said – ‘no Doug - I’m not lyin. I just did what I was told. I tipped off at bloody Padthaway and I was told to go and pick up some sawdust. That’s all I know’. … "

(123.q) Pat said: "… Yes. …"

(123.r) I said: "… And that’s the God’s honest truth Pat. … "

(123.s) Pat said: "… Yeah I know - I know that Clayton. He’s just a bully. I told you Clayton - twelve months ago - they’re just spoilt little rich pair of bullies. …"

(123.t) I said: "… Yep. … "

(123.u) Pat said: "… And you’ve lived that - and you’ve learnt that - and you’ve seen that. … "

(123.v) I said: "… Right. … "

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(123.w) Pat said: "… I told you that twelve months ago Clayton and you – I – I knew all about that sawdust and I knew about all the other jobs – and I know about heaps of other work. … "

(123.x) I said: "… Yep. … "

(123.y) Pat said: "… I don’t need you to tell me – I already know – I was already doing it – I was already carting it. … "

(123.z) I said: "… I re-iterated the fact that er Mick had told me that I wasn’t gettin any more work from Glen Carron back here on or round about first of May or the thirtieth of April and I said that was just completely out of hand – absolutely no justification – and it was – - and it came from Garden Grove – and er – and I said ‘erm you know we’re standing here talking now Doug we’re either gunner straight-in it out now or we gunner end up in the Supreme Court simple as that - in about two weeks time.’ – because like I – like I said to yer – Mick said to me that day – I think I told yer about this – he said ‘you do anymore work for Pat and you will never get a job ever again with Glen Carron.’ … "

(123.aa) Pat said: "… I was carting sawdust - before I gave you a load. …"

(123.ab) Wentworth said: "… Yep …"

(123.ac) Pat said: "… How - how could - what makes his statement defamatory - is - he has accused you of telling me about that - carting sawdust - yet - I gave you that load out of there. …"

(123.ad) Pat said: "… ‘yep - fat - spoilt little rich kid’ – that really

upsets him. … "

(123.ae) I said: "… Does it? … "

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(123.af) Pat said: "… Yeah – dad’s number one – just say – ‘you’re a fucken spoilt little rich kid – go and get your own business - not one that’s left to yer’ – that really livens him up. … "

(123.ag) I said: "… The very night before – he went through with me about how much I had to pay out on each of my items – truck – trailers – dolly and everything else and he knew that I was up for somethin more than about er fifteen to twenty grand a month. … "

(123.ah) Pat said: "… Yeah. … "

(123.ai) I said: "… In my outgoings. And - the very next morning – and he obviously knew this was coming – Mick turns around and says – ‘you’re not gettin anymore work.’ … "

(123.aj) Pat said: "… Yep. … "

(123.ak) I said: "… They deliberately – together with Garden Grove – went … "

(123.al) Pat said: "… Yep. … "

(123.am) I said: "… out of their way to inflict as much financial harm and damage to me - as they possibly could. … "

(123.an) Pat said: "… I warned you twelve months ago – they are a pair of spoilt little rich kids. … "

(123.ao) I said: "… Yeah. … "

(123.ap) Pat said: "… My brother is a spoilt little bully that’s been a bully since year one at school – and my father protected him the whole way through. When my father died - to protect my oldest brother he gave him the whole business and gave him a big fat cheque book with a lot of money it. … "

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(123.aq) I said: "… Right. … "

(123.ar) Pat said: "… He’s a protected species – and that’s the way he speaks and treats people. … "

124. On 2nd June 2017 the Second Appellant drove to GrainFlow Crystal Brook for the purpose of a face to face meeting with the manager David Arbon during which time the Office Manager Bianca Schuller took part. To listen - you only need to click - ONCE ONLY - here. – or – from a printed copy of these pleadings - for Court use - type in to your browser the following URL - http://www.tvotw.com/GlenCarron_GardenGrove_Case/944_2017_Appeal_WebVersions/AppealDocuments/Recordings/17_Dave_Brook_2Jun17_FinalEdit_mp3.mp3:-

(124.a) I said: "… How are yer mate? …"

(124.b) Dave said: "… Alright – how are yer? …"

(124.c) I said: "… How yer gettin on? …"

(124.d) David said: "… Inaudible …"

(124.e) I said: "… You’re Dave itn’t it? …"

(124.f) David said: "… Yeah …"

(124.g) I said: "… Dave – I think I’ve spoken to you at least once on the phone. …"

(124.h) I said: "… Er – my name’s Clayton. … It’s a most serious situation Dave. What it boils down to - is that - as you know I have a truck and two semi-trailers – tippers – and - a road train dolly – triaxle dolly – I’ve got about four five hundred thousand dollars tied up in this equipment and erm - I mean - I bought this dolly specifically to do the road training from the Brook here down to Port Adelaide to the berths – er to the ships – to

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the berths there. So – erm – it turns out that going back here about a month ago – I am informed …"

(124.i)David said: "… Mm …"

(124.j)I said: "… by elements within Garden Grove and what have you – that allegedly I have been banned from ever going back to Grain Flow at Crystal Brook. No reason or justification - or anything was said to me as to why that might have happened? And I’ve made a special trip up here today from Adelaide Dave to see yer - to find out if there is anything - to your knowledge – that comes to mind – that – erm – would amount to any form of an issue with any of the work that I’ve ever done whenever I’ve come in here – and left? …"

(124.k) David said: "… Not up here …"

(124.l)I said: "… No. There hasn’t been Dave. There hasn’t been. … Then it wasn’t until about two or three hours later that I was down at Berth 29 there tipping off after loading here and they said er - ah no er – erm we’ve got a problem you’ve been banned from Crystal Brook and allegedly erm – erm – you’re not allowed to go into any Grain Flow site in Australia. … Well is there any way you can get onto Paul Page mate because – at this stage – let me tell yer how bad it is er Dave – Garden Grove has now got on the bloody phone to Glen Carron - who I traditionally drive for. Most of my work – ninety five percent of all of my work – is done through Glen Carron. As you know – Dougie - and Mick are the one’s that operate that company. They’ve turned around - just completely out – out of hand and said – “well yer can’t do any more work for us either.” That’s how bad it is Dave. …"

(124.m) David said: "… Mm. …"

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(124.n) I said: "… I traditionally drive for them – for Glen Carron. They can’t give me any work either. Well – it’s – it’s a nonsense – total nonsense. …"

(124.o) I said: "… Noone would expect to have somebody bankrupted because he went down the wrong side of a bunker. …"

(124.p) David said: "… Well that’s it. …"

(124.q) I said: "… That’s nonsense. … Yeah. She said to me as I came in and got my paperwork that night – she said – ‘ah Clayton you shouldn’t have gone down that side of the bunker.’ But I said – ‘well I called em on the radio.’ …”

(124.r) David said: "… Having said that – the bloke that got bogged … "

(124.s) I said: "… Yeah. … "

(124.t) David said: "… Went the wrong … "

(124.u) I said: "… That’s right. He went the wrong way. … "

(124.v) I said: "… That’s right. He went the wrong way. So – I mean - he’s lost out big time. He’s had the expense of gettin his truck pulled out of the bog. … "

(124.w) David said: "… Yep. … "

(124.x) I said: "… The loss of use and the time it was off the road. … "

(124.y) David said: "… Yep. … "

(124.z) I said: "… You know. … "

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(124.aa) David said: "… Yep. … "

(124.ab) I said: "… inconvenience to yourselves. … "

(124.ac) David said: "Yep. Yep. … "

(124.ab) I said: "… But er. … "

(124.ad) Bianca said: "… He didn’t get banned did he? … "

(124.ae) David said: "… He did not. … "

(124.af) I said: "… He didn’t get banned? … "

(124.ag) David said: "… No. … "

(124.ah) I said: "… No. No – well – why ban? … "

(124.ai) David said: "… that’s what we’re saying. … "

(124.aj) I said: "… That’s what I mean – why get there and say that I can’t come here? … "

(124.ak) Bianca said: "… Nah. I don’t have an issue with you at all up there - so. …"

(124.al) I said: "… No - well – look - I’ll leave it in your capable hands Dave together with Bianca – to basically put – put the train back on the rails. …"

(124.am) David said: "… Yep – yep – yep - yep…."

(124.an) I said: "… and make sure that erm erm they’re well aware of the fact that - as - from where you come from – there is no reason why Clayton can’t come in and out of here and load up any time of the day or night. …”

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(124.ao) David said: "… Yep – yep. …."

(124.ap) I said: "Glen Carron …"

(124.aq) David said: "… That’s pretty wrong …"

(124.ar) Bianca said: … "Inaudible …"

(124.as) I said: "… who – who are now saying that I can’t do any work for them Dave – and that’s just not on. …"

(124.at) Bianca said: "… Inaudible – Clayton doin that …"

(124.au) David said: "… Inaudible. …"

(124.av) I said: "… Ah shit yeah. Yeah – that’s illegal. …"

(124.aw) Dave said: “… I think it is too …”

(124.ax) Bianca said: “… Yeah. ...

(124.ay) David said: "… That’s defamation! …"

(124.az) Bianca said: "… Yeah. …"

(124.ba) I said: "… That’s defamation - yep. …"

125. The reference to driving between the bunkers requires qualification. Bunkers are enclosed silos at ground level approximately 1 kilometre long and covered by waterproof tarpaulins to prevent the ingress of wind and rain. There are approximately 10 (ten) separate bunkers at GrainFlow Crystal Brook. There are roadways constructed on each side of every bunker to enable grain to be loaded into the bunker upon delivery from the farms – and then the outloading of grain using a conveyor system as is the case for deliveries to the ships at Berth 29 at Port Adelaide. Road trains as used by the Second Appellant drive down either side of a particular bunker depending upon which

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side of the bunker the outloading conveyor is set up for. To drive down alongside any bunker does not at any time warrant reproach – let alone any form of a ban – temporary or permanent - against a sub contractor driver such as the Second Appellant. This fact was confirmed and reaffirmed by the manager David Arbon and office manager Bianca Schuller at sub paragraphs (124.o) to (124.ak) above.

126. On the morning of 5th June 2017 the Second Appellant telephoned and spoke to the office manager at GrainFlow Crystal Brook Bianca Schuller. The following is an edited transcript of the conversation.

(126.a) Bianca said: "… It's Bianca …"

(126.b) I said: "… Hi Bianca. It's Clayton. How are you? …"

(126.c) Bianca said: "… Gooday mate - good thanks. …"

(126.d) I said: "… Erm - Bianca - I mean - I can proceed with full confidence that I don't have any problems whatsoever up there with you - do I? …"

(126.e) Bianca said: "… Na. That's right. …"

(126.f) I said: "… Right. …"

(126.g) Bianca said: "… Yep. That's correct Clayton. - I don't know if you want to give Pagey a ring back - let him know that you've spoken to us - and erm - that we don't have an issue here. …"

127. Later on the 5th June 2017 the Second Appellant phoned GrainFlow at Crystal Brook again and Bianca handed him over to the manager David Arbon. The following is an edited transcript of that conversation.

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(127.a) Bianca said: "… GrainFlow Crystal Brook - Bianca speaking. …"

(127.b) I said: " … Yeah – hi Bianca – it’s Clayton again. …"

(127.c) Bianca said: "… G’day Clayton – how are yer mate? …"

(127.d) I said: "… Good thanks. …"

(127.e) Bianca said: "… Ah - just a sec mate. …"

(127.f) I said: "… Yep …"

(127.g) David said: "… G’day Clayton. …”

(127.h) I said: "… How are yer David? …”

(127.i)David said: "… Good thank you. …”

(127.j)I said: "… Just wondering how yer got on when yer rang em up Dave? …”

(127.k) David said: "… Sorry? …”

(127.l)I said: "… Just wondering how yer got on when yer spoke to er …”

(127.m) David said: "… Yep – yep – yep - yep. …”

(127.n) I said: "… Garden Grove the other day? …”

(127.o) David said: "… Phoned him up - straightaway – when you were driving out the driveway …”

(127.p) I said: "… Yep – yep. …”

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(127.q) David said: "… erm – his response was – he is not banned from Crystal Brook – right – he is banned from Garden Grove at Port Adelaide – that was his exact words – and – and - Paul said no – no – no – he is not banned - out of Grain Flow at Crystal Brook. …”

128. It is absolutely unequivocal from sub paragraph (127.q) above – the reason given by Paul Page to David Arbon on the 2nd June 2017 to ban the Appellants permanently on 27th April 2017 is completely at odds and in conflict with the reason and excuse supplied at sub paragraph (107.k) to the supervisor Greg Arbon at Berth 29 on 27th April 2017 – that being due to - "… Somethin yer done at Crystal Brook. …"

129. Paul Page has contradicted his evidence completely – he now claims as shown at sub paragraph (127.q) - the Second Appellant is – “… he is not banned from Crystal Brook – right – he is banned from Garden Grove at Port Adelaide – that was his exact words – and – and - Paul said no – no – no – he is not banned - out of Grain Flow at Crystal Brook. …”

130. Page now admits that – “no – no – no – he is not banned - out of Grain Flow at Crystal Brook. …”

131. On the 28th February 2018 the second Appellant made another special trip for a face to face meeting with the manager at GrainFlow Crystal Brook David Arbon. The following is an edited transcript of that meeting.

(131.a) David said: "… because - me - when you asked me the question - 'were you banned from this site …"

(131.b) I said: " … Yep …"

(131.c) David said: "… you asked me that?' – we - we never banned yer from the site …"

(131.d) I said: "… That’s right - yep …"

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(131.e) David said: "… right - ok - this site - not all GrainFlow sites - I want to make that perf - I can't make – make a decision - …"

(131.f) I said: "… Yeah yeah – we know that …"

(131.g) David said: "… this site here. …”

132. The following is taken from oral evidence given by David Arbon at trial. The evidence is unambiguous and beyond doubt or supposition of any kind as to whether the Second Appellant is banned from GrainFlow Crystal Brook.

133. In addition – David Arbon in his evidence at trial at line 37 on page 703 to line 4 on page 704 further confirmed that it would be false to assert that the Plaintiffs had been banned by GrainFlow Crystal Brook:-

(133.a) “Q. As far as that's concerned, if Garden Grove were to use 37

(133.a) that as a reason for suspending work to me by virtue of 38

(133.a) the fact that I was suspended from going to the Brook to 1

(133.a) collect from you, that would not be true, there would be 2

(133.a) no grounds for making that allegation, would there. 3

(133.a) A. No. 4”

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134. All of the above evidence provides full unequivocal confirmation to this Honourable Court. No reliance can be attributed to the credibility and motives of Page and Gray and reveals a hidden and malicious agenda of these two actors to inflict great financial damage and harm to the Second Appellant.

135. Earlier in the morning of 28th February 2018 – on his way to Crystal Brook – the Second Appellant called in to GrainFlow Mallala for the purpose of speaking to the office Manager Liz Martin to have her confirm if there had ever been any issues or complaints in relation to the Second Appellant as alleged by Andy Gray at sub paragraph (70.g). The following is an edited transcript of that face to face meeting with Liz Martin.

(135.a) Workman said: "… How yer goin mate? …"

(135.b) I said: " … How are yer – alright? …"

(135.c) Workman said: "… Good – good. …"

(135.d) I said: "… You work here mate? …"

(135.e) Workman said: "… Yeah mate - yep …"

(135.f) I said: "… Is Liz on today? …"

(135.g) Workman said: "… Yep. …”

(135.h) I said: "… She’s there? …"

(135.i)Workman said: "… Yeah - yeah. …"

(135.j)I said: "… Good on yer …"

(135.k) I said: "… Liz. …"

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(135.l)Liz said: "… Hello there – what are you doing here? …"

(135.m) I said: "… Just the person I want to see. …"

(135.n) Liz said: "… Laughing. …"

(135.o) I said: "… How are yer? …"

(135.p) Liz said: "… Good – yourself? …”

(135.q) I said: "… Good. You remember me? …"

(135.r) Liz said: “… I do yes. …”

(135.s) I said: "… Yeah. …"

(135.t) Liz said: "… Yeah. …”

(135.u) I said: "… Liz erm I’ve had to come out and see you today …"

(135.v) Liz said: "… Yeah …”

(135.w) I said: "… Because you basically been here pretty well every single time I ever came in at night time …"

(135.x) Liz said: "… yep. …”

(135.y) I said: "… and picked up loads. …"

(135.z) Liz said: "… Yep. …”

(135.aa) I said: "… I just want you to think very carefully - …"

(135.ab) Liz said: "… mm. …”

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(135.ac) I said: "… Going back to about March April last year when you last saw me. …”

(135.ad) Liz said: "… Yeah - God – is it that long? Yeah …”

(135.ae) I said: "… Can you remember?…"

(135.af) Liz said: "… mm. …”

(135.ag) I said: "… Whether at any time - any complaint has been made – regarding me and my operation and my – you know – the conduct of my work here at the site. …"

(135.ah) Liz said: "… Yeah …”

(135.ai) I said: "… To the best of your knowledge has there been anything – any reason why anyone would ever have had any reason for being – fer fer fer lodging a complaint with er in particular Garden Grove about me. …"

(135.aj) Liz said: "… Ah – ok. Like from here? …”

(135.ak) I said: "… Yes. …"

(135.al) Liz said: "… Ok. Erm – I don’t – I can’t …”

(135.am) I said: "… You’ve not heard anything like that have you? …"

(135.an) Liz said: "… No. …”

(135.ao) I said: "… Because you know – you and I both know …"

(135.ap) Liz said: "… mm. …”

(135.aq) I said: "… That I’ve come in here on many many occasions …"

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(135.ar) Liz said: "… Yeah. …”

(135.as) I said: "… Loaded up – gone out …"

(135.at) Liz said: "…mm …”

(135.au) I said: "… And there’s never been any issue with anything …"

(135.av) Liz said: "… Yeah - yep – I can’t recall any complaints coming through – I - inaudible…”

(135.aw) I said: "… First you’ve heard of it? …"

(135.ax) Liz said: "… yeah. …”

(135.ay) I said: "… Yeah - yeah. …"

136. Tragically – the conduct referred to in paragraph (117.) has been compounded by Doug Harrold and Mick Harrold taking part in the conspiracy by banning (with no reason or justification) - the Appellants permanently from the supply of work by the First Respondent as well.

137. As can be seen here in the oral evidence given by Doug Harrold at trial. He concedes that there was not one incident involving the Second Appellant and the First Respondent in the period between 30th

April 2016 - (when the Second Appellant as a favour to Doug Harrold collected a road train dolly from Toowoomba in Queensland and returned it free of charge 1,888 (one thousand eight hundred and eighty eight kilometres to Adelaide) – and – 27th April 2017 - that would have given the First Respondent any reason whatsoever - or cause - to withdraw supply of the service. Here is the testimony confirming the above straight out of the court transcript at line 32 on page 1018.

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(137.a) “Q. So earlier in your testimony yesterday we took a block, 32

(137.b) we took a period from the time I picked up the dolly on 33

(137.c) 30 April 2016, and we basically went to the very end of 34

(137.d) things in April 2017. We could check the transcript 35

(137.e) but I'm sure you would agree that when we had broken it 36

(137.f) up into those three or four blocks your testimony was 37

(137.g) that there were no incidents during any one of those 38

(137.h) four blocks that we dealt with. Correct. 1

(137.i) A. Correct. 2”

138. The following is an edited transcript of a face to face meeting with Leanne O’Leary and the manager Mark Franke of Ridleys Agriproducts at Murray Bridge on 28th March 2018.

(138.a) I said: "… Meeting with Leanne O’Leary from Ridleys Murray Bridge 10:00am 2nd March 2018 …"

(138.b) I said: "… How are yer mate? …"

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(138.c) Staff member said: "… Howdie …"

(138.d) I said: "… Can you direct me to the office? I’ve just got to talk to someone. Is Leanne O’Leary here? …"

(138.e) Staff member said: "… Yeah …"

(138.f) I said: "… Leanne’s here is she? …"

(138.g) Staff member said: "… Yeah – in through there and around to the left. …"

Inaudible.

(138.h) Leanne said: "… Hello how are you …"

(138.i)I said: "… Hi there. … inaudible … are you Leanne?"

(138.j)Leanne said: "… I am - yes …"

(138.k) I said: "… My name’s Clayton …"

(138.l)Leanne said: "… Do you know – what sort of issues are we talking about? …"

(138.m) I said: "… It was – er - It was suggested …"

(138.n) Leanne said: "… Yep. …"

(138.o) I said: "… That – and you were nominated by name. …"

(138.p) Leanne said: "… Yep. …"

(138.q) I said: "… Was that – erm – allegedly erm – a driver had come in and taken something like an hour or something or other to be able to get his truck into position. …"

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(138.r) Leanne said: "… Inaudible. …"

(138.s) I said: "… So what’s happened now is that in their defense Glen Carron have stated in an attempt to show that they had received complaints about me from customers – Ridleys – anybody else – whoever it might have been - it never has been - that – erm they cited supposedly an incident where they received a phone call from Leanne about this particular driver – please don’t send him back again. …"

(138.t) Mark said: "… Inaudible. … I don’t mean to interupt you there - but what you’ll probably find with the law - is that - unless it’s in writing Clayton …"

(138.u) I said: "… Yeah …"

(138.v) Mark said: "… It doesn’t – it won’t mean squat. A phone call - their word - against your word - means nothing …"

(138.w) I said: "… Right …"

(138.x) Mark said: "… Unless it’s in writing …"

(138.y) I said: "… Right – right. What I’m concerned about Mark is this – erm – they are alleging that this happened – for a start Mark - they say - in or about 2016 …"

(138.z) Mark said: "… They’re kidding (laughing) …"

(138.aa) I said: "… When in 2016 – what day – what time? …"

(138.ab) Mark said: "… They’re playing with you Clayton – they’re playing with you – where - show me the evidence – that’s all you need to say. …"

(138.ac) I said: "… That’s it …"

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(138.ad) Mark said: "…You don’t need to concern yourself with a phone call. Unless there’s been a written complaint – if there’s a serious complaint from site – from myself – from Leanne …"

(138.ae) I said: "… Yep - yep …"

(138.af) Mark said: "…Or anyone here – it will come in writing – trust me – it will come in writing and it will have a signature. …"

(138.ag) I said: "… Right …"

(138.ah) Mark said: "… If they can’t lay that in front of you Clayton and say – here this a complaint from …"

(138.ai) I said: "… From whoever …"

(138.aj) Mark said: "… There’s no case. …"

(138.ak) I said: "… No – no. But the problem is that they’ve incorporated in their legal documentation before the Court. …"

(138.al) Mark said: "… They haven’t got any evidence. They haven’t got any evidence. Where’s their evidence?. …"

(138.am) I said: "… No. …"

(138.an) Mark said: "… They haven’t approached us. There’s no evidence Clayton. You’re worrying – they haven’t come to us and said – ah have you got something in writing about this issue that happened two - . they’ve said nothing. . …"

(138.ao) I said: "… They haven’t? …"

(138.ap) Mark said: "… We don’t have anything. …"

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(138.aq) I said: "… (turning to Leanne) So you’re telling me here and now er – you cannot remember at all having phoned up Glen Carron to say ‘some driver’s taken an hour or something or other to er unload his truck?’ …"

(138.ar) Leanne said: "… No. …"

(138.as) I said: "… You can’t remember nothing? …"

(138.at) Leanne said: "… No. …"

139. The meeting with O’Leary and Franke of 28th March 2018 was required as a consequence of another false allegation in the Defence of the First Respondent by Doug Harrold the allegation falsely claiming to demonstrate complaints of wrong doing by the Second Appellant which alleged complaints were used as justification to ban the Appellants from making further deliveries to Ridleys Murray Bridge. The answers and the evidence supplied to the Second Appellant during the meeting were both forthright and spontaneous and fully confirmed that the allegations were at all times false – a fact the Second Appellant always knew to be the case. Mark Franke states on 10 (ten) separate occasions between sub paragraphs (138.z) and (138.ap) – “there is no evidence … we don’t have anything”

140. That is the first thing Mark Franke had to say when he replied “… there is no evidence…” So when we come back to the instruction of Doug Harrold to include the allegation into the First Respondent’s Defence by Griffins Solicitors – a key document to be filed in the Supreme Court - the first logical question by the lawyer taking the instructions – “where is the evidence?” “If there is no evidence – or – the allegation is false” – (to Harrold) - you are open to a criminal charge under Sec 243 of the Criminal Law Consolidation Act 1935.”

141. To include the allegation where the solicitor knows the grounds are false and untrue makes that person also complicit in the crime being committed by Doug Harrold. If it can be shown the counsel acting for the First Respondent in court also knows the allegation to be false

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and untrue - that person is also complicit. Both counsel - in the conduct of this case have based their entire defence on attacking the professional competence of the Second Appellant as a Mass Combination Professional Driver and his reliability as a credible or truthful witness. Counsel for the Second Respondent even asked the Second Appellant in cross examination – “are you an arrogant man?”

142. Fact is – the CIB are presently preparing a brief for the DPP for just this offence. It is abundantly clear – and there is no doubt whatsoever – the allegation was made for the purpose of influencing the outcome of judicial proceedings prohibited by Sec 243 (d) of the Criminal Law Consolidation Act 1935 S.A. The offence carries a maximum penalty of 7 (seven) years imprisonment.

143. At paragraph 42. of the written judgement of the 14th December 2018 it is alleged by the trial judge that the Second Appellant relied upon recordings that were edited – and – that he did so – “without informing me that the recordings had been heavily edited.”

144. This allegation is blatantly false and untrue. Every single recording – both person to person and over the phone - were supplied to the Court under affidavit and included written transcripts that had been painstakingly reduced to writing – and in every single affidavit it was made unequivocally clear that the recordings had been edited. In not one single recording as supplied is there any doubt whatsoever of what the witnesses had to say. Moreover – the recordings were instrumental in showing malice – a significant bias and an agenda against the Appellant with the intention of doing significant damage and harm on grounds that have easily shown to be false – fabricated and contrived. The recordings disclosed conflicting – at odds – and uncorroborated accounts of events and in particular gave a very accurate insight into the demeanour of the witness.

145. As delineated in the introduction to this Case Book – the Second Appellant was fully aware at all times - that all allegations being made against him which resulted in a permanent ban - were made on entirely false grounds and justifications which over a period of years

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amounted to tens of millions of dollars. At the time of the withdrawal of supply the Appellants were earning approximately $3,000.00 (three thousand dollars) per day and it is a very simple exercise to calculate the loss over the fifteen years to retirement. An exercise the trial judge had no interest in quantifying. The Second Appellant used to work in a bank and one of his major tasks was to evaluate and quantify serviceability and income of a customer who was seeking to borrow money from the bank. The entire judgement of the 14th

December 2018 is a complete insult to the intelligence of not only the Second Appellant - but the most uneducated outside observer. Doug Harrold had received intimate details of the outgoings of the Appellants – and knew full well that the actions of both Respondents in withdrawing supply - would have instant - catastrophic results on the Appellants. The earning capacity of the Appellants was fully acknowledged by Doug Harrold who demanded many times over the period 30th March 2016 to 27th April 2017 that the Second Appellant sell to him - the tri-axle road train dolly the Second Appellant had purchased in March 2016. The extra capacity of the road train over and above that of a B double is well known to Doug Harrold and his constant requests to buy this equipment provided all the proof and confirmation needed that the First Respondent did have road train work available – yet - whenever the Second Appellant asked Mick Harrold to supply him road train work – the answer was always- “no - we haven’t got any road train jobs.” Of significant bearing upon the earnings - the Appellants have been deprived of by the actions of the Respondents – the state government has made significant changes to the road system allowing for the use of road trains. Road trains previously were allowed to operate from the west coast to Port Adelaide – and up to Darwin – but this has now been extended to include virtually the whole state to the Victorian border.

146. It needs to be noted that the 2016 – 2017 harvest was an all time record and there were millions of tons of grain that needed to be moved. The preceding was confirmed by the supervisor Greg Arbon at sub paragraph (90.bs) above. This withdrawal of supply was made at the height of this grain carrying season and both Respondents had

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so much work they were short of trucks – a fact also confirmed by Greg Arbon at sub paragraphs (90.cd) to (90.ci) above.

4. The Appellants also made it abundantly clear in the Third Statement of Claim that the First Respondent had been interfering with the retention rates the Appellants were left with compared to the rates applicable when Pat Harrold was dispatching the work for the First Respondent. By reducing the retention rate to as little as 50% of the rate paid by Viteera or other grain companies – it meant that the Appellants were being forced into bankruptcy by being paid freight rates which were not economically viable. This practice had also been ongoing for many months prior to the withdrawal of supply. The annual estimate of this theft as shown at paragraph DK (g) of The Third Statement of Claim herein is - $131,827.20 (one hundred and thirty one thousand eight hundred and twenty seven dollars and twenty cents).

5. In relation to the recordings collected by the Second Appellant to provide an accurate and truthful account of all interactions with the participants in this conspiracy by unlawful means. This appeals court will need to keep in mind - that the Surveillance Devices Act 2016 (S.A.) cannot be used for an illegal purpose. Nor can any other act of parliament. In other words – it is not lawful to expect to use the provisions of the Surveillance Devices Act to suppress evidence - then to get in the witness box and give false testimony thinking the recordings cannot be used to show that evidence to be false.

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6. A classic example of this is the matter involving the false allegation contained in the Defence of the First Respondent regarding alleged wrongdoing by the Second Appellant at Ridley Murray Bridge where Doug Harrold from the First Respondent claims the Second Appellant was permanently banned from attending Ridleys. The manager Mark Franke testified that there was no evidence of any wrong doing by the Second Appellant. If that is so – this court should never refuse to allow that recording into evidence if the recording is capable of exposing the commission of a crime.

150. The evidence and testimony of one Corey Button deserves special mention. This testimony is such an affront to all standards of due process it cannot be allowed to pass without condemnation. It provides a perfect example of how the First Respondent has roped in another person to provide totally false testimony under oath in an attempt to falsely and unjustly denigrate the professional competency of the Second Appellant. It provides undeniable proof of the complicity of Doug Harrold and Mick Harrold in the conspiracy by unlawful means with Paul Page and Andy Gray from the Second Respondent. The testimony of Button is a total insult to any outside observer – and this Court.

151. At line 17 on page 1288 of the transcript – Button falsely testifies the following:-

“Q. Right. And can you tell his Honour how long it took 17

Mr Wentworth to unload his truck. 18

A. Up to a couple of hours. 19”

152. The product being unloaded at S. A. Sawdust Sales is sawdust. It is extremely loose and uncompacted – and is loaded as such by a front end loader at the timber plant of N.F. McDonnell & Sons in Suttontown Road, Mount Gambier. When the product is tipped out at S.A. Sawdust Sales at Monarto South – the tailgate is fully opened – and as the tipper section of the trailer rises – the product rushes out

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freely. Upon receiving directions from the attendant – after the pile on the concrete floor reaches a certain height – the driver is asked to stop tipping and drive a few feet forward before continuing to tip. The whole process of tipping approximately 20.5 ton from the “B” trailer takes about 5 (five) minutes including backing into position to tip.

153. The next part of the process is to put the trailer bin completely down – and then to sweep out with a broom – any product which has been left congealed in the front corners of the bin.

154. The next step is to drive out into the yard to an open location - where the “B” trailer is disconnected from the “B” double set. That process takes about 4 (four) minutes – and in no way prevents S.A. Sawdust from unloading another truck if present.

155. The next step is to return to the unloading bay to unload the “A” trailer. Only one truck has access to the unloading bay at any one time. If no other trucks are present (which was generally the case) – the driver backs the “Ä” trailer in and unloads. The “A” trailer can only hold about 16.5 ton of sawdust because it’s internal dimensions are much smaller than the “B” trailer. The time taken to unload the “A” trailer is less than 5 (five) minutes including reversing into position to tip.

156. Whilst unloading the “A” trailer the Second Appellant hands the duplicate copy of the freight docket from the supplier McDonnell’s - to Cory Button (or whoever is in attendance).

157. When the “A” trailer is empty – the tipper is put all the way down – and checked to see nothing is caught in the front corners. The Second Appellant then returns to the location where the empty “B” trailer is waiting – reconnects – and leaves the facility. No further contact is required with S.A. Sawdust staff.

158. Contrary to the false allegation by Button in paragraph 151 above that it takes the Second Appellant “up to two hours” to unload the sawdust – the actual time the Second Appellant occupies the

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unloading bay for - is a total of less than 10 (ten) minutes. Outside of those times – naturally – any other truck is free to unload – so – at no time is the Second Appellant holding up any other truck that may be present.

159. At lines 29 to 31 on page 1288 – Button falsely testifies:-

“Q. Right, and was there anything about the manner in which 29

he unloaded that caused you any concerns. 30

A. He kept hitting the roof with the tipper as it went up. 31”

160. At no time ever – did the tipper ever come in to contact with the shade cloth roof. The person in attendance is standing at the rear of the trailer watching as the sawdust tumbles out – and watches the proximity of the trailer with the shade cloth roof – and he directs the driver when to raise the tipper – when to stop – and when to raise further. At no time did the Second Appellant’s tipper ever come into contact with the shade cloth roof.

161. Whenever the Second Appellant made a collection of sawdust at Mount Gambier – as a courtesy gesture - the Second Appellant phoned Cory Button on the mobile number of – 0410 – 234 941 to let Button know he was on his way with a load. This took place with EVERY load of sawdust collected by the Second Appellant.

162. The other purpose of phoning Button was to confirm their regular procedure of having Button leave the key out at the front gate in the event he left for the day before the Second Appellant arrived. It takes up to five hours to reach Monarto South from Mount Gambier - depending upon mandatory rest – or meal breaks. Again – this was standard procedure with Button so that the Second Appellant could unload after Button had gone home for the day.

