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15.1 In January 2000 AWB commenced negotiations with the Iraqi Grain Board for a further sale of wheat to Iraq as part of phase VII of the Oil-for-Food Programme. Phase VII operated from 12 December 1999 to 8 June 2000.[785]
15.2 Clause 10 of the Iraqi wheat tender specified:
10-Price:
CIF Free on Truck to silo at all governarate of Iraq. Cost of discharge at Umm Quser and land transport will be U.S.D (14) per metric ton. To be paid to the Land Transport Co. for more details contact Iraqi Maritim in Basrah
Iraqi State Co. for Water Transport-Basrah
Tel - Fax ……
Tlx …………
Enmarsat : ……….
Att : Mr Warojan
Fax : …………[786]
15.3 On 6 January 2000, after rejecting on price AWB's initial offer, the IGB responded with a counter-offer in which the price was expressed to be 'CIF free in truck to silos all Governate of Iraq via Umm Qaser'. [787] This was the term used in the phase VI contracts.
15.4 AWB rejected the counter-offer from the IGB and responded with its own counter-offer. By facsimile to the IGB dated 7 January 2000, Mr Emons wrote, 'In the spirit of good will and our long friendship we are prepared to re-offer under the same terms as phase 6, but with the inclusion of a higher transport cost and also reflecting higher market values at USD [deleted] per tonne'. [788] That offer was not accepted by the IGB. Further offers were made by both AWB and the IGB, in the same terms as their earlier offers except as to price.
Offering to pay a 'higher transportation cost' to the IGB makes sense only if it is known the sum is going to the IGB.
15.5 On 19 January 2000 AWB made a further and 'final offer' open for 24 hours at a price per tonne that was expressed to be '… CIF on IGB terms as per our previous contract A4822'.[789] (Contract A4822 was a phase VI contract with the term 'The C.I.F., Free in truck price per tonne of … USD [deleted] per tonne'. [790])
15.6 Eventually, following discussions between Mr Emons and Mr Daoud on 19 or 20 January 2000, a sale was agreed. The total quantity of wheat to be sold was split between three contracts-AWB contracts A4970, A4971 and A4972.
15.7 On 20 January 2000 Mr Emons confirmed the terms of the agreement and sale. The agreed price was stated to be a 'CIF free in truck' price. Paragraph 5 of Mr Emons' facsimile included, under the heading 'Shipment', a provision in the following terms:
The cargo will be discharged free into truck to all silos within all Governates of Iraq at the average rate of 3000 metric tonnes per weather working day of 24 consecutive hours. The discharge cost shall be paid by Seller's to the nominated maritime agents in Iraq. This clause is subject to UN approval of the Iraq Distribution Plan. [791]
Although this clause did not specify the amount of the 'discharge costs' to be paid, there was recorded on the last page of the facsimile a manuscript note of the 'F/Rate', FOB price and inland transportation fee ('Truck') and the amount of each. The amount given for the inland transportation fee was US$15 per tonne.[792] This coincided with the inland transportation fee that was recorded in the initial draft of AWB's short-form contract [793] and that was eventually paid by AWB in respect of shipments made under these contracts. [794]
15.8 Following conclusion of these contracts, both AWB and IGB prepared short-form and long-form contracts respectively for execution in the usual way.
15.9 The IGB prepared a long-form contract for each of contracts A4970, A4971 and A4972. Each was essentially on the same terms as the IGB's recent contracts with AWB under phase VI of the Oil-for-Food Programme. Each contract was dated 20 January 2000 and signed by Mr Abdul-Rahman as Director General of the IGB. The contracts provided, 'Price: USD [deleted] PMT CIF FOT to silo at all governorate of Iraq via Umm Qasr Port'.[795] Receipt by AWB of each of these signed contracts was acknowledged by Mr Borlase in a facsimile to Mr Abdul-Rahman on 2 February 2000.[796]
15.10 A draft short-form contract was prepared within AWB for each of the three contracts A4970, A4971 and A4972.[797] Each was dated 20 January 2000. Apart from the price, tonnages sold and shipment dates, each was in substantially the same terms as the short-form contracts that had been prepared for the earlier phase VI contracts between AWB and the IGB (contracts A4653, A4654, A4655 and A4822). In particular, each of the draft short-form contracts initially prepared for contracts A4970, A4971 and A4972 contained the following provision in the shipment clause:
The cargo will be discharged Free into Truck to all silos within all Governates of Iraq at the average rate of 3,000 metric tons per weather working day of 24 consecutive hours. The discharge cost will be a maximum of USD 15.00 and shall by paid by Sellers to the nominated Maritime Agents in Iraq. This clause is subject to UN approval of the Iraq distribution.[798] [emphasis added]
15.11 This clause was in terms identical to those of the corresponding clause that appeared in the short-form contracts for the earlier phase VI contracts save for:
The clause was also consistent with the terms of the shipment clause set out in Mr Emons' facsimile of 20 January 2000[799], except that the amount of the 'discharge costs' was now expressly stated.
