Case: Brambles Holdings Limited v Carey (1976) 15 SASR 270
Outcome: referred to
In Krakowski v Eurolynx Properties Limited [1994] HCA 22 ; (1995) 183 CLR 563 at 582-3, the High Court approved the following statement of principle of Bright J in Brambles Holdings Limited v Carey (1976) 15 SASR 270 (" Brambles ") at 279:- "Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company." 59 That is not to say that the state of mind to be attributed to a corporation must always be the state of mind of one particular officer: Brambles at 275 per Bray CJ; see also Wood v City of Melbourne (1979) 26 ALR 430 at 447. 60 However, difficulties arise in ascertaining the state of mind of large corporations: Brambles at 275. Different board members may hold different beliefs and it is sometimes possible to look beyond the resolutions of the board to the deliberations of individual board members as well as those of senior management: Ishac v David Securities Pty Limited (No 6) (1992) 7 ACSR 199 at 200-201 per Young J and the authorities there cited. 61 As Bray CJ said in Brambles at 276, a corporation cannot know or believe two contradictory things at once and it is rational belief, not schizophrenia which is to be attributed; see also Halsbury's Laws of Australia , Vol 7 Corporations at [120-3045]. 62 Here, Mr Graham was "closely and relevantly connected" with all decisions taken by NRC in relation to the AR terminal during the period from about six months after the execution of the EA to 21 February 2002 when the shares were purchased by the Toll/Patrick consortium. He was directly responsible for all dealings with respect to the AR terminal during that period. He made the decisions as to what steps should be taken and his recommendations to the Board were accepted by the Board members. There was evidence, in general terms, from a number of Board members, Mr Butcher, Mr Moore-Wilton, Mr Stanko and Mrs Yeoh, that they relied on Mr Graham. 63 Whether NRC's state of mind for the purpose of determining what, if any, assumptions were adopted, is confined to that of Mr Graham is not entirely clear. PN accepted in final address that Mr Graham's state of mind was "paramount". But it submitted that Mr Butcher's assumptions were also relevant because of his regular discussions with Mr Graham. Although PN called evidence from Mr Moore-Wilton, Mr Stanko and Mrs Yeoh, it did not submit that their states of mind were to be attributed to NRC. That is hardly surprising because their assumptions were different from Mr Graham's. However, the same comment applies to Mr Butcher. 67 PN also called evidence from Mr Hanscomb, a senior executive of NRC, who had, in 1991, assisted Mr Moore-Wilton on the Committee of Officials (which was a Committee established to examine options for the funding of NRC) and assisted in drafting the EA. His expectation was that there would be a lease. I do not consider that his state of mind is to be attributed to NRC within the principle stated in Brambles . His evidence has some bearing on Mr Graham's expectations. 68 Mr O'Rourke was the CEO of QR and its predecessor, Queensland Railways. He was closely and relevantly connected with all dealings and decisions in respect of the AR terminal. His state of mind can be treated as that of QR for the purpose of determining what assumptions QR held and he must be taken to have known what was in his mind as CEO of Queensland Railways. 69 The relevant period for determining on what assumptions QR acted and the conduct which is said to have induced NRC to act to its detriment is the period up to March 1997 or perhaps to the date of Mr O'Rourke's letter of 25 March 1998. The other relevant mind of QR in that period was Mr Hearsch. 670 Second, as I have already mentioned, there are inconsistencies between the various assumptions said to have been held by Mr Graham, as managing director, and the board members who were called. It is true that Mr Graham was far more relevantly connected with the day to day dealings with QR in relation to the AR terminal than were Mr Butcher and the other board members. But it was the board which made the ultimate decisions to incur the expenditure on the AR terminal and the East Coast Strategy, not Mr Graham: cf Brambles. 694 In any event, the inconsistent evidence of Mr Graham and the other directors indicates that no clear or unambiguous assumption was held by NRC. Even if Mr Graham's belief was the only state of mind attributable to NRC within the principle stated in Brambles , so that his state of mind was that of NRC, the estoppel claim fails for other reasons stated later. 695 Assuming I am correct in reaching the conclusion that PN has not proved that the relevant persons held the alleged assumptions, it is unnecessary to examine the extensive documentary record to see whether the documents give rise to an inference that NRC did in fact hold those assumptions. In any event, in my opinion, the documents do not support such a finding. 696 Plainly, the critical document is the EA. It laid down the legal framework agreed between the Commonwealth and the States for the establishment of NRC as a government owned corporation to conduct rail freight operations on a national integrated rail network.