163. The following testimony under oath – in the witness box was so outrageous – and false – the Second Appellant had to restrain himself

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from taking matters into his own hands in the Court. After hearing false testimony from other witnesses – and false and fabricated allegations being made throughout the trial against the Second Appellant by counsel for the Respondents – this was the last straw – as far as the Second Appellant was concerned.

164. At line 16 on page 1291 - Button gave the following false testimony – under oath – in the witness box:-

Q. Right. I understood it to be the case that we had a 16

very good relationship, Cory, in as much as when I rang 17

you to let you know I was coming if it meant that I was 18

going to be arriving after you'd left in the evening 19

that you and I had worked out that you were going to 20

leave the key for me out the front gate. 21

A. No. That has happened with other drivers but not with 22

yourself because I didn't think you were confident with 23

unloading yourself. 24

Q. I put it to you that what you've just testified to is 25

in every aspect totally untrue, isn't it. 26

A. No. 27

Q. That you and I on a regular basis had agreed that the 28

key was going to be left out for me so I could let 29

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myself in. 30

A. No. 31

Q. And that this happened on a number of occasions, many 32

occasions and I put it to you that I in fact delivered 33

the load and that never, not once, had I reason to call 34

you about any problem that I had with the unloading 35

process because I'm there by myself, I've unloaded, 36

I've left and there's never been a problem. I just 37

simply load - locked up the gate again and left, 38

.RNB...00930 1291 C. BUTTON XN XXN (MR WENTWORTH)

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correct? 1

A. No. I didn't feel confident with you unloading 2

yourself so I wouldn't let you in after hours. 3

165. Once again – this is a prime example where the Second Appellant should have recorded the phone conversations with Cory Button as well. Removing all doubt of Cory Button’s perjury in Court.

166. The Second Appellant has just completed a search of recordings in another old phone which were given random file names by the phone at the time they were made. It is the first time he has come across this recording since the day it was made.

167. The following is an edited phone conversation with Cory Button on his mobile number of – 0419 234 941 - made at 14:18:33pm on Friday 6 th

September 2016. The call was in relation to 36.85 ton of sawdust collected at McDonnell’s in Mount Gambier at about 14:15hrs on Friday 6th September 2016 – and delivered on the morning of Monday 9th September 2016 to S.A. Sawdust Sales at Monarto South. As was regular practice with Button – the Second Appellant called him for the purpose of asking Button to leave the key out for him particularly having regard to the fact that Button probably would not be at work on a Saturday morning. The following is full confirmation that every part of Button’s evidence under oath – in Court - was – at all times – false. As a consequence – every part of the First Respondents case is left without credibility whatsoever - and tainted beyond repair. The only course of action available to this appeals Court is to reject the defences of both Respondents in their entirety – and to issue a default judgement for the Appellants for the sum claimed in the Third Statement of Claim. Here is this most damning testimony of Button in this phone call – making EVERY part of his oral testimony in Court at all times false.

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(167.a) Button said: "… Cory speaking …"

(167.b) I said: " … Clayton Cory – how are yer? …"

(167.c) Button said: "… Not too bad …"

(167.d) I said: "… I’m just here at Mount Gambier pickin up a load but I won’t be able to get there until the morning Cory – just wondering if you er could leave the key at the gate if you’re not coming in at all in the morning? …"

(167.e) Cory said: "… no – no we’re not allowed to leave the key at the gate anymore - …"

168. Particular emphasis needs to be given to this false evidence by Button at paragraph – 164:-

“ Q. Right. I understood it to be the case that we had a 16

very good relationship, Cory, in as much as when I rang 17

you to let you know I was coming if it meant that I was 18

going to be arriving after you'd left in the evening 19

that you and I had worked out that you were going to 20

leave the key for me out the front gate. 21

A. No. That has happened with other drivers but not with 22

yourself because I didn't think you were confident with 23

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unloading yourself. 24

Q. I put it to you that what you've just testified to is 25

in every aspect totally untrue, isn't it. 26

A. No. 27

Q. That you and I on a regular basis had agreed that the 28

key was going to be left out for me so I could let 29

myself in. 30

A. No. 31”

And at line 3 on page 1291:-

“… so I wouldn't let you in after hours. 3”

169. The above in paragraphs 164 and 168 - compared to what is revealed in this phone conversation on Friday 6th September 2016 at paragraph 167. is a truly explosive revelation. It provides full confirmation of an offence by Button under Sec 242 (1) - of the Criminal Law Consolidation Act 1935 for the offence of perjury – the most serious offence in the administration of the law.

170. From his own mouth at lines 18 to 24 of paragraph 168. above - Button has contradicted entirely his claim at sub paragraph (167.e) when he says – “we’re not allowed to leave the key at the gate anymore - …”

171. In other words – whilst we have been in the practice in the past of leaving the key at the gate for you – allegedly – “not any more” – which is entirely contrary to the evidence supplied in Court when he stated in the Court transcript at paragraph 168 – “No. That has happened with other drivers but not with yourself 22”

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172. The preceding also does not allow for the rest of the false evidence given at trial by Cory Button which the Second Appellant also knows to be the case from personal first hand knowledge.

173. In any event – if in fact - the management of S.A. Sawdust Sales had made a decision that a key should not be left out for reasons of security – that had nothing at all whatsoever to do with the Second Appellant - or any part of his driving ability.

174. These revelations in paragraphs (167.) to (173.) above provide full confirmation that Doug Harrold acting for the First Respondent has engaged in another conspiracy to put Button up to providing false evidence – under oath – as a witness in this trial thereby committing an offence under Sec 242 (2) - of the Criminal Law Consolidation Act 1935 for the offence of subornation of perjury – all for the purpose of providing what is alleged to be independent testimony to denigrate the driving ability of the Second Appellant to justify withdrawing supply to the Appellants permanently.

175. The evidence of Cory Button was prepared in advance of trial in circumstances where solicitors and counsel for the First Respondent well knew - that the statements and claims that were to be used by the defence - were at all times false. The testimony was tailored to support a modus operandi of falsely justifying the withdrawal of supply to the Appellants permanently - on grounds which were at all times known to be false - fabricated and contrived. Overwhelming evidence has shown this to be the case - and now that these findings of fact have seen the light of day - the Surveillance Devices Act 2016 S.A. cannot be used for an illegal purpose – (that is - to hide these crimes) and as a consequence - all material which provides corroborating evidence that serious crimes have been committed - necessitate that all such recordings are required by the force of law to be allowed into evidence - when it is clear that the defence is so tainted beyond repair - the Court has no other option than to issue a default judgement for the Appellants in the quantum as pleaded. The conduct has clearly been entered into to thwart and stave off a claim of significant magnitude and it is the responsibility at law for the

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Court to make it known that an assault against due process of this nature will not be entertained by the administrators of justice in this state - and an appropriate determination by the Court must be made with a punitive and exemplary element as the only way to act as a deterrent against conduct of a similar nature by others in the future.

176. The Appeal Book has revealed hard evidence of offences by Doug Harrold under Sec 242 (2) and Sec 243 (a) (b) and (d) of the Criminal Law Consolidation Act and by Cory Button under Sec 242 (1) of the same Act for perjury. As a consequence the Court is required to take a course of action commensurate with the gravity of these offences. It goes without saying. Heavy trucking by it's very nature involves significant incomes – but also significant costs and overheads - and earnings of $3,000.00 and more per day add up to huge amounts compounding very quickly - particularly when fixed and other outgoings are running in excess of $2,000.00 per day. Fuel alone costs more than 20% of gross earnings. So - in order to earn $3,000.00 per day - more than $600.00 is spent on fuel before all of the other expenses can be paid. Registration alone for a "B" Double - or road train is over $18,000 per year - and that doesn't include fees for the NHVR accreditations. Insurance premiums can be horrendous. Tyres - servicing - and repairs can be horrendous. If an engine or transmission blows up - the cost to repair can easily exceed $60,000. If the supply of the service is withdrawn - the loss of income over the years to retirement amounts to tens of millions of dollars. If anything interferes with the continuity of income - a lifetimes work including business equipment - house - car - and other assets etc can be lost in a matter of a few months - and with that - a lifetime's excellent credit history and credit worthiness - lost and destroyed forever - never to be reinstated. At 70 years of age - the prognosis for recovery from such a financial catastrophe is non existent - and terminal. The person is decimated personally - financially - emotionally - and physically. His life is truly at an end - from any - and every perspective. But - to suffer these things at the hands of people who deliberately went out of their way to inflict this damage - in a conspiracy by unlawful means – is TRULY criminal.

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177. It needs to be remembered that based upon undertakings from Page from May 2016 that the Second Appellant's purchase of the triaxle road train dolly for $50,000.00 was contingent upon the promise given by Page (at sub paragraph (73.n) above) - to supply this road train work to Berth 29 when this work resumed. The Second Appellant had this undertaking reaffirmed by Page throughout the remainder of 2016. This undertaking constituted a binding contract between the parties - and due to the tonnage required to be moved as a result of the record 2016 - 2017 harvest - any attempt to withhold that work - or to create a false pretence to withdraw supply when the work became available - would constitute a breach of contract for the amounts due whilst that work was in progress. To withdraw supply on or about 21st March 2017 in a conspiracy by unlawful means - and again on 24th April 2017 - also on false grounds and pretences was not just in breach of contract - but subjected the Appellants to loss and damage for causes of action including a conspiracy by unlawful means - Injurious falsehood - directly - as well as a direct consequence of the permanent ban by the First Respondent at the behest - and on the say so of the Second Respondent. We only have to refer to the admission by Doug Harrold at paragraph (137.) above - there was nothing - not one single incident between April 2016 and April 2017- a full 12 months beforehand that would have constituted any reason or justification for the First Respondent to withdraw supply. As well – we have the causes of action for defamation - as well as misleading and deceptive conduct in contravention of Sec 18 (1) of the Australian Consumer Law set out in paragraph (179) below.

178. All of the evidence contained in this Case Book refers to the actions and conduct of both Respondents as well as the Second Appellant. The identified conduct particularly in relation to false allegations of wrongdoing by the Second Appellant were made and conceived in secrecy without the knowledge of the Second Appellant. The Second Appellant has at no time any knowledge or awareness of agendas and conspiracies taking place behind his back - including - and after - the false allegation of having taken out a stobie pole at GrainFlow Crystal Brook - and every single false allegation thereafter. It has been a mammoth task (including the most recent revelations of the perjury

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of Cory Button and other crimes of Doug Harrold) - to identify the findings of fact and to identify conduct which was at all times hidden from the view of the Second Appellant - and - more importantly - this Court. The courts have procedures and rules to prevent the abuse of due process - but until we have proof that these crimes are taking place - there is very little the legal system can do to prevent it from happening. Thankfully - if these excesses can be exposed - there is much the courts can do to provide the appropriate deterrent to others.

179. Having regard to the above and every single revelation including criminal conduct disclosed by the evidence - we are fully justified in concluding that every part of the actions of the Respondents – all of it - including their refusal and failure to stand by their undertakings given at the time to support a reliable income stream to prospective financiers - was - at all times misleading and deceptive - in the extreme. The Second Appellant knew nothing of these covert actions – which were unseen by himself - and any outside observer - knew nothing of any and all false allegations being made against his ability as a Multi Combination Professional Driver - and as a consequence - was misled - and - deceived - on entirely false and fabricated grounds - for no good reason - and which were - at no time justified. This misleading and deceptive conduct represented gross breaches of the provisions of Sec 18 (1) of the Australian Consumer Law.

FILED BY THE SECOND APPELLANT

…………………………………………………………………CLAYTON WALTER WENTWORTH8th July 2019.

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P1 p130 – p 131

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P2 p132 - 133

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P3 p134 – p136

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P4 p137

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P5 p138 - 140

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6 141 148 -

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7.149 155

150

8

151

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Introduction

1. The second plaintiff (Clayton Wentworth) is a 69 year old man. While currently unemployed, he has spent a number of years as a professional driver of heavy combination vehicles. At the time of the events the subject of these proceedings, he was providing haulage services through the first plaintiff (Nanosecond Corporation Pty Ltd), a company of which he is the sole director and shareholder.

1. The first defendant (Glen Carron Pty Ltd) and the second defendant (Garden Grove Haulage Pty Ltd) are both providers of bulk transport and haulage services in the South Australian grain market. During the period from February 2015 to April 2017, the defendants used the plaintiffs’ services to assist them to meet their customers’ transport and haulage needs. However, the defendants ceased to provide this work to the plaintiffs from late April 2017. They did so in circumstances where there had been a number of allegations about Mr Wentworth that reflected poorly upon his competence as a professional driver.

1. In these proceedings, the plaintiffs allege that in withdrawing work from them, the defendants each acted in breach of their contractual arrangements with the plaintiffs. The plaintiffs also allege that the defendants engaged in other misconduct involving injurious falsehood, defamation, misleading and deceptive conduct, and an unlawful conspiracy to cause harm. The plaintiffs seek damages for the losses they claim to have suffered as a result of the defendants’ misconduct.

Overview of the plaintiffs’ case

1. The plaintiffs have not had the benefit of legal representation in these proceedings. They have been represented by Mr Wentworth. While an intelligent and articulate man, he has struggled to plead and present the plaintiffs’ claims in a legally coherent manner. The following is my attempt to distill the plaintiffs’ case from their third statement of claim.

1. The plaintiffs claim that the defendants together hold a majority share of the market for bulk transport and haulage services for grain in South Australia, and that they use the services of contractors such as Nanosecond to enable them to meet the needs of the grain storage and export companies who are their customers. In addition to each of the defendants directly servicing their own customers’ needs, from time to time they also provided services to assist the other to meet their customers’ needs. Relevantly for the purposes of these proceedings, that included Glen Carron using its drivers to assist Garden Grove in doing work for its customer, GrainFlow (owned by Cargill Australia[1]). That work involved loading boats at Berth 29 (Port Adelaide) with grain from GrainFlow sites such as Crystal Brook and Mallala.

1. Focussing on the period relevant to these proceedings, Mr Wentworth’s dealings with Glen Carron were primarily with Michael (‘Mick’) Harrold (the logistics manager). He also had some dealings with Doug Harrold and Pat Harrold. Mr Wentworth’s relevant dealings with Garden Grove were primarily with Paul Page (the transport

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general manager) and Andrew (‘Andy’) Gray (the transport coordinator).

1. From March 2011 until early 2015, Mr Wentworth operated through a business owned by Bill Fischer. In that capacity he regularly provided haulage services for the defendants. Then, in early 2015, Mr Wentworth, on behalf of Nanosecond, contacted the defendants and informed them that he had acquired his own truck and trailer, and that he would in the future be operating independently from Bill Fischer. He spoke separately with Mr Pat Harrold on behalf of Glen Carron, and Mr Page on behalf of Garden Grove. On the plaintiffs’ case, each offered to provide the plaintiffs with work on an ongoing basis.

1. The plaintiffs thereafter, and until late April 2017, regularly provided haulage services for the defendants. The plaintiffs’ case is that they did so under a contract with each of the defendants that required the defendants to provide work to Nanosecond, and to do so for as long as the defendants continued to carry on business in the South Australian market for grain transport and haulage services. The plaintiffs’ case is also that they provided those services without any issues or complaints about the quality of their work.

Breaches of contract by Glen Carron and Garden Grove

1. The plaintiffs’ case is that on 26 April 2017, Mr Page of Garden Grove advised Mr Wentworth by telephone that Garden Grove was permanently withholding the supply of work to the plaintiffs. Then, on 27 April 2017, Mr Mick Harrold of Glen Carron advised Mr Wentworth by telephone that Glen Carron was also permanently withholding the supply of work to Nanosecond and Mr Wentworth. The plaintiffs contend that both decisions to cease providing them with work were arbitrary and without any justifiable reason, and in breach of the defendants’ respective contracts with Nanosecond.

1. The plaintiffs plead that by reason of the defendants’ breaches of contract, they have been excluded from the relevant market and have suffered loss and damage to be measured by reference to the profits they would otherwise have made over the ensuing 15 year period. As against Glen Carron, the plaintiffs plead lost net profits of slightly in excess of $8.5 million, plus consequential loss and damage referrable to the destruction of the plaintiffs’ credit history of almost $1 million. As against Garden Grove, the plaintiffs plead lost net income of slightly less than $2.5 million.

The allegations about Mr Wentworth’s conduct

1. The plaintiffs go on to plead that various allegations about Mr Wentworth’s conduct – which they contend are all false – were the reason or pretext for the defendants’ decisions to cease providing them with work.

1. In relation to these allegations, the plaintiffs plead that at some time prior to 17 March 2017, Mr Mick Harrold of Glen Carron reported to Mr Wentworth that Mr Gray of Garden Grove had informed him that Garden Grove was going to stop giving the plaintiffs work as a result of various allegations about Mr Wentworth.

1. As a result of this report, Mr Wentworth telephoned Mr Gray about the allegations on 17 March 2017. The allegations that the plaintiffs

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contend were made by Mr Gray, and to some extent repeated during this converstion, were to the effect that Mr Wentworth (i) had been banned from collecting loads from GrainFlow’s site at Crystal Brook; (ii) had been banned from unloading at Berth 29 at Port Adelaide; (iii) had taken out a stobie pole at Crystal Brook; (iv) had been the subject of complaints from GrainFlow at Mallala; (v) took up to an hour to load a truck; and (vi) had tried to run other drivers off the road, requiring them to take evasive action.

1. The plaintiffs plead that on 21 March 2017, Mr Wentworth telephoned Mr Page from Garden Grove, and that during this conversation Mr Page also made allegations to the effect of (i) and (ii) above.

1. The plaintiffs plead that on 23 March 2017, Mr Wentworth met with Gregory Arbon, who was the night supervisor at Berth 29, Port Adelaide. During the course of this meeting, Mr Arbon telephoned ‘Justin’ from Garden Grove who (after in turn speaking with Mr Page) repeated allegations (i) and (vi), as well as making a further allegation that Mr Wentworth (vii) had been driving for periods of up to 24 hours straight (which was illegal under heavy vehicle regulations).

1. The plaintiffs further plead that on 26 April 2017, some (unspecified) person from Garden Grove not only repeated allegations (i) and (ii) to Mr Mick Harrold from Glen Carron, but also alleged that Mr Wentworth (viii) had been banned from all GrainFlow sites in Australia for working 24 hours straight, and (ix) had been banned from doing any further work for Garden Grove.

1. The plaintiffs plead that all of these allegations are false, and in particular that there had never been any determination to ban the plaintiffs from either the Berth 29 or Crystal Brook sites, at least not by the operators of those sites.

Injurious falsehood and defamation by Garden Grove

1. Based on the above allegations, Nanosecond seeks damages for injurious falsehood from Garden Grove in the sum of $10 million.

1. The plaintiffs have also pleaded a claim in defamation on behalf of Mr Wentworth against Garden Grove. In particular, they plead that the allegations by Mr Gray to Mr Mick Harrold gave rise to defamatory imputations that Mr Wentworth was both reckless in his driving and had engaged in criminally dangerous driving.[2] They also plead that Mr Wentworth has suffered damage to his personal and professional reputation; and that he is entitled to damages for defamation from Garden Grove in the sum of $250,000 plus almost $1 million for consequential loss and damage resulting from the destruction of the plaintiffs’ credit history and creditworthiness.

Conspiracy by unlawful means

1. The plaintiffs plead that the conduct in making the above allegations involved a conspiracy by unlawful means by Mr Page and Mr Gray of Garden Grove, and Mr Mick Harrold of Glen Carron, “to falsely accuse [Mr Wentworth] of a variety of acts and conduct which at no time had any truth or basis in fact and were maliciously contrived by [these men] for the purpose of withholding supply to [the plaintiffs]”. The conspiracy is said to have been intentional, motivated by malice and designed to cause financial harm to the plaintiffs.

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1. The focus of the allegation of conspiracy is the defendants’ conduct from 17 March 2017, and in particular the conduct of each of the participants in the conspiracy in making or repeating the allegations when they knew they were false. However, the discursive pleadings in support of the alleged conspiracy also include reference to matters dating back to 2016, including various unspecified statements which are said to have been false and fabricated, actuated by malice, and made for the purpose of causing financial harm to the plaintiffs.

1. The plaintiffs seek damages of $8 million from Glen Carron and $10 million from Garden Grove for the loss and damage suffered by them by reason of the conspiracy. These amounts are said to exclude the consequential loss and damage to the plaintiffs resulting from the withdrawal of the supply of work to them.

Misleading conduct by Glen Carron and Garden Grove

1. The plaintiffs’ allegations that the defendants engaged in misleading and deceptive conduct contrary to s 18(1) of the Australian Consumer Law are difficult to understand. The plaintiffs plead that in March 2016, Mr Wentworth requested (and, by inference, received) from each of the defendants a letter to support the plaintiffs’ application for finance for a replacement truck to be purchased by Nanosecond. Those letters were in response to a request from the prospective financier to confirm that Nanosecond had contracts providing for an ongoing income stream for the five year term of the prospective loan.

1. The plaintiffs then refer to the conduct of the defendants, through Mr Page and Mr Gray of Garden Grove, and Mr Mick Harrold of Glen Carron, said to constitute the conspiracy by unlawful means. They plead that this conduct was “entirely inconsistent and at odds with and contrary to the spirit” of the letters of support provided by the defendants, with the result that they engaged in misleading and deceptive conduct. The plaintiffs seek from each of the defendants $4 million in damages, plus a further $2.5 million by way of aggravated damages, on account of the alleged misleading conduct.

Glen Carron’s defence

1. In its defence, Glen Carron admits various formal matters, including that the plaintiffs provided haulage services for it. However, it pleads that this occurred in a context where it used the services of a number of persons and entities to carry out that work, and where the plaintiffs also provided haulage services to other companies. Glen Carron pleads that, from time to time, and upon being notified of Nanosecond’s availability, it engaged Nanosecond as a subcontractor to provide haulage services. It pleads that it did so on the basis of contracts from time to time to transport particular goods from one specified location to another. It denies that it ever agreed to any guarantee to provide work to the plaintiffs on an ongoing basis.

1. By reason of the above, Glen Carron pleads that it was entitled to cease providing work to Nanosecond even if there were no problems or complaints about the services it provided. However, it also pleads that it had in fact received numerous complaints and negative comments about Mr Wentworth in his role as driver for Nanosecond. Glen Carron then pleads several examples by way of particulars of these complaints and negative comments. These examples include

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Mr Mick Harrold being informed by Mr Gray from Garden Grove that Mr Wentworth had been driving erratically, and in particular that he had tried to run some of their trucks off the road; and that there had been an issue with Mr Wentworth at Berth 29 and that he was “banned” from picking up grain at the site in Crystal Brook and/or delivering the grain at Berth 29. They also included allegations from Kylie Lord (via email to Mr Gray) that Mr Wentworth had a lifetime ban from all GrainFlow sites; and allegations from other persons to the effect, inter alia, that Mr Wentworth had been slow, or had otherwise had difficulty, in positioning or unloading his truck. Glen Carron’s defence also pleads various other deficiencies in the haulage services provided by the plaintiffs.

1. Glen Carron pleads that by reason of the above matters it was not only not able to continue to engage the plaintiffs to transport grain to Berth 29, but also decided to no longer engage them to provide transport services more generally.

1. Glen Carron otherwise denies the causes of actions alleged against it, and any entitlement on the part of the plaintiffs to the damages claimed.

Garden Grove’s defence

1. In its defence, Garden Grove admits that the plaintiffs provided haulage services during the period from March 2015 to April 2017, but pleads that they did so through Nanosecond and as a contractor of Glen Carron. Garden Grove denies that it had any contract or agreement with the plaintiffs, or that it made any offer of ongoing work to the plaintiffs.

1. Garden Grove pleads that it had its own fleet of vehicles, and employed its own drivers to operate its fleet. If and when it required additional vehicles and drivers it engaged contractors on a job-by-job basis. In this respect it had both regular contractors and occasional contractors. Glen Carron was one of its regular contractors; the plaintiffs were occasional contractors. It was in this context that, on various dates between March 2015 and April 2017, it engaged Glen Carron to perform haulage services for it on a job-by-job basis; and that Glen Carron then engaged the plaintiffs to undertake some of these jobs. Hence, when doing work “for” Garden Grove, the plaintiffs were doing so as subcontractors of Glen Carron.

1. Garden Grove admits that on 26 or 27 April 2017, Mr Page advised Mr Wentworth that he was “banned” from undertaking further work with Garden Grove with respect to “the boats”; that is, the work involved in transporting grain to be loaded on the boats at Berth 29. It pleads that this ban was a consequence of information received by Garden Grove in relation to deficiencies in the plaintiffs’ performance in undertaking jobs for Glen Carron.

1. In response to the claim for injurious falsehood, Garden Grove admits that Mr Gray informed Glen Carron that he had been contacted by a representative of GrainFlow (which was a client of Garden Grove) about the plaintiffs; and that he had received complaints from other drivers of Garden Grove that Mr Wentworth had run them off the road (or had caused them to take evasive action to avoid his vehicle) and took an excessive amount of time to load his vehicle. However, Garden Grove also pleads that the matters communicated by Mr Gray were true.

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1. As to the claim for defamation, Garden Grove denies that any statements by it gave rise to the pleaded imputation (or at least the part of the imputation that relates to criminally dangerous driving). Garden Grove also pleads that any defamatory statements it made were protected by qualified privilege, or in the alternative were true. Garden Grove also pleaded a defence of fair comment (or honest opinion), but did not press this defence at trial.

The trial

1. The trial of these proceedings lasted 11 days. Ten of these days were occupied with oral evidence from the various witnesses called by the parties, with the final day devoted to closing addresses. There were only a limited number of documentary exhibits.

1. Mr Wentworth gave evidence for the plaintiffs, and was cross-examined. In addition to Mr Wentworth, the plaintiffs called the following witness:[3]

o Paul Page (Garden Grove transport manager).o Andrew Gray (Garden Grove transport co-ordinator).o Mick Harrold (Glen Carron logistics manager).o Doug Harrold (Glen Carron transport managing director).o Pat Harrold (Harrold Services proprietor; former Glen Carron

logistics manager).o Michael Hill (Glen Carron logistics supervisor).o David Arbon (manager at Crystal Brook site).o Kylie Lord (night supervisor at the Crystal Brook site).o Vincenzo Calabro (manager at Berth 29).o Gregory Arbon (supervisor at Berth 29).o Elizabeth Martin (weighbridge operator at the Mallala site).o Mark Franke (site manager at Ridley Agriproducts).

1. Most of these witnesses, if not all of them, appeared in response to subpoenas issued by the plaintiffs. The plaintiffs issued these subpoenas shortly prior to the commencement of the trial, in response to my rulings on the voir dire (see below). As is apparent from this list, many of the plaintiffs’ witnesses were employees of the defendants, or otherwise in one or other of the defendants’ camps. In part because the plaintiffs did not have the benefit of legal representation, and in part because the evidence of these witnesses was in many respects adverse to the plaintiffs, I afforded Mr Wentworth considerable latitude in terms of permitting him to cross-examine, and indeed, impeach the credit of, his own witnesses.

1. The first defendant, Glen Carron, called the following witnesses:o Corey Button (SA Sawdust logistics coordinator and

supervisor).o Nathan Anderson (Avington Farm manager).o Damien Thornhill (Transit Australia Freight Management).

1. The second defendant, Garden Grove, called three of its drivers as witnesses:

o Cholena Jones (subcontractor driver).o Brendan Sawley (employed driver).o Aaron Bevan (employed driver).

Conversations recorded by Mr Wentworth

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1. Prior to the trial of these proceedings, I conducted a voir dire to address the admissibility of 20 recordings of conversations made covertly by Mr Wentworth.[4] For the reasons published following the conclusion of that voir dire,[5] I ruled that 11 of these recordings had been made unlawfully and were inadmissible for that reason. Of the nine recordings that were not unlawful (essentially because they had been made to protect the lawful interests of the plaintiffs), three were excluded on the alternative basis that they were inadmissible hearsay. I ruled that the remaining six recordings were relevant and admissible.

1. As explained below, Mr Wentworth had difficulty accepting and obeying this ruling. Throughout the trial he continued to attempt to deploy the recordings that I had ruled were unlawful or otherwise inadmissible. Mr Wentworth’s conviction that the recordings would prove his case, and his determination to deploy them in the manner he wished, added significantly to the length of the trial.

1. In addition to this, Mr Wentworth’s attitude and conduct in relation to the recordings he had made also provided me with some insight into his personality, and his reliability as a witness. Significantly in this respect, it became apparent during the course of the trial that Mr Wentworth was relying upon versions of the recordings that had been heavily (and in several respects, misleadingly) edited by him. I ultimately received into evidence two versions of each of the six recorded conversations that I ruled were admissible – the edited versions sought to be relied upon by the plaintiffs, and the unedited versions relied upon by the defendants. I have set out relevant extracts from each of these recordings later in these reasons. In so doing I have italicised the portions of the conversations that Mr Wentworth had edited out of the recordings in the versions he sought to rely upon.

1. The plaintiffs relied upon the edited versions of the relevant recordings both on the voir dire and at trial. They did so without informing me that the recordings had been heavily edited. Indeed, the plaintiffs filed an affidavit of Mr Wentworth (which was relied upon during the voir dire) that contained ‘transcripts’ of the conversations without any indication (by way of ellipses or otherwise) that parts of the conversations had been edited out or deleted. I had listened to, and relied upon, the recordings for the purposes of the voir dire without appreciating that they had been edited. While I had assumed that the start and end of some of the conversations may not have been captured in the recordings, it did not occur to me that they had been edited in the manner in which it is now clear they had been. It was not until counsel for the defendants tendered the unedited versions of the conversations during cross-examination of Mr Wentworth that the nature and extent of the editing became clear. My understanding is that the unedited versions of the recordings were only disclosed to the defendants shortly prior to trial, and after repeated requests.

1. As will be apparent from the italicised sections of the transcripts of the recordings set out later in my reasons, the editing was not confined to the removal of stand-alone passages that dealt with discrete or irrelevant topics. To the contrary, the editing included numerous instances of the removal of particular passages from relevant exchanges. In several cases parts of sentences had been removed. Importantly, several of the edits made to the recordings

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altered the meaning of parts of the conversations. I have referred to some examples of this nature later in my reasons.

1. Further, the editing appears to have been undertaken in a manner designed to disguise what had occurred. In many cases where phrases or passages had been removed, the editing was undertaken in a manner that resulted in what remained appearing to run together in a way that made sense. As I have said, on my first listening to the conversations, I did not realise that there were phrases and passages that had been edited out of what could be heard on the recording.

1. During cross-examination, Mr Wentworth admitted that he had undertaken the extensive editing that had occurred. Indeed, he acknowledged a careful and painstaking effort on his part in producing the edited recordings, and even suggested that this was a reason why he should not be forced to refer to the unedited versions of the recordings once their existence had been revealed by the defendants.

1. Mr Wentworth gave various unsatisfactory explanations for the editing he had undertaken. At times he insisted that it was a matter for him which parts of conversations he wished to rely upon as helpful to his case, and that it was for the defendants to do whatever they wanted to with the balance of the conversations. Of course, this overlooked both the misleading nature of the edited recordings that he had sought to rely upon, and the fact that he never volunteered that those recordings had been edited. At times Mr Wentworth did not accept that his editing had affected the meaning conveyed by the relevant passage from the recording, when plainly it did. On other occasions, Mr Wentworth attempted to justify his editing on the basis that he had merely deleted words that the other person in the conversation had said, and that he considered were untruthful and hence irrelevant or unhelpful to my consideration of the issues in the case. This purported justification is not only an inaccurate description of the editing, but also overlooks the obvious considerations that it was for the Court (and not Mr Wentworth) to determine where the truth lies, and that in many instances the words spoken were relevant to the matters in issue regardless of whether or not they were true.

1. In summary, I am satisfied that Mr Wentworth undertook a careful and detailed process of editing the recordings that he intended to rely upon in presenting the plaintiffs’ case. He did so in a manner intended to remove various passages that were harmful, or at least potentially harmful, to the plaintiffs’ case. In so doing, he intended to mislead the Court, and indeed to disguise the fact that the Court was being misled. I do not accept any of the purported justifications given by Mr Wentworth for his conduct, and am satisfied that he well knew what he was doing and the inappropriateness of it. I consider Mr Wentworth’s conduct in attempting to mislead the Court in this way reflects poorly upon him and his credibility.

Mr Wentworth and his evidence

1. As I have mentioned, Mr Wentworth is an intelligent and articulate man. In many respects he did a competent job of representing the plaintiffs’ interest in these proceedings.

1. However, as the trial unfolded it became clear to me that there are aspects of Mr Wentworth’s personality which have not only contributed to the situation in which he finds himself, but which have

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also led me to conclude that I cannot safely rely upon his evidence. In some respects I have found his evidence to be deliberately untruthful. In other respects, the unreliability of his evidence appears to have arisen more from a lack of perception as to his own shortcomings, the position and views of others, and the impact of his conduct on others. In any event, and whatever the precise reason for its unreliability, I have reached the conclusion that it is generally not appropriate for me to rely upon Mr Wentworth’s evidence where it conflicts with the evidence of others.

1. By way of further explanation for this conclusion, Mr Wentworth’s position and evidence throughout the trial was that he was a highly competent heavy combination vehicle driver, and that any suggestion to the contrary was “total unadulterated nonsense”, a “complete fabrication”, and essentially a perpetuation of the malicious conspiracy by various people to falsely accuse him of incompetence and to withdraw work from him. He reacted poorly to any challenge by witnesses to his competence. He regularly became frustrated, exasperated and then angry when their evidence was critical of him. A significant proportion of his examination and cross-examination of witnesses involved shouting at them, or over the top of them. On many occasions he did so on a basis that did not accurately or fairly reflect their evidence or other evidence in the case, or was otherwise misconceived or inappropriate. On some occasions he resorted to inappropriately rebuking witnesses for giving evidence that was critical of him, or otherwise scoffing at, or mocking, such evidence.