15.12 There is no evidence as to when these draft short-form contracts were prepared or by whom.
15.13 Short-form contracts were not executed by AWB or the IGB until February 2000. Further, the short-form contracts that were signed were in terms materially different from those of the drafts.
15.14 On 2 February 2000 Mr Borlase sent a facsimile to Mr Grenenger of the Department of Foreign Affairs and Trade, advising of AWB's recent sale to the IGB, advising that the sale had been split between three individual contracts, enclosing a copy of the IGB's long-form contracts and AWB's short-form contracts for each of the contracts, and asking that this documentation be forwarded to the United Nations for approval.[800]
The same day Mr Borlase sent a facsimile to Mr Abdul-Rahman, acknowledging receipt of the IGB's signed long-form contracts, enclosing a signed copy of each of AWB's short-form contracts, and advising that the contracts had been sent to the United Nations for processing.[801]
15.15 Each of the AWB contracts had been signed by Mr Emons, although incorrectly in the place for execution by the IGB. As a result, Mr Borlase sent a further facsimile to the IGB, dated 2 February 2000[802], asking that the contracts that had been forwarded earlier be ignored. Enclosed with this facsimile was a further copy of the short-form contracts A4970, A4971 and A4972, again signed by Mr Emons (but in the correct place this time). Mr Borlase asked that each of the contracts be signed by the IGB and sent back promptly because the UN 661 Committee had stipulated to AWB that it would not process the documentation without the signature of both parties on the same document. [803]
15.16 A copy of the short-form contracts was subsequently signed by Mr Abdul-Rahman on behalf of the IGB[804] and returned to AWB on 7 February 2000. [805]
15.17 By facsimile dated 4 February 2000, Mr Borlase sent to DFAT a copy of the three AWB short-form contracts signed by AWB and the IGB stating:
As a result of the United Nations sanction committee requesting both signatures on AWB contracts, please find attached the three contracts in question returned with the appropriate signatory. Could you please replace the contracts sent on Feb 2nd 2000 and forward to United Nations for approval.[806]
15.18 On 7 February 2000 a 'Notification or request for shipment of goods to Iraq' for each of these contracts was submitted to the United Nations for the approval of the UN 661 Committee.[807] Each was accompanied by a copy of the short-form contract signed by both AWB and the IGB.[808]
The contracts were approved by the 661 Committee under approval letters dated 1 March 2000 and issued 3 March 2000.[809] A copy of the approval was sent by facsimile by Ms Moules (at the Australian permanent mission to the United Nations) to Mr Snowball at AWB's US office on 6 March 2000. [810]
15.19 On 7 March 2000 Mr Emons sent a facsimile to the Iraqi Minister for Trade (Mr Saleh), copied to the Director General of the IGB (Mr Abdul-Rahman). [811] This followed a telephone conversation between Mr Emons and the Minister the preceding Sunday. In his facsimile, Mr Emons advised that AWB had received '… UN approval for all three contracts [that is, A4970, A4971 and A4972] totalling [deleted] tonnes with inclusion in the price of the trucking fee and 60 cartons of Phostoxin per contract'. [812] [emphasis added]
15.20 Although the price in each of the contracts AWB submitted to the United Nations included reimbursement of the inland transportation fee of US$15 per tonne that AWB had to pay prior to discharge of each shipment, the short-form contract submitted to DFAT, and through it to the United Nations, contained no reference to that fee, AWB's obligation to pay it, or its inclusion as a component of the price for which the wheat had been sold. Moreover, also deleted from the short-form contracts before they were submitted to DFAT and the United Nations was the clause referring to the 'discharge costs' in the same amount.
