conversation implausible. I reject those submissions. Robert Aikin acknowledged in
cross-examination that his reference to NSW Freightlines potentially working for
Schweppes in the future “either with BFS or separately” involved an element of
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imprecision on his part. [72]e was plainly referring to a hypothetical possibility of the
previous BFS structure being revived in some way. It is the same kind of imprecision
that attended Robert Aikin’s reference in cross-examination to “the old BFS” in
73
circumstances where there was no new BFS. [73]t is the very kind of imprecision that is
common for non-lawyers when referring to legal entities in general conversation. As
senior counsel for the plaintiffs put to Robert Aikin in cross-examination, this was a
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general conversation and not a legal conversation. [74]
336. The plaintiffs’ submissions about the conversation between Robert Aikin and Michael
Vella also referred to the implausibility of Michael Vella pitching for the whole of the
Schweppes work previously performed by BFS. However, as the defendants submitted,
Robert Aikin’s evidence of the conversation does not suggest that Michael Vella was
pitching for the whole of the BFS work rather than the share of that work that JEV had
been doing through BFS.
337. As referred to at [245] above, Robert Aikin accepted in cross-examination that Michael
Vella may have asked him during their conversation for a copy of the termination letter
and that Robert Aikin told him there was no such letter. Contrary to the plaintiffs’
submissions, I do not consider that this is “wholly consistent with the plaintiffs’ version
of events and equally inconsistent with the defendants’ version”. Questions asked by
Michael Vella of Robert Aikin about a letter of termination on about 10 September 2012,
by which time Michael Vella knew that JEV’s trucks were no longer required by BFS, are
consistent with several possibilities. One possibility is that Brian Hobson told Michael
Vella that there was a letter of termination, as Michael Vella claims. Another possibility
is that Michael Vella assumed that Schweppes would need to issue a letter of termination
if it had ceased using the services of BFS. The Court will not engage in speculation
between those possibilities, and the existence of the first possibility does not affect my
reasons set out above for rejecting Michael Vella’s evidence that Brian Hobson told him
that BFS had received a letter of termination from Schweppes. I also reject the plaintiffs’
submission that there would be no reason for Michael Vella to ask for a copy of the
termination letter if, as Robert Aikin deposed, he told Robert Aikin that “we have
decided to go our separate ways with Brett and Brian and BFS”. Again, several
possibilities arise, some of which are helpful, and some of which are unhelpful, to the
plaintiffs’ submissions. Any choice between those possibilities would be an exercise in
conjecture. One of the possibilities that is unhelpful to the plaintiffs’ submission is that
Michael Vella simply wanted to check the date on which any termination letter issued by
Schweppes stated that BFS had ceased or would cease to provide freight services to
ensure that JEV received its “fair share” of work until the last day.
338. The plaintiffs’ submissions sought to downplay the significance of the Court accepting
Robert Aikin’s evidence of the conversation on the basis that Michael Vella seeking work
from Schweppes would not, by itself, say anything about why he was seeking work from
Schweppes, and this would be equally consistent with the Vella family being told that
BFS had been “sacked”. However, Robert Aikin’s evidence is that Michael Vella told him
that “we have decided to go our separate ways with Brett and Brian and BFS” before
stating that “the Vellas want to keep doing the transport work for Schweppes through
[75]
our own company NSW Freightlines, not BFS”.
As the defendants submitted, the
statement made by Michael Vella leading into his request for work is fundamentally
inconsistent with the plaintiffs’ case and consistent with the defendants’ case about what
was agreed at the Ingleburn meeting.
339. For the reasons at [320]-[338] above, I accept the defendants’ submissions that the
events after the Ingleburn meeting referred to at [224]-[257] above are consistent with
the evidence of Brian Hobson, Brett Soper and Robert Fielding that the Ingleburn
meeting concluded with an agreement that JEV, Hynadam and Mechita would no longer
be bound by the 2001 agreement and would each be free to seek work directly from
Schweppes and that BFS would be “wound down”. In particular, Robert Aikin’s
evidence, that I have accepted for the reasons explained above, establishes that Michael
Vella approached him seeking Schweppes work for JEV and saying that “we have
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decided to go our separate ways with Brett and Brian and BFS”.
340. In short, for all of the reasons explained above, I feel an actual persuasion that towards
the end of the Ingleburn meeting, Michael Vella said words to the effect that if Brian