1. Mr Wentworth routinely sought to challenge, or simply ignore, rulings that I made that he considered were getting in the way of him attempting to extract the truth from the various witnesses – including those that he called in the plaintiffs’ own case. He repeatedly asked me to bring the trial to an end on the basis of alleged perjury by various of the witnesses. He concluded his case by cataloguing what he alleged were over 150 instances of deliberately untruthful evidence by the various witnesses.

1. In some respects, Mr Wentworth’s anger and attitude were a product of his emotional investment in the matters in issue. He appears to have genuinely regarded himself as a highly skilled driver, and to have believed that he was on the path to establishing a successful business as a driver. However, he now finds himself unemployed, financially ruined and with little by way of future prospects in the transport industry. In this respect, while remaining inappropriate and unhelpful, his anger and attitude were understandable and did not necessarily affect the reliability of his evidence.

1. However, as the trial unfolded, and the detail of the evidence emerged, it became clear to me that his anger and attitude also reflected a lack of perception or insight on his part. He presented as someone who was so utterly convinced of his own skill, and the correctness and virtue of his conduct and position more generally, that he simply could not or would not countenance any criticism made of him or his performance.

1. Despite what ultimately turned out to be a very significant, almost overwhelming, body of evidence to the effect that he had many shortcomings as a driver, and had been the subject of numerous complaints, Mr Wentworth refused to accept any shortcomings on his part. He rejected out of hand virtually the entirety of the evidence against him as complete and unadulterated fabricated nonsense.

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1. It is true that some of these complaints and shortcomings were not communicated to him at the time. Rather, the defendants generally attempted to work around the issues that arose with Mr Wentworth’s performance (for example, by allocating him different work), rather than confront him with them. In part this was as a result of difficulties that had been encountered by them with earlier attempts to address criticisms with him. I thus accept that Mr Wentworth was not aware of the extent of the discontent with his performance as a driver prior to the trial in these proceedings. But by the end of the trial the position had moved well beyond an understandable reaction by Mr Wentworth to being confronted with criticism by others. It became clear that Mr Wentworth has very limited insight into his own shortcomings, the position and views of others, and the impact of his conduct on others.

1. The defendants contended that I should find that Mr Wentworth is delusional. Insofar as this was intended to suggest that Mr Wentworth’s evidence, and the plaintiffs’ case more generally, were characterised by idiosyncratic beliefs or impressions that are contradicted by reality or rational argument, then there is force in the defendants’ submission. Certainly I have concluded that Mr Wentworth’s evidence, and case more generally, was in many respects contrary to reality and unsupported by rational argument. I have identified numerous illustrations of this throughout the course of these reasons.

1. However, there is no basis in the evidence for me to find that Mr Wentworth was delusional in the sense that that term is often used, namely as symptomatic of some form of mental disorder. For that reason, I prefer to describe Mr Wentworth as having a lack of perception or insight, and as affected by a blinkered and uncompromising attitude in his conduct and dealings with others.

1. While the above would have been a sufficient basis to treat Mr Wentworth’s evidence as generally unreliable, I have further concerns. While Mr Wentworth generally appeared to be endeavouring to tell the truth, albeit through the prism of his blinkered and uncompromising view of things, I am satisfied that there were instances where he did not do so. His evidence in relation to the editing of the recorded conversations is the most obvious and significant example. However, I have identified some further examples in the course of these reasons.

1. I conclude this section of my reasons by observing that a number of the plaintiffs’ submissions in these proceedings were based upon factual assertions that were not the subject of evidence. I endeavoured on various occasions to explain to Mr Wentworth the importance of ensuring that he give evidence about all of the factual matters upon which he wished to rely, and that his questions of (and assertions to) other witnesses were not evidence in the trial. However, despite appearing to understand these explanations, and saying that he understood them, there remain a number of apparent gaps in the plaintiffs’ evidence. That said, to the extent that the plaintiffs’ ‘position’ in relation to various factual matters has been apparent from the questions and submissions advanced by Mr Wentworth, I have endeavoured to take account of this in my consideration of the evidence and in making findings of fact.

The other witnesses

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1. As to the remaining witnesses in the case, I am generally satisfied that their evidence was truthful and reliable. The evidence of these witnesses was in many respects consistent with one another, and in that sense corroborative of each other. Indeed, the existence of this body of largely consistent evidence, and my general satisfaction as to the truthfulness and reliability of that evidence, contributed to my rejection of Mr Wentworth’s evidence in relation to matters where his evidence was in conflict with that of other witnesses.

The Glen Carron and Garden Grove representatives

1. In the case of Mr Page, Mr Gray, Mr Mick Harrold and Mr Doug Harrold, I accept that they were not independent witnesses. While Mr Mick Harrold has since left Glen Carron, each was strongly aligned to the defendant company with which they worked at the time of the relevant events. As the key players in the decisions to cease giving Mr Wentworth work, they also had an interest in justifying their own conduct.

1. There were some aspects of the evidence and demeanour of each of these men that initially gave me some concerns, or at least reservations, about their reliability as witnesses. Each came across as fairly confident and self-assured. On occasions each adopted a somewhat off-handed or combative tone in responding to questions asked of them by Mr Wentworth. While their manner in the witness box did cause me to reflect carefully upon their evidence, I was ultimately satisfied that they were honest, and generally reliable, witnesses. Insofar as their evidence was critical of Mr Wentworth, it was not only broadly consistent between these four witnesses, but more importantly was also consistent with and supported by the evidence of the customer and driver witnesses mentioned below. In particular, the evidence from these four men as to the complaints they had received from customers and drivers, while given in relatively general if not vague terms, was ultimately supported by evidence from various customers and drivers as to both the underlying incidents and their reporting of these incidents to Glen Carron or Garden Grove. I am satisfied that those aspects of their demeanour as witnesses that initially caused me some concern were most likely a product of the aggressive tone and approach of Mr Wentworth when asking them questions, rather than a reason for me to doubt their honesty, or general reliability, as witnesses.

1. There was no reason for me to doubt the honesty and generally reliability of either Mr Pat Harrold or Mr Michael Hill, and so I have generally accepted their evidence.

The witnesses from Crystal Brook and Berth 29

1. Mr David Arbon and Ms Lord gave evidence about various matters relating to the GrainFlow site at Crystal Brook, and Mr Calabro and Mr Gregory Arbon gave evidence about matters relating to Berth 29. While the plaintiffs called these witnesses, they were each critical of Mr Wentworth, particularly Ms Lord and Mr Calabro.

1. While Mr Wentworth subjected Ms Lord to lengthy, and often very aggressive, questioning, I found Ms Lord to be an impressive witness. It is true that in her late April 2017 emails (see later) she made the exaggerated, if not false, claim that Mr Wentworth had been banned

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from all GrainFlow sites. However, when giving evidence on oath, Ms Lord accepted that she did not have a proper basis for this claim. In my view, she was careful and fair in the evidence she gave. I accept that she was an honest and generally reliable witness.

1. I also accept that Mr Calabro, Mr David Arbon and Mr Gregory Abron were honest and generally reliable witnesses. In the case of the latter two, Mr Wentworth found it difficult to reconcile their criticisms of him in the witness box with their failure to raise matters with him at the time (particularly at the time of his conversations with them in relation to the March and April bans described later in these reasons), and their previously positive disposition towards him. To my mind, there was no necessary incongruity. There may have been various reasons why they chose not to criticise Mr Wentworth to his face at the time, none of which would affect the reliability of their evidence under oath in the trial of these proceedings.

The customer and driver witnesses

1. The most direct evidence as to the shortcomings of Mr Wentworth as a driver came from three ‘driver’ witnesses called by Garden Grove (Ms Jones, Mr Sawley and Mr Bevan), and two ‘customer’ witnesses (Mr Button and Mr Anderson).

1. Each of these witnesses was relevantly independent. None had any incentive to give other than truthful evidence, except to the extent that they had previously made complaints about Mr Wentworth, and so might have been inclined to adhere to their earlier version of events, and have had a general desire to remain on good commercial terms with the defendants. While Mr Wentworth mounted sustained attacks upon each of these witnesses in his questioning of them, I was satisfied that each was honest and generally reliable. While Mr Wentworth was plainly frustrated by the lack of specificity in some of their recollections (particularly as to time frames), the relatively general terms of their evidence was understandable given the time that had passed and the nature of the matters about which they gave evidence.

1. Ms Martin and Mr Franke also gave some very limited evidence from their perspectives as representatives of customers for whom the plaintiffs did work. I accept that they were honest and reliable witnesses.

1. I also accept that Mr Thornhill was an honest and reliable witness.

Factual background

1. Before considering each of the plaintiffs’ causes of action, and some of the additional findings of fact relevant to each, I make the following findings as to the relevant factual background or context.

The plaintiffs

1. After an earlier career as a taxi driver, Mr Wentworth commenced as a driver of heavy combination vehicles in about 2011. He remained in that occupation until the defendants ceased providing him with work in late April 2017. While the evidence reveals that Mr Wentworth did some driving for other customers for a few weeks after this date, he

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soon ceased doing any driving. He is now unemployed, and has only very limited assets to his name.

1. From 2011 to 2015, Mr Wentworth drove for a business owned by Mr Fischer. In early 2015 he purchased a prime mover and trailer, and commenced to operate his own business through Nanosecond. The prime mover was a second-hand Scania, and cost him about $350,000. The trailer was a new Lusty EMS that cost him about $145,000.

1. While driving for Mr Fischer’s business, Mr Wentworth had done some work for both Glen Carron and Garden Grove. In early 2015, he approached each of these companies telling them that he had purchased his own vehicle and was now working for himself. He spoke to Mr Pat Harrold on behalf of Glen Carron and Mr Page on behalf of Garden Grove. Both indicated a preparedness to give him work. The detail of these communications, and in particular, the legal nature of the relationship between the parties thereafter is a matter of controversy to which I shall return later in these reasons.

1. In early 2016, Mr Wentworth purchased a second Lusty EMS trailer. This one was second-hand and cost him about $75,000. It enabled him to commence driving with a B-double configuration, rather than the single trailer that he had been driving to that point in time. However, as the Scania prime mover was not accredited for use with a B-double configuration, he replaced his Scania with a MAN prime mover. He was not able to arrange finance to purchase it outright, and so acquired it under a lease arrangement involving monthly payments of about $4,000. Not only was this an expensive means of acquiring a prime mover, but Mr Wentworth also experienced several expensive breakdowns.

1. In about November 2016, Mr Wentworth replaced the MAN prime mover with a Volvo prime mover. His monthly payments on the Volvo were about $6,000.

1. In late April 2017, Mr Wentworth obtained a permit from the National Heavy Vehicle Regulator allowing him to run a road train from Ardrossan to Adelaide. However, only days later, the defendants ceased providing him with work.

Glen Carron

1. The evidence as to Glen Carron’s business and operations was limited and general. However, the evidence has enabled me to make the following basic findings.

1. Glen Carron was established in 1973. Its business is the transport of bulk freight. It carries grain, fertilisers and other organic products. It has yards in Mount Gambier and Portland, and a head office in Beachport. It uses Viterra’s facilities as a base depot in Adelaide. It has generally operated with one maintenance worker, two people in logistics, and four or five casual office staff.

1. As at 2015, Glen Carron had about 25 trucks of its own. It still has about the same number. Each of these trucks has an employed driver. Glen Carron also uses what were described in the evidence as “tow operators” or “towies”. The tow operators were drivers who had their own prime mover, but used a trailer or trailers supplied by Glen Carron.

1. Doug, Mick and Pat Harrold are brothers. Their father had been the managing director of Glen Carron until he died in about January 2015.

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1. Following the death of his father, Mr Doug Harrold assumed the role of managing director. By this time, Mr Doug Harrold had had about 25 years experience in the transport industry, including about 12 years driving a truck. He remains in that role.

1. As at early 2015, Mr Pat Harrold was in charge of logistics, and hence the despatching of work to the various drivers used by Glen Carron. He left the business in September 2015. He did so on poor terms after a bitter breakdown in the relationship between him and his brothers. He subsequently set up his own haulage business, under the name Harrold Services.

1. While Mr Pat Harrold was logistics manager, Mr Mick Harrold assisted him in that role. When Mr Pat Harrold left in September 2015, Mr Mick Harrold took over the role as logistics manager. He has had about 17 years experience in the transport industry, including about nine years driving a truck. He has relatively recently left Glen Carron, although there is no evidence about the circumstances of his departure.

1. Until about 2015, the relationship between Glen Carron and Garden Grove was an essentially competitive one. They did not give each other work. They competed for work in respect of various types of freight, but primarily grain and fertilisers. However, after Mr Pat Harrold left Glen Carron, its relationship with Garden Grove began to change. They began working together to support each other, including by sharing work. Relevantly for the purposes of these proceedings, this included Garden Grove using Glen Carron and its drivers (including its subcontractor drivers such as Mr Wentworth) to assist it in its work for its customer, GrainFlow, in loading its grain from sites such as Crystal Brook and Mallala onto the boats at Berth 29, Port Adelaide.

1. During the period that Mr Mick Harrold was the logistics manager at Glen Carron, he was assisted in that role by Mr Michael Hill. Mr Mick Harrold mainly dealt with the customers, and Mr Hill with the drivers. However, there were some drivers – and Mr Wentworth was one of them – who still had significant dealings with Mr Mick Harrold.

1. Both Mr Doug Harrold and Mr Mick Harrold gave evidence as to the way in which Glen Carron allocated work between the drivers they used. Based on their evidence, I find that work was allocated on the basis of a ‘pecking order’ that placed Glen Carron’s own employee drivers at the top, followed by the tow operators, and then the subcontractors. The cooperative relationship with Garden Grove meant that it was fairly high within the subcategory of Glen Carron’s subcontractors – essentially because the arrangement was a reciprocal one in that Garden Grove could and did give work back to Glen Carron.

1. Glen Carron did not engage subcontractors on an ongoing basis. Rather, it did so on a job-by-job basis in accordance with demand. Many of the subcontractors had other sources of work, and so on occasions would ask for, or accept, Glen Carron work, but on other occasions did not do so because they were doing other work.

1. Subcontractors of Glen Carron did not have written contracts. While Mr Doug Harrold referred to subcontractors receiving “a subcontractor pack”, he said these were not contracts for work. Certainly there was no evidence of any ongoing contractual arrangements, written or otherwise, with Glen Carron’s other subcontractor drivers. And Mr Wentworth did not suggest in his evidence or submissions that there were any such contracts.

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1. The process by which jobs were despatched to subcontractors such as Nanosecond was that per tonne rates were determined for particular jobs, and then the subcontractor sent Glen Carron regularly tax invoices based upon the tonnage rates for each job. Glen Carron preferred weekly invoices, but payment to subcontractors was made 30 days from the end of each month. So, by way of example, if a subcontractor did work in April, he would submit an invoice or invoices during that month, and then be paid on 30 May.

Garden Grove

1. The evidence in relation to Garden Grove and its business and operations was even more limited and general.

1. Apart from the matters involving the plaintiffs, about all that the evidence revealed was that Garden Grove provides haulage services in respect of bulk freight, including grain and fertiliser. It is a larger company than Glen Carron, and has a large fleet of about 120 to 130 trucks of its own. Each of those trucks has its own full-time employed driver.

1. Garden Grove only used subcontractors when it did not have sufficient of its own trucks and employed drivers to do the work. An example of this was when boats were being loaded for GrainFlow at Berth 29 and there was a need to move a large quantity of grain in a short period of time. In those situations, Garden Grove often gave some of that work to Glen Carron for it to allocate to its drivers.

The plaintiffs’ work for the defendants

1. Throughout the period from early 2015 to late April 2017, Mr Wentworth worked predominantly on jobs despatched to him by Glen Carron and Garden Grove, although he also did some work for Harrold Services and other third parties.

1. For the work despatched to him by Glen Carron, Mr Wentworth rendered invoices on behalf of Nanosecond in the same manner as other subcontractors. However, at some point in late 2016 he began asking Glen Carron for advances of the payments to be made to him. He requested these advances in order to enable him to meet his financial commitments, including fuel costs. Glen Carron accommodated these requests and made regular advance payments to the plaintiffs.

1. In relation to the work despatched to him by Garden Grove, Mr Wentworth initially rendered invoices on behalf of Nanosecond to Garden Grove. However, at some point in early 2017 he requested that he be permitted to send the invoices for the Garden Grove work to Glen Carron. It seems that the reason for this request was so that Mr Wentworth could receive advances from Glen Carron in respect of this portion of his work. In any event, the request was accommodated.

1. Thus, for at least the last few months of the plaintiffs’ work for Glen Carron and Garden Grove, all invoices rendered by Nanosecond were sent to Glen Carron. However, Mr Wentworth continued to deal directly with Mr Page of Garden Grove in relation to the work that the plaintiffs were doing for Garden Grove’s customers, including the work in loading the boats at Berth 29 from GrainFlow’s sites at Crystal Brook and Mallala.

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Issues with Mr Wentworth’s performance

1. According to Mr Wentworth, his work for the defendants from early 2015 through to early 2017 was essentially without incident or complaint. However, in light of the body of evidence that emerged during the trial, I am satisfied that there were a number of incidents and complaints. What follows is a summary of the evidence, and my findings, in relation to several of the incidents or complaints raised during the course of the trial. It is not intended to be a comprehensive treatment of the matters raised concerning Mr Wentworth’s performance.

1. I have divided my summary into complaints and issues that arose in relation to particular customers, and then complaints and issues raised by other drivers, before also addressing some additional more general matters.

Customer complaints

Avington Farm

1. Mr Nathan Anderson is the manager of a merino stud known as Avington Farm. He gave evidence about an occasion when Mr Wentworth delivered a load of pellets to his farm. By reference to Nanosecond’s invoices, the delivery occurred in late June 2015.

1. Mr Anderson’s evidence was that this was the only occasion he ever dealt with Mr Wentworth. The pellets had been booked to arrive at 7.30am, and he had engaged someone to be present on the farm with a tractor to assist in unloading the pellets. Mr Wentworth did not arrive with the pellets until the evening, with the result that the person he had engaged was required to remain on standby for the entire day waiting for the delivery.

1. Mr Anderson said that Mr Wentworth eventually telephoned him between about 5.00pm and 6.00pm asking for directions. Once he ascertained where Mr Wentworth was, he told him to travel 5.4 kilometres and then turn up the driveway on the right with a big ramp. However, Mr Wentworth travelled about 7.5 kilometres and then turned into a narrow driveway on the left. Mr Anderson said that he knew this because Mr Wentworth telephoned him a second time to say that his truck was stuck in some trees in a driveway, which Mr Anderson worked out was the driveway of one of his neighbours. Mr Anderson had to help Mr Wentworth extract himself from the neighbour’s driveway and find his way back to his farm.

1. According to Mr Anderson, there were further difficulties once Mr Wentworth made it back to the entry to his farm. While it ought to have been a fairly easy turn into the driveway and up the ramp to the unloading point, Mr Wentworth turned too sharply and managed to get his truck “tangled” in the area near the gate. They had a solar-powered gate, and had to push the button so many times to keep it open while Mr Wentworth tried to negotiate the entry with his truck that the battery on the gate went flat. Mr Wentworth had to go back and forth about a dozen times in order to make it through the gate.

1. Once through the gate, Mr Anderson said that Mr Wentworth experienced further difficulties getting his truck up the driveway and then reversing up to the silo where unloading was to occur. Further,

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when it became necessary to move the truck to a different silo, there were further problems with Mr Wentworth’s manoeuvring of his truck.

1. Mr Anderson said that Mr Wentworth did not ultimately complete the delivery until about 9.30pm or 10.00pm. It thus took him about four hours to do the job, when other trucks doing deliveries to his farm usually took about an hour to an hour and a half.

1. Mr Anderson added that when he had finished the delivery, Mr Wentworth asked him to supply him with some fuel, which Mr Anderson declined to do. He said that throughout the job, Mr Wentworth seemed to him to be very tired. Indeed, he was informed by someone else on the farm who was assisting with the unloading that at one point Mr Wentworth had fallen asleep sitting on a ride-on mower that was between the silos.

1. Mr Anderson said that when he next spoke to Mr Mick Harrold to order a load of pellets, he requested that Mr Wentworth not be given that job. He said that in speaking with Mr Harrold on this occasion he said words to the effect that he considered Mr Wentworth to be Australia’s worst truck driver.

1. Mr Mick Harrold also referred to this incident in his evidence. He said that his contact for Avington Farm, Mr Anderson, had described Mr Wentworth to him as the worst driver he had ever had on site. He said that Mr Anderson told him that Mr Wentworth’s work on the delivery in June 2015 was poor; and that this included allegations by Mr Anderson that Mr Wentworth was late, could not get his vehicle into the site, was inattentive during the process of delivery, and indeed fell asleep on a ride-on mower. Mr Harrold said that Mr Anderson requested that Glen Carron not use Mr Wentworth on any jobs for him in the future. Mr Harrold also said that he discussed this incident with Mr Doug Harrold, but could not recall whether he raised it with Mr Wentworth.

1. While Mr Wentworth did not accept that there was anything wrong with his performance on this job, and cross-examined Mr Anderson at length to this effect, I am satisfied that Mr Anderson was an honest and reliable witness. I am not in a position to make any finding about whether Mr Wentworth fell asleep on the ride-on mower, as Mr Anderson did not see this himself. However, I otherwise accept that the delivery occurred generally in the terms recounted by Mr Anderson. I also find that Mr Anderson reported the inadequacies in Mr Wentworth’s performance to Mr Mick Harrold, and requested that he not be used on subsequent work for Avington Farm.

SA Sawdust

1. Mr Corey Button is the depot supervisor for SA Sawdust at Monarto. His role included supervising deliveries to that site, including about four to six loads of sawdust each day. Various Glen Carron drivers made deliveries to his site, including Mr Wentworth. Mr Button estimated that Mr Wentworth made about 12 to 15 such deliveries over an approximately 12 month period. By reference to Nanosecond’s invoices, the last delivery Mr Wentworth did to SA Sawdust was on 10 November 2016.

1. Mr Button’s evidence was that Mr Wentworth’s ability or skill as a driver making deliveries to his site was not very good. He observed Mr Wentworth having difficulty reversing his truck. It would take him a long time to line up his truck and unload, and certainly longer than

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other trucks undertaking equivalent jobs. He said that trucks of an equivalent size to Mr Wentworth’s would generally take about half an hour to unload, whereas he took a couple of hours. And because there was limited access to the area where trucks unloaded, this resulted in other drivers and deliveries being held up.

1. Mr Button also said that Mr Wentworth used to hit the shade cloth roof of the unloading area with his trailer as he tipped out his load. Mr Wentworth cross-examined Mr Button to the effect that the extent to which he lifted his trailer was determined by the hand signals from Mr Button, with the result that it was a matter within Mr Button’s, and not Mr Wentworth’s, control if his trailer did hit the roof. However, Mr Button rejected this, responding to the effect that the problem occurred because Mr Wentworth did not react in a timely way to the hand signals that he provided.

1. Mr Wentworth also put it to Mr Button during cross-examination that they had such a good relationship that he had on occasions allowed Mr Wentworth to let himself into the site and unload without any supervision. Mr Button denied any knowledge or recollection of this having occurred.

1. Mr Button’s evidence also included reference to an occasion when he inspected Mr Wentworth’s trailer once it had been emptied and found some contaminant in it.

1. Mr Button said that he spoke to Mr Mick Harrold about not sending Mr Wentworth back to SA Sawdust. He said that he did so on about the date of what became Mr Wentworth’s last delivery to SA Sawdust (namely, 10 November 2016). He told him about Mr Wentworth’s difficulties with reversing, unloading in a timely way, and hitting the roof with his trailer. He also mentioned the contaminant he had found in Mr Wentworth’s trailer. Mr Wentworth did not return to SA Sawdust after this conversation.

1. Mr Mick Harrold also gave some evidence in relation to Mr Wentworth’s deliveries to SA Sawdust for Glen Carron. He said that Mr Button reported to him issues that he had had with Mr Wentworth, and in particular that Mr Wentworth took a long time due to his inability to reverse his truck into position, and that this had caused delay and inconvenience. Mr Button also told Mr Harrold that he did not want Mr Wentworth doing the deliveries to SA Sawdust. Mr Harrold discussed the matter with Mr Doug Harrold, but did not recall whether he raised this complaint with Mr Wentworth. As a result of the complaint from Mr Button, Mr Mick Harrold decided that Glen Carron would stop using Mr Wentworth on the SA Sawdust work.

1. I am satisfied that Mr Button was an honest and reliable witness. I accept his evidence as to his observations of Mr Wentworth, and make findings in the terms of that evidence. I also find that Mr Button informed Mr Mick Harrold of these matters, and requested that Mr Wentworth not be used for future deliveries to SA Sawdust.

Ridley Agriproducts

1. Mr Mick Harrold said that there came a time when Mr Wentworth was banned from delivering to the Ridley Agriproducts site at Murray Bridge. By reference to the last Nanosecond invoice in relation to a job to this site, he agreed that this occurred on about 19 January 2016.

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1. Mr Harrold said that he received a telephone call from the coordinator of that site, Leanne. She told him that Mr Wentworth had just undertaken a delivery to the site, and had taken a significant time to manoeuvre his truck. Mr Harrold understood that while deliveries to that site did involve some relatively challenging reversing, it was something that other drivers managed without incident a number of times a day. He was told that on this occasion Mr Wentworth was causing a backlog and significant delays. He was told that Ridley Agriproducts did not want Mr Wentworth back at the Murray Bridge site.

1. Mr Harrold said that he discussed this complaint and request with Mr Doug Harrold. However, he said that he decided not to confront Mr Wentworth with it. Rather, he decided to steer around the problem by allocating future work to this site to other subcontractors. He explained that his reasons for not raising the issue with Mr Wentworth included that when he had told Mr Wentworth about some earlier complaint from a customer, Mr Wentworth had responded by saying that he would sort the issue out directly with the customer – which was the last thing that Glen Carron wanted.

1. Mr Mark Franke, the site manager from Ridley Agriproducts gave some very brief evidence. He said that he was not aware of any formal evidence of a complaint about Mr Wentworth. However, he explained that whether incidents came across his desk depended upon their nature and significance.

1. The evidence does not permit me to make any finding as to what happened in relation to this January 2016 delivery to Ridley Agriproducts at Murray Bridge, and in particular whether Mr Wentworth’s performance was in fact inadequate. However, I accept Mr Mick Harrold’s evidence as to the fact and nature of the complaint made to him by the site supervisor.

The Robinvale Farm

1. Mr Mick Harrold gave evidence about an occasion when Linx engaged Glen Carron to collect some potatoes from a farmer in Robinvale, Victoria. He despatched this job to Mr Wentworth.

1. Mr Harrold said that the instruction to Mr Wentworth had been to make sure his vehicle had been cleaned for loading. However, he subsequently received a call from Yasmin Dolman of Linx, who relayed a complaint from the farmer. The farmer had complained that when Mr Wentworth attended there was contaminant in his trailer that they had to remove. The farmer had also complained that Mr Wentworth’s trailer was not ready for loading when he arrived; that the rollover bar was not operational, and that this had required the farmer to help Mr Wentworth make adjustments to the vehicle. The farmer had said that these matters caused delay, which was particularly significant given that the potatoes were perishable products.

1. Mr Harrold said that as a result of the above, Ms Dolman said that they (Linx) would prefer if Mr Wentworth did not return to that site. He communicated the issues raised by Ms Dolman with Mr Doug Harrold, and with Mr Wentworth. He said that Mr Wentworth chose to refuse the negative feedback, and said he would straighten the issue out with the customer. While Mr Mick Harrold did not know whether

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Mr Wentworth had in fact taken the issue up with the customer, it was a matter of concern that he had even threatened to do so.

1. Based on this evidence, I am not in a position to make any finding as to whether or not Mr Wentworth did fail to properly clean his vehicle before attending the location in Robinvale, or otherwise failed to perform this job adequately. Mr Wentworth did not accept any inadequacy in his performance on this job, and at times denied there was even an issue about his performance. However, I am satisfied that the farmer made a complaint about Mr Wentworth’s performance that was then relayed to Mr Mick Harrold in the terms he recounted in his evidence. As it happens, I am also satisfied that Mr Wentworth was well aware that the farmer had taken issue with his performance on that job. This is plain from Mr Wentworth’s reference to this job in the first of his conversations with Mr Doug Harrold on 27 April 2017 (see later). He referred, in a passage that was misleadingly edited out of the recording of that conversation,[6] to this farmer having “carried on” about his rollover bar.

Driver complaints

1. In addition to the above complaints emanating from various clients, there was evidence of complaints emanating from other drivers.

Ms Cholena Jones

1. Ms Jones works as a subcontractor driver, including for Garden Grove. She did work for Garden Grove loading the boats at Berth 29, which involved bringing loads from Maitland, Mallala and Crystal Brook. She worked mainly at nights. In the course of that work she came across Mr Wentworth. She gave evidence in relation to two incidents involving Mr Wentworth’s driving.

1. Ms Jones was not able to be clear about the date of the first incident. She estimated that it might have been about 18 months to two years prior to her giving evidence. She said that the incident occurred when they were heading north from Port Wakefield, on the Port Wakefield Road, and heading towards Crystal Brook. She was travelling in the left lane, with Mr Wentworth in the right lane. She said that Mr Wentworth was driving a road train and that his prime mover had some fancy scroll on its side. She was going a bit slower than most, at about 85 to 90 kph, and so he was overtaking her. As he did so, she noticed that he was slowly coming across into her lane, across the white line between the lanes. She had to move over to give him room. Her left wheels were forced over the solid white fog line on the left side of the road, and then off the road into the dirt, although not quite into the white marker posts. She said that Mr Wentworth was half in her lane. If she had not moved to the left in the way she did, their trailers would have touched. Ms Jones’ evidence was that she rang and reported this incident to Mr Gray.

1. When it was put to Ms Jones in cross-examination by Mr Wentworth that she was describing his Scania prime mover that he had sold in January 2015 and which was not accredited to tow a B-double or road train, she acknowledged that she must have been mistaken about her description of truck; she knew that he had acquired a different truck at some point. However, she did not recant from her evidence about the driving that she observed, or that it was Mr Wentworth’s truck.

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1. Ms Jones said the second incident was maybe three or four months after the first. It occurred while she was heading to Port Adelaide and was approaching Globe Derby. The road had about three or four lanes at that point. She was in the middle or “middle-ish” lane. Mr Wentworth was in front of her and in the lane to the right of her. She was gaining on him, but he was moving backwards and forwards between the two lanes (that is, between her lane and the one to the right of that lane). She slowed to work out what was happening. During cross-examination Mr Jones acknowledged that at some point Mr Wentworth indicated and moved left in front of her so as to take the left fork in the road. But she said that her evidence was directed to his criss-crossing between the lanes prior to this.

1. Ms Jones said that on this second occasion she tried to contact Mr Wentworth on the UHF radio but he did not answer. She did not immediately report this incident. But when she arrived at Port Adelaide, another Garden Grove truck (driven by a man she knew as Aaron or Noodle) said he had just encountered, or had an incident with, Mr Wentworth, and she told him that the same thing had happened to her too. She added that, later in time, Mr Gray had asked her about any encounter when a Garden Grove truck was run off the road, and she told him then about this second incident.

1. Ms Jones also gave evidence to the effect that there had been occasions when she drove past Mr Wentworth and he had the curtain in his truck cabin (which was meant to assist the driver when sleeping in the truck) pulled forward so that she could not see him in the truck. She considered that with the curtain in this position, Mr Wentworth would not have been able to see his right hand rear vision mirror.

1. Ms Jones said she was also aware of Mr Wentworth having a very bright light bar across the front of his truck. While she had not personally had an issue with his lights, she had heard other drivers speak of him having it continuously blaring. She said that Mr Wentworth had a reputation for being reckless, and that it was common knowledge that you needed to be careful if he was on the road.

Mr Brendan Sawley

1. Mr Sawley was employed by Garden Grove as a driver for four or five years. His employment had recently come to an end, and according to Mr Gray the relationship between Mr Sawley and Garden Grove was now “a little bit strained.”

1. Mr Sawley used to drive loads of grain to Berth 29 from Mallala (as well as Crystal Brook and Pinnaroo). He encountered Mr Wentworth while doing this work. He said that he observed a number of issues with his driving.

1. Mr Sawley’s evidence was that he was once run off the road by Mr Wentworth. He said that he was coming from Berth 29 onto Port Wakefield Road. One lane turns into three at that point. He was behind Mr Wentworth, but gaining on him. Mr Wentworth took the left lane, so Mr Sawley merged into the middle lane and then across to the right lane. He said that as he did so, Mr Wentworth went in one move from the left lane all the way across to the right lane. As a result, Mr Sawley was forced off the right side of the road. His left tyres were still on the road on the fog line on the edge of the road, but his right wheels were off the road and in the grass.

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1. Mr Sawley added that when he caught up with Mr Wentworth again he saw that he had his driver-side curtain three quarters pulled forward. He said that while Mr Wentworth might have been able to see his side mirror, he would not have been able to see sideways or his blind spot.

1. While he could not give a date, Mr Sawley said that this incident occurred at about 2.00am. He reported it to Mr Gray early the next morning. He added that he had observed Mr Wentworth wandering between lanes on other occasions.

1. Mr Sawley also gave evidence that Mr Wentworth had multiple bright lights on the front of his truck. He said they would blind oncoming traffic. He recalled experiencing this himself two or three times on the same night on one occasion. These incidents occurred on the road near Mallala, and the road heading into Berth 29. He was not able to be precise about the timing, but said that it was within a few weeks prior to Mr Wentworth stopping work. He reported these incidents to Mr Gray.