15.21 The short-form contracts that were eventually signed in February 2000 for each of contracts A4970, A4971 and A4972 were not in terms identical to those of the draft contracts previously referred to.
15.22 In particular, the words 'The discharge cost will be a maximum of USD 15.00 and shall by paid by Sellers to the nominated Maritime Agents in Iraq. This clause is subject to UN approval of the Iraq distribution'[813], which had appeared in the shipment clause in the draft short-form contracts (as well as the short-form contracts for the earlier phase VI sales, save only for a change in the amount of the discharge fee), had been deleted from the version of the short-form contracts that was eventually signed and submitted to the United Nations for approval.
15.23 This was notwithstanding that the same words (apart from the specification of the amount of the discharge cost payable) appeared in Mr Emon's facsimile of 20 January 2000 confirming the terms of the sale and that AWB did agree with the IGB to pay a fee of US$15 per tonne in respect of the wheat to be shipped. [814]
15.24 Thus, the true agreement reached between AWB and the IGB, that the wheat would be sold
CIF Free on Truck to all silos within all governates of Iraq …. A trucking fee of USD 15 per tonne will be paid … As per previous contracts, this payment will be made as per your instruction to the Transport company nominated by yourself[815]
became
The cargo will be discharged Free into Truck to all silos within all Governates of Iraq … The CIF Free in Truck price per tonne of 1000 kilos is United States of America Dollars as follows: US$ [deleted] per tonne[816]
in the contracts submitted to the United Nations for approval.
15.25 The short-form contracts AWB submitted to the United Nations did not reflect the terms of the agreement AWB had concluded with the IGB.
15.26 Mr Borlase could not recall whether he prepared these contracts, although he said that in the ordinary course they would have been prepared by Mr Lister or someone from Mr Lister's group.[817]
Mr Borlase's evidence was that he believed the change was made in compliance with instructions from the Account Manager, Mr Emons, to bring the terms of the AWB short-form contract into line with those of the long-form contract prepared by the IGB, which was also submitted to the United Nations.[818] Although Mr Emons had no specific recollection of the circumstances in which this change had been made, he said, 'It may well have been … We didn't want to advertise the fact that we were paying a fee'. [819]
15.27 Mr Officer assumed that a conscious decision had been made to remove the clause. [820] He said removal of the clause was consistent with AWB's position not to highlight the payment of the discharge (or trucking) fees.[821] Mr Officer did not recall any conscious decision or discussion leading to a decision to change the contract term. [822] His belief was that the change was likely to have been made by Mr Emons or one of his team. He believed that Messrs Emons, Borlase and Lister would have been made aware of the change. Mr Officer did not believe the change was discussed with anyone else within AWB. [823]
According to Mr Officer, one reason the contract term was changed might have been that this was an attempt to avoid attention being drawn to the trucking arrangements when the 'Canadian complaint' was still current.[824] This would have been consistent with AWB's position of downplaying the matter of trucking fees and not drawing attention to the arrangement, despite the IGB's advice to Mr Emons that the United Nations had approved the trucking arrangements.
15.28 There can be no sensible justification for the change in the terms of the AWB written contract to delete the reference to 'a trucking fee of USD 15 per tonne' in the short-form contracts to be submitted to the United Nations, whilst between AWB and the IGB the obligation to pay that sum remained, other than a desire to hide from the United Nations the fact of payment of significant sums in US dollars to an Iraqi entity and to avoid drawing attention to the fact that such sum was included in the contract price that would be paid from the UN escrow account. That was the reason the change was made.