1. During cross-examination in relation to Mr Wentworth’s use of his lights, Mr Sawley maintained that on the occasions about which he gave evidence he had flashed his lights in an attempt to have Mr Wentworth turn his lights down, but that Mr Wentworth did not do so. He rejected the suggestion that on his evidence he would have been so blinded by Mr Wentworth’s lights that he could not have identified Mr Wentworth’s truck. He said he knew to look at the lines on the road as he approached bright lights, but that as he went past he could tell it was Mr Wentworth’s truck – including by reference to the light configuration.

1. Finally, Mr Sawley also gave evidence that at Berth 29 he had seen Mr Wentworth run his truck up against the guide rail alongside the hopper on multiple occasions. He had seen him get stuck on the hopper. He had also seen Mr Wentworth spill grain on the hopper.

Mr Aaron Bevan

1. Mr Bevan (known by his nickname ‘Noodle’) had been employed by Garden Grove as a driver for three years. He did work loading the boats at Berth 29, which involved transporting loads of grain from Crystal Brook, Mallala, Maitland and Pinnaroo. His evidence was that he encountered Mr Wentworth in that context a number of times. He recalled Mr Wentworth having a Scania, and then later a Volvo. He did not recall him having a MAN prime mover between these two.

1. Mr Bevan gave evidence about an incident on the Port Wakefield highway. He thought it occurred shortly after Mr Wentworth purchased the Volvo (although he accepted in cross-examination that it might have been while he had the MAN truck). He said he was travelling south on the Port Wakefield Highway, between Globe Derby and the nearby cameras. He was in the middle lane, and Mr Wentworth was in the right lane. He commenced to “undertake” Mr Wentworth, when Mr Wentworth moved into his lane. He was forced to move his truck left, into the lane of another car. That car sounded its horn at him, and Mr Bevan did the same to Mr Wentworth. Mr Wentworth then swerved to the right, with his trailer experiencing a sleighing effect and momentarily being to the right of the right hand fog line.

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1. Mr Bevan said that he did not report the incident as such, but that he did mention it to Mr Gray. He also discussed it with Ms Jones once he arrived at Berth 29. She was in front of him in the line. He could not say how many trucks in front of him she was; it might have been two or five trucks in front of him. He explained to her what had happened, and she said something to the effect that it was ironic because the same thing had happened to her.

1. While Mr Wentworth sought to impugn the evidence of Mr Bevan (and Ms Jones) on the basis that they both purport to have described incidents on the same night, in about the same place, despite them being a few trucks apart by the time they arrived at Berth 29. I reject this challenge to their evidence. I do not think there was any necessary inconsistency between their accounts. And given the general terms of Mr Bevan’s recollection as to the relative positions of their trucks once they arrived at Berth 29, it may well be that they were very close to one another as they drove through Globe Derby.

1. Mr Bevan gave evidence that he regularly encountered Mr Wentworth driving with his high beam lights on. He had an LED light bar across the front of his truck. He quite often found Mr Wentworth driving behind him with his high beams on, particularly as they were coming into or out of sites. He said that Mr Wentworth’s inappropriate use of high beams was something discussed by drivers over the radio.

1. Mr Bevan also recalled seeing Mr Wentworth having his cabin curtains pulled forward as he overtook or drove alongside him. Mr Bevan said that even if Mr Wentworth could see through his rear view mirrors on the side, his view (particularly of his blind spot) would have been limited.

1. According to Mr Bevan, Mr Wentworth had a reputation as a poor and incompetent driver.

1. Mr Bevan said that he recalled an incident at Inghams at Mile End. Mr Wentworth was ahead of him in the line. When it came to his turn to tip off into the grid, Mr Wentworth could not be found for about 20 minutes. People thought he might have been asleep in his truck, but when they banged on his truck he was not there. Mr Bevan understood that Mr Wentworth had fallen asleep in the toilets, although he did not personally know or observe this. In any event, there was an approximately half hour delay until they eventually located Mr Wentworth.

1. Mr Bevan said that he saw Mr Wentworth spill grain from his truck at Berth 29. While he agreed in cross-examination that this had not occurred “many” times, he maintained that it occurred “plenty” of times. He thought that Mr Wentworth must have had trouble seeing because he did not seem to lower his tipper or stop when instructed to do so. He regularly saw Mr Wentworth make mistakes that made a lot of mess by overflowing the grid. When it was put to Mr Bevan in cross-examination by Mr Wentworth that these spills could not have occurred (or at least were not within his control given that he emptied his trailer though his grain door rather than his tailgate), Mr Bevan did not agree. He said that spills were still possible if instructions in relation to the tipper were not obeyed. He added that Mr Wentworth would not have needed an extra spotter if indeed he had not been spilling grain.

Findings

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1. I accept the evidence of each of Ms Jones, Mr Sawley and Mr Bevan. I reject Mr Wentworth’s contention that the matters they described never occurred.

1. In particular, I accept that each had encounters with Mr Wentworth’s truck generally in the terms they described. In the case of the first incident described by Ms Jones, and the incident described by Mr Sawley, they were forced to leave the road. In the case of all of the incidents, the drivers were forced to take evasive action, or at least to adjust their driving.

1. I find that each of these drivers reported the incidents to Mr Gray. While none of the drivers, nor Mr Gray, were able to date the incidents by the time they came to give oral evidence, I am satisfied (by reference to the transcript of Mr Gray’s conversation with Mr Wentworth on 17 March 2017[7]) that at least two of them occurred in the days immediately preceding Mr Wentworth’s 17 March 2017 conversation with Mr Gray. It is likely that they all occurred in early 2017.

Other issues in relation to Mr Wentworth’s performance

1. In addition to the particular incidents and complaints that were the focus of the customer and driver evidence summarised above, the evidence revealed that there were a number of issues with Mr Wentworth’s driving and performance more generally. While much of this evidence was of a very general nature, there were several common themes to the evidence.

1. One of the common themes was Mr Wentworth’s excessive or inappropriate use of his apparently ‘very bright’ lights, both on the road and at sites when loading or unloading. I have mentioned the evidence of Ms Jones, Mr Sawley and Mr Bevan on this topic. Later in these reasons I have mentioned the evidence to similar effect from Mr Gregory Arbon (Berth 29); he considered the problem with Mr Wentworth’s use of his high beam lights to be a matter of common knowledge. Mr Calabro (Berth 29) and Ms Lord (Crystal Brook) also said they were aware of issues about Mr Wentworth’s use of his high beam lights, and had received complaints about it.

1. Mr Wentworth acknowledged that he had very bright lights. Indeed, he tendered a photograph intended to demonstrate how powerful his lights were. He explained that he had acquired such bright lights as a result of having hit a kangaroo, and with a view to reducing the risk of this occurring again. However, he did not acknowledge any misuse or overuse of his lights, or that he had even caused inconvenience to others through the use of his lights.

1. The evidence on this topic was not sufficiently precise for me to make a finding about any particular occasion when Mr Wentworth misused his high beam lights. However, I do accept that there have been difficulties experienced, and complaints made, as a result of his use of his lights. Importantly for the purposes of these proceedings, I am also satisfied that these complaints had been reported to Mr Page and Mr Gray of Garden Grove, and Mr Mick Harrold and Mr Doug Harrold of Glen Carron.

1. Mr Greg Arbon said, and Mr Wentworth did not deny, that he had told Mr Wentworth that the other drivers did not like his lights. However, Mr Wentworth suggested to Mr Arbon that the reason other drivers did not like his lights was mere childish jealousy on their part. Mr

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Arbon rejected this explanation for the other drivers’ complaints about Mr Wentworth’s lights. Not only do I accept Mr Arbon’s evidence in this respect, but I consider Mr Wentworth’s suggestion that the complaints were motivated by jealousy to be an illustration of what I consider to be Mr Wentworth’s lack of insight into, and generally blinkered view of, the impact of his conduct on others. On its own, the evidence in relation to Mr Wentworth’s use of his lights was not a matter of much significance. However, considered in the context of the evidence as a whole, it is a useful illustration of the more general difficulties with Mr Wentworth’s evidence that I outlined earlier in these reasons.

1. The evidence also included reference to other unsafe practices on the part of Mr Wentworth. One example given by Ms Jones, Mr Sawley and Mr Bevan was his tendency to drive with his cabin curtains pulled forward. Several witnesses also mentioned that he allowed his dog to travel with him in the cabin of his truck. Mr Wentworth again did not deny the factual basis for these criticisms of him, but he did not accept that they were dangerous practices. Nor did he accept that carrying his dog was contrary to the rules governing any of the sites that he attended. I do not consider that I am in a position to find that Mr Wentworth’s conduct in these respects was in fact unsafe or contrary to the requirements of any particular site, but I do accept that others reasonably regarded that to be so.

1. There was some general evidence from several witnesses to the effect that Mr Wentworth appeared tired when working, and that he appeared to have trouble with his eyesight. The latter was said to be the explanation for Berth 29’s practice of using an extra spotter when Mr Wentworth was unloading. In addition to the specific customer complaints I have mentioned, there was also some similarly general evidence to the effect that Mr Wentworth was slow in loading and unloading his trailer; that he had difficulty manoeuvring (particularly reversing) his truck; that he did not always clean his trailer properly with the result that contaminant was on occasions found in his trailer; and that he was prone to spilling grain when unloading. I have made findings about some of the particular incidents involving such issues elsewhere in these reasons. But in addition to those particular incidents, I am satisfied that there were more general concerns about these aspects of Mr Wentworth’s competence as a driver, and that they were the subject of discussion with, and complaints to, Garden Grove and Glen Carron.

1. Mr Mick Harrold gave evidence that as a result of concerns he had about Mr Wentworth’s lack of understanding of the regulations about maximum driving hours, and the use of his log book or work diary, he suggested that Mr Wentworth speak to Damien Thornhill. Mr Thornhill was someone who had significant experience with, and a good understanding of, these matters. Mr Thornhill gave evidence that he had a conversation with Mr Wentworth about these matters. The focus of the discussion was the impact of the regulations upon Mr Wentworth’s ability to drive from Adelaide to Sydney in the time frame he intended. As a result of this conversation, Mr Thornhill formed the view that Mr Wentworth had a surprisingly limited understanding of the matters they discussed. He reported his views and concerns back to Mr Harrold. While I am again in no position to make a finding about Mr Wentworth’s actual level of understanding as to his obligations in respect of maximum driving hours and his work

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diary, I accept the evidence of Mr Thornhill and Mr Harrold as to the concerns they had in this respect.

1. Mr Mick Harrold’s evidence was that Mr Wentworth was the most difficult of the drivers he dealt with. Mr Harrold explained that his job involved loading 70 to 90 trucks a day, and Mr Wentworth was the hardest to communicate with. He was extremely hard work in terms of giving directions. He was also hard work because of his shortcomings as an operator. Mr Harrold explained that during the last 12 months of Mr Wentworth’s work for Glen Carron there were continuous issues with his performance. A number of them related to Mr Wentworth having difficulties manoeuvring his truck, and in particular reversing it. While Mr Harrold was thus aware of Mr Wentworth’s shortcomings, he said that they were generally able to be tolerated and managed by having controls in place to assist Mr Wentworth in his work. These included essentially restricting him to work such as the GrainFlow work on the boats; which Mr Harrold described as relatively easy work, and as requiring little more than following what the trucks in front of him were doing at each end of the run.

1. Mr Mick Harrold said that one of his main sources of complaints about Mr Wentworth was Mr Gray from Garden Grove. He was informed by Mr Gray of complaints by Garden Grove drivers that included that Mr Wentworth had run several Garden Grove drivers off the road. He could not say whether this was a reference to intentional conduct on the part of Mr Wentworth. He recalled on one occasion speaking to Mr Gray when he was driving and came across Mr Wentworth, with Mr Gray on that occasion accusing Mr Wentworth of driving erratically on a dual lane section of the Port Wakefield Road.

1. Mr Doug Harrold’s evidence was that he too was aware of the concerns and complaints about Mr Wentworth’s competence as a driver. He recalled, for example, being informed by Mr Mick Harrold of the complaints in relation to Mr Wentworth’s delivery of pellets to Avington Farm, his difficulties in reversing at Ridley Agriproducts and his collection of potatoes from the farmer in Robinvale.

1. Mr Doug Harrold also referred in this context to two examples that had led him to question Mr Wentworth’s ability as a driver; and indeed contributed to his view that Mr Wentworth was not very capable of operating his B-double. One involved an occasion when Mr Wentworth had to get another driver to reverse his truck for him. The other involved an occasion in November 2015 when Mr Wentworth made a delivery to Owens-Illinois, a glass factory on Port Road. Mr Harrold’s evidence was that he had arranged to attend that site so that he and Mr Wentworth could together try and work through some issues with the weighbridge equipment. There was a dispute in the evidence as to where the two of them met on the day that Mr Harrold attended the site, and in particular whether Mr Wentworth did not follow Mr Harrold’s instructions in this regard. I do not consider it necessary to resolve this dispute. Mr Harrold said that while following Mr Wentworth driving into the site, he saw the right side of Mr Wentworth’s trailer rub up against the guard rail that protected the safety hut. The guard rail flexed, bending away from the vehicle as it passed. It sprang back, although not to its original position. After weighing in, Mr Wentworth drove around to the bay to unload. However, he then explained to Mr Harrold that he was not able to reverse his B-double into the bay and the position where it needed to

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be in order to tip off. Mr Wentworth asked him to reverse it into position for him, which he did.

1. While the evidence was that Mr Mick Harrold and Mr Doug Harrold were both aware of, and indeed discussed with each other, the various complaints that were made by customers about Mr Wentworth’s performance, Mr Wentworth challenged this evidence. He relied in this respect upon the inability of Mr Mick Harrold and Mr Doug Harrold under cross-examination to place any particular incident or complaint within the particular windows of time suggested by Mr Wentworth. However, given these witnesses’ frank concessions that they were not able to be sure about dates and time frames, I do not consider that this undermined the reliability of their evidence. In my view, it was unsurprising and entirely reasonable that they were not able to be precise about the dates or detail of individual incidents or complaints, and hence that they were reluctant to place them within the time frames suggested by Mr Wentworth. As mentioned, the dates that I have ultimately been able to attach to some of these incidents have come from a consideration of the relevant invoices, rather than any unprompted memory of a witness.

1. In summary, I am satisfied that even by early 2017, and hence prior to the events of March and April 2017 discussed at some length below, Mr Mick Harrold and Mr Doug Harrold were both aware of a range of incidents and complaints relating to Mr Wentworth’s performance of his duties as a driver. I am also satisfied that this had led to Glen Carron having to ensure that work for some of their customers was not allocated to Mr Wentworth.

1. Mr Page and Mr Gray of Garden Grove were also aware of a number of concerns and complaints about Mr Wentworth’s competence as a driver, but I have addressed their evidence in this respect in more detail later in these reasons.

Events of March 2017

1. On or about 17 March 2017, Mr Wentworth was ‘banned’ from the work he was doing at the time, which involved loading a ship at Berth 29 with loads of grain out of Crystal Brook. The ‘March ban’, as I shall call it, was only a temporary ban, as Mr Wentworth was permitted to resume similar work about a week later.

1. While the circumstances surrounding the March ban are not entirely clear, it appears that it was the result of a joint decision, or at least a combination of decisions, by Ms Lord (on behalf of the GrainFlow site at Crystal Brook) and Mr Gray and Mr Page (on behalf of Garden Grove). The decision was relayed to, and acted upon, by Glen Carron.

1. The catalyst for the decision appears to have been an allegation that Mr Wentworth hit a gate at the Crystal Brook site, although it appears that the decision was also based upon an accumulation of concerns about the competence of Mr Wentworth more generally.

1. Given the issues that have arisen in relation to the circumstances of the March 2017 ban, it is appropriate to summarise and consider the evidence in relation to the events of March 2017 in some detail before setting out my findings.

The evidence from Crystal Brook

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1. Mr David Arbon was the manager of the GrainFlow site at Crystal Brook in March 2017. His second in charge at the time was Ms Kylie Lord. Mr Arbon managed the dayshift, and Ms Lord the nightshift. As a result, Mr Arbon was generally not present on site at night (which was when a lot of the loading of trucks occurred). Their practice was to have a general handover at the change of shifts, during which they discussed any issues or situations that might have occurred during the night. They also sometimes exchanged emails. During Ms Lord’s periods of supervision, she was entitled to make decisions that needed to be made without reverting to Mr Arbon.

1. Mr Arbon’s evidence was that during the regular handovers that occurred between shifts, Ms Lord did from time to time report problems she had experienced with Mr Wentworth. In particular, and while he was not able to be precise about the date, he recalled at some point being made aware of a gate being damaged on site. He was not able to recall what time of day the incident occurred, but he was informed by an employee that the gate, which was located up from the sampling hut and at the entrance to the site, had been damaged. He saw the damage himself, and indeed helped to repair it. The gate was bent to about 30 degrees, consistent with it having been hit by a truck or some other large object. That said, he regarded the damage that was done as relatively minor.

1. Mr Arbon accepted that he spoke with Mr Wentworth on 17 March 2017. It appears that this conversation occurred as a result of Mr Wentworth being told by Mr Page that he had been banned from Crystal Brook because he had hit a stobie pole (rather than gate) at that site. When confronted by Mr Wentworth, it seems that Mr Arbon told Mr Wentworth that he did not know anything about him hitting a stobie pole, or indeed about him being banned from site. Mr Arbon accepted in his evidence that at the time of this conversation on 17 March 2017, he expected that Mr Wentworth would be resuming work from Crystal Brook when the next boat commenced to be loaded (being early the following week).

1. Mr Arbon also accepted that he did not ban the plaintiffs, and that as such a ban imposed by him could not have been the basis for Garden Grove to ban him. While Mr Wentworth construed this evidence as confirmation that there was never any ban by Crystal Brook, Mr Arbon’s evidence was plainly addressed only to him not having personally imposed any such ban upon Mr Wentworth. Indeed, Mr Arbon gave evidence to the effect that he had heard after the event that his second in charge, Ms Lord, had banned Mr Wentworth during the nightshift.

1. Ms Lord’s evidence about the March 2017 ban was relatively vague and general. While she recalled the subsequent April ban (see below), she had difficulty recalling an earlier temporary ban. She could recall an incident involving damage to a gate. She was told by an employee that the damage had occurred in the morning while Mr Wentworth was parked outside the gate waiting for it to open. He had been asleep in his truck which was parked up against the gate so that it could not be opened. However, she was not on site when the gate was damaged and did not personally see the damage to the gate.

1. Ms Lord was not able to recall whether the incident with the gate had led to a ban. However, she certainly thought that

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they would not see Mr Wentworth on site again as a result of that incident. As for whether she reported it to Mr Gray of Garden Grove, she said “I dare say I would have, yes”. However, without access to her diary or work records, she could not recall whether there had been a March ban, or indeed whether there was a period when Mr Wentworth resumed work later in March.

Evidence of Mr Gray

1. Mr Gray’s evidence was that he was informed of an incident involving a gate by Ms Lord.[8] He did not know precisely when the incident occurred, but Ms Lord reported to him that Mr Wentworth’s truck had hit the gate at the entrance to the Crystal Brook facility, about 100 metres from the sampling hut. He was told that Mr Wentworth had slept in his truck outside the entrance and that in the morning he had woken up and driven into the gate. While Mr Gray was not able to recall any further information given to him about the incident, he accepted that his understanding was that it did not result in any substantial damage to the gate. He did not document the incident because it was not something that occurred at his site. He told Mr Page about the incident, but did not discuss it with Mr David Arbon.

1. As for a March 2017 decision to ban Mr Wentworth from work out of Crystal Brook, Mr Gray said this was a joint decision made by Mr Page and him, albeit based upon the information provided to him by Ms Lord. Mr Gray’s evidence was that Ms Lord said words to the effect that they did not want Mr Wentworth back, which Mr Gray took to be an instruction not to send him back to the Crystal Brook site. He agreed that in that sense the decision was perhaps one made “more by Crystal Brook”.

1. It appears likely from other evidence that Mr Gray communicated the decision to ban Mr Wentworth from the work out of Crystal Brook to Mr Mick Harrold of Glen Carron. However, the only evidence from Mr Gray in relation to any such communication was as follows:

A. Later on in 2017 in about mid-March did you have another telephone conversation with Mick Harrold about Mr Wentworth.

A. I used to talk to Mick every day, yes.

A. Can I suggest that you had a conversation in mid-March with him and told him words to the effect that it had been reported to you that Wentworth had tried to run some of your drivers off the road. Does that sound right.

A. It did, probably about right.

1. Mr Gray did not take any steps himself to inform Mr Wentworth of the decision. However, on 17 March 2017, Mr Wentworth telephoned Mr Gray. Mr Wentworth covertly recorded the conversation that followed. A copy of the recording is in evidence. During the conversation between them, Mr Wentworth told Mr Gray that he had been told by Glen Carron that he was not going to be doing any more Glen Carron

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work. Mr Gray told Mr Wentworth that this was so, although only in relation to the work on the boats. He explained that it was a result of Mr Wentworth having run some of Glen Carron’s trucks off the road that week, a report about him damaging a gate at Crystal Brook, and him taking too long to unload.

1. The conversation included the following:[9]

1. Wentworth How are you Andy?

2. Gray Alright, what’s going on.

3. Wentworth Well that’s what I’d like to know Andy. I just had a very very disturbing phone call from Glen Carron.

4. Gray Yeah, what’s that about?

5. Wentworth They reckon you rang them up and they claim that I wasn’t to be doing any more Garden Grove work. What’s all that about?

6. Gray It’s not Garden Grove work mate, it’s just on the boats. Look I’ve had a phone call from both sites this week, Crystal Brook last week and Mallala this week and what’s going on and on top of that, you’ve ran two of my trucks off the road this week.

7. Wentworth What do you mean run them off the road because that’s total nonsense Andy.

8. Gray Oh ...

9. Wentworth I’ve just finished three runs for you last night, Mallala, Berth 29, now the manager, the man in charge is a mate of mine down there, at the Berth and he welcomes me with open arms every single time I come in there and I saw him last night when I was there, Andy, and he never mentioned anything untoward to me at all that in any way could be construed as untoward. He was his normal self to me and everything was cool and he said to me as well, he said, that Clayton I’ll see you Tuesday night because we’ve got another load coming out, a fresh boat from the Brook. Now I mean I come from the Brook, the Brook’s my home Andy.

10. Gray Yep.

11. Wentworth I know the place intimately.

12. Gray Mm-hm.

13. Wentworth I’ve just spoken to the manager at the Brook because I tell you what, the last run that I did was about Tuesday or thereabouts last week from the Brook down to Semaphore Containers.

14. Gray Yep.

15. Wentworth And later on that day I happened to be speaking to Paul and he said we’ve got a call from the Brook to say that you’ve taken out a stobie

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pole up there.

16. Gray A gate, a gate, is what they told me.

17. Wentworth Now I’ve just rung them up and they said nothing to me at all, they said no way has anybody, has anything been taken out in a way of a stobie pole. And then he turned to one of his offsiders and he said “do you know anything about some truck or driver taking out any of our stuff” and there was some mention about a gate.

18. Gray Yep.

19. Wentworth And I said “which gate was that?” and he said “it’s the gate you come past, or come through before you get to the sample hut” and I said “well that’s on a straight piece of road that you go through when you come in from the bitumen road,” and I mean there’s no turning or twisting or anything there and it’s impossible to hit the gate unless you’re driving blind or something, you know, he said don’t worry about it Clayton, you know, he said “I dunno who could’ve made the allegation” because you know... I only went in there for one load I think it was the one going to Semaphore Containers. I drove straight to the weigh bridge and then drove straight out of the place. And he said “nah don’t worry about it, it wouldn’t have been you. I don’t know who would’ve done it and how it came about”. He said “don’t worry about it”. But when I get these sorts of feedback, it’s very worrying, Andy, because I’m not some young chair ass that just drives around all over the place and doesn’t take it seriously and when I had this comment that was made to me allegedly.

20. Gray Well you’re looking a bit too [inaudible] mate, I can only go with what I’ve been told and I’ve had three drivers ring me to say they been, had to take evasive action around ya.

21. Wentworth Nah, nah, nah, I don’t know where this could have been because, let me tell you, there weren’t that many trucks around last night Andy. There was only a couple of Garden Grove trucks that I ran into because I came in after the bulk of the trucks had already gone. I got there about 10 past 8, quarter past 8. The other trucks had left and then by the time I got down the Port they were all in front of me and they left. So this is nonsense Andy. It’s just that I can’t have $50,000 worth of dolly sitting there for my road train and then have stories like this floating around when we’ve got Tuesday night coming up, because the reason I rang Paul earlier, Andy, was to make sure we’re ready to go for Tuesday night because if there is a problem in any way, shape or form, obviously I would need to be working Tuesday days rather than Tuesday nights, Andy. So, you know, I didn’t do any work for Glen Carron this week because Paul said he needed a hand because he was short of trucks to do the run from Mallala, so to help you boys out, I told Mick, Mick kept sending me jobs, and I said “sorry Mick I can’t do it, I’m already working all night every night for you boys.”

22. Gray And I appreciate your help mate, but I get all these reports coming in Clayton, and ... talking... and I know this week on nights it probably hasn’t been so bad because there hasn’t been a line up for trucks, but on top of the three reports of, you know, getting pushed off the road ...

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23. Wentworth Sorry what was that?

24. Gray ... On top of that, they’re saying you take up to an hour to load your truck.

25. Wentworth Sorry? Take up to an hour to load the truck?

26. Gray Yeah.

27. Wentworth Oh for fuck’s sake Andy.

28. Gray Mate I was just going on all the reports I’m getting in mate.

29. Wentworth That’s a total nonsense mate, you know, I mean you load up ... because I’ll tell you what happened last night, I went in there for, it might have been, it was the first or the second load I think it was, and I called the guy on the radio because it was on Channel 30 and I said we’ll start off on the front of the A trailer, so, he starts putting it in and then I get out, I said to him let’s go to the back of the A trailer, so I get out because I always load up according to my gauge readings, so I get out, and I’m checking to see what’s going on, and at this stage as far as I knew, he was loading the rear of my A trailer cause I said to him I need two piles in each trailer, start at the front of the A. So, I get out and the next thing I see, and it was some new guy that they had on, Andy, and I noticed that nothing much was happening with my gauges, so I move back to one side and move .. start walking towards the back of the trailers and I notice that he’s loading me in the front of the B trailer, so I said to him, no mate, stop please, we need to, we should be .. you should be loading the rear of the A trailer at the moment, so I move the truck, he starts the what’s-its-name, the machine, up again and next thing he says to me “that’s full now”. I said, “it can’t be full we just started running it again”. So, you know what, I got up the front of my A trailer, Andy, and I looked into it and guess what? The front of my A trailer is completely empty. So what he did, he loaded up the rear of my A trailer, then he got me to drive forward and then started loading the front of the B trailer. So anyway, I said to him “just hang on mate what we’ll have to do, I’ll have to back up and we’ll have to load up the front of the B trailer.” And you know what I got a $1000 worth of handheld portable Motorola radio there, Andy, so I can talk to these jokers when I’m out the truck and my radio is crystal clear, mate.

30. Gray Yep.

31. Wentworth So, that’s the sort of thing that, you know, involves extra time, but mind you that’s only happened once, but I don’t take an hour to load up. I mean, to load up those two trailers, as you would probably know, would probably take 10 or 12 minutes at the most, I suppose.

32. Gray Yep.

33. Wentworth And then what you do of course is that you then go and weigh off and if you’re over you’ve got to come back and tip off again, which all the trucks do.

34. Gray Let me look into it and I’ll come back to you.

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35. Wentworth If you could Andy please, that would be good because it’s very disconcerting, mate.

36. Gray Well, it is from my end too, mate, I mean, I’ve never heard any stories of this nature.

37. Wentworth And I don’t have any problems with anyone else or anyone, and when I get a call from Glen Carron to say that you yourself rang them up and told them that this is allegedly what had happened last night and that I’d tried to run two of your trucks off the road.

38. Gray I didn’t say you tried to run them off I said you just did though. One last night, one the night before.

39. Wentworth What .. what [laughing], you’ve got to be joking Andy, truly mate.

40. Gray I will talk to everyone and I’ll come back to you.

41. Wentworth I hope so, Andy, and I hope it gets ironed out because I don’t know who’s stirring up trouble but, like I said, I just do my job, and you know, I’ve driven 5 or 6 million kilometres in my lifetime in trucks, Andy, and you know, I’m a professional driver so I don’t need sorta stuff like this at my age coming along particularly when someone says ...

42. Gray Alright, alright, I will check it out 100% and I will come back to you.

43. Wentworth I just want to know that we’ve ironed it all out and I’m back at my home town at the Brook on Tuesday night with my road train to come back to Berth 29.

44. Gray I will come back to you.

45. Wentworth Yeah, if you could, Andy.

1. Before turning to Mr Gray’s evidence about some of the matters arising out of this conversation, I note some of the significant edits or deletions made by Mr Wentworth from the version of the recording of this conversation that he sought to rely upon. Bearing in mind that he deleted the italicised passages, it can be seen that his deletions included:

o Mr Gray’s reference in paragraph 6 to his understanding that Mr Wentworth had only been taken off the work on the boats, as opposed to being banned more generally.

o Mr Gray’s reference in paragraph 16 to the incident at Crystal Brook involving a gate rather than a stobie pole. This is a significant deletion given that part of Nanosecond’s claim for injurious falsehood relies upon an allegation that Garden Grove falsely claimed that Mr Wentworth had hit a stobie pole. While Mr Page may at some stage have understood that the allegation related to a stobie pole, in the deleted passage Mr Gray corrected Mr Wentworth’s reference to a stobie pole by making it plain that he knew the allegation related to a gate,

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and hence unlikely that he would have told Glen Carron that it related to a stobie pole.

Mr Wentworth’s reference to the gate in paragraph 19, making it plain that he well knew that this allegation had been made.

o Mr Wentworth’s lengthy response in paragraphs 29, 31 and 33 to Mr Gray’s reference to an allegation that Mr Wentworth took up to an hour to load, making it plain that there had been a recent issue in relation to the time it took him to load and hence that he well knew what the allegation related to.

o Mr Gray’s reference in paragraph 38 to two of the incidents involving Mr Wentworth running other drivers off the road having occurred “one last night, one the night before.” This deletion is significant given Mr Wentworth’s attempts to impugn the evidence in relation to these incidents and complaints on the basis of the uncertainty about their timing.

1. Turning to Mr Gray’s evidence about this conversation, he said that the three drivers whom he understood had been run off the road, or forced to take evasive action, were Ms Cholena Jones, Mr Brendan Sawley and Mr Aaron Bevan. He said that each reported their complaints directly to him. Each spoke to him soon after the relevant incidents and told him what had occurred. However, he did not have any written record of the complaints, and could no longer recall the detail of what he was told about each. He could recall that he was told that the incidents occurred at night, and that at least two of them (Ms Jones and Mr Bevan) involved the driver being run off the road. He was also not able to independently recall the timing of these complaints. However, he accepted (based upon what he said in paragraph 38 of the conversation above) that at least two of them occurred only shortly prior to that conversation, although he could not say which two of the three drivers they related to.

1. In relation to the allegation that Mr Wentworth took up to one hour to load his truck, Mr Gray could not recall the name of the person who told him that. But he recalled it was a report that related to the Mallala site, and came from a staff member at that site. He thought the staff member’s name might have been Jack, although he was not 100 per cent sure about that. (He added that he had received similar comments from Ms Lord in relation to the Crystal Brook site and from more than one driver.)

1. Mr Gray explained that he was familiar with the loading process, and agreed with Mr Wentworth that it would ordinarily take about 10 to 12 minutes to load, but that if the weight was too much at the weighbridge, then it might take an extra 10 minutes or so to tip off and come back to the weighbridge. He agreed that this could happen to anyone, although he said that some people were slower than others. Mr Gray recalled being told that when Mr Wentworth loaded, and went round to tip off, he “takes an eternity waltzing back to his truck with a calculator to calculate how much to get off and just takes a very, very long time.” While Mr Wentworth audibly scoffed and mocked Mr Gray’s answers on this topic, and described the allegation as a “fabrication”, and coming from a “fictitious driver”, I have no reason to doubt Mr Gray’s evidence. Indeed, as I have noted, in passages edited from paragraphs 29, 31 and 33 of the transcript of their conversation, Mr Wentworth, while not accepting fault on his

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part, certainly seemed to understand what the most recent allegation of delay related to.

1. In addition to the reports from other drivers about erratic driving, Mr Gray said that he also had personal experience of Mr Wentworth’s poor driving. He described an occasion when he was driving on the Northern Expressway towards Port Adelaide. He came upon a vehicle that was meant to be in the left lane, but was half in the right lane. He then observed that vehicle move back over to the left verge of the road. He described the vehicle as being “just all over the place”. Despite it being a road train and so travelling at only 90 kph, he had to wait before he could overtake because it was effectively using both lanes. He recognised the truck as Mr Wentworth’s truck, albeit he did not see Mr Wentworth when he eventually went past because the side curtain was pulled forward, covering the whole side window. Indeed, the curtain was pulled forward to the extent that Mr Gray considered it would have prevented vision through the right hand rear vision mirror.

1. Mr Gray also gave evidence that about half a dozen of Garden Grove’s drivers had complained to him about Mr Wentworth’s use of his high beam lights. Mr Gray said that he had observed this himself, with Mr Wentworth’s truck at Crystal Brook coming down towards everyone with “all his high beams, spotlights and everything going”. It made it very difficult for anyone to see when his truck was in the vicinity.

Evidence of Mr Page

1. Turing to Mr Page, his evidence was that he was informed of the March 2017 ban by Mr Gray. He understood Mr Gray had in turn been informed of the ban by Ms Lord. He understood that she had referred to incidents involving Mr Wentworth at GrainFlow sites, and had made it plain that she did not want him back on site, at least not for the rest of the work on the boat they were then loading. Mr Page did not question Mr Gray about the decision. He did not take any steps to inquire into the circumstances or status of the ban from Crystal Brook, as he considered that he had all the information he needed from Mr Gray. He informed Mr Wentworth of the decision, albeit only when he was telephoned by Mr Wentworth. He said that Mr Wentworth had called him before he had had a chance to tell him.

1. Mr Page acknowledged that he had telephone conversations with Mr Wentworth on about 21 and 23 March 2017, which were again covertly recorded by Mr Wentworth. While Mr Page was not able to independently recall much, if any, of the content of those conversations, he accepted the accuracy of the recordings and transcripts of those conversations that were in evidence.

1. As to the conversation on 21 March 2017, it involved Mr Wentworth telephoning Mr Page to confirm whether he had work from Crystal Brook to Berth 29 that evening. In response, Mr Page informed Mr Wentworth that he was not on that boat; that Crystal Brook did not want him on that one; and that he thought Mr Wentworth had been banned from that site. When Mr Wentworth challenged the suggestion that he was banned from Crystal Brook, and said that he had been told by the manager from that site (Mr David Arbon) that he had no issue with Mr Wentworth, Mr Page said that he would chase that up and get back to him.

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1. The relevant passage of the conversation was as follows:[10]

1. Wentworth Just confirming about Berth 29 for tonight.

2. Page Uh no I don’t reckon you’re on that boat so I don’t reckon they want you on that one there.

3. Wentworth Sorry?

4. Page I don’t reckon they want you on that one there.

5. Wentworth Who’s that?

6. Page Crystal Brook.

7. Wentworth Crystal Brook?

8. Page Yeah. Yeah. I think you’ve been banned from the site on that one there.

9. Wentworth No that’s not true I’ve already spoken to the manger there, I come from the Brook, I was born at the Brook and I’ve spoken to the manager there and he has no issue at all whatsoever with me.

10. Page Who’s the manager at the Brook which one have you been talking to?

11. Wentworth His name’s David. Has no issue whatsoever.

12. Page [inaudible] I’ll chase that up for you and come back to you.

1. As mentioned, Mr Page had a further conversation with Mr Wentworth on 23 March 2017. Mr Wentworth sought clarification of whether he was still banned from work out of Crystal Brook. Mr Page said that they had the current boat covered and that that work was not available for him at the moment. While Mr Page offered Mr Wentworth some alternative work, Mr Wentworth made it plain that he did not want this less remunerative work.

1. The conversation included the following:[11]

1. Page G’day Clayton how are you?

2. Wentworth Paul how you going?

3. Page Alright mate what’s going on.

4. Wentworth Well you were going to call me back yesterday afternoon and confirm [inaudible].

5. Page Yeah nah still not happening at the moment but I have got a bit of Mallala, sorry a bit of Roseworth [inaudible] tomorrow morning if you’re keen on that?

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6. Wentworth No I’m looking at the Crystal Brook Berth 29.

7. Page Yeah, no. You been working during the day?

8. Wentworth Yeah I’m working during the day at the moment unless I’m going to be doing this road training at night time.

9. Page Yeah nah that’s right keep on working during the day at the moment buddy.

10. Wentworth So what’s happening with the Berth 29 run?

11. Page Yeah nah we’ve got enough on Crystal Brook at the moment so.

12. Wentworth You’ve got enough what sorry?

13. Page Yeah no we’ve got Crystal Brook covered at this stage.

14. Wentworth Well you were saying to me I was going to be doing that, I mean that’s worth $3,000 a day to me Paul.

15. Page I understand that, I understand that, but unfortunately we can’t put you in there at the moment.

16. Wentworth Well, Paul we’re going to have a problem, you know. Because I heard what you said yesterday and at other times that you reckon that I’m banned from the Brook.

17. Page Yeah.

18. Wentworth Well for a start that’s nonsense. We know it’s nonsense. And all I know is that I was doing Mallala to Berth 29 all last week, up and down up and down up and down.

19. Page Yep, and earning good money as well.

20. Wentworth ...and there was absolutely no issue whatsoever with any part of my operation and you do not have one single skerrick of evidence to get there and suggest that I shouldn’t be able to do any work at all.

21. Page No, no, I’m offering you work, I’m offering you work, B-dub work.

22. Wentworth No, you promised me that when the Brook came back on that I would be back on the road train.

23. Page Yeah, nah I didn’t promise you that. I said [inaudible] for sure. I’ve got work to cover. I’ve got work to cover at the moment, ahh, do you want a bit of work for Glen Carron at the moment?

24. Wentworth I’m doing Ardrossan at the moment. But the point is ...

25. Page [inaudible]

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26. Wentworth ... I’m supposed to be doing Crystal Brook to Berth 29.

27. Page I can’t help you on that one, for this particular vessel.

28. Wentworth Sorry?

29. Page I can’t help you on that one Clayton for this vessel we’ve sort of got it, yeah no I’m not going to put you on Crystal Brook.

30. Wentworth You’re not going to put me on what, sorry?

31. Page Crystal Brook. Crystal Brook is covered at the moment, Clayton. I can’t offer you it at the moment.

32. Wentworth What do you mean “it’s covered”, I mean, it’s not ... are you saying it’s on or it’s not on?

33. Page No, no Crystal Brook is not on at the moment.

34. Wentworth There’s no Crystal Brook going?

35. Page I don’t have Crystal Brook for you at the moment, no.

36. Wentworth So no trucks are leaving to go to Berth 29?

37. Page I have. I have got other stuff for you if you want it. If you are busy, that’s fine.

38. Wentworth Well, let me put it this way Paul, if I find out.

39. Page Sorry?

40. Wentworth If I find out that Berth 29 is running and you’re withholding that work from me for no good reason.

41. Page I’m not withholding any work from you Clayton, I’m offering you work. Should you accept it, that would be great, if you don’t, that’s fine.

42. Wentworth Is that your last word on the matter?

43. Page Yeah, yeah, yeah, I’ve got some work if you need it. If you want some work, I’ve got it, if you don’t, that’s fine.

44 Wentworth I’ve got plenty of work, you know, that I can do during the day for Glen Carron.

45. Page Yeah, that’s ok, as long as you’re turning the wheels over, that’s the main thing.

46. Wentworth Well no that’s not the main thing because the main thing is I’ve got $50,000 worth of triaxle dolly there that I’m supposed to be using when there’s road train work available. And then you ring me up and say no Clayton, you’ve been banned from the Brook we can’t send you there and

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then come along with some other nonsense about supposedly running your trucks off the road or something on the runs up there at Mallala which again is total nonsense.

47. Page Well, as I said, I get both sides of the story, ok.

48. Wentworth You’ve heard both sides of the story?

49. Page I get both sides of the story whenever there’s a query or a conflict of interest, I get both sides of the story [inaudible]. At the moment I’ve got work for you if you want it. If you don’t want work, that’s fine. The work I’m offering you at the moment is Roseworthy into Wasleys, at the moment.

50. Wentworth Roseworthy to Wasleys [laughing]. You can’t be serious Paul.

51. Page No, no, we do runs into Wasleys, we’ve got stuff into Wasleys [inaudible].

52. Wentworth You know, I’m just going to leave it for the moment, but I tell you what, Paul, if I find out that the Brook’s running then you’ll ...

53. Page Clayton, look, I’ll tell you now, the Brook is running but we’ve got that covered, we don’t need you on the Brook at the moment, ok.

54. Wentworth The Brook’s running?

55. Page We’ve got the Brook running.

56. Wentworth Well, what’s going to happen is, you’re going to get an invoice for $3,000 for each and every single day that that job is running and it better...

57. Page ...No, Clayton.

58. Wentworth ...and it better get paid. It better get paid.

59. Page Well it won’t be getting paid, and to use that tone, you were promised nothing, ok, we’ve given you work, we’re offering you work, ok, if you choose to accept that, that’s great and if you don’t, that’s fine.

60. Wentworth You’ve already told me that I’ve been banned, so ...

61. Page Yeah, last week, ok, there were issues there, ok, this week we have not spoken to you about Crystal Brook, we’ve offered you some work, if you want it, that’s fine, if you don’t, that’s fine.

62. Wentworth Yeah, alright, well like I said, Paul I wont be taking this lying down, so ...

63. Page Well, as I said I’m offering you work, if you don’t want the work, that’s fine. That’s it, don’t come on your high horse threatening, that’s not going to get anything...

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64. Wentworth ..Not a high horse, I’m not going to take lying down when I’m told that I’m banned, you know, and that I won’t be doing any more work and in particular, where I get a message from ...

65. Page You weren’t told you’re not getting any more work, I’m offering you work.

66. Wentworth Yes I was told, no Mick from Glen Carron had a call from Andy to say Clayton is banned and won’t be doing any more work for Berth 29. And I’ve got that from the horse’s mouth.

67. Page Mm-hum.

68. Wentworth So unless you, the boss of your company, is his name Ray?

69. Page No.

70. Wentworth What’s his name? Because we’re going to be having an issue with this.

71. Page Well we won’t be having an issue with this. We choose who we put on the boat and who we don’t. We choose who we put on certain jobs and we don’t, ok, I am offering you a job. You don’t want to do it, that’s fine. You are currently working for Glen Carron, which is great. The main thing is, we want to see everybody working, which is terrific, ahm, if we need Glen Carron’s to help us out on the boats [inaudible] we will, because you work for those guys.

72. Wentworth All my work’s been booked out through Glen Carron anyway.

73. Page Yep, yep, so if we need them on the boat, we’ll certainly offer them. Look, at the moment, we don’t have them on the boat either, ok, but at the moment Clayton I’ve got work for you if you want it, that’s fine, if you don’t that’s fine, but don’t come across threatening ok, we choose ... we pick who we want to pick to go on jobs to help us out. We’ve got a different variance in jobs.

74. Wentworth You have promised me for many many weeks.

75. Page Ohh, I haven’t promised you anything Clayton.

76. Wentworth ...When the runs from the Brook are back on, you will call me and that I will be doing them.

77. Page Yeah, and you’ve done some runs out of Crystal Brook, we can’t give you Crystal Brook every time...

78. Wentworth You know how important these road trains are to me ... it’s $3,000 at day. And I have fixed commitments of over $1,500 a day on my equipment.

79. Page Yeah, Clayton, I’m not, ah, that’s not my business, your financial affairs.

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80. Wentworth Well, like I’m telling you. I’m not going to bloomin’ well have someone turning around and saying you’re banned from doing that work.

81. Page ... it’s not my business.

82. Wentworth That takes $3000 worth of income out of my pocket per day, and then you offer me in return a job worth around about $300 or $400 from Roseworthy, to ah, Wosleys.

83. Page I’m offering you [inaudible].

84. Wentworth No, we’ll leave it at that, we’ll leave it at that, because um, you know I think I’ll be out there in a car to, ah, have a sit down with your boss, so you better be ready. You better have any and all evidence that you have for being able to tell Glen Carron that I am banned from doing anymore work into Berth 29.

85. Page Nah, nah, Clayton, we can choose who we want to put on the boat, who we employ for certain jobs. You’ve been offered work.

86. Wentworth Ok, right, well ...

85. Page You’ve been offered work. You can choose to take it...

1. The conversation continued in a similar vein for a few more minutes. 1. Some of the more significant deletions from the version of this

recording relied upon by Mr Wentworth were:o Mr Page’s repeated denials (in paragraphs 23, 59 and 75) that

he had promised Mr Wentworth any work out of Crystal Brook, or indeed at all.

o Mr Page’s acknowledgment (in paragraphs 53 and 55) that the work out of Crystal Brook was “running.”

o Some of Mr Page’s attempts to offer Mr Wentworth alternative work.

1. Mr Wentworth cross-examined Mr Page at length in relation to several aspects of this conversation. Some aspects of that cross-examination were illustrative of the approach taken by Mr Wentworth to the presentation of the plaintiffs’ case more generally.

1. For example, Mr Wentworth cross-examined Mr Page by putting to him a version of his statement in paragraph 14 of the transcript above to the effect that Mr Wentworth told Mr Page that he had “promised” him that he was going to be doing the Crystal Brook work. However, when it was pointed out to Mr Wentworth that the transcript did not include any reference to the word “promised” in that passage, Mr Wentworth challenged the accuracy of the transcript, and insisted that the tape recording be played to the witness. It was played, and when counsel for the defendants and I each confirmed that we had not heard the word “promised” used, Mr Wentworth insisted that it was used. The tape was played again. There was no doubt that Mr Wentworth was wrong and that the word “promised” was not used. However, Mr Wentworth refused to accept this. It remains unclear to me why Mr Wentworth refused to accept that he was wrong about whether the recording included the word “promised” in this exchange. The defendants gave this as an illustration of what they

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contended was Mr Wentworth’s delusional behaviour. I consider it more likely that this was merely an illustration of Mr Wentworth’s stubborn refusal to accept any mistakes on his part.

1. Mr Wentworth also cross-examined Mr Page as to the truthfulness of his statement in paragraph 31 that “Crystal Brook is not on at the moment”. He put it to Mr Page that in fact the work from Crystal Brook had resumed the previous day, and that Mr Page had therefore lied to Mr Wentworth in this conversation. The difficulty with this passage of the cross-examination was that Mr Wentworth refused (as he did on multiple occasions, despite my requests and then directions) to use the unedited version of the recording and transcript that were in evidence. Rather, in defiance of my requests and directions that he not do so, he insisted upon, and persisted in, framing his questions quite unfairly by reference to the edited versions of the transcript from which he was working. From the unedited version of the conversation it is plain that Mr Page acknowledged that the work was happening; it was just that this work was being covered by others and not being given to Mr Wentworth. In particular, Mr Page had made express references to Crystal Brook “running” in deleted paragraphs 53 and 55. In other words, while the edited version of the recording suggested that Mr Page spoke untruthfully, the unedited version suggested otherwise. Despite this being brought to Mr Wentworth’s attention during my interventions in his cross-examination, he persisted in his questioning of the witness on a false premise, rejecting the witness’ answers based upon the unedited transcript, and indeed rebuking him for “playing games.”

Findings

1. As is apparent from my summary, there are some gaps (and minor inconsistencies) in the evidence as to precisely what transpired in relation to the incident involving the gate at the Crystal Brook site, and the subsequent banning of Mr Wentworth. However, given my acceptance of the truthfulness and general reliability of the evidence of Mr David Arbon, Ms Lord, Mr Gray and Mr Page, I am satisfied that it is appropriate to make the following findings.

1. I find that there was an incident involving damage to a gate at Crystal Brook some time in the days leading up to 17 March 2017. While it remains unclear how the damage occurred, and indeed whether Mr Wentworth was in fact responsible for it, it was reported to Ms Lord that Mr Wentworth was responsible for it.

1. As a result of this incident, Ms Lord spoke to Mr Gray and requested that Garden Grove not send Mr Wentworth back to the Crystal Brook site. While her reasons for so requesting included the incident involving the gate, they may well have been broader than this. Mr Gray discussed the issue with Mr Page, and between them they reached a decision that they would not send Mr Wentworth back to Crystal Brook, and indeed would not continue to use him for the Garden Grove work in loading the boats at Berth 29.

1. Mr Gray communicated this decision to Glen Carron, most likely through Mr Mick Harrold. Mr Wentworth learned of the decision to ban him from Garden Grove work as a result of an incident at Crystal Brook from Mr Mick Harrold. He rang Mr David Arbon at Crystal Brook who was at the time unaware of Ms Lord’s decision to request that Mr Wentworth not be sent back to Crystal Brook. In those circumstances,

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despite having been aware of some issues about Mr Wentworth, he likely gave Mr Wentworth some assurances to the effect that he did not have any issues with him.

1. Mr Wentworth then spoke to Mr Page. It seems Mr Page may have confused the picture at that stage by referring to an incident at Crystal Brook involving a stobie pole, rather than a gate.

1. Mr Wentworth then spoke with Mr Gray on 17 March 2017. The recording of this conversation is in evidence, and has been set out above. Mr Gray told Mr Wentworth that the incident related to a gate at Crystal Brook rather than a stobie pole. But he also told Mr Wentworth that the decision to not give him work was also based upon other concerns he had about Mr Wentworth, and in particular that he had received complaints about him taking a long time to load at Mallala, and from three drivers about him having run them off the road (or at least nearly having done so).

1. I am satisfied that in making the decision in March 2017 to ban Mr Wentworth, Mr Gray (in consultation with Mr Page) relied in part on the incident involving the gate at Crystal Brook and the request (which they considered to be an instruction) from Ms Lord that Mr Wentworth not be sent back to that site. While this would have been sufficient to prevent Mr Wentworth being given any further work out of that site, it was also supported by Mr Gray’s other concerns about Mr Wentworth’s driving.

1. I have already made findings that three drivers had encounters with Mr Wentworth generally in the terms they described in their evidence. Given Mr Gray’s reference to their timing in his 17 March 2017 conversation with Mr Wentworth, I accept that at least two of these three encounters occurred in the days shortly prior to 17 March 2017.

1. I am satisfied that these incidents were reported to Mr Gray by the drivers involved, and that he believed their accounts to be true. I am also satisfied that Mr Gray had other genuine concerns about the competence of Mr Wentworth as a driver, based not only upon his own encounter with Mr Wentworth while driving, but also the other issues that had been reported to him in relation to Mr Wentworth’s performance and shortcomings as a driver.

1. I am also satisfied that having been informed by Mr Gray that Mr Wentworth was no longer to be used for the work involved in loading boats at Berth 29 with grain from Crystal Brook – which was the only Garden Grove work Glen Carron was doing at the time – Glen Carron decided to accept, or give effect to, this request or instruction by not offering Mr Wentworth any of the work on boats that was available at the time.

1. Within about a week, Mr Wentworth resumed his work on the boats. The circumstances in which this occurred were not addressed in the evidence. It is not clear to me whether the resumption of work by Mr Wentworth was the result of some investigation or some decision to reverse the earlier ban; or whether it was only ever intended that Mr Wentworth be banned temporarily (that is, from the particular boat that was being loaded at the time).

Events of April 2017

1. Having resumed working on the boats from late March 2017, Mr Wentworth continued to do similar work throughout April 2017. In particular, he continued to undertake work delivering loads of grain

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from Grainflow sites such as Crystal Brook to Berth 29 at Port Adelaide. On his evidence, he did so without incident until he was informed that he had been banned again – this time permanently – in late April 2017. However, there is other evidence that suggests there were further issues with Mr Wentworth’s performance during this month that ultimately led to the permanent ban towards the end of the month. I shall refer to this as the April ban.

1. Again, it is appropriate to consider the evidence in relation to these events in some detail before setting out my findings.

Evidence in relation to Berth 29

1. The manager of the Berth 29 site operated by Linx at Port Adelaide was Mr Vincenzo Calabro. He had several supervisors working under him at that site, including Mr Gregory Arbon.

1. On 5 April 2017, Mr Calabro sent an email to a number of people, including not only several people from GrainFlow/Cargill (the customer), but also Mr Gray of Garden Grove. It included a “stevedore progress report” as at 7:00 am that morning for the vessel ‘Elm K’, which was in the process of being loaded at Berth 29. The report included a reference that “Garden Grove Driver (Clayton) tipped too fast causing a spill 00:00-00:05.00”. The report also included the following comment:

A Garden Grove operator tipped too fast causing a spill – there weren’t any truck delays however this operator has a tendency to have minor s[p]ills / incidents.

1. Mr Wentworth denied that there was any such incident or incidents involving him. However, in my view this email is a quite telling piece of evidence. It contains contemporaneous references to Mr Wentworth having caused spills at Berth 29. It predates the decision to impose the April ban by about three weeks. It was prepared by Mr Calabro, rather than anyone from Garden Grove or Glen Carron. The email has the appearance of an entirely routine progress report, prepared and sent in the ordinary course of business. While it was clearly critical of Mr Wentworth, the references to him were amongst references to other unrelated issues and incidents that had arisen on site.

1. There is a further email dated 27 April 2017 from Mr Calabro to many of the same addressees, although not including Mr Gray on this occasion. It contained a “stevedore progress report” as at 7.00am that morning[12] for the vessel ‘MV Olivia’, which was in the process of being loaded at Berth 29. The report took a similar form to the earlier one. Among the various incidents and issues referred to was a delay overnight on 25 April 2017. The report attributed that delay in part to rain, but also included the following reference to an incident involving the drive over hopper (DOH):

o 47 minutes truck driver Clayton slid off DOH (safety incident)o 7 minutes with a truck stuck on DOH with tyres spinning.

1. And later, in the comments section of the report:o This is the third incident with Clayton on the DOH.

...

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Andy Gray confirmed that driver Clayton has been taken off the grain loading operations indefinitely (banned)

Good response by Garden Grove and Grainflow

1. The evidence also includes an incident report from the Berth 29 site dated 26 April 2017, which bears the names of both Mr Calabro and Mr Gregory Arbon. The latter is described as a witness of the incident. It refers to an incident which was reported at 1.00am on 26 April 2017, and which appears to have been the same incident as the one in the email mentioned above. The incident is described as “Damaged DOH”. The report contains the following description of the incident and action taken:

Clayton was delivering grain to berth 29, was stationary on the DOH waiting to see hand signal from behind. As he was waiting he didn’t realise that his truck was moving slightly forward, in addition, his steer tyres weren’t straight meaning he crept forward and to the side nearly driving off the side of the DOH. Movement was far enough that he made contact with the edge of the ramp causing damage. Our team had to tow the truck and trailers back into line and down the ramp enough for Clayton to finish loading and leave.

He was towed off the DOH, an incident report was done whilst he was present, he was temporarily banned from site.

1. The report describes the actual and potential severity of the incident as “minor”.

1. Both Mr Calabro and Mr Gregory Arbon gave evidence in relation to the circumstances leading to the April ban from the perspective of the Berth 29 site.

1. Turning first to the evidence of Mr Calabro, he explained that the reference in his 5 April 2017 email to Mr Wentworth tipping too fast and causing a spill was not based on something he witnessed himself. Rather, the report was likely the result of an email or report he received from a team leader or supervisor at the change of shifts. Similarly, the reference to Mr Wentworth having a tendency to have minor spills and incidents, including by reason of tipping too fast, was based upon things he was told by supervisors and appearing in the incident log for the site. From Mr Calabro’s perspective there had been a pattern of poor performance by Mr Wentworth.

1. In relation to his reference in his 27 April 2017 email to the hopper incident being the third incident involving Mr Wentworth on the hopper, Mr Calabro found it difficult to be precise without access to the information that he said would have been in the safety system or incident management system at the time he wrote the email. His memory was that the system did refer to three incidents. The first one they had let go without taking any action. The second and third ones they escalated to Garden Grove. His recollection was that two of the three incidents involved tipping too fast.

1. Mr Calabro also said that he had received feedback from a team leader and employees that when Mr Wentworth came to site he “just

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didn’t seem, I suppose, attuned from a safety sense with what was required on site and there was just a general consensus that this task was not something [Mr Wentworth was] able to do in a safe manner.” So they decided that the best way to manage the risk would be to remove him, and hence the risk, from the site. In answer to a question from Mr Wentworth, Mr Calabro further explained:

To the best of my knowledge there was several incidents and I can’t exactly put my number on them in regards to overflowing on the drive over hopper and some of those will be recorded in Linx’s safety management system and on his emails. There was a general tone about – sorry, tone, there was a specific feedback from my supervisors about your presence onsite and being able to perform in a safe manner. There was genuine concerns about your fatigue. There was even examples given that when they would open up your truck, your dog would run out and ran around the site and an uncomfortable smell coming from the truck itself which made them think that you perhaps weren’t prepared for the job at task as much as you should have been ... this was feedback given to myself either informally through conversations over the phone or face to face and some of the incidents that I explained are in these emails and will be in our incident – sorry, in Linx’s incident management system.

1. Mr Calabro had a general recollection of there being issues about the use of high beam lights at the Berth 29 site, but could not now be sure whether they related to Mr Wentworth. But certainly he considered that the use of high beams on site was a safety concern. Mr Calabro also had a general recollection that Mr Wentworth needed an extra spotter to relay hand signals, but could not give a 100 per cent guarantee about that. He recalled being told by various people on site that Mr Wentworth was struggling with his eyesight.

1. Mr Calabro was not able to recall whether any of the reports of incidents upon which he relied came from Mr Gregory Arbon. But he denied that any of the matters he relied upon were based upon information from Mr Gray of Garden Grove.

1. Mr Gregory Arbon was asked about a conversation he had with Mr Wentworth back on 23 March 2017 (that is, about a month before the hopper incident and April ban), when Mr Wentworth came to see him one night at Berth 29. He said that Mr Wentworth was almost in tears and pleading with him. He was trying to find out why he had been banned. Mr Arbon told him that he did not know, and that it was out of his hands. While Mr Wentworth was present, he rang his cousin (Justin) at Garden Grove to try and get some information. Mr Arbon acknowledged that during this conversation he said something to Mr Wentworth to the effect that “you haven’t done nothing wrong here, mate”. However, Mr Arbon’s evidence was that in reality there had been issues in relation to his performance, and that it was probably a case of him just saying something to get rid of Mr Wentworth. He did

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not think he needed to discuss the issues with Mr Wentworth. He had heard about issues with Mr Wentworth, but he was not aware of the detail of things that had happened outside of his work area.

1. But Mr Arbon’s evidence was that by late April 2017 he had heard that Mr Wentworth was banned from everywhere and by everyone. He was hearing things “from Cargill and everyone.” He understood that Mr Wentworth’s driving off the hopper at Berth 29 “was probably the final straw for us”.

1. Mr Arbon gave evidence about the hopper incident. He thought that the 26 April 2017 incident report that was in evidence was probably filled out by Mr Calabro, but based upon what Mr Arbon had written in another report because he was on site the night that Mr Wentworth drove off the side or edge of the hopper, and he had filled out an incident report that evening while Mr Wentworth was with him. Mr Wentworth was upset and almost in tears. Mr Arbon recalled that Mr Wentworth was driving down the ramp and drove off the right hand side and broke the side of the hopper. The damage to the hopper was minor, but it was a case of what could have been; it could have been a lot worse.

1. Mr Arbon said that he was also aware of other issues involving Mr Wentworth that had occurred at Berth 29. He had had discussions with Mr Calabro and others about his concerns in relation to Mr Wentworth from a safety perspective, and in particular that he appeared to be tired and to have difficulty seeing. As to Mr Wentworth appearing tired, Mr Arbon said that Mr Wentworth seemed tired when he arrived at Berth 29, and that he was concerned that he might have been driving excessive hours. He thought he had informed Mr Gray of his concerns in this regard, and indeed that he had raised them with Mr Wentworth. As to Mr Wentworth having difficulty seeing, Mr Arbon he explained that he used to arrange an extra spotter to stand on the side and direct Mr Wentworth while he unloaded. While there was a lot of dust on site, they did not need this extra spotter for other drivers. It was something they organised when Mr Wentworth was on site, albeit without his request or apparent knowledge. It was arranged out of concern for the safety of the other people on site.

1. I interpose that Mr Wentworth appears to have been oblivious to the use of an extra spotter when he was unloading at Berth 29. I see no reason to doubt the evidence of Mr Arbon (and others) that Berth 29 did use an extra spotter to assist Mr Wentworth, and accept that this is what occurred. It provides an example of Mr Wentworth’s lack of insight into his shortcomings and their impact.

1. Returning to Mr Arbon’s evidence, he said that there were flags that marked the approach to the hopper, and that he recalled seeing Mr Wentworth hit these flags. He could not recall how many times, but he definitely saw it occur. While he sometimes saw this himself, he said that most of the time it was just reported to him by radio when it happened, adding that “my eyes mightn’t have seen it but my ears know it happened”.

1. Mr Arbon recalled that there were times Mr Wentworth had to be told to turn his high beam lights off on site, including by Mr Arbon. His lights were very bright, and blinded other drivers and other people working on site. He discussed this issue with Mr Calabro, and probably with Mr Gray. He believed the problem with Mr Wentworth’s use of his lights was common knowledge. Mr Arbon said that he had told Mr

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Wentworth that the other drivers did not like his lights. He denied the suggestion by Mr Wentworth that the reason the other drivers did not like his lights was their childish jealously of his extremely bright lights. I have already mentioned the significance of this asserted reason for complaints about Mr Wentworth’s use of his lights earlier in these reasons.

1. Mr Arbon said that he had also heard complaints from other drivers about “getting ran off the road, blinding them coming the other way, blinding them driving behind him.”

1. Mr Arbon’s evidence was that he understood that Mr Wentworth was ultimately banned from Berth 29 by Mr Calabro. He told Mr Wentworth about this, and said that he would discuss it with Mr Calabro. But in the end he did not have to worry about doing so because Mr Wentworth was banned from everywhere, including from Crystal Brook (by Mr David Arbon and Ms Lord).

Evidence in relation to Crystal Brook

1. The evidence at trial included an incident report from the ‘alert system’ operated at the GrainFlow site at Crystal Brook. It related to an incident involving Mr Wentworth driving through a drain on 25 April 2017.

1. The report was in the nature of an ‘alert’ which appears to have been circulated throughout GrainFlow. It was created by Ms Lord from GrainFlow at Crystal Brook. It related to an incident that had occurred during “night out loading” on 25 April 2017, with Garden Grove and Cargill identified as the subcontractor and customer involved. The incident was summarised in the following terms:

Truck SB71MC drove through drain and no access light vehicle roadway 6/7

1. There was no dispute that this was a reference to Mr Wentworth’s truck; nor indeed that he drove into a drain (being a drain between bunkers 6 and 7). However, the nature and significance of the incident was a matter of contest.

1. Ms Lord’s evidence was that Mr Wentworth drove through a drain, putting people’s safety at risk. She said that he was directed to the relevant bunker on the night in question, but that he drove down a drain between two of the bunkers that was not intended to be a roadway. Also of concern to Ms Lord was the fact that Mr Wentworth continued to deny that he had done the wrong thing, or at least failed to realise that he had. She said that the bunkers were clearly numbered. While she accepted that there were no reflective signs on the ground showing where to drive, she said that this was how the site had always been. She reported the incident in relation to the drain to Mr Gray. She also entered it on the alert system.

1. Ms Lord said that she made the decision to request that Mr Wentworth not be sent back to the Crystal Brook site. She did so on the basis of Mr Wentworth’s unsafe behaviour, and after discussion with Mr Gray (although she denied that he was the prime motivator for the decision).

1. In relation to the 26 and 27 April email chain (extracted below), Ms Lord was questioned by Mr Wentworth about her references to a

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lifetime ban from all GrainFlow sites, and to the effect that it was fortunate that he had not killed anyone.

1. As to the former, Ms Lord said that while she was aware of an incident in relation to the hopper at Berth 29, she agreed that she was not aware of any other ban beyond the one she had requested. She was not sure what the basis was for her reference to a ban from other GrainFlow sites, as she was not aware of any ban beyond the one she had requested and the issue at Berth 29. She agreed it was a damning statement to have made, and ultimately accepted that she could not give a basis for it.

1. Ms Lord said that her reference to Mr Wentworth potentially killing someone was a reference to information she had from other drivers; that is, from other Garden Grove subcontractor or employee drivers, as well as other drivers. She had in mind not only the incidents when Mr Wentworth drove into a gate at Crystal Brook, and through the drain at Berth 29, but also these other complaints about his driving that she had heard.

1. Ms Lord was not able to be precise about the identity of the persons from whom these complaints came, or their timing. But she estimated that there were more than 10 complaints spread over the preceding year of work. She recalled that a couple of the complaints were to the effect that drivers had nearly been run off the road by Mr Wentworth. She had not kept any written record of the complaints because Mr Wentworth was not her employee or otherwise under her direct responsibility.

1. Ms Lord had also received reports about Mr Wentworth’s use of his high beam lights, both on the road and in the yard. She regarded the misuse of high beam lights as very dangerous because it might blind other drivers. But she did not personally observe Mr Wentworth using his high beam lights inappropriately, and she was not now able to recall the identity of any of the drivers who complained about this.

1. Ms Lord’s understanding was that Mr Wentworth was slow at loading his truck. She said that most drivers took a maximum of about 10 minutes to load their trucks. However, other drivers had continually mentioned to her that they had difficulties with Mr Wentworth because he took a long time to read his gauges and reposition his truck. His slow loading was delaying things on site. Again, this was something she reported to Mr Gray during their regular conversations.

1. As well as reporting the drain incident to Mr Gray, Ms Lord said that she had mentioned the other complaints about Mr Wentworth to Mr Gray. They generally spoke two or three times a day, including at the start or end of a shift. They had had conversations about Mr Wentworth’s behaviour and performance, and she expressed the view to Mr Gray that she would rather not have him back on site. While Ms Lord was not able to be precise about dates, she said that she had had such conversations even prior to the incident with the drain on 25 April 2017.

1. Mr David Arbon only gave very limited evidence in relation to the April ban. By reference to Ms Lord’s email of 26 April 2017 (of which he received a copy), he accepted that he was not aware of any lifetime ban of Mr Wentworth from all GrainFlow sites. He accepted that he was not aware of any incident up to 24 April 2017 that might have justified a ban, at least “not from a site perspective”. However, Mr Arbon was not asked whether he knew anything about the

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circumstances that led to the April ban, including the incident involving the drain. And I have previously mentioned (in the context of my consideration of the March ban) his general evidence was to the effect that Ms Lord had from time to time reported problems with Mr Wentworth to him, and that so far as he was concerned, she was entitled to make decisions about what occurred during her shifts.

Emails from late April 2017

1. The evidence includes a chain of emails between various personnel from Garden Grove, Linx and Cargill/GrainFlow subsequent to the hopper and drain incidents at Berth 29 and Crystal Brook respectively. While there may well have been some additional emails in the chain (including an email from Mr Calabro referred to by one of the witnesses), those in evidence included the following:

o Email from Mr Gray to Mr Calabro (copied to Mr Page, Mr Warren and Ms Broome of Garden Grove, and Ms Lord of Cargill) dated 26 April 2017 at 1.14pm:

With regard to the incident last night on the drive over hopper the driver being a subbie Clayton Wentworth will no longer be working for Garden Grove as he has proven to not be up to the standard that Garden Grove requires of there (sic) subbies.