15.29 Despite the deletion of the reference to discharge costs from the AWB short-form contracts, there was nevertheless still an agreement by AWB to pay an inland transportation fee in relation to the shipments under contracts A4970, A4971 and A4972. That fee was US$15 per tonne, as provided for in the draft short-form contract.[825]
Mr Emons confirmed that AWB would pay the 'trucking fee of USD 15' in a facsimile to Mr Abdul-Rahman on 9 February 2000:
To confirm our conversation of yesterday. AWB Ltd agree with the terms of the contract that a trucking fee of USD 15 per tonne will be paid on the three contracts of 300,000 tonnes each. As per previous contracts, this payment will be made as per your instruction to the Transport company nominated by yourself.[826]
15.30 There was further confirmation of this agreement on 1 April 2000, in a facsimile from Mr Watson to Alia[827] headed 'Australian wheat, inland trucking, Iraq phase VII', in which Mr Watson wrote, 'For sake of good order, I would confirm that we have been informed that the trucking fee will be USD15 p/mt for this phase and will be effected for vessels sailing ex Australia from 1st April 2000'. [828] Mr Watson went on to advise that these fees were to be remitted to Alia's nominated account upon the vessels sailing from Australia.
15.31 On the evidence before the Inquiry, there is no indication why the fee of US$15 per tonne was paid when the cost disclosed in the wheat tender [829] was US$14 per tonne, when it was that the inland transportation fee payable under this contract (or phase VII) was increased from US$14 per tonne to US$15 per tonne, and when it was that AWB agreed to the increase.
15.32 AWB Chartering paid inland transportation fees of US$15 per tonne on each of the shipments made in fulfilment of contracts A4970, A4971 and A4972. For each shipment, the full amount of the fee due, calculated by reference to the tonnage of wheat loaded, was paid by AWB Chartering prior to each vessel's arrival at Umm Qasr. A total of US$13,954,493.55 was paid between April and September 2000 in respect of the inland transportation fees for these shipments.
15.33 AWB Chartering was in turn reimbursed the cost of these fees by the AWB Pool. This was through the 'freight' the pool paid to AWB Chartering for the carriage of each shipment to Iraq. The AWB Pool in turn recovered the cost of the fees through the proceeds of the letters of credit drawn on the UN escrow account, which were paid following the discharge of the wheat from the vessels at Umm Qasr.
15.34 All the inland transportation fees paid by AWB in respect of each of the shipments made under these three contracts were paid to Alia. For some shipments, the payments were made by AWB Chartering to Alia directly. For others, the payment was made indirectly, through shipowners and Ronly Holdings Limited. This indirect method of payment is examined in Chapter 18.
15.35 On 10 February 2000 Alia sent to AWB a facsimile in terms very similar to those of its facsimile of 7 December 1999 [830]:
Reference is made to the agreed terms and conditions of the contract for the sale and delivery of Australian Wheat to Umm Qasr, Iraq.
Alia for Transportation & General Trade, Amman, Jordan is appointed to arrange all trucking under this contract and it is understood that remittances to Alia for Transportation & General trade for agreed trucking fees should be effected at least seven (7) days prior to the arrival of vessels at Umm Qaser.
Moreover, Alia for Transportation & General Trade to be advised of the vessel's name , Quantity of cargo on board, enabling necessary arrangements to be made at port.
Pyaments relating to the agreed trucking costs to be remitted to the following nominated company unless otherwise advised
Hardy's Agents Limited
… [bank details deleted]
Hong Kong
Account No … [details deleted] [831]
Mr Watson did not inquire of Alia why it was nominating payment to a bank account in Hong Kong or the bank account of a company in Hong Kong for 'trucking fees' in Iraq. [832]
15.36 On 10 February 2000 Mr Emons sent a facsimile headed 'Payment instructions' to Mr Al Absi at Alia, advising, 'Our shipping company has informed us this morning that they have been advised of problems in transferring the trucking fee to your account. As a result will be transferred directly to your previously nominated account'.[833] There then appeared the details of the Alia bank account in Jordan, as set out in the facsimile of 7 December 1999. [834]
15.37 There is no evidence about the circumstances in which this facsimile of 10 February 2000 was sent by Mr Emons. Nevertheless, it would appear to have been sent because of difficulties that were being experienced in remitting funds to the account of Hardy's Agents nominated in Alia's facsimile of the same date.[835] The 'shipping company' referred to in Mr Emons' facsimile was, in all likelihood, Hyundai Merchant Marine Co. Limited, with whom it was later said there was an arrangement to pay inland transportation fees to Hardy's Agents.[836] Hyundai was one of the shipping companies used by AWB to pay inland transportation fees indirectly to Alia (in the manner discussed in Chapter 18). The thrust of Mr Emons' message was that, despite Alia's facsimile of 10 February 2000 and the instruction it contained, inland transportation fees would continue to be paid to its earlier advised account in Jordan.