Email from Ms Lord to Mr Gray (and apparently copied to at least Mr Calabro[13]) dated 26 April 2017 at 8.51pm:

Thanks Andy. As you are aware he also has a lifetime ban from all GrainFlow sites, I am just happy he didn’t kill someone in the process as that was where he was heading.

Email in response from Mr Calabro to Mr Gray and Ms Lord (and copied to Mr Page, and Ms Lord, Mr David Arbon and various other Cargill representatives) dated 27 April 2017 at 5.08am:

Very swift response Andy and Kylie – thankyou.

Email from Ms Lord to Ms Fotia, Mr Bayles and Mr Curtain (all from Cargill management) dated 26 April 2017 at 9.18pm, forwarding Mr Gray’s email earlier in the day (1.18pm) which had made reference to Mr Wentworth’s ban, and adding the following comment:

FYI – glad he didn’t kill someone before he got banned as that was where he was heading ☺

Email in response from Mr Bayles dated 27 April 2017 at 6.55am to Ms Lord (and the other recipients to her email of 9.18pm the previous night):

Any concerns like that Kylie please inform Tom or myself and we will ensure Garden Grove take him

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off the road. Thanks for the email.

1. I have mentioned earlier Ms Lord’s evidence in relation to her email, and her acceptance that she could not give any basis for suggesting that Mr Wentworth had a lifetime ban from all GrainFlow sites. However, the first of these emails is evidence of a decision by Garden Grove to cease using Mr Wentworth, at least on the GrainFlow work on the boats at Berth 29, and that the reasons given for this decision included not only the incident involving the hopper but also a more general concern that Mr Wentworth was not “up to the standard that Garden Grove requires.”

Evidence of Mr Page

1. Mr Page agreed that prior to Mr Wentworth, not many subcontractors had been banned from doing work for Garden Grove. He said he might have banned one or two, and that Mr Gray might also have banned one or two. However, he considered that the view that a client of Garden Grove, such as Cargill/GrainFlow, took of a particular driver was “very much” a matter of concern to him in the allocation of work to drivers.

1. In the case of Mr Wentworth, Mr Page did not personally receive any complaints about Mr Wentworth’s driving. But he was aware from discussions with Mr Gray that he had received verbal complaints or reports.

1. In relation to the April banning of Mr Wentworth from delivering grain to Berth 29, Mr Page recalled there was a conversation and decision about it, but could not recall the timing or content of that conversation. His recollection was that he made the final call, but only after receiving information from Mr Gray. He based his decision on there having been a number of incidents, including the earlier issue with Crystal Brook. He also recalled that Linx at Berth 29 “weren’t overly happy” with Mr Wentworth. As a result of these concerns, he and Mr Gray made a decision to take Mr Wentworth off “the boats”, and to try and get him to do some alternative work.

1. Mr Page said that he thought that there were also some other comments or incidents that he relied upon, but he could not now recall what they were. He suggested that Mr Gray would know more about these matters. In any event, they were not satisfied with Mr Wentworth’s performance, and so made the call not to use him on the boats. He did not ever determine whether Mr Wentworth had also been banned by Crystal Brook; they made the call themselves.

1. Mr Page recalled a conversation with Mr Gray about an incident involving Mr Wentworth and the hopper at Berth 29. He said that would have been before the decision to ban Mr Wentworth, but that he could not recall the date.

1. Mr Page was cross-examined by reference to a letter subsequently written by Mr Calabro in June 2017, which referred to a ban on 24 April 2017. While it was suggested to Mr Page that the ban must have occurred prior to the hopper incident (which happened on 26 April 2017), and hence that he was lying about what he relied upon for the ban, I consider that there was nothing in this attack upon Mr Page’s credit. It was plain that he was not able to be precise about dates, and the cross-examination of him based upon someone else’s

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reference to a date of 24 April 2017 for the decision to ban Mr Wentworth was misconceived.

1. On 27 April 2017, Mr Page spoke with Mr Wentworth. Mr Page informed him that he had been banned from doing work on the boats. The conversation relevantly included:[14]

1. Wentworth Have you got that business straightened out?

2. Page Nah, well, you’re banned at this stage, Clayton, so ...

3. Wentworth Banned by whom?

4. Page Ahhhhh ... Cargill, don’t want you back on the job.

5. Wentworth Cargill?

6. Page Yep, yeah, so they’re the ones who [inaudible] us.

7. Wentworth What, you mean on Berth 29?

8. Page Yeah, yeah, you’re banned at this stage, buddy.

9. Wentworth From Berth 29?

10. Page Yeah, yeah, banned on Berth 29.

11. Wentworth So there’s no problem with Crystal Brook is there?

12. Page No, no, well, Crystal Brook are Cargill as well, so.

13. Wentworth What do you mean?

14. Page Well, Cargill own Crystal Brook, ok, so, at this stage ...

15. Wentworth But, GrainFlow.

16. Page Yeah... so at this stage you’re banned, alright mate.

17. Wentworth What from Crystal Brook?

18. Page Well, you’re banned from doing the work for us on the boats, mate.

19. Wentworth Right, and what about any other work, Paul?

20. Page Oh, I can have a look at some other work for you, trying to find a job, absolutely.

...

21. Page Yes I understand what you’re saying but at this stage you’re banned ok?

22. Wentworth Who am I going to speak to about that?

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23. Page Well, me.

24. Wentworth Hey?

25. Page Me. You’re banned at this stage.

26. Wentworth Well the supervisor from Berth 29 said to me, “Clayton, we are not banning you.”

27. Page You’re banned mate, you’re banned.

28. Wentworth He said we’re not banning you at all, and I said well it depends entirely upon what you say to them.

29. Page Nah, mate we’re banning you, at this stage you are banned. We are banning you. With what’s happened with the few incidences, we’re banning you. So it’s coming from here. This voice right now who’s talking to you.

30. Wentworth You mean no one else has got anything to do with it?

31. Page No, this is feedback from Cargills, from the wharf, from the sites, and from it’s all built up, so at this stage ...

32. Wentworth Well nothing’s built up because nothing else has happened.

33. Page Clayton, look I’m not going to get into a stoush with you, at this stage you’re banned alright.

34. Wentworth Well all I’m saying to you Paul is please be very careful about what stance you’re going to take on this because I cannot have a situation where I’m banned from doing work for no good reason.

35. Page But I’m not, I’m banning you from work we employ you to do, it’s as simple as that. You don’t work for us full time. Ok you only work for us when the boats are here. So you’re banned from doing the boats. Alright. What you do outside of our conversation is nothing to do with me.

1. Mr Page went on to deny that he had spoken to Glen Carron about Mr Wentworth, saying that the communication would have been between Mr Gray and Glen Carron. He gave evidence to the same effect.

Evidence of Mr Gray

1. In relation to the April ban, Mr Gray’s evidence was that he confirmed its existence to Linx. While he agreed with Mr Wentworth’s suggestion to him that this occurred on 24 April 2017, he did so in circumstances where he was plainly assuming the correctness of a date in Mr Calabro’s June 2017 email, and in circumstances where he otherwise made it plain in his evidence that he did not recall the date. Accordingly, despite Mr Wentworth’s suggestion to the contrary, I do not accept that this evidence (or that of Mr Page) is a proper basis for finding that there was a decision to ban Mr Wentworth from working

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on boats at Berth 29 on 24 April rather than 26 April (as the other evidence suggests). Indeed, given that Mr Gray later said the April ban was made after he had received the incident report about the 26 April incident involving the hopper at Berth 29, I am satisfied that the decision was made on 26 April and not 24 April.

1. As for who made the decision to impose the Apirl ban, Mr Gray said this decision was made by Mr Page and him in combination. But it was made “on advice from our major client that they wished to no longer have [Mr Wentworth] on their vessels and the unloading of grain on the vessels. That is when we made the determination that he would not be used on the vessels.”

1. Mr Gray said that he communicated the April ban to Mr Mick Harrold of Glen Carron, and in particular informed him that under advice from their major client they could no longer use Mr Wentworth on any Cargill/GrainFlow jobs – which was the bulk of their work. He gave the following evidence in relation to this conversation:

A. And again later in 2017, 26 or 27 April, did you have a call - did you make a call to Mick Harrold after the drive on hopper incident.

A. I don't recall.

A. Can I suggest to you that you telephoned Mick Harrold and said words to the effect that there'd been an issue at Berth 29 where Wentworth has misaligned his truck with a ramp. Might you have said that.

A. I may have.

A. And if you did say that, that would be about this drive on hopper incident is that right.

A. Correct.

Q. Did you go on to say that it had caused a delay.

A. I would have, yes.

A. Did you also say words to the effect at that time that Wentworth was banned from picking up grain from Crystal Brook.

A. I presume that's probably what I would have said.

A. And did you also say words to the effect that that Wentworth was banned from delivering grain to Berth 29.

A. Correct.

A. Just to put that in context at that time Garden Grove had the contract with GrainFlow to cart grain from various GrainFlow sites such as Crystal Brook to Berth 29 is that right.

A. Correct.

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A. And Glen Carron didn't have a direct contact like that with GrainFlow is that the case.

A. Correct.

Q. But Glen Carron did a lot of work on that route for you as your subcontractor.

A. Yes.

A. So by you telling Mick Harrold that Mr Wentworth is banned from picking up at Crystal Brook and dropping off to Berth 29, that effectively meant that he was not to be engaged on that subcontract work for GrainFlow.

A. On that particular job yes.

Q. So it was in effect a direction not to use Wentworth on the GrainFlow work.

A. Correct.

1. Mr Gray did not recall speaking to Mr Doug Harrold at all around this time; most of his dealings at that time, and generally, were with Mr Mick Harrold.

1. Mr Gray also informed Mr Tom Curtain (of Cargill in Melbourne) and Mr Calabro of the decision not to use Mr Wentworth for the Berth 29 work. He did the latter by email to Mr Calabro (see earlier).

Evidence of Mr Mick Harrold

1. I have already mentioned Mr Mick Harrold’s evidence as to his earlier awareness of Mr Wentworth’s shortcomings and the complaints about him, including from Mr Gray. As to the incident involving the hopper at Berth 29, Mr Mick Harrold said that he learned of this at some time on or before 26 April 2017. He also said that Mr Gray spoke to him about Mr Wentworth not doing any more work for Garden Grove. He thought that this conversation was on or about 27 April 2017. Mr Gray told him that there had been incidents, and they would not be able to use Mr Wentworth on their work. He said it was possible that Mr Gray said something about a ban from Crystal Brook.

1. Mr Harrold’s evidence was that by this stage they had reached a situation where they had no customers with work suitable for Mr Wentworth. They had previously reached the stage that Garden Grove was the only customer whose work could be allocated to Mr Wentworth. There were multiple other customers who had either requested that he not allocate their work to Mr Wentworth, or in respect of whom it was simply too big a risk to use Mr Wentworth given his shortcomings.

1. Mr Harrold explained that the Garden Grove work in loading grain from Crystal Brook onto the boats at Berth 29 was the easiest type of work they had available. It involved a large number of trucks working at the same time to load the ships, with the result that individual

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drivers could largely follow and copy what the drivers in front of them were doing.

1. However, now that Mr Gray had requested that Glen Carron not use Mr Wentworth on the Garden Grove work, they had no work to allocate to Mr Wentworth. Glen Carron did not have any direct relationship with GrainFlow; it was Garden Grove’s customer. As a result, Glen Carron could no longer use Mr Wentworth on the GrainFlow work in loading the boats. While Mr Harrold denied any conscious decision to never give Mr Wentworth any more work, there was none available unless and until a customer with suitable work came along. On Mr Harrold’s evidence, this did not occur prior to him leaving Glen Carron in December 2017.

1. Mr Harrold agreed that he had discussed the above with Mr Doug Harrold, but could not recall the content of their discussions on this topic. He recalled a final conversation or conversations with Mr Wentworth in which he conveyed to him that his shortcomings could not continue and that he would be doing less work, and perhaps no work.

1. Mr Harrold denied that his knowledge that Mr Wentworth had been doing some work for Mr Pat Harrold (through Harrold Services) played any part in the decision to not allocate work to Mr Wentworth. While Mr Harrold was not able to recall the extent to which any particular issue or issues in relation to the Crystal Brook site had informed his decision, he agreed that he did not contact that site directly. He explained that this would go against the unwritten code of the industry, which was not to contact someone else’s customer. This work came from Garden Grove, and Crystal Brook was part of their chain and their responsibility. If a customer was to be maintained, and they did not want to use a particular subcontractor, then he considered that it was for him to proceed on a different path.

Evidence of Mr Doug Harrold

1. Mr Doug Harrold said that he was aware that Mr Wentworth’s work for Glen Carron ceased on about 27 April 2017. He said that the determination not to give work to Mr Wentworth was made by Mr Mick Harrold, without consultation with him. That said, while the decision was initiated by Mr Mick Harrold, Mr Doug Harrold said that he “backed that decision up”.

1. As for what was operating on his mind in respect of that decision, he said:

The incidents were becoming more and more, the complaints about Clayton and I believe Clayton to be - Clayton was an accident waiting to happen and basically Clayton’s mishaps were becoming more and more frequent ... If there was a major accident or then customers, if a customer says don’t send that person back and you do, they won’t use you anymore.

1. Mr Doug Harrold said that he did not see it as a permanent banning or withdrawal of supply. Rather, it was simply a case that Glen Carron was not going to be giving him any more work. Indeed, he said he would describe it as Glen Carron not having any work suitable for Mr

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Wentworth. The reason for this was both complaints from customers and that there was not enough work to go around. There was some work available, but not all work was suitable for Mr Wentworth. While accepting that Mr Wentworth’s B-double was equivalent to those owned by Glen Carron, Mr Doug Harrold explained that the problem was not with the equipment, but rather the ability of the driver. He explained that their subcontractor work was suitable for different drivers. Whether a particular subcontractor was suitable for a task might depend upon how complicated it was; including, for example, in the case of Mr Wentworth, whether it involved any reversing. While he was not aware of anyone discussing with Mr Wentworth his suitability for any particular job he said that, this was something that the logistics team gave consideration to.

1. Mr Doug Harrold explained that for the work at Berth 29, none of this was with Glen Carron as the primary contractor. The same was true for the work at Crystal Brook and Mallala, which are both GrainFlow sites. Glen Carron’s work for these sites was through Garden Grove. And on about 27 April 2017 he learned that Garden Grove’s attitude to Mr Wentworth being used on jobs at either Crystal Brook or Berth 29 was that Glen Carron could not use him anymore. This meant that they had no work for Mr Wentworth at these sites.

1. Mr Doug Harrold did not investigate the complaints about Mr Wentworth. He regarded this as Mr Mick Harrold’s role, and he was happy with his findings.

1. Mr Wentworth and Mr Doug Harrold had two telephone conversations on 27 April 2017. Both were covertly recorded by Mr Wentworth

1. In the first conversation, Mr Wentworth told Mr Doug Harrold that he had been informed by Mr Mick Harrold that there was no work for him because of complaints about him. While acknowledging a couple of incidents (that is, the potato job in Victoria and the incident with the hopper at Crystal Brook), he denied that there were any such complaints or incidents. Mr Doug Harrold said he would speak to Mr Mick Harrold.

1. The conversation relevantly included:[15]

1. D Harrold Ah, he’s just a bit quiet. Um the weather’s quietened them down, I know they had about 20 loads cancelled yesterday, but yeah things are a little bit quiet at the minute.

2. Wentworth Well that’s not what he said to me.

3. D Harrold What did he say to you?

4. Wentworth Well that he’s not giving me any more work.

5. D Harrold Yeah righto. Because it’s quiet?

6. Wentworth No because apparently he reckons that there’s been a number of complaints about me which there hasn’t been at all, not one single complaint from any person that I’ve done any work for Glen Carron.

7. D Harrold Yeah.

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8. Wentworth Nothing whatsoever, apart from that, ah, about 6 or 9 months ago when I picked up some spuds in bloody Victoria there and the guy carried on because my rollover bars wouldn’t work because as you know they, the potato loader machines have to go into the body of the trailer so that when they drop the potatoes they don’t get bruised ...

9. D Harrold Yep.

10. Wentworth ... and my axle rollover bar was actually completely broken in the middle ...

11. D Harrold Oh, yep, yeah.

12. Wentworth So what we had to do was to just manually lift the bar over so that he could get his machine in so there was no problem, I got loaded, I took the load to Brisbane to Smith’s Crisps and everything was done ...

13. D Harrold Yep.

14. Wentworth and now Mick’s using that as an excuse to cut me off completely from any and all Glen Carron work.

15. D Harrold Yeah righto. Well I know there was an issue down the wharf ...

16. Wentworth No there was no issue, I mean, there was a case there the other night where the front of my truck just came off the edge of the loader because I was watching the loader operator waiting for him to put up his hand to stop me when the back of my A trailer had lined up with the correct position on the grid.

17. D Harrold So what happened, you ran off the grid, or off the ramp?

18. Wentworth I just ran off the ramps at the very front ...

19. D Harrold Yep.

20. Wentworth ... And, ah, it took a bit of messing around and we just got one of their caterpillar loaders out to just tow me because of the weight of the stuff in the B Trailer, we had to pull the B trailer up over the hump of the actual loader to be able to get the B trailer into the right position on the grid ...

21. D Harrold Oh yep, yeah.

22. Wentworth Because I couldn’t get any traction out of the drive wheels, they just had to give me a bit of a tow. As soon as my drive wheels got onto the ground, it was fine and we just tipped off.

...

23. Wentworth But he’s already admitted to me that he’s been speaking to Andy from Garden Grove.

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24. D Harrold Yep.

25. Wentworth And you know, he’s now telling me that because of a number of complaints and that allegedly I’ve been banned from Crystal Brook which is a total load of rubbish, you know.

...

26. D Harrold Who told you you were banned from Crystal Brook?

27. Wentworth Mick did.

28. D Harrold Yeah.

29. Wentworth Which is nonsense because I picked up at Crystal Brook last night, the night before. And ran down to Berth 29.

30. D Harrold Yeah.

31. Wentworth I can’t have this Dougie. I can’t be told that, you know, all of my work totally it has been cut off because we’re going to end up in the Supreme Court. I can’t have that Dougie. I’ve not done anything wrong. I haven’t done anything wrong for you as a company to ban me from any work.

32. D Harrold No, but you’ve been banned from Flinders Port.

33. Wentworth Yeah, only at the moment, until they get a report in from the investigation they did there, the report, that’s all. And that’s got nothing to do with Glen Carron, has it?

34. D Harrold Mate, we can’t load you to go in there.

35. Wentworth Into the port?

36. D Harrold Yeah.

37. Wentworth You don’t do any work into the port.

38. D Harrold No, into Berth 29, which is the Crystal Brook work, and that job’s finished at the moment, the next boats not til June.

39. Wentworth That’s right.

...

40. Wentworth Well who tells me that I’m not getting any more work from Glen Carron. Allegedly because of complaints that have been made against me. I can’t have that Dougie because it’s not true. I just do my work in and out every day of the week and only last night you and I were talking about how much money I’ve got to make every month to be able to pay my bills...

41. D Harrold Yeah that’s right.

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42. Wentworth And then the very next morning Mick rings up and says you’re not getting any more work from us. I can’t have that Dougie.

43. D Harrold Well I can’t give you what we haven’t got, if we haven’t got any work.

44. Wentworth No, that’s not the case. Everybody knows that it’s flat chat at the moment. Absolutely flat chat.

45. D Harrold How come the Grove’s not giving you anything?

46. Wentworth No one said they weren’t giving me anything. The only issue at the moment was this aspect about what’s happened down the other night there at Berth 29.

47. D Harrold Ohhh.

48. Wentworth And even the guy there, the supervisor, who’s a mate of mine down there said “Clayton we’re not banning you from coming here” he said “that’s just up to Garden Grove as to whether or not they reckon you can come but we’re not banning you” ...

...

49. Wentworth Dougie there’s got to be other work around. Everybody knows that it’s flat chat. And I can’t have a situation where you say to me no we’re not going to give you any more work period. Because we’ll end up in a big yike.

50. D Harrold Well ...

51. Wentworth You know, I can’t have that Dougie. You and Garden Grove are the two main logistics companies in South Australia and traditionally I do all of my work except for an isolated bit of running, and they are isolated, on the odd occasion that Garden Grove get the boat into Berth 29 so I can use my road train.

52. D Harrold Yeah.

53. Wentworth And now that I’ve got my permit for Mallala, for ah Ardrossan, then I expected to be able to do that continuously whenever there are any orders that were coming down from Ardrossan.

54. D Harrold Yeah, well there’s nothing there at the moment.

55. Wentworth But there’s got to be other work around Dougie.

56. D Harrold Well.

57. Wentworth I don’t care whether its in the South East, or in Victoria or whatever, but there’s got to be work isn’t there.

58. D Harrold Yeah.

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59. Wentworth So how about it, let’s get rolling.

60. D Harrold Well I can’t give you what I haven’t got. I’ll give Mick a ring and find out what the situation is and then I’ll give you a call back. ...

1. As is apparent from the italicised portions of the above transcript, Mr Wentworth again made some significant edits to, or deletions from, the recording of this conversation:

o He deleted his references in paragraphs 8, 10 and 12 to the incident involving the farmer in Robinvale who had “carried on because my rollover bars wouldn’t work”. Significantly, this editing changed the meaning of what remained, and appears to have been carried out in a manner intended to disguise the deletion that had been made. In paragraph 7, Mr Wentworth asserted that there had been no complaints from Glen Carron customers; and he commenced paragraph 8 by saying that there had been “nothing whatsoever” by way of complaints. However, Mr Wentworth then removed his own reference to a complaint that had in fact been made. In addition to this, he also removed just the words “using that as an excuse to” from the middle of the sentence in paragraph 14, apparently so as to disguise the deletion of the reference to the complaint from the Robinvale farmer earlier in that paragraph.

o He deleted Mr Harrold’s reference in paragraph 15 to “an issue down the wharf”, and his own response in paragraphs 16, 18, 20 and 22 to the incident that had occurred “the other night” at Berth 29, and his acknowledgement that the front of his truck “came off the edge of the loader”, or “ran off the ramps”.

o He deleted Mr Harrold’s paragraph 32 reference to the ban relating to Berth 29 (which was the same as the work out of Crystal Brook), and Mr Wentworth’s paragraph 33 acknowledgement that he knew he was banned from that site (at least “at the moment”, until an investigation had been completed).

o He deleted various other references to Mr Harrold explaining the difficulty in locating other work that would be appropriate to give to Mr Wentworth; and in particular that Glen Carron was not banning him as such, it was just that there was no work they could give him at that time.

1. Mr Harrold’s evidence was that on various occasions when he said “yeah” during this conversation, he was just acknowledging that he was on the other end of the phone, rather than necessarily intending to agree or disagree. For example, his evidence (mentioned earlier) was that there had in fact been complaints about Mr Wentworth’s driving, despite him saying “yeah” in paragraph 7 of the above transcript in response to Mr Wentworth’s suggestion that there had been no complaints about his work for Glen Carron.

1. Mr Harrold and Mr Wentworth had a second conversation on 27 April 2017. During this conversation, Mr Wentworth continued to press Mr Harrold to give him work, but the latter said the only work at that time was Garden Grove work, and they could not give that to Mr Wentworth. Mr Harrold also mentioned some of the complaints that had been made about Mr Wentworth. The conversation relevantly included:[16]

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1. Wentworth There’s work around the place. He’s already told me that I’m not getting work, allegedly because of complaints that were made against me and so we’re banning ya. That’s out of Mick’s mouth. And we cannot have that Doug. I’ve been doing my work diligently as you well know for I don’t know how long now, 3 or 4 years that I worked exclusively for Glen Carron. Apart from the isolated job that I do for Garden Grove. And when what’s his name, your brother...

2. D Harrold Pat.

3. Wentworth When Pat was there, Pat and I were talking every day of the week, I was doing all of my jobs for Glen Carron and Dougie and there’s never been any problem. Never.

4. D Harrold Well we have had a few complaints.

5. Wentworth And Mick’s now telling me that I can’t do any work. He’s not giving my any more work, period. You are the boss there Dougie.

6. D Harrold Yeah I know that there’s not a lot I can do about that though cause he loads the trucks. And he has had some complaints.

7. Wentworth He does what you instruct him to do and there’s been no complaints about me.

8. D Harrold Yeah there has been.

9. Wentworth No there hasn’t Doug. There hasn’t been any complaints about me and if you were asked to produce some record of these complaints you wouldn’t even be able to do it. There haven’t been any.

10. D Harrold No, you know, that’s where you’re wrong. Like I do know there’s been complaints.

11. Wentworth No there hasn’t been any complaints and we won’t go into any of that because we know that it’s total bullshit.

12. D Harrold Nah it’s not.

13. Wentworth Well there’s no justification for banning me I mean I’ve been doing work now for I don’t know how many months up until today.

14. Wentworth ... And Mick’s now telling me that I can’t do any work. He’s not giving me any more period.

15. D Harrold Yeah but the customers say that, you know, we can’t load ya.

16. Wentworth No, no one’s said they can’t load me. You tell me which customer has said they can’t load me.

17. D Harrold Crystal Brook.

18. Wentworth No they haven’t.

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19. D Harrold Ring Garden Grove and ask em. They have. That’s what they’ve told us. Garden Grove have told us mate.

20. Wentworth Garden Grove have told you.

21. D Harrold Yeah correct.

22. Wentworth That I’ve been banned from the Brook.

23. D Harrold Correct. And that’s what they’ve told us.

24. Wentworth Well obviously they’ve been telling you things which are not true. And apart from the fact that they’ve been talking to Mick and saying one thing or another which has got no basis in fact whatsoever.

25. D Harrold My suggestion would be to ring Garden Grove and ask them have they got any work.

26. Wentworth And I spoke to the Brook here only a couple of weeks ago and David up at the Brook said nah nah we don’t have any problems with you Clayton, none whatsoever.

27. D Harrold Well loading or unloading. That’s what the Grove’s told us. And I can only go on what I’ve been, you know, told by Michael and that’s what he’s told me.

28. Wentworth What do you mean loading or unloading?

29. D Harrold Well loading down and unloading down at the Port. You can’t unload. My suggestion would be to ring Garden Grove and have a talk to them and then give me a call back [inaudible].

30. Wentworth Whichever way it goes Dougie.

31. D Harrold Yep.

32. Wentworth Irrespective of whatever Garden Grove say, that has nothing whatsoever to do with my relationship with Glen Carron.

33. D Harrold Yeah but that’s the only work we’ve got at the moment so I can’t give you work that we haven’t got know what I mean. That’s why I’m sort of saying give Terry Corcoran a ring and see if he’s got something happening. We haven’t.

...

34. Wentworth Right now what about next week Mick, ah Doug.

35. D Harrold Oh well what’s today, Thursday. I don’t know what’s happening next week. I’ll have to talk to Mick. Obviously it’s gone a bit quiet.

36. Wentworth No it hasn’t gone quiet. Everybody says that it’s flat chat.

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37. D Harrold Will give [inaudible] a ring then give Garden Grove a ring and then give me a call back.

38. Wentworth Well it doesn’t matter what Garden Grove have got to say cause I can tell you know I’ll be getting in my fucking BMW and driving up to Crystal Brook and having a face to face with David the manager there and finding out whether in fact I’ve been banned at all from the Brook and anything, and if it’s not true which it isn’t true, then we’re going to have a serious problem, you know ... Because we can’t have Garden Grove making a claim that I’ve been banned from a site if it’s not true and in particular, your people, your logistics dispatchers, using that as grounds for refusing to give me work. That just doesn’t wash. That’s not on.

39. D Harrold I’m only going on what I’ve been told.

40. Wentworth Doug, like I said, sort it out.

41. D Harrold It’s a [inaudible] site, isn’t it.

42. Wentworth Hey?

43. D Harrold Crystal Brook is a [inaudible] site.

44. Wentworth It’s an AWB site. GrainFlow its called.

45. D Harrold GrianFlow, yeah.

46. Wentworth That’s right.

47. D Harrold Yep.

48. Wentworth Yep.

49. D Harrold Yep.

40. Wentworth And I’ve done nothing at AWB Crystal Brook or GrainFlow to be banned in any way, shape or form.

51. D Harrold Well I’d ring Garden Grove and ask em. Because that’s where the directive has come from.

52. Wentworth What from Crystal Brook?

53. D Harrold From Garden Grove. Garden Grove have told us and that’s where it come from, so go to the source, go to Garden Grove.

54. Wentworth Irrespective if I go and see Paul Page.

55. D Harrold Yeah but we’re subcontracting to Garden Grove.

56. Wentworth That’s got nothing to do with Glen Carron.

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57. D Harrold We haven’t got any other things happening at the moment. So if the Brook was running you could keep carting from the Brook but the Grove’s told us you can’t keep carting from the Brook and we’ve got nothing else happening at the moment.

58. Wentworth Yeah ok then. I’ll catch ya after.

1. The significant deletions from this recording included Mr Harrold’s references in paragraphs 6, 8, 10 and 12 to there having been complaints about Mr Wentworth.

1. Mr Harrold said that he did not ring Mr David Arbon at Crystal Brook to confirm whether Mr Wentworth was banned from Crystal Brook. He did not consider that it was his position to do so. Glen Carron was working for, or engaged by, Garden Grove. Garden Grove was their customer. Mr Harrold accepted that they chose to base their determination on what Garden Grove had told them about the issues at Berth 29 and Crystal Brook. He did not accept that he should have investigated the allegations that had been reported by Garden Grove. He believed that the information they had was true; but, in any event, he regarded it as Garden Grove’s job to ascertain the veracity of the allegations. This was so despite Nanosecond invoicing Glen Carron for the work it had been doing, because Glen Carron was doing this work for Garden Grove. Mr Harrold denied having any motive or agenda to make sure the ban stayed in place.

Findings

1. I have already explained that I found each of Mr Calabro, Mr Gregory Arbon, Ms Lord, Mr David Arbon, Mr Page, Mr Gray, Mr Mick Harrold and Mr Doug Harrold to have been honest and generally reliable witnesses. I accept their evidence about the events leading to what I have labelled ‘the April ban’ of Mr Wentworth. While their oral evidence was very general in many respects, the overall effect of it (particularly when read in light of the contemporaneous communications recorded in the emails and recorded conversations) is clear enough. I am satisfied that it is appropriate on the evidence to make the following findings.

1. I find that there were incidents at both Crystal Brook and Berth 29 on or shortly before 26 April 2017. At Crystal Brook, Mr Wentworth drove through a drain in the circumstances described by Ms Lord. At Berth 29, Mr Wentworth drove off the side of the hopper, and then became stuck on the hopper, in the circumstances described in the passage extracted from the incident report.

1. In isolation neither of these incidents were matters of great moment. However, they occurred in a context of a history of incidents and complaints involving Mr Wentworth, as outlined in my summary of the evidence. I find that both incidents were reported to Garden Grove, by Ms Lord and Mr Calabro respectively, and were accompanied by a request, if not instruction, that Garden Grove cease to use Mr Wentworth on the GrainFlow work in loading the boats at Berth 29.

1. Mr Gray and Mr Page, of Garden Grove, considered and acceded to this request. Not only was it important to them that they respect the wishes of their customer (GrainFlow/Cargill), but also they were aware of the history of incidents and complaints concerning Mr Wentworth. Based upon these matters, Mr Gray and Mr Page had genuine

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concerns about the competence of Mr Wentworth. Having made a joint decision not to continue to use Mr Wentworth on the GrainFlow work, Mr Gray communicated this by email to GrainFlow/Cargill on 26 April 2017, and by telephone to Mr Mick Harrold at about the same time.

1. Based upon this communication from Mr Gray, Mr Mick Harrold decided, or at least accepted, that Glen Carron would no longer use Mr Wentworth on the work loading boats at Berth 29. I accept the evidence of Mr Mick Harrold and Mr Doug Harrold, as summarised above, as to the reasons for, and significance of, this decision. It meant that, for practical purposes, they would no longer provide Mr Wentworth with any work.

Subsequent events

1. The plaintiffs did not do any further work for either of the defendants after the late April 2017 decision to cease providing work to Mr Wentworth. Over the next few weeks, the plaintiffs did do some other driving work. However, according to the plaintiff, this work was not ongoing, and soon ceased to be available. The plaintiffs have only obtained very limited work since. This included some work for Mr Pat Harrold that the plaintiffs were not able to complete because Mr Wentworth was not permitted to unload at Berth 29.

Nanosecond’s claims in contract

1. Nanosecond’s claims in contract are pleaded in very similar terms against each of Glen Carron and Garden Grove. The contracts are pleaded to have arisen from conversations on or about 1 February 2015 between Mr Wentworth and Mr Pat Harrold (in the case of Glen Carron), and Mr Wentworth and Mr Page (in the case of Garden Grove). In particular, the plaintiffs plead that on or about 1 February 2015, Mr Wentworth acting in his capacity as sole director of Nanosecond, contacted each of Mr Pat Harrold and Mr Page and advised them that he had acquired his own truck and trailer, and that in the future he would be operating independently from Mr Fischer. The plaintiffs further plead that during those conversations Mr Pat Harrold and Mr Page each offered to provide work “on an ongoing basis” from that day forward.

1. In the case of the alleged contract with Glen Carron, the plaintiffs’ statement of claim also alleges that Mr Wentworth was advised that he must comply with all terms and conditions imposed by Glen Carron, including in relation to insurance arrangements, and the registration and accreditation of his vehicles; that he would be representing Glen Carron to customers, but that Glen Carron would claim any losses from Nanosecond; that Mr Wentworth should contact Mr Pat Harrold each day about that day’s collection; that he would be quoted a tonnage rate at the time of despatch; that invoices should be emailed to Glen Carron and would be paid after 30 days; and that Mr Wentworth should wear appropriate clothing, follow instructions in relation to the cleaning of trucks, and was generally expected to provide a professional service at all times.