15.38 On 20 February 2000 Mr Watson sent a facsimile to Mr Al Absi at Alia, thanking him for Alia's letter of 10 February 2000 and stating, 'I would confirm that in accordance with our telephone conversation, the trucking payments will be made accordingly until such time as you advise otherwise'.[837]
Mr Watson could not recall the circumstances in which this facsimile came to be sent by him. [838] There is no evidence either as to what was said during the telephone conversation with Mr Al Absi that is referred to in Mr Watson's facsimile or as to the manner in which the trucking fees were to be paid, including the recipient of those fees, as a consequence of that conversation. Nevertheless, having regard to the payments that were made by AWB Chartering shortly after this facsimile [839], it is inferred that what Mr Watson was here agreeing to was the same as Mr Emons' earlier proposal-payment to the bank account of Alia in the manner nominated in its facsimile of 7 December 1999.[840]
15.39 At the same time as AWB was documenting its contracts A4970, A4971 and A4972 it was also negotiating a further sale of wheat to Savas Grain & Commodities Limited for delivery to Iraq. Savas Grain was purchasing wheat from AWB in order to fill an underlying contract the IGB had allocated to the Russian Federation.
15.40 On 4 February 2000 Mr Emons sent a facsimile to Savas Grain [841], confirming a sale of wheat 'as a result of discussions held with Mr Mark Emons'. The facsimile set out the terms of the contract; clause 6 was in the following terms:
(6) PRICES
USD [deleted] per tonne CIF FOT to silo at all governates of Iraq via Umm Qasr port.
This price includes a IGB nominated trucking fee to be paid directly by Sellers to Trucking Company advised account, for each shipment at latest 3 days prior to the arrival of each shipment. [842]
15.41 On 7 February 2000 Savas Grain proposed a reduction in the quantity of grain to be sold and some other changes to the terms of the contract pertaining to quality and payment.[843] None of these changes, which were agreed to by AWB on 11 February 2000[844], affected in any way clause 6 or AWB's obligation under this contract to pay the 'trucking fee' contemplated by that clause. This sale became AWB contract A4993.
15.42 Savas Grain was buying this wheat from AWB so that it might in turn satisfy the underlying contract between the IGB and JSC 'International Economic Cooperation' dated 7 February 2000.[845] That contract was in the standard IGB long form. The price at which the IGB agreed to purchase wheat from JSC 'International Economic Cooperation' was expressed to be 'CIF F.O.T. to silo at all governerate of Iraq via Umm Quser port'. The contract otherwise made no mention of discharge costs or inland transportation (or trucking) fees. A copy of the IGB's underlying contract with JSC 'International Economic Cooperation' was provided to AWB by facsimile from Savas Grain on 14 February 2000. [846]
15.43 An export sales note was prepared within AWB, setting out the terms of this sale. It was dated 14 February 2000 and the details included:
Export Contract Comment : Px includes a IGB nom trucking fee to be paid drctly to sellers to truck co for each shpt at latest 3 days prior shpt. [847]
15.44 A four-page contract was prepared and signed on behalf of both AWB and Savas Grain. [848] It incorporated the changes agreed on 11 February 2000.
Clause 6 of that contract was in the same terms as clause 6 of the facsimile of 4 February 2000:
(6) PRICES
USD [deleted] per tonne CIF FOT to silo at all governates of Iraq via Umm Qasr port.
This price includes a IGB nominated trucking fee to be paid directly by Sellers to Trucking Company advised account, for each shipment at latest 3 days prior to the arrival of each shipment.[849]
15.45 This clause differed slightly from that appearing in AWB's earlier phase VI contract with Savas Grain.[850] In particular:
15.46 This clause was retained in both AWB's facsimile of 4 February 2000 and the contract signed by AWB, despite the deletion of the reference to the discharge costs from AWB's short-form contracts for contracts A4970, A4971 and A4972, which were concluded and signed at about the same time.
15.47 Consistent with the agreement contained in clause 6 of contract A4993, AWB paid inland transportation fees of US$15 per tonne for each of the shipments made under this contract. The fees were paid by AWB Chartering in the same way as the inland transportation fees paid by AWB in relation to the shipments made under its contracts with the IGB directly. AWB Chartering was in effect reimbursed the cost of these fees by the AWB Pool through the 'freight' it charged the pool in relation to each shipment under this contract.
15.48 AWB did not obtain the approval of the UN 661 Committee for its contract with Savas Grain. Approval of the underlying contract was obtained by the Russian Federation[851], which had lodged an application on behalf of JSC 'International Economic Cooperation' as exporter.[852] A copy of that approval (including the accompanying report and the application) was faxed to AWB by Savas Grain on 28 March 2000.[853] As a result, AWB did not lodge a copy of its contract with Savas Grain with DFAT.
15.49 In applying to DFAT for permission pursuant to r. 13CA of the Customs (Prohibited Exports) Regulations to export the wheat sold under this contract from Australia, AWB relied on the UN approval obtained by the Russian Federation for the underlying contract between the IGB and JSC 'International Economic Cooperation' (approval number OC. 700143).[854]
15.50 After contract A4993 had been concluded, AWB entered into a contract for the sale of a further parcel of wheat to Savas Grain. This was contract A0662, dated 15 March 2000.[855] The sale was for the amount by which contract A4993 had been reduced on 7 February 2000. It was at the same price and on the same terms and conditions as contract A4993, including clause 6. [856] Under the terms of this contract, AWB was liable to pay, and did in fact pay, inland transportation fees in respect of the wheat shipped. These fees were paid by AWB Chartering in the same way as has already been described for AWB's earlier contracts.
15.51 As with contract A4993, AWB did not obtain UN approval for contract A0662. UN approval of the underlying contract was obtained by the Russian Federation [857], which lodged an application on behalf of JSC 'International Economic Cooperation' as exporter. [858] A copy of that approval (including the accompanying report and the application) was faxed to AWB by Savas Grain on 4 May 2000.[859]
15.52 On 6 April 2000 AWB concluded another sale of wheat to Commodity Specialists Company of Minnesota.[860] This was contract A0101.
15.53 Clause 6 of that contract was in the following terms:
6. PRICES
USD [deleted] per tonne CIF FOT to silo at all governates of Iraq via Umm Qasr port.
This price includes a fee of USD 15.00 per tonne to be paid directly by Sellers to Grain Board of Iraq advised account, for each shipment at latest 3 days prior to the arrival of each shipment. [861]
The same clause had also appeared in AWB's fax confirming the terms of the contract. [862] Both clauses were in terms substantially similar to those appearing in AWB's earlier contracts with CSC [863] and Savas Grain.
15.54 As with those earlier contracts, AWB did not obtain UN approval for contract A0101. That approval was obtained by the Russian Federation. The approval (number OC.700498) was dated 3 May 2000 and issued on 12 May 2000.[864] A copy was provided by CSC to AWB under cover of a facsimile dated 13 July 2000.[865]
15.55 The letter of credit to be established in favour of AWB was (as with earlier shipments) amended so as to delete references to the price being 'FOT to silo at all Iraqi governorates …'[866]
15.56 Consistent with the agreement contained in clause 6 of this contract, AWB paid inland transportation fees of US$15 per tonne in respect of the three shipments made under this contract. These fees (which amounted to more than US$1.3 million) were paid by AWB Chartering and reimbursed from the AWB Pool in the same way as AWB's other contracts with both Savas Grain and the IGB directly.
15.57 Under the contracts for the sale of wheat that AWB concluded with both the IGB and the grain traders Savas Grain and CSC in early 2000, AWB agreed to pay a trucking fee of US$15 per tonne to a company nominated by the IGB.