1. In the case of the alleged contract with Garden Grove, the plaintiffs’ statement of claim contains reference to Mr Wentworth being sent some forms by a Mr Hines, but as there was simply no evidence about

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these forms I can put this reference to one side. The statement of claim also alleges that Mr Wentworth was told he would be quoted rates at the time of despatch, and that he must comply with all terms and conditions imposed by Garden Grove.

1. Based upon these alleged conversations, and the subsequent performance of work, the plaintiffs plead that Nanosecond had contracts with each of Glen Carron and Garden Grove that contained an implied term that “Nanosecond will continue to operate under contract to Glen Carron [and Garden Grove] as long as Glen Carron [and Garden Grove] continues business in the market.”

1. Accordingly, Nanosecond’s case is essentially that it had a single overarching contract with each of Glen Carron and Garden Grove, and that under those contracts Glen Carron and Garden Grove were obliged to continue supplying Nanosecond with work. While the plaintiffs acknowledge that this obligation must have been subject to the existence or availability of work, they did not allow for any other limitation upon the defendants’ obligations to provide work under their respective alleged contracts.

1. The defendants on the other hand denied the existence of any overarching contractual arrangement, or any contractual guarantee to provide work on an ongoing basis. They contended that the work Nanosecond did was undertaken pursuant to individual contracts entered into from time to time in respect of each job despatched to, and accepted by, Nanosecond.

1. For the reasons that follow, I consider that the evidence fell well short of establishing any overarching contract between Nanosecond and either of the defendants, let alone one with an essentially unqualified obligation to provide ongoing work.

The evidence

1. The evidence as to the contractual negotiations, and the arrangements between the parties more generally, was sparse. It may be summarised as follows.

Glen Carron

1. Mr Pat Harrold said that in his role as the logistics manager for Glen Carron he had had dealings with Mr Wentworth from as early as 2011, when Mr Wentworth was driving for Mr Fischer. He recalled becoming aware at some point that Mr Wentworth bought his own truck and started doing work for himself. While he thought this was in early 2015, he was not able to be precise with dates. Nor could he recall any particular conversation with Mr Wentworth about the terms on which he would be given work.

1. Mr Harrold said that his understanding was that Mr Wentworth was a subcontractor who did work for Glen Carron on the same basis as all other subcontractors; that is, on a job-by-job basis. He explained that basically the whole industry worked on the basis that if a driver did a good job they got work; if they did not do a good job, then they did not get work. He said that if there was work available then he would be happy to load a truck, including Mr Wentworth’s truck. But if there was no work available then no one, including Mr Wentworth, would get any work. He said that if “you had a truck, if you did a good job

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and you’re in the right location, you got a load”; but that “there were no promises”; “there was no contractual agreement”.

1. Mr Harrold also explained that doing a good job required not only keeping the trailer clean and matters of that nature, but also keeping the clients happy when loading and unloading. The drivers were the face of the business. If a subcontractor did not keep the clients happy, then he would get rid of them.

1. While Mr Doug Harrold was aware that Mr Wentworth had worked for Mr Fischer, and then from around 2015 commenced to be a subcontractor to Glen Carron, his evidence was that he was not involved in the initial engagement of Mr Wentworth. He understood that Mr Pat Harrold handled that. Nor did Mr Mick Harrold purport to have had involvement in the initial engagement of Mr Wentworth.

1. However, both Mr Doug Harrold and Mr Mick Harrold did give some general evidence as to Glen Carron’s use of subcontractor drivers, and their allocation of work between their employed drivers, tow operators and subcontractor drivers. I have summarised this evidence earlier in these reasons.

Garden Grove

1. Mr Page was aware that Mr Wentworth had been a driver for Mr Fischer, but first came across him when he commenced doing some work as a subcontractor for Garden Grove.

1. While he could not recall the dates, he recalled being approached by Mr Wentworth about two years before they ultimately stopped giving work to the plaintiffs at the end of April 2017. He indicated that he could provide Mr Wentworth with some work. His evidence was that what he said to all subcontractors – and by inference to Mr Wentworth – was that “we can never promise you full-time work. Providing you meet the criteria of insurances and all that sort of stuff ... then when there’s work we can offer you some work. We can never offer you full-time work so make sure you’ve got your finger in a lot of different pies.”

1. As to whether he or Garden Grove ever “withdrew the supply” of work to the plaintiffs, Mr Page said that he regarded Mr Wentworth as “only a subcontractor that worked on a part-time basis for us when we had work on.” He referred to having offered Mr Wentworth some alternative work when the issues about him being banned arose. He added “he’s like a number of other subcontractors to us. When the work’s there, we will offer the work to cover the required amount.”

Mr Wentworth

1. Mr Wentworth’s evidence was that in January 2015, he rang Mr Pat Harrold and said to him that he had bought his own truck and trailer. He then asked Mr Harrold whether he would provide him with work. Mr Harrold’s responded by saying “if I’ve got work available I will supply you with work any time there is work available.” There were no other conditions. In his evidence in chief, the only other thing Mr Wentworth said about this initial conversation with Mr Harrold was that he told him that while he only had a single trailer at that stage, he might buy an additional trailer to build it into a B-double at some stage or even a road train.

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1. During cross-examination Mr Wentworth purported to recall additional words spoken by Mr Harrold in their early 2015 conversation. These included statements by Mr Harrold that “I will help you all I can and as regularly as I can to be able to supply you on a regular basis”; and that he would do so “on an ongoing basis”. On the other hand, at one point he also agreed that Mr Harrold (like Mr Page see below) said that “we’re under no obligation to give you work”.

1. Mr Wentworth acknowledged that they did not discuss what was meant by work on an “ongoing basis”; in his view it was self-explanatory. They did not discuss what types of work he might be given; in his view this was unnecessary as they were only talking about grain or associated products (such as fodder or pellets) given that that was what his tipping trailer was classified for. They did not discuss what might happen if, for example, Glen Carron expanded its fleet and did not need subcontractors anymore. They did not discuss how much work would be available, or any minimum amount of work. Mr Wentworth said that this was because the availability of work would depend upon what jobs were available from day to day. They did not discuss price or rates at which the work would be done. According to Mr Wentworth this was because the price or rate varied on every job depending on what was allocated by Glen Carron. Mr Wentworth said he had always accepted the price allocated to him. Nor did they discuss the timing of any end to the work. Mr Wentworth’s understanding (although he could not recall that words to this effect were in fact spoken) was that the work was “permanent as long as they’re in business or I’m in business.”

1. Mr Wentworth acknowledged that he did not give any undertaking to Mr Harrold that he would work exclusively for Glen Carron. He also accepted that he did not ask Mr Harrold to be treated any differently from other subcontractors. Nor did he request or obtain, or generate himself, any written confirmation or evidence of what he said they had discussed and agreed.

1. Mr Wentworth said that after this discussion, Mr Pat Harrold commenced to despatch work to him on an almost daily basis. He said that he generally telephoned Mr Harrold when he was ready for another load, but that because he worked and spoke with Mr Harrold regularly he would generally know in advance when Mr Wentworth would be ready for the next job and would have something lined up for him.

1. In relation to Garden Grove, Mr Wentworth’s evidence was that he spoke to Mr Page at about the same time he spoke to Mr Pat Harrold in January 2015. He told Mr Page that he had bought his own truck and trailer. In response, Mr Page said “That’s fine. If we’ve got work that’s available we’re more than happy to allocate work to you. You’ve been doing work for us all the way and over the past few years with Bill and, you know, we’re under no obligation to give you work but if we’ve got work available then we’ll give it to you.”

1. Mr Wentworth said that after this conversation, he started doing work for Garden Grove as he had previously for Mr Fischer. When he wanted work, he would generally ring up the day before, or on the morning, and find out what work might be available.

1. During cross-examination he accepted that he understood that Garden Grove had a large fleet of its own trucks and employed drivers, and that it would give work to those drivers before giving it to subcontractors such as him. However, he denied having any

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understanding that the provision of work to him would depend upon him performing to Garden Grove’s satisfaction. According to Mr Wentworth that “never came up.”

1. As to how he prioritised his work for Glen Carron and Garden Grove, Mr Wentworth said that he always made a point of ringing Glen Carron first because he took the view that it was the company that he used to do the majority of his work for when driving for Mr Fischer, and so that was the natural thing for him to do in terms of loyalty, and given his good relationship and rapport with Mr Pat Harrold.

1. Mr Wentworth’s evidence was that throughout 2015 and 2016 he normally worked six day weeks. He said that on most of these days he worked for Glen Carron, save for about two or three days a month when he worked for Garden Grove. The invoices that were in evidence at the trial suggest that Nanosecond’s work was far more sporadic than Mr Wentworth suggested in his oral evidence, although nothing turns upon the precise volume or regularity of his work in the present context.

Findings

1. I accept the evidence, as summarised above, in relation to the arrangements between the parties. In this instance that includes the evidence of Mr Wentworth, subject to his references in cross-examination to Mr Pat Harrold stating that he would provide work on a “regular” or “ongoing” basis. Mr Wentworth did not attribute these particular words to Mr Pat Harrold during his evidence in chief, and I consider it likely that Mr Wentworth’s evidence to this effect under cross-examination was an embellishment that went beyond any actual recollection of the conversation he had with Mr Pat Harrold. Given my concerns about the reliability of Mr Wentworth’s evidence more generally, I am not satisfied his evidence as to Mr Pat Harrold’s use of the words “regular” or “ongoing” is reliable. I am prepared to accept the balance of Mr Wentworth’s evidence on this topic, in part because it is not inconsistent with the other evidence in the case. That said, and as will be seen below, the very general terms in which Mr Wentworth’s evidence was given means that it is of little assistance in establishing the existence or terms of any contract.

Principles relevant to the existence and terms of alleged contracts

1. The task of the Court in determining the existence and terms of the alleged contracts involves an assessment of the parties’ objective intention; that is, an assessment of what a reasonable person would infer or deduce, from observing the exchange between the parties, as to whether they intended to enter into a legally binding arrangement, and, if so, as to what they intended would be the terms of that arrangement.[17] The circumstances relevant in assessing the parties’ objective intention will ordinarily involve a focus upon the communications between the parties, but may also extend to surrounding facts and circumstances known to both parties.

1. While it is often useful to analyse the parties’ communications in terms of the legal concepts of offer and acceptance, this is not always necessary in order to establish the requisite objective intention and mutual assent.[18] Rather, the necessary objective intention, or mutual assent, may be inferred from the totality of the parties’ conduct and

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dealings with one another, including after the inception of the alleged contracts. However, the conduct and dealings relied upon in this way must nevertheless be more than merely consistent with the contract alleged; they must be sufficient to sustain an inference as to the necessary objective intention or mutual assent.[19]

1. Here, the evidence fell well short of what would have been necessary to establish some form of overarching contract between Nanosecond and either Glen Carron or Garden Grove. I am not satisfied that Nanosecond had any contract with either Glen Carron or Garden Grove, beyond the individual contracts that no doubt arose on a job-by-job basis on each occasion that Mr Wentworth agreed to undertake the particular jobs that were despatched to him by Glen Carron or Garden Grove.

1. My reasons for so concluding are essentially the same in relation to the alleged contracts with each of Glen Carron and Garden Grove. They include the cumulative significance of the following considerations:

o The conversations with Mr Pat Harrold and Mr Page said to have given rise to the contracts appear to have been relatively spontaneous and casual conversations. There was no suggestion, for example, that either conversation occurred during meetings arranged to discuss the parties’ commercial arrangements.

o The conversations that occurred were in the most general of terms. In my view, the evidence establishes only that Mr Wentworth informed Mr Harrold and Mr Page that he had purchased a truck and trailer of his own, and statements in response from these men that they would be prepared to provide him with work when it was available. As explained, I consider that Mr Wentworth’s evidence to the effect that Mr Harrold said that work would be provided on a “regular” or “ongoing” basis was an embellishment upon his actual recollection, and I do not accept that these words were used. Indeed, on the evidence of Mr Wentworth, both Mr Harrold and Mr Page said they were under “no obligation” to provide work.

o There was no discussion about the basis upon which the anticipated work would be allocated to Mr Wentworth or Nanosecond. There was no discussion of the volume or regularity of the work to be provided, or whether there was any minimum level of work that would be provided. While the reason for this may well have been because it was understood that this would depend upon the work that was available from time to time, this only serves to underscore the uncertainty about what was contemplated.

o There was no discussion of the extent of Mr Wentworth’s commitment to either of the defendant companies. Certainly there was no suggestion by Mr Wentworth that he would work exclusively for either of the defendants.[20] To the contrary, I am satisfied that it was the common understanding of each of Mr Wentworth, Mr Harrold and Mr Page that Mr Wentworth would be able to, and most likely would, also do work for others.

o There was no discussion as to the duration of the arrangements between the parties, or the circumstances in which those arrangements might be brought to an end. While each of Mr Wentworth, Mr Harrold and Mr Page may well have

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anticipated working together on a long term, perhaps even open-ended, basis, it is one thing to anticipate such an arrangement; it is quite another thing to infer an intention that they be legally bound to each other for the long term or on an open-ended basis.

o Each of Mr Wentworth, Mr Harrold and Mr Page knew that the defendants had their own employed drivers (and in the case of Glen Carron, tow operators) who would be allocated work in priority to subcontractors such as Mr Wentworth.

o Mr Wentworth did not ask to be treated any differently from other subcontractors, and none of Mr Wentworth, Mr Harrold or Mr Page expected that he would be.

o The evidence, such as it was, suggested that the industry generally operated on the basis of subcontractor drivers who provided their services on a job-by-job basis rather than under any overarching contract. The position of subcontractor drivers was quite different from employed drivers in that regard.

o Mr Wentworth did not ever request that the arrangements with Glen Carron or Garden Grove be documented. Nor were they ever in fact evidenced or confirmed in writing.

1. Based upon the combination of the above, I am not satisfied that the initial conversations between Mr Wentworth and either Mr Harrold or Mr Page gave rise to any contract of the nature alleged. I am not satisfied it is appropriate to infer any intention to be legally bound to provide work on an ongoing basis. Nor am I satisfied that any contract of the nature alleged emerged from the subsequent conduct and dealings between the parties. To the contrary, I am satisfied that both the initial conversations, and the parties’ subsequent conduct and dealings, were more consistent with the position contended for by the defendants – namely, that they merely contracted with Nanosecond on a job-by-job basis.

1. It follows from the above that Nanosecond’s claims in contract must fail. As neither Glen Carron nor Garden Grove owed Nanosecond any overarching or ongoing contractual obligation to provide it with work, it cannot have been in breach of any such obligation in ceasing to provide it with work.

Alleged variation of contract with Glen Carron

1. In relation to the claim in contract against Glen Carron, there is an additional pleaded allegation that on or about 30 May 2016 (hence after Pat Harrold had left Glen Carron) Mr Mick Harrold told Mr Wentworth that if he ever did another job for Mr Pat Harrold (then of Harrold Services), he would never be given another job by Glen Carron. The plaintiffs plead that the (alleged) contract with Glen Carron was thereby varied to include a term that Mr Wentworth work exclusively for Glen Carron.

1. There is a dispute in the evidence as to whether or not Mr Mick Harrold did tell Mr Wentworth that he was not permitted to do any work for Mr Pat Harrold. While I allow for the possibility that Mr Mick Harrold may not have been very happy about Mr Wentworth doing this work, and might have said something to this effect to Mr Wentworth, given my general concerns about the unreliability of Mr Wentworth’s evidence I am not prepared to accept his version of the discussion with Mr Harrold on this topic.

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1. In any event, I do not consider it necessary to set out the detail of the evidence on this topic because I do not think that the issue goes anywhere. If, as I have found, there was no overarching contract, then there cannot have been a variation of it by dint of these discussions. Nor would these discussion be capable of giving rise to any contract.

1. At most, the evidence on this topic provided some insight into the poor relationship between Mr Pat Harrold and his brothers. While Mr Wentworth’s apparently good relationship with Mr Pat Harrold, and his preparedness to do work for him, may well have been a source of annoyance to Mr Mick Harrold and Mr Doug Harrold, I do not accept that this played any part in the matters relevant to the determination of these proceedings.

Glen Carron’s alternative response to the contract claim

1. Even if there had been some overarching contract requiring that it provide Nanosecond with work on an ongoing basis, Glen Carron’s alternative response to the claim in contract against it was that there was ample justification for it to have ceased to provide Nanosecond with work as it did in April 2017.

1. Implicit in this alternative response is a contention that any overarching contract cannot have contained an unqualified term or obligation that Glen Carron provide Nanosecond with ongoing work. Rather, any such term or obligation must have been qualified in some way, or subject to some implied term.

1. Even the plaintiffs acknowledged that the obligation to provide work was subject to Glen Carron having work available. Implicitly they accepted that this meant work that was available even after having prioritised the allocation of work to its employed drivers and tow operators.

1. However, in my view, even assuming the existence of some overarching contract, any obligation on the part of Glen Carron to provide Nanosecond with work on an ongoing basis under that contract would have been more heavily qualified than this. In my view, any such obligation would at the very least have been confined to work that was not only available, but also suitable for Nanosecond (taking into account not only the nature of its equipment, but also the abilities of Mr Wentworth and the attitude of Glen Carron’s customers to Mr Wentworth). Put another way, but to similar effect, in the circumstances of this case any contractual obligation to provide work would have been subject to Nanosecond’s satisfactory performance of the work allocated to it. Thus, if I had been satisfied that there was an overarching contract between Nanosecond and Glen Carron, I would have inferred or implied the existence of a qualification or term along these lines. Given the way in which the parties operated, and the nature of the industry in which they operated, such a qualification or term was not only so obvious it went without saying, but also reasonable, and necessary to give commercial efficacy to the arrangements between the parties.

1. Further, assuming the existence of a qualification or term to this effect, I am satisfied that Glen Carron had ample basis for ceasing to provide Nanosecond with work.

1. The evidence and findings in support of this conclusion are set out at length earlier in these reasons. In short, by late April 2017, there had

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been a number of incidents and complaints about Mr Wentworth’s performance that had come to the attention of Mr Mick Harrold. These included not only the particular customer complaints, detailed earlier, but also the more general concerns that had been expressed about both his competence as a driver and his performance more generally. The incidents and complaints culminated in the complaints received in late April 2017 from Berth 29 and Crystal Brook, via Mr Gray of Garden Grove, which were accompanied by requests (if not instructions) that Mr Wentworth not be used on the GrainFlow work in loading the boats at Berth 29. By this time Glen Carron did not have any customers who were willing to use Mr Wentworth and who had work suitable for him. In my view, there was sufficient substance to the complaints made by Glen Carron’s customers (including Garden Grove), and sufficient concerns on the part of Mr Mick Harrold about the competence and performance of Mr Wentworth, to justify the decision to decline to allocate Nanosecond with any further work. For these reasons, even if there had been some overarching (but qualified) contractual obligation to provide Nanosecond with work, I am not satisfied that the plaintiffs have established a breach of any such obligation.

Nanosecond’s claim for injurious falsehood

1. The elements of a claim for injurious falsehood are as follows:[21]

1. a false statement of or concerning the plaintiff’s goods or business;

1. publication of that statement by the defendant to a third person;

1. malice on the part of the defendant; and1. proof by the plaintiff of actual damage (that is, actual financial

loss, although it may include a general loss of business) suffered as a result of the statement.

1. The plaintiffs’ pleaded case for injurious falsehood is confined to a claim by Nanosecond against Garden Grove. The claim is poorly pleaded in that it is drafted primarily in terms of statements made by Mr Gray (and on some occasions, Mr Page) of Garden Grove to Mr Wentworth during his conversations with them on 17, 21 and 23 March 2017. However, as statements made to Mr Wentworth (as the sole director and shareholder and hence alter ego of Nanosecond) could not sustain an action for injurious falsehood on the part of Nanosecond, the premise of the claim appears to be that Mr Gray made statements in similar terms to Glen Carron.

1. I attempted to distil the statements relied upon by Nanosecond at the commencement of these reasons, namely that Mr Wentworth:

(i) had been banned from collecting loads from GrainFlow’s site at Crystal Brook;

(ii) had been banned from unloading at Berth 29 at Port Adelaide;

(iii) had taken out a stobie pole (or gate) at Crystal Brook;

(iv) had been the subject of complaints from GrainFlow at Mallala;

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(v) took up to an hour to load a truck;

(vi) tried to run other drivers off the road, requiring them to take evasive action;

(vii) had been driving for periods of up to 24 hours straight, which was illegal under heavy vehicle regulations;

(viii) had been banned from all GrainFlow sites in Australia for working 24 hours straight; and

(ix) had been banned from doing any further work for Garden Grove.

1. It is necessary to address of these in turn.1. To the extent that Nanosecond intended to advance a claim for

injurious falsehood based upon anything Mr Page said, that claim fails on the basis that it has not been established that Mr Page had any relevant communication with Glen Carron. Neither Mr Mick Harrold nor Mr Doug Harrold suggested any relevant communication to them by Mr Page; and Mr Page denied any such communication with Glen Carron, saying that any communications with Glen Carron in relation to the banning of Mr Wentworth, or his performance more generally, around March and April 2017 were through Mr Gray. I accept Mr Page’s uncontradicted evidence that he did not have any such communication.

1. I turn then to consider whether Nanosecond has established a claim for injurious falsehood based upon anything said by Mr Gray to Glen Carron.

1. Mr Gray did not recall having any conversation with Mr Doug Harrold in the relevant period of time. He said that most of his dealings at that time, and generally, were with Mr Mick Harrold. Nor did Mr Doug Harrold suggest that there was any such conversation. I am not satisfied that Nanosecond has established any statement of relevance to the claim for injurious falsehood by Mr Gray to Mr Doug Harrold.

1. That leaves the claim based upon statements made by Mr Gray to Mr Mick Harrold. I am satisfied that Mr Gray did have some relevant conversations with Mr Mick Harrold during March and April 2017. In particular, he had a least one conversation with Mr Mick Harrold in about mid-March 2017 in relation to the March ban, and a further conversation on or about 26 April 2017 in relation to the April ban. The difficulty, however, is that there is only very limited evidence as to the content of these conversations.

1. As to the conversation in relation to the March ban – which is the focus of Nanosecond’s claim for injurious falsehood – I am able to infer the existence of such a communication from the surrounding circumstances, and, in particular, from the fact that Glen Carron appears to have learned of this ban from such a communication. However, Mr Gray did not give any evidence about the content of this conversation, beyond accepting that it was “probably about right” that he said something to Mr Mick Harrold in mid-March to the effect that it had been reported to him that Mr Wentworth had tried to run some of his drivers off the road. And Mr Mick Harrold’s evidence was confined to a general recollection that at some point Mr Gray informed him of complaints by Garden Grove drivers, including that

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Mr Wentworth had run several of them off the road. For the reasons explained below, while it is possible to draw some very general inferences about what was likely to have been said by Mr Gray, there are limits to how far it is appropriate to proceed in this regard given the unsatisfactory state of the evidence.

1. As to the conversation in relation to the April ban, and to the extent that it forms part of Nanosecond’s claim for injurious falsehood, there is some evidence from both Mr Gray and Mr Mick Harrold. I have extracted earlier in these reasons Mr Gray’s evidence. While Mr Gray accepted that he communicated the April ban to Mr Mick Harrold – and in particular that they had been advised by their major client (GrainFlow/Cargill) that they could no longer use Mr Wentworth on any of its work – his evidence was nevertheless very general. Mr Mick Harrold’s evidence was similarly general. It was confined to a recollection that at some point, probably around 27 April 2017, Mr Gray spoke to him about some incidents that had occurred, and difficulties in relation to the work involving Crystal Brook and Berth 29.

1. Against this background, I turn to consider Nanosecond’s claim for injurious falsehood by reference to each of the 9 statements apparently relied upon.

1. As to statement (i), there is no direct evidence that Mr Gray told Glen Carron that Mr Wentworth had been banned from Crystal Brook. However, based upon my finding as to the events of March 2017, I am prepared to infer that on or about 17 March 2017 Mr Gray did say to Mr Mick Harrold of Glen Carron something to the effect that there had been a request from GrainFlow at Crystal Brook that Mr Wentworth not be sent back there. But I am not satisfied that any statement by Mr Gray to this effect was either false or malicious. To the contrary, and as explained earlier in these reasons, I am satisfied that Ms Lord had made such a request of Garden Grove, and indeed that Mr Gray considered this to be tantamount to an instruction that they not send Mr Wentworth back to Crystal Brook. He had no reason to doubt Ms Lord’s authority to give such an instruction, and given his own concerns about Mr Wentworth’s performance, he also had no reason to doubt its appropriateness.

1. As to statement (ii), I am prepared to infer that on about 17 March 2017, Mr Gray did say to Mr Mick Harrold of Glen Carron something to the effect that Garden Grove did not want Glen Carron to use Mr Wentworth for the boat work at Berth 29. This was, in effect, just an extension of the instruction not to use Mr Wentworth to collect loads out of Crystal Brook, given that this was one of the sites from which the grain for the boats at Berth 29 was being loaded. However, I am not satisfied that Mr Gray said anything to Mr Mick Harrold at this time in terms of Mr Wentworth being “banned” from Berth 29. There is an insufficient evidential foundation for me to make a finding to this effect. I am thus not satisfied that Mr Gray said anything that was false, let alone malicious, about Mr Wentworth’s status in relation to Berth 29 as at mid-March 2017.

1. To the extent the plaintiffs’ case in relation to statement (ii) extends to statements made by Mr Gray to Mr Mick Harrold in late April 2017, then I am prepared to infer that Mr Gray told Mr Harrold that there had been a request from Berth 29 that Mr Wentworth not be sent back there. Again, however, I am not satisfied that any statement by Mr Gray to this effect was either false or malicious. To the contrary,

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as detailed earlier, I am satisfied that on about 26 April 2017, Berth 29 (through Mr Calabro) did request of Mr Gray that Mr Wentworth not be sent back there.

1. As to statement (iii), the pleaded case is in terms of a statement to the effect that Mr Wentworth had taken out a stobie pole (as opposed to a gate). The evidence does not establish that Mr Gray said anything to Glen Carron about Mr Wentworth having taken out a stobie pole. I am not prepared to infer that Mr Gray said this to Mr Mick Harrold. The evidence suggests that he was aware that the allegation in question related to a gate rather than a stobie pole. This is illustrated by the exchange in his conversation with Mr Wentworth on 17 March 2017. As can be seen from paragraph 16 of the transcript of that conversation,[22] as soon as Mr Wentworth made reference to an allegation that he had “taken out a stobie pole” at Crystal Brook, Mr Gray corrected him, saying it was a gate.

1. I accept that Mr Page may, at least for a period of time, have been under the false understanding that the incident related to a stobie pole; and, indeed, that he may have told Mr Wentworth that such an allegation had been made. However, there is no evidence to suggest that Mr Page communicated any such allegation to Mr Gray, let alone that Mr Gray communicated it to Glen Carron. In short, there is simply no basis in the evidence for me to find that anything about a stobie pole was communicated to Glen Carron.

1. To the extent that Mr Gray said anything to Glen Carron about Mr Wentworth having hit a gate at Crystal Brook, the plaintiffs have not established that this was false. While, for the reasons explained earlier, there is insufficient evidence to make a positive finding that Mr Wentworth hit the gate, let alone as to the circumstances in which he did so, it does not follow that the plaintiffs have established that it did not happen. Further, and in any event, as I am satisfied that Mr Gray and Mr Page were told by Ms Lord that Mr Wentworth had hit a gate, and did not have any reason to doubt that this was true, I am not satisfied that anything said by Mr Gray on this topic was malicious.

1. As to statements (iv) and (v), these appear to relate to the same topic. In his 17 March 2017 conversation with Mr Wentworth, Mr Gray made reference to having received a phone call from Mallala during the week (paragraph 6 of the transcript of that conversation), and later made reference to an allegation that he was taking up to an hour to load his truck (paragraph 24). As summarised earlier, Mr Gray’s evidence was that had been told by an employee from the Mallala site that Mr Wentworth had taken up to an hour to load his truck. He could not remember the name of the employee, although he thought his name might have been Jack. He also recalled hearing similar comments about Mr Wentworth being slow at loading his truck from both Ms Lord and more than one driver. In particular, he recalled being told that when loading, and working out how much to tip off, Mr Wentworth “takes an eternity”. While Mr Wentworth denied that he was slow at loading, there is no doubt there had been an issue in respect of his slow loading at Mallala. Mr Wentworth acknowledged as much in his long explanation of what had happened in paragraph 29 of the transcript of his 17 March 2017 conversation with Mr Gray.[23]

1. While Mr Gray thus made statements to the effect of (iv) and (v) to Mr Wentworth, I am not satisfied that he made these statements to Mr Mick Harrold. There is an insufficient evidential basis for me to make

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such a finding. Further, and in any event, I am satisfied on the basis of Mr Gray’s evidence that he had been informed by someone from Mallala that Mr Wentworth had recently taken up to an hour to load his truck; and that he believed this allegation to be true. Certainly there was no reason for him to doubt the truth of what he was told. It was consistent with what he had heard from other sources about Mr Wentworth being slow at loading his truck. While I am not in a position to make a finding that he did in fact take this long to load his truck, Nanosecond has not established that any statement by Mr Gray to Glen Carron to the effect of (iv) and (v) was false. Nor has it established any malice on the part of Mr Gray in making any such statement.

1. As to statement (vi), in his 17 March 2017 conversation with Mr Wentworth, Mr Gray made various references to Mr Wentworth having run other drivers off the road. In particular, he said “you’ve ran two of my trucks off the road this week” (paragraph 6); and “I’ve had three drivers ring me to say they been, had to take evasive action around ya” (paragraph 20). Then, in response to Mr Wentworth informing him that he had received a call from Glen Carron saying that he (Mr Gray) had told them Mr Wentworth “tried to run two of [Garden Grove’s] trucks off the road” (paragraph 37), Mr Gray responded by saying “I didn’t say you tried to run them off, I said you just did though. One last night, one the night before.”

1. In his evidence, Mr Gray said that he was referring in these passages to complaints that he had received from Ms Jones, Mr Sawley and Mr Bevan. I have earlier summarised the evidence of these three drivers, and made findings that they had encounters with Mr Wentworth’s truck in essentially the terms they described, and that these incidents were reported to Mr Gray.

1. I have already mentioned Mr Gray’s limited and general evidence about what he “probably” said to Mr Mick Harrold on this topic in mid-March 2017. Mr Mick Harrold gave evidence to the effect that Mr Gray told him at some point that he had received complaints about Mr Wentworth from Garden Grove drivers, including to the effect that he had run several of them off the road. He did not say whether Mr Gray had said this was intentional.

1. I am satisfied that Mr Gray did tell Mr Mick Harrold that Mr Wentworth had run some Garden Grove drivers off the road; or at least that he had been told this by those drivers. However, I cannot be more precise than this. Insofar as the inclusion of the word “tried” in the pleaded statement that Mr Wentworth “tried to run other drivers off the road” was intended to convey that Mr Gray suggested that Mr Wentworth’s conduct in this regard had been intentional or deliberate, I do not make any finding to that effect. Significantly in this respect, when Mr Wentworth suggested to Mr Gray in their 17 March 2017 conversation that this is what he had said to Glen Carron, Mr Gray immediately corrected him by denying that he said that Mr Wentworth had “tried” to run them off the road, but acknowledging “I said you just did though” (paragraph 38).

1. Once again, however, the plaintiffs have not established that whatever Mr Gray said was false or malicious. Indeed, given my findings based on the evidence of Ms Jones, Mr Sawley and Mr Bevan, I am satisfied that the statement that Mr Wentworth ran some Garden Grove drivers off the road was true. Mr Wentworth’s driving had required all three drivers to take evasive action, and had resulted in

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two of them having to drive their vehicles at least partially off the road. In addition, and regardless of the truth of the allegations by the drivers, I am satisfied that Mr Gray had a reasonable belief in the truth of those allegations – or at least did not have any reason to think they were false. As such, there is no basis in the evidence to find that he was malicious in referring to these allegations.

1. As to statements (vii) and (viii), these both relate to a suggestion that Mr Wentworth was driving for excessive period of up to 24 hours straight. While the evidence at trial included some evidence as to allegations to the effect that Mr Wentworth did not have a proper understanding of the driving hours requirements of the heavy vehicle regulations, and that he sometimes appeared tired or to have been working excessive hours, I am not satisfied that there is any evidential basis for finding that Mr Gray made any allegation to this effect to anyone from Glen Carron. I decline to make any such finding.

1. Finally, as to statement (ix), there is an allegation that Mr Gray said that Mr Wentworth was banned from doing any further work for Garden Grove. It is not clear precisely what Mr Gray said on this topic to Mr Mick Harrold at the time of the March ban. It is more likely that whatever Mr Gray said to Mr Harrold was expressed in terms of Mr Wentworth being banned from the work on the boats, or work out of Crystal Brook. However, as that was the only Garden Grove work that Glen Carron was doing at the time, there was little practical distinction between a ban upon doing work on the boats, and a ban upon doing any further work for Garden Grove. In any event, as Mr Gray was authorised to speak on Garden Grove’s behalf, it is difficult to see how the plaintiffs can establish that what he said on this topic was false. For practical purposes, the nature and extent of the ban in relation to Garden Grove work was whatever it was expressed to be by Mr Gray.

1. For the above reasons, I am not satisfied that Nanosecond has made out any claim for injurious falsehood. It has not established any false and malicious statement made by Garden Grove to Glen Carron.