15.58 AWB's agreement to pay that fee was not included in its short-form contracts with the IGB, which contracts had to be submitted to the United Nations for approval. Moreover, the reference to 'discharge costs' and AWB's obligation to pay those costs that had earlier appeared in the drafts of AWB's contracts with the IGB (as well as in AWB's earlier phase VI contracts with the IGB) was deliberately deleted from the copy of the contracts signed by AWB and the IGB in February 2000.
15.59 AWB's agreement to pay this trucking fee was, however, expressly referred to in the terms of its contracts with Savas Grain and CSC, which contracts did not have to be submitted to the United Nations. This was so even in respect of the contracts AWB concluded with Savas Grain and CSC after AWB's decision to delete the reference to 'discharge costs' from its contracts with the IGB and despite that decision.
15.60 It is obvious that the agreement to pay the fee was omitted from contracts to be submitted to the Department of Foreign Affairs and Trade and the United Nations in order to prevent discovery of payment of the fee. A conscious decision must have been made within AWB to deceive the Department of Foreign Affairs and Trade and the United Nations.
[785] Ex 585, UNO.0009.0052.
[786] Ex 802, MAE.0001.0066_R at 0067_R.
[787] Ex 1376, AWB.0136.0605_R.
[788] Ex 1376, AWB.0136.0604_R.
[789] Ex 1376, AWB.0136.0149_R.
[790] Ex 1451, AWB.0058.0068_R.
[791] Ex 1376, AWB.0136.0133_R at 0134_R.
[792] Ex 1455, AWB.0059.0530 at 0532.
[793] See below; see also Ex 773, AWB.0420.0090_R, AWB.0420.0091_R, AWB.0420.0092_R.
[794] See further below.
[795] Ex 801, AWB.0059.0561_R, AWB.0136.0120_R, AWB.0136.0125_R.
[796] Ex 407, AWB.0136.0137.
[797] Ex 773, AWB.0420.0090_R, AWB.0420.0091_R, AWB.0420.0092_R.
[798] For example, Ex 805, WST.0031.0008_R.
[799] Ex 1376, AWB.0136.0133_R at 0134_R.
[800] Ex 799, AWB.0069.0046_R.
[801] Ex 797, AWB.0136.0137_R.
[802] Ex 798, AWB.0136.0143_R.
[803] Ex 798, AWB.0136.0143_R.
[804] Ex 800, AWB.0110.0255_R, AWB.0110.0256_R, AWB.0110.0257_R.
[805] Ex 773, AWB.0420.0109_R, AWB.0420.0110_R; Ex 997, AWB.0420.0111_R, AWB.0420.0112_R.
[806] Ex 551, AWB.0069.0047, AWB.0069.0048, AWB.0069.0049, AWB.0069.0050.
[807] Ex 729, AWB.0059.0559, AWB.0059.0550, AWB.0059.0541.
[808] Ex 1221, UNO.1212.0009, UNO.1212.0010-0014,UNO.1212.0119, UNO.1212.0120-0125, UNO.1212.0236, UNO.1212.0237-0241.
[809] Ex 560, AWB.0059.0527, AWB.0059.0528, AWB.0059.0529.
[810] Ex 560, AWB.0059.0526.
[811] Ex 132, AWB.0136.0088.
[812] Ex 132, AWB.0136.0088.
[813] For example, Ex 805, WST.0031.0008_R.
[814] Ex 1376, AWB.0136.0133_R.
[815] Ex 1376, AWB.0136.0133_R; Ex 128, MAE.0001.0080.
[816] Contract A4970 at Ex 1453, AWB.0059.0565_R.
[817] T 6682.39.
[818] T 2985.31. Although this was the only change made to the short-form contracts. None of the provisions of the long-form contracts were sought to be introduced into the short-form contracts. No other provision of the short-form contract was amended so as to match the long-form contract. In so far as the short-form and long-form contracts were brought into line, it was by the omission from both written contracts of the trucking fee or cost of discharge and transportation that AWB had agreed (as a term of the contract for sale) to pay to the company nominated by the IGB.
[819] Ex 95, INQ.0004.0001 at 0092.
[820] Ex 805, WST.0031.0001 at 0003, para. 12.
[821] Ex 805, WST.0031.0001 at 0003, para. 12.
[822] Ex 805, WST.0031.0001 at 0003, para. 13.
[823] Ex 805, WST.0031.0001 at 0003-0004, paras 12, 13, 14 and 17.
[824] Ex 805, WST.0031.0001 at 0004, para. 19.
[825] Compare with US$14 per tonne in the wheat tender (Ex 802, MAE.0001.0066_R at 0067_R).
[826] Ex 128, MAE.0001.0080.
[827] Ex 434, AWB.0001.0077.
[828] Ex 434, AWB.0001.0077.
[829] Ex 802, MAE.0001.0066 at 0067.
[830] Ex 120, MAE.0001.0063.
[831] Ex 995, AWB.0420.0117_R.
[832] T 3425.13-18.
[833] Ex 1368, AWB.0001.0009.
[834] Ex 120, MAE.0001.0063.
[835] Mr Emons' facsimile was headed 'Payment instructions', which would appear to be a reference to Alia's facsimile of 10 February 2000, having regard to its contents.
[836] On 6 June 2000 Hyundai Merchant Marine Co. Limited were (via their brokers) referred to the 'current agreement' in place for Hyundai to pay trucking fees to Hardy's Agents and were instructed that these fees were henceforth to be paid to Tse Yu Hong Metal Limited (Ex 437, AWB.5079.0223_R). There is no evidence before this Inquiry as to whether any payments were ever made by Hyundai Merchant Marine Co. Limited to Hardy's Agents and, if so, in respect of which AWB shipments. In particular, there is no evidence as to whether any payments were in fact made to Hardy's Agents under the agreement referred to in Ex 437, AWB.5079.0223_R, having regard to Mr Emons' facsimile of 10 February 2000.
[837] Ex 431, AWB.0001.0087.
[838] T 3425.2; T 3425.6.
[839] The first payments of inland transportation fees to be made by AWB following Mr Watson's and Mr Emons' exchanges with Alia on 10 February and 20 February 2000 were paid by AWB Chartering to Alia directly on 3 March and 10 March 2000 (Ex 1449, AWB.0064.0011_R, AWB.0087.0081_R) to the bank account of Alia nominated in its facsimile of 7 December 1999.
[840] Ex 120, MAE.0001.0063.
[841] Ex 1376, AWB.0059.0260.
[842] Ex 1376, AWB.0059.0260_R at 0261_R.
[843] Ex 1376, AWB.0059.0258_R.
[844] Ex 1376, AWB.0059.0259_R.
[845] Ex 729, AWB.0059.0247, AWB.0059.0248, AWB.0059.0249.
[846] Ex 729, AWB.0059.0247.
[847] Ex 1376, AWB.0059.0265_R.
[848] Ex 1376, AWB.0053.0080_R.
[849] Ex 1376, AWB.0053.0080_R at 0081_R.
[850] Ex 1445, AWB.0059.0542_R.
[851] Ex 1376, AWB.0059.0242_R.
[852] Ex 1376, AWB.0059.0244_R.
[853] Ex 1376, AWB.0059.0241_R, AWB.0059.0242_R, AWB.0059.0243_R, AWB.0059.0244_R.
[854] Ex 1376, AWB.0053.0057_R; Ex 1456, AWB.0053.0058_R.
[855] Ex 1376, AWB.0059.0254_R.
[856] Ex 1376, AWB.0059.0254_R at 0255_R.
[857] Ex 1376, AWB.0059.0236_R.
[858] Ex 1376, AWB.0059.0237_R.
[859] Ex 1457, AWB.0059.0235_R, AWB.0059.0236, AWB.0059.0237_R, AWB.0059.0238_R.
[860] Ex 360, AWB.0059.0123_R.
[861] Ex 360, AWB.0059.0123_R.
[862] Ex 363, AWB.0059.0117_R.
[863] Ex 1446, AWB.0056.0243. See also Chapter 14.
[864] Ex 1377, AWB.0059.0116_R.
[865] Ex 1377, AWB.0059.0115_R.
[866] Ex 1376, AWB.0059.0104_R at 0105_R; amendment confirmed at Ex 1376, AWB.0059.0065 at 0066. As to the earlier negotiations, see Chapter 13.
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