1. Even if Nanosecond had established one or more false and malicious statements by Garden Grove to Glen Carron, there would be a further obstacle to the claim for injurious falsehood; namely, the need to prove actual damage caused by the statement or statements. Quite apart from the general inadequacies in the plaintiffs’ evidence as to the financial losses claimed (see later), there would be additional difficulties associated with any attempt to attribute any loss actually suffered to any particular statement or statements that might be proved to have been false and malicious. It is one thing to conclude that Nanosecond suffered loss as a result of the defendants’ decision to cease providing it with work. It is quite another thing to link any such loss (or part thereof) to a particular statement or statements.

1. One obvious difficulty is that the focus of the claim for injurious falsehood was upon the March communication from Mr Gray to Glen Carron. While this communication resulted in the temporary loss of work, the plaintiffs resumed work within a week or so. It was only in late April that the plaintiffs lost work on a permanent basis. Even then, the evidence suggests that the defendants made their decisions to cease providing the plaintiffs with work based upon a myriad of information, rather than any particular statement or statements. In particular, in circumstances where Glen Carron was already aware of numerous complaints and concerns about Mr Wentworth’s driving and

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performance, it would be difficult to link its decision to cease providing the plaintiff with work to any particular statement or statements by Mr Gray even if it or they were proved to be false and malicious.

1. In short, there would be a complicated causation inquiry required before any claim in injurious falsehood could be made out. However, in circumstances where I am not satisfied that Garden Grove made any statement that was false and malicious, I do not consider it appropriate or necessary for me to embark upon that inquiry.

Mr Wentworth’s claim for defamation

1. As explained at the outset of these reasons, the claim in defamation is confined to a claim on behalf of Mr Wentworth against Garden Grove. Mr Wentworth’s case is that Mr Gray said words to Mr Mick Harrold that gave rise to defamatory imputations that Mr Wentworth was reckless in his driving and had engaged in criminally dangerous driving.

1. There is a factual overlap between this claim, and Nanosecond’s claim for injurious falsehood based upon statement (vi). For the reasons explained in that context, I am satisfied that on or about 17 March 2017, Mr Gray told Mr Mick Harrold that Mr Wentworth had run some Garden Grove drivers off the road; or at least that he had been told this by those drivers.

1. However, in my view, Mr Wentworth has not established that Mr Gray said words that conveyed an imputation that Mr Wentworth had driven recklessly or in a criminally dangerous way. Certainly I am not satisfied that Mr Gray said anything to convey an imputation that Mr Wentworth had deliberately or intentionally run the other drivers off the road. But in my view, the evidence also falls short of establishing words sufficient to convey an imputation of reckless or criminally dangerous driving. While the reference to other drivers being “run off the road” probably did convey some defect or culpability in Mr Wentworth’s driving, I consider there would need to be something more than a reference to having “run them off the road” before an ordinary and reasonable person would understand there to be an allegation of defective or culpable driving that rose as high as reckless, let alone criminally dangerous, driving – as opposed to, for example, merely careless or negligent driving.

1. To the extent that the plaintiffs rely in this context upon anything said by Mr Gray to Mr Mick Harrold in relation to Mr Wentworth hitting a stobie pole or gate, I am not satisfied that he did say anything in relation to a stobie pole; and am not satisfied that anything said in relation to the gate gave rise to the imputation pleaded. For completeness, I also add that I am not satisfied that Mr Gray said anything to Mr Mick Harrold in relation to excessive driving hours, let alone anything that gave rise to the imputation pleaded.

1. For this reason, Mr Wentworth’s claim for defamation must fail. Alternatively, even if I am wrong, and Mr Gray did convey an imputation that Mr Wentworth had driven recklessly, I consider that Garden Grove would have a defence of qualified privilege available to it.

1. As to the defence of qualified privilege, Garden Grove relies upon s 28 of the Defamation Act 2005 (SA). The statements made by Mr Gray to Mr Mick Harrold were made during a conversation between the two in

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which the former was explaining to the latter why it had decided not to continue using Mr Wentworth for its work, and why it was requesting or instructing Glen Carron not to use him on the work it was doing for Garden Grove. In this context, and the broader context of the working arrangements between Garden Grove and Glen Carron, I accept the submission that Glen Carron had an interest (or at least apparent interest) in receiving this information (s 28(1)(a)), and that the communication occurred in the course of giving Glen Carron this information (s 28(1)(b)). I am also satisfied that Glen Carron’s conduct in this respect was reasonable.

1. As explained earlier, I am satisfied that three drivers made complaints about Mr Wentworth driving in a manner that required them to either leave the road or at least take evasive action. The information was of a serious nature, and came from contemporaneous first-hand sources. There was no reason for Mr Gray to doubt the accuracy of what he had been told by these drivers, and there is no basis in the evidence to think that he did doubt its accuracy. As these allegations about Mr Wentworth’s driving were a factor in Garden Grove’s decision to cease providing the plaintiffs work, and to request or instruct Glen Carron to give effect to this, I consider it was reasonable for Mr Gray to communicate with Mr Mick Harrold in the terms he did. For similar reasons, I am not satisfied that the plaintiffs have established any malice on the part of Mr Gray or Glen Carron in connection with this communication.

1. As to the defence of truth, while pleaded it was not pursued in Garden Grove’s closing address. For that reason, and despite me having accepted the evidence from the three Garden Grove drivers about their encounters on the road with Mr Wentworth, I express no concluded view as to the applicability of the defence of truth.

1. Finally, even if it had been proved that Garden Grove, through Mr Gray, defamed Mr Wentworth, I do not consider that Mr Wentworth has made out an entitlement to anything more than a modest award of damages. In circumstances where Mr Wentworth already had a poor reputation as a driver, any award of general damages would be confined to an amount necessary to reflect only the incremental harm to his reputation and any hurt to feelings attributable to the particular communication complained of. Any claim for financial losses would be subject to the same difficulties of proof and causation outlined in the context of the claim for injurious falsehood.

The conspiracy claim

1. There are two forms of the tort of conspiracy, or at least two ways in which the tort may be established. They are sometimes described as conspiracy by unlawful means, and conspiracy by lawful means. As these labels suggest, the two forms of conspiracy to cause harm to the plaintiff differ according to whether or not unlawful means were used. Where the means were not unlawful, a higher or more exacting form of intention or purpose on the part of the conspirators is required.

1. Both forms of conspiracy require proof of the following matters:[24]

1. An agreement or combination between two or more people. While direct evidence of an agreement to injure the plaintiff will often be difficult to obtain, the existence of such an agreement might be inferred from “a concurrence of time, character,

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direction and result” of the separate acts of each of the relevant people.[25]

1. The agreement or combination was carried into effect in whole or in part.

1. The plaintiff suffered some pecuniary loss as a result of the defendant conspirators’ acts in furtherance of their agreement.

1. Both forms of conspiracy also require an intention or purpose on the part of the conspirators to injure the plaintiff. In the case of a conspiracy which is effected through acts or means which are themselves unlawful, it is not necessary that the conspirators have a predominant intention or purpose to injure the plaintiff. It will be sufficient to establish an intention to injure the plaintiff in the sense that the contemplated conduct is directed towards the plaintiff, and in circumstances where the conspirators should reasonably have known that this conduct would injure the plaintiff.[26]

1. However, in the case of a conspiracy which is effected through acts or means which are not of themselves unlawful, the plaintiff must establish that the predominant intention or purpose of the conspirators was to injure the plaintiff; that is, that the ultimate motive or object of the conspirators was to injure the plaintiff.[27]

1. It is not enough that one or some of the conspirators disliked, or bore a personal grudge towards, the plaintiff if it is not also established that the conspirators were collectively actuated by some motive of this kind. Proof of the requisite mental element will usually require a finding to the effect that the conspirators combined for the predominant purpose of furthering some collective animus, grudge, vendetta or spite towards the plaintiff. Put another way, it is a corollary of the requirement that the conspirators have a primary purpose or intention to injure the plaintiff that if the conspirators are motivated by some form of legitimate self-interest (such as the protection or advancement of their own business or economic interests), then the claim will fail. This is sometimes expressed in terms of there being a ‘defence’ of justification to the tort of conspiracy by lawful means.

1. As mentioned at the outset of these reasons, the plaintiffs’ pleaded case in conspiracy is that the conduct in making the allegations about Mr Wentworth (that I have labelled allegations (i) to (ix)), involved a conspiracy by unlawful means by Mr Page and Mr Gray of Garden Grove, and Mr Mick Harrold of Glen Carron, “to falsely accuse [Mr Wentworth] of a variety of acts and conduct which at no time had any truth or basis in fact and were maliciously contrived by [these men] for the purpose of withholding supply [to the plaintiffs]”. The conspiracy is pleaded to have been intentional, motivated by malice and designed to cause financial harm to the plaintiffs.

1. The focus of the allegation of conspiracy is the defendants’ conduct from 17 Mach 2017, and in particular the conduct of each of the participants in the conspiracy in making or repeating the allegations when they knew them to be false. However, the discursive pleadings in support of the alleged conspiracy also include reference to matters dating back to 2016, including various unspecified statements which are said to have been false and fabricated, actuated by malice, and made for the purpose of causing financial harm to the plaintiffs.

1. I accept that during March and April 2017 there were discussions between Mr Page and Mr Gray, and Mr Mick Harrold, in which various of the allegations about Mr Wentworth’s driving and performance

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were discussed. I have made findings to this effect at various stages earlier in these reasons. However, for several reasons, the plaintiffs have fallen well short of establishing that these discussions involved, or were part of, a conspiracy to make false allegations for the purpose of harming the plaintiffs.

1. The plaintiffs’ case in conspiracy involves a mischaracterisation of the relevant discussions and dealings. The evidence does not establish that there was ever any agreement between the alleged conspirators to accuse (let alone falsely accuse) the plaintiffs of anything. To the contrary, the accusations or allegations largely emerged from complaints and reports made by others to Mr Page, Mr Gray and Mr Mick Harrold. I refer in this respect to the findings I have earlier made in relation to the evidence from the customer and driver witnesses, and the representatives of the Crystal Brook and Berth 29 sites (particularly Ms Lord and Mr Calabro).

When Mr Page and Mr Gray discussed the allegations about Mr Wentworth in March and April 2017, they did so in the context of deciding what action, if any, they should take as a result of the allegations about Mr Wentworth that had come to their attention. In no sense were they making, or embarking upon, some agreement to themselves make or promote the allegations about Mr Wentworth. As it happens, Mr Page and Mr Gray agreed that action should be taken in response to the allegations. This action came in the form of what I have described as the March and April bans. But this was an agreement to act on the basis of information that they believed to be true and of sufficient concern to warrant that that action be taken. It was not an agreement to accuse Mr Wentworth of anything, let alone to falsely accuse him of anything.

Having made the decisions to implement the March and April bans, Mr Gray then informed Mr Mick Harrold of these decisions. I accept that in the course of their discussions in this context they likely discussed several of the accusations or allegations that had been made about Mr Wentworth. But again, in no sense were these men embarking upon some agreement to themselves make or promote the allegations about Mr Wentworth. Rather, the reference to the allegations was in the context of Mr Gray explaining Garden Grove’s decision to not allocate work to Mr Wentworth, and requesting or instructing Glen Carron to give effect to this by not using Mr Wentworth in carrying out the work it was doing for Garden Grove (and its client, GrainFlow) in loading the boats at Berth 29. While Mr Mick Harrold relied upon the allegations, or some of them, in deciding on behalf of Glen Carron to cease allocating work to the plaintiffs, this was a decision to take action as a result of the allegations. It was a decision made by Mr Mick Harrold on the basis that he believed the allegations, or at least considered them to be of sufficient concern to warrant ceasing to give the plaintiffs work.

Properly characterised, I consider that the decisions to ban Mr Wentworth in March and April 2017 involved independent decisions by Garden Grove (through Mr Page and Mr Gray) and Glen Carron (through Mr Mick Harrold). In other words, I do not think that there was any ‘agreement’ at all between the alleged conspirators, being Mr Page and Mr Gray of Garden Grove, and Mr Mick Harrold of Glen Carron. But even if I am wrong about this, any agreement was one to take action in response to the allegations; an agreement to give effect to the request or direction from Crystal Brook and

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Berth 29 that Mr Wentworth not be used on the work on the boats. It was not an agreement to make or promote the allegations.

The above is sufficient to dispose of the conspiracy claim. It fails at the threshold on the basis that the plaintiffs have not established the alleged agreement between the conspirators. However, for the reasons that follow, I am also not satisfied that the plaintiffs have established the requisite intention on the part of the alleged conspirators.

The conspiracy was pleaded as a conspiracy by unlawful means. Presumably this was on the basis of the plaintiffs’ contention that one or more of the alleged conspirators committed the injurious falsehood by making or prompting the allegations. But in circumstances where I have rejected the plaintiffs’ other contentions of wrongdoing (including the claim for injurious falsehood), the conspiracy could only have been one to cause harm by lawful means.

As explained earlier, proof of a conspiracy by lawful means requires proof that the predominant intention or purpose of the conspirators was to injure the plaintiffs. I do not accept that any of the alleged conspirators had such an intention.

I accept that each of Mr Page, Mr Gray and Mr Mick Harrold found Mr Wentworth difficult and frustrating to deal with at times. Certainly Mr Harrold described him as the most difficult of Glen Carron’s drivers.

There was some evidence of these difficulties and frustrations resulting in rudeness on the part of Mr Mick Harrold. For example, both Mr Wentworth and Mr Mick Harrold gave evidence about an occasion in about August 2016 when Mr Harrold abused Mr Wentworth over the telephone, calling him an idiot and a fool. Mr Harrold maintained that he was justified in speaking the way he did because Mr Wentworth had let him down badly by attending at a site before Mr Harrold had given him the instructions and detail necessary for the site. While I accept that Mr Harrold had some cause to feel annoyed or frustrated by what had occurred, the terms and tone of his response went beyond what was necessary or appropriate.

There was also some evidence from Mr Wentworth to the effect that there were occasions when he was despatched work by Mr Mick Harrold, and had embarked upon the driving required by that work, only to be told that his services were no longer required. While the evidence was not sufficient to enable me to make findings about any particular incident of this nature, I am prepared to accept that at times the plaintiffs were inconvenienced by the manner in which Glen Carron allocated, and at times re-allocated, its work.

During the course of the trial, Mr Wentworth also sought to make something of the retention rates claimed by Glen Carron; that is, the margins it claimed on the work it allocated to the plaintiffs. However, once again the plaintiffs simply did not adduce evidence of sufficient quality, detail or precision to enable me to make any findings of significance on this topic. To the extent that some of the apparently anomalous invoices or amounts were addressed in the evidence, explanations were proffered by the Glen Carron witnesses.

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The evidence does not provide any basis for me to doubt those explanations.

Finally, I mention also in this context that I accept that Mr Wentworth’s preparedness to do some occasional work for Pat Harrold after he had fallen out with his brothers, and had left Glen Carron, was likely also an occasional source of annoyance to Mr Mick Harrold (and Mr Doug Harrold).

However, the evidence fell well short of establishing that Mr Mick Harrold bore any general or ongoing feeling of ill-will towards Mr Wentworth, or otherwise wished to cause him harm. Such a conclusion does not follow from the evidence which established, at most, a few isolated episodes of annoyance, rudeness and harsh treatment. That is particularly so in circumstances where the evidence also revealed that Glen Carron (through Mr Mick Harrold and Mr Doug Harrold) had been prepared to try and assist the plaintiffs, for example, by accommodating Mr Wentworth’s request for regular advance payments of the monies to be paid to him, and by providing him with some business advice from time to time.

In the case of Mr Page and Mr Gray, there was no evidence at all of any background ill-will towards, or dislike of, Mr Wentworth.

In the circumstances, there is no basis for me to find that any of the alleged conspirators were motivated by an intention to injure the plaintiffs when they made their decisions in March and April 2017 to cease allocating them work. While they understood that these decisions would likely have adverse financial implications for the plaintiffs, I do not accept that any of them were motivated by a desire to inflict such harm upon the plaintiffs. Rather, I am satisfied that in acting the way they did, and in making the decisions they did, each of them was motivated solely by the legitimate interests of their respective businesses. Mr Page and Mr Gray were motivated by a desire, on behalf of Garden Grove, to address genuine concerns about Mr Wentworth’s driving and performance to keep its customer (Cargill/GrainFlow) happy. Mr Mick Harrold was similarly motivated by a desire, on behalf of Glen Carron, to address genuine concerns about Mr Wentworth’s driving and performance and to keep its customer (Garden Grove, and thus indirectly also Cargill/GrainFlow) happy. For these reasons, the plaintiffs’ claim in conspiracy must fail.

The misleading conduct claim

I have earlier outlined the plaintiffs’ case alleging misleading and deceptive conduct contrary to s 18(1) of the Australian Consumer Law, and my difficulty in understanding it.

The plaintiffs rely upon letters provided by each of the defendants in March 2016 for use by the plaintiffs in support of their application for finance for a replacement truck to be purchased by Nanosecond.

The 8 March 2016 letter from Mr Doug Harrold of Glen Carron, headed “To whom it may concern”, was in the following terms:

Nanosecond Corporation Pty Ltd is one of our preferred sub-contractors and has been since

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February 2015.

Current financial year to date figures 1/7/2015 to 29/02/2016 show that purchases to Nanosecond Corporation Pty Ltd total to the amount of $87,200.13.[28]

Work in this industry varies according to demand.

This letter does not constitute a contract or a guarantee of work.

The 16 March 2016 letter (by email) from Mr Page of Garden Grove, also headed “To whom it may concern”, was in these terms:

Nanosecond Corporation Pty Ltd operated by Mr Clayton Wentworth has been one of our regular sub-contractors since February 2015.

Rates for sub-contractors are not fixed and vary from job to job. Total earnings for the sub-contractor are directly related to pay load size, for example a single set up’s payload is approx. 28t and a bdouble set up can be as high as 45t.

From April 2015 to the end of January 2016 Nanosecond has completed work for us to the value of just over $28,600.

The plaintiffs go on to plead that the defendants’ subsequent conduct was “entirely inconsistent with and at odds with and contrary to the spirit” of these letters. The conduct referred to in this respect is not clearly identified, but it appears to be a reference to the (alleged) conduct of Mr Gray, Mr Page and Mr Mick Harrold that is relied upon in support of the allegations of injurious falsehood and conspiracy.

I remain at a loss to understand the plaintiffs’ claim for misleading and deceptive conduct. Insofar as the plaintiffs’ claim is that the terms of the pleaded letters were misleading in some way, the claim goes nowhere. While there was some evidence which suggested a difficulty in identifying whether the income figures in those letters were correct, that was not a matter of complaint by the plaintiffs. Nor was it a matter that was alleged or proven to have had any adverse consequence for the plaintiffs. Having been provided with this support by the defendants, they were able to obtain the finance necessary to obtain the replacement equipment. Similarly, insofar as the plaintiffs’ pleaded claim is that the letters presented an artificially optimistic assessment of Nanosecond’s business (at least relative to what the plaintiffs’ now know was the view of the defendants), this was again not a matter pursued by the plaintiffs, or otherwise alleged or proven to have had any adverse consequence for the plaintiffs.

It may be that the plaintiffs intended to pursue a case in which the letters were intended to be relied as evidence of the true position, and hence as probative of an allegation that the defendants’ subsequent conduct (that is,

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in making allegations about Mr Wentworth’s poor performance) was misleading. While this is not what the plaintiffs’ statement of claim pleads, it is more consistent with Mr Wentworth’s attempts to explain this aspect the plaintiffs’ case. In my view, the plaintiffs have not adequately pleaded any case to this effect. But I would add that, in any event, any intended case along these lines would not have been made out on the evidence. For the reasons explained earlier in the context of the plaintiffs’ case for injurious falsehood, I am not satisfied that the plaintiffs have established any false (or, I would add, misleading) statements made by Garden Grove representatives to Glen Carron. Nor have I been able to identify any other misleading statement or conduct by either of the defendants, let alone any such statement or conduct that was potentially productive of loss on the part of the plaintiffs.

The losses claimed by the plaintiffs

Given that the plaintiffs have failed to make out any cause of action, it is not strictly necessary for me to consider the issue of what losses the plaintiffs might have suffered had any of their claims been made out. However, I consider it appropriate to make the following observations.

Earlier in these reasons, when summarising the plaintiffs’ causes of action, I mentioned the amounts claimed by the plaintiffs. They seek approximately $24 million from Glen Carron, and approximately $30 million from Garden Grove, giving a total of approximately $54 million. The amounts sought are completely unrealistic, and are illustrative of the lack of objectivity and reality brought to these proceedings by Mr Wentworth.

For the most part, the amounts sought in respect of the individual claims are completely unparticularised, and so there is little I can say other than that the plaintiffs have not established a basis for the amounts claimed, or indeed any amount at all. In respect of the claims against Garden Grove for injurious falsehood and defamation, I have explained why, even if the causes of action had been established, there would be difficulties from a causation point of view in ascertaining what, if any, would be recoverable by way of damages. For that reason, there is nothing I can usefully add in relation to the damages sought by the plaintiffs in respect of those claims. In relation to the claim alleging misleading conduct, my difficulties in understanding the claim also make it impossible for me to add anything in relation to the damages sought by the plaintiff. The damages claimed in respect of the conspiracy alleged against the defendants are unparticularised, and despite the significant amounts claimed ($8 million from Glen Carron, and $10 million from Garden Grove), are said to relate to loss and damage suffered by the plaintiffs in addition to the loss and damage alleged to have been suffered by reason of the withdrawal of the supply of work to the plaintiffs. No such loss and damage has been identified, let alone proved.

The only part of the claimed losses that have been particularised at all are the losses claimed to have been suffered as a result of the alleged breaches of contract and the consequential withdrawal of the supply of work from the plaintiffs. In this respect, the plaintiffs seek amounts of approximately $8.5 million from Glen Carron and $2.5 million from Garden Grove on account of lost net income. Against Glen Carron, the plaintiffs claim an additional

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amount of slightly in excess of $800,000 for consequential loss and damages for destruction of the plaintiffs’ credit history.

The hypothesis underpinning the plaintiffs’ claim for lost net income is that had the defendants not breached their contracts by ceasing to provide the plaintiffs with work, Mr Wentworth would have continued driving and earning income from the defendants for six days a week, 12 months a year, for 15 years; that is, until the end of April 2032.

As against Glen Carron, the formulated claim assumes that the plaintiffs would have spent nine months of each year driving for it. During this nine months, the six days per week would have been spent making two return trips from Adelaide to Sydney each week, with a B-double load of 43 tonnes, at $110 per tonne, giving a total of $20,812 in income per week. Extrapolated out at the rate of 39 weeks a year, for 15 years, this provides a total income of $12.175 million. The plaintiffs then reduced these forecast gross earnings by 30 per cent for “expenses not incurred of fuel, tyres, servicing, registration, insurance and other”, giving a claimed lost net income of approximately $8.5 million.

As against Garden Grove, the formulated claim assumes that the plaintiffs would have spent the remaining three months of each year driving for it. It assumes the plaintiffs would have spent six days a week during this period making two return trips between Crystal Brook and Berth 29 each day, using a road train to transport 61.2 tonnes at the rate of $22 per tonne, giving $17,772 per week. After extrapolating this amount over 13 weeks a year for 15 years, the gross income claimed to have been lost is approximately $3.5 million. After reducing this by 30 per cent for expenses not incurred, the amount claimed is slightly less than $2.5 million.

There are a number of difficulties with this formulation of the plaintiffs’ claim for damages in contract. It assumes that the respective contracts would have continued for 15 years. I consider it entirely unrealistic to assume that Mr Wentworth would have continued driving on a full time basis, or even at all, until he was 82 years of age. This formulation also ignores, or makes no allowance for, the potential for the contracts being terminated or brought to a conclusion earlier than this time period for reasons other than Mr Wentworth’s age. The formulation also involves a ‘straight line’ calculation, without any discount to take account of the time value of money – which would ordinarily warrant a significant reduction over a 15 year period.

However, and more fundamentally, there was simply no basis in the evidence for the amounts claimed, or most of the components thereof.

Using the figures set out in Glen Carron’s closing submissions (which appear to accurately summarise the documentary evidence adduced at trial, and were not challenged by the plaintiffs), over the period of slightly in excess of two years from when the plaintiffs commenced operating through Nanosecond until they ceased earning income, the plaintiffs earned gross income of approximately $238,000 from Glen Carron, $47,000 from Garden Grove and $69,000[29] from third parties. This reflects an annual gross income of approximately $177,000,[30] being only about 15 per cent of the net annual income of approximately $1,042,000[31] inherent in the plaintiffs’ formulation. The percentage would be even smaller again if the historical

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earnings were confined to gross income from the two defendants (and hence excluding the income from third parties). It is immediately obvious from this that the plaintiffs’ forecast earnings are entirely unrealistic.

The plaintiffs contend that there was likely to be an increase in their income as a result of having obtained a permit to operate a road train only shortly prior to the defendants ceasing to provide them with work. I accept that this meant that the plaintiffs had some increased capacity. However, it would be pure speculation on my part to attempt to put some value on this increased potential. The plaintiffs did not adduce any evidence that would permit any meaningful assessment of the additional work that might have been available to them.

For the nine month period which the plaintiffs claimed they would be working for Glen Carron each year, the assumption of a constant stream of return runs from Adelaide to Sydney bore no resemblance to work historically done by the plaintiffs. The plaintiffs had only ever done a few trips to Sydney, and had never done two in the same week. Indeed, the plaintiffs had only ever done a handful of jobs for Glen Carron in which they earned more than $50 per tonne, let alone the $110 per tonne assumed in the plaintiffs’ formulation. The plaintiffs did not have a history of any sustained period of working six days a week. Even assuming Mr Wentworth was physically capable of sustaining this rate of work for any significant period of time, the evidence does not support a finding that this volume of work was even available to Glen Carron and Garden Grove, let alone likely to have been allocated to the plaintiffs given seasonal nature of the industry and the hierarchy pursuant to which the defendants allocated the available work.

Turning to the expenses side of things, any attempt to meaningful assess the plaintiffs’ asserted losses would be rendered speculative by the paucity of evidence adduced by the plaintiffs as to their expenses. The plaintiffs did not adduce any evidence in the form of accounts, BAS statements or taxation returns for the relevant period. It would appear they do not exist. Nor did the plaintiffs adduce any expert evidence.

The evidence adduced by the plaintiffs in relation to expenses was confined to a schedule of expenses prepared by Mr Wentworth to assist him in giving evidence, together with the oral evidence of Mr Wentworth. The difficulty with this evidence was that it tended to negate the losses claimed by the plaintiffs. I say this because it showed expenses which exceeded the gross income being generated by the plaintiffs. As Mr Wentworth accepted in his oral evidence, the business being operated through Nanosecond was at best marginal. It was dependent upon advance payments from Glen Carron in order to meet its operating expenses. The financial performance of the business was sufficiently marginal that it raises doubts in my mind as to its continued viability. Certainly it was not generating any material profits, let alone anything like the extraordinary profits inherent in the plaintiffs’ formulated claim.

A significant proportion of the expenses being incurred by Nanosecond were its costs of financing its truck and trailers. These cannot be ignored in an assessment of the plaintiffs’ losses. They are expenses that would have been incurred on an ongoing basis if the plaintiffs had continued to do work

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for the defendants. While they would at some point have paid off the cost of the equipment, there would also no doubt be future capital expenditure required in order to continue to operate the business.

It is true that the plaintiffs continued to incur some of these financing costs even after they ceased doing any work, and to that extent they would not need to be reflected in any assessment of the plaintiffs’ losses. However, that would only be so for a limited period of time. There was only limited evidence as to what has come of the plaintiffs’ equipment now that they are no longer working in the transport industry. But regardless of what has in fact happened to that equipment, an assessment of the plaintiffs’ losses would need to proceed on the basis that they were required to mitigate their losses by selling or leasing the truck and trailers if they are to recover losses on the basis of an assumption that they are no longer able to engage in such work. As such, an assessment of the plaintiffs’ losses could not ignore the financing costs, except for a relatively short period of time following the cessation of the plaintiffs’ work.

As mentioned, the plaintiffs’ formulation assumed expenses confined to 30 per cent of gross earnings. This formulation was not supported by the evidence as to the historical experience of Nanosecond. While Mr Wentworth asserted that this was a reliable benchmark for expenses, he did not adduce any evidence capable of supporting this benchmark. And the evidence of Mr Doug Harrold was that, based on his experience in the industry, the suggestion of any such benchmark was absurd.

It is trite that the plaintiffs bore the onus of proving not only that they suffered loss as a result of the defendants’ alleged breaches of contract, but also the amount of the loss they suffered. They had to prove these matters on the balance of probabilities, and with as much precision as the subject matter reasonably permitted.[32]

For all of the above reasons, I do not consider that the plaintiffs have established that they suffered any loss at all by reason of the defendants ceasing to provide them with work, let alone the amount of any such loss.

In so concluding, I am conscious of the general principle that the Court must do its best to assess a plaintiff’s loss based on the evidence available to it; and that that is so, even if there are difficulties inherent in the process that result in a significant degree of uncertainty and estimation in the assessment. However, this principle operates primarily in those cases where a plaintiff cannot adduce precise evidence of what has been lost. It does not operate, or does not operate with the same force, in those cases where, although apparently able to do so, the plaintiff simply has not adduced such evidence.[33]

The present case is in the latter category of cases. In such cases, the principle that the Court must generally do the best it can does not extend as far as requiring the Court to arrive at a figure regardless of the quality of the evidence adduced. It does not require the Court to engage in speculation. To the contrary, the Court must still have regard to the quality and sufficiency of the evidence adduced, having regard inter alia to the evidence available to be adduced. If the evidence is insufficient to permit more than speculation or guesswork, then the Court is not required to determine a

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figure. It may reach the conclusion that the plaintiff has simply failed to prove any particular loss. In my view this is such a case.

Further, and in any event, such evidence as there was in this case tended to indicate that the plaintiffs were operating a business that was barely viable. I do not consider that the plaintiffs have established a likelihood of making profits in the future even if the defendants had continued to provide them with work. In my view it is just as likely, and probably more likely, that they would have continued to break even or incur losses. As such, the plaintiffs’ difficulty is not just that they have not led sufficient evidence to enable the Court to put a dollar figure on the profits lost. Rather, it is that they have not established that they suffered any loss at all.

For completeness, I add that the plaintiffs also failed to establish the claimed consequential loss and damage for destruction of their credit history. While Mr Wentworth gave some evidence as to a deterioration in his credit record, the evidence was not sufficient to enable the quantification of any such loss, let alone causally link it to any particular misconduct on the part of one or other of the defendants.

Conclusion

For the reasons given, I dismiss all of the plaintiffs’ claims against the defendants. There will be judgment in favour of the defendants.

I will hear the parties in relation the issue of costs.

[1] The parties during trial tended to use GrainFlow and Cargill interchangeably. As nothing in this case turns on the distinction, I shall generally refer to GrainFlow.[2] Third statement of claim at [48], as explained and refined at T1362.[3] Roles described as at the date of relevant events. [4] The voir dire took place 10 days prior to the commencement of evidence in the trial. However, strictly speaking, I commenced the trial at that stage so as to conduct the voir dire.

[5] Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd [2018] SASC 116.[6] See italicised words in paragraph 8 of the transcript of this conversation.[7] See paragraph [38] of the transcript of this conversation below.[8] He said it was the conversation with Crystal Brook that he referred to in paragraph 8 of the transcript of his 21 March 2017 conversation with Mr Wentworth (see below).[9] The passages in italics were edited or deleted from the version of the recording relied upon by Mr Wentworth.

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[10] With deletions by Mr Wentworth italicised.[11] With deletions by Mr Wentworth italicised. [12] The email refers to 7:00am on 25 April, but given that the entries include matters ranging from 24 April through to 27 April, this was likely meant to have been a reference to 27 April.[13] The version of the email in evidence does not disclose the recipients of the email, but the text of it is addressed to Mr Gray, and there is a response to it from Mr Calabro.[14] With deletions by Mr Wentworth italicised.[15] With deletions by Mr Wentworth italicised. [16] With deletions by Mr Wentworth italicised.[17] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [38]- [41]; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471 at [34].[18] Vroon BV v Foster’s Brewing Group Ltd [1994] VicRp 53; [1994] 2 VR 32 at 83.[19] Kriketos v Livschitz [2009] NSWCA 96 at [5], [109], [115]-[117], [160].[20] Subject to the qualification addressed below arising out of an alleged variation to the contract with Glen Carron in late May 2016.[21] Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at [52], [192].[22] Which I note in passing was one of the passages deleted from the edited version of the recording of that conversation relied upon by the plaintiffs.[23] Which I note in passing was a further one of the passages deleted from the edited version of the recording of that conversation relied upon by the plaintiffs.[24] See Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269 at [697]- [698]; McKeller v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409 at [130]- [154]; McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 at 361-361 (Dixon J), and at 378-381 (Evatt J); Williams v Hursey [1959] HCA 51; (1959) 103 CLR 30 at 122-127 (Menzies J).[25] R v Associated Northern Collieries [1911] HCA 73; (1911) 14 CLR 387 at 400 (Isaacs J), as applied in Latham v Singleton [1981] 2 NSWLR 843 at 859.[26] Cornwall v Rowan [2004] SASC 384; (2004) 90 SASR 269 at [719]; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1991) 165 ALR 409 at [135]- [137].

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[27] McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343 at 362 (Dixon J), and at 397-400, 404 (Evatt J).[28] There was a second copy of this letter in evidence with a different figure of $29,170.66.[29] Approximately $31,000 of which was earned in May 2017, being the month after the plaintiffs ceased receiving work from the defendants.[30] Being the total of $238,000 plus $47,000 plus $69,000, giving a total of $354,000 over slightly in excess of two years, or about $177,000 per annum.[31] Being 13 weeks at $17,772 plus 39 weeks at $20,812.[32] Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [37].[33] Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 77 ALJR 768 at [38].

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