This letter also denied that there was an offer of a permanent contract and asserted that the only offer was casual work subject to work being made available to Mr Comino. There was no guarantee of five deliveries per week for a period of not less than six months. It was also asserted that, prior to completing the first trip, Mr Comino advised Mr Lidden that there was a risk of Q Fever and suggested that Mr Lidden should be inoculated. There was also a reference to a threat allegedly made by Mr Lidden who, on learning that alternative arrangements could be made for the testing of the blood: allegedly stated, "They have no idea what damage I could do to them".
58 In an affidavit sworn in February 2005, Mr Comino recalled that towards the end of January 2002 he contacted the employment agency known as Joblink Plus. He told an operative from the agency that he was a courier looking for somebody to do a run from Coonabarabran to Orange and that he would prefer an established courier with experience. Failing that outcome, he was prepared to buy a utility and put a driver on wages and that, after a trial period if that person so desired he could establish his own business. Mr Comino again described how he came into contact with Mr Lidden and how he favoured him because he was located at Coonabarabran. Late in February 2002, he offered Mr Lidden the position saying that he was looking for a utility and that would put Mr Lidden on wages first for a trial run. There was general discussion about wages and being paid as an independent owner/driver. He said Mr Lidden sounded enthusiastic about commencing a business with his own vehicle but Mr Comino warned him that, although the choice was his whatever he did, he was "on trial to start with". Mr Comino told him that the abattoir was "fairly optimistic" for the run to Orange being for most nights each week for up to six months. The abattoir told Mr Comino and he told Mr Lidden at the beginning that the work from Orange was not permanent and that the company looked like re-routing the product to Brisbane. Mr Lidden appeared to be keen to buy his own vehicle and before finishing the conversation, Mr Comino told him that, if he did buy his own vehicle, he should be able to pick up some other work by way of backloads from Orange returning to Coonabarabran.
59 A few days later, Mr Lidden telephoned Mr Comino and told him that he had purchased a Ford XF utility for $3,000. Mr Comino said to Mr Lidden, "You're game". There was then a discussion about the utility and what it was like mechanically. There was also general conversation with Mr Lidden about what he would need in paperwork for the company and insurances.
60 There was a delay before the work commenced and ultimately, Mr Comino was told towards the end of May 2002 that the run to Orange would begin on 3 June 2002. He contacted Mr Lidden and told him of the commencement date. Mr Comino then met Mr Lidden at his home in Coonabarabran. He looked at his utility and, although it looked "fairly straight", it appeared to have the wrong bull bar and, as it turned out, when the vehicle lights were on high beam they struck the back of the bull bar and reflected into the driver's cabin. He was also informed by Mr Lidden that there was a fuel leak in the vehicle and it was using a lot of oil thus driving up his overheads. Mr Comino met Mr Lidden's wife and adult daughters when Mr Lidden showed him "his papers".
61 Mr Comino said he engaged the services of Mr Lidden for the next two weeks, being 10 trips in all. During the first week, he became concerned and, when the load changed over at Coonabarabran, Mr Lidden looked "very tired" and on a couple of occasions he could not pick up an Esky to load. Mr Comino became aware that his daughters were driving part of the way after Mr Lidden had admitted that he was pulling up to have a sleep for an hour or so on the run to Orange. Mr Comino stated that he was very concerned that Mr Lidden would either kill himself or cause his daughters to be involved in an accident. Over the next two weeks, Mr Comino said he became increasingly agitated by Mr Lidden's complaints concerning the likelihood of the goods being re-routed to Brisbane. Mr Comino kept telling Mr Lidden that the work would be going to Orange for six months during which time he should be able to develop a run of his own on the backload: if the transporting of the blood did cut out after six months, he would be in a position to pick up other freight. Mr Comino also remembered telling Mr Lidden it was possible that the transportation of the blood to Orange would go on for longer if the setup in Brisbane was delayed in a similar fashion to the delays experienced at Orange.
62 Just before Mr Lidden started work, he told Mr Comino that he wanted to buy a new utility. Mr Comino told him to slow down and that it had taken him two years of work before he could finance his new utility. Mr Lidden replied that all Mr Comino had to say to the financial institution was that Mr Lidden had been working for him for six months and was making $75,000 per annum. Mr Comino said to him that there was no way he would do that and that Mr Lidden was "on trial". Mr Comino replied that, on the Tuesday of the last week in which Mr Lidden worked for him, Mr Lidden telephoned him and said that a finance company would ring Mr Comino. He asked Mr Comino to tell them that he had been working for him for six months and was earning $75,000 per annum. Mr Comino said he simply hung up in Mr Lidden's ear. The same thing had been mentioned on another occasion a week earlier, when they were loading the utility and he had told Mr Lidden "point blank" that he would not lie for him. On a day following this conversation, Mr Comino's wife received a telephone call from a finance company.
63 In the weeks leading up to the start of work, Mr Comino said that he had "continually stressed" to Mr Lidden that the product they were carrying was "top secret" and that he should not tell anybody because in the transport industry the opposition would always contact one's employer and try to undercut the rate. During the first week that Mr Lidden worked for him, Mr Comino received a telephone call from an unknown person who quizzed him about calf foetal blood that was being transported and the charges being imposed by Mr Comino. Mr Comino did not give any details to the unknown caller and hung up on him. He said he was very angry about the telephone call and confronted Mr Lidden about it but Mr Liddendenied being "loose lipped" over the matter.
64 On the day before Mr Lidden was "terminated", he and Mr Comino were loading a utility at Coonabarabran and Mr Lidden had been "going on and on" about the company sending the goods to Brisbane. Mr Comino said he became quite irate and told Mr Lidden to speak no more about it and that he did not care if the work went to Brisbane. The Eskies were on the side of the road and at that point Mr Lidden pointed to them and said in a threatening manner, "Well I could cost this company a lot of money". Mr Comino said he became quite angry and they had a heated exchange over the comment. As Mr Comino was driving back to Inverell he began to be concerned that Mr Lidden could carry out his threat and that he would lose the work. On the following day, Mr Comino contacted his solicitor about his concerns and was advised to draw up something himself stating that Mr Lidden should be adequately insured for the damage of the goods. That evening, Mr Comino presented Mr Lidden with an agreement but Mr Lidden looked at it and said he was not signing it until he had seen his solicitor. Mr Comino replied that, until he had taken that step, Mr Comino was going to perform the run himself. That caused Mr Lidden to become agitated. Mr Lidden said, "You've guaranteed me six months' work. You have no right to do this to me, I've spent money setting up". Mr Comino said he became really angry and swore that he had never given such a guarantee - that there were no guarantees in this business. He then said to Mr Lidden: "You're finished. I'll pay you tomorrow".
65 Mr Comino then undertook the Orange run himself and, together with his other run, he worked for nearly 20 hours. At the end of the run, he realised that there was no way he could continue to do the run on his own and he regretted "going off" his head at Mr Lidden. He came to the conclusion that he would use another driver as soon as possible but realised that he needed Mr Lidden that evening. He tried to contact Mr Lidden on many occasions during the day and Mrs Lidden would not speak to him. He telephoned Mr Lidden's daughters who informed Mr Comino that he was not at home. He spoke briefly to Mr Lidden on his mobile telephone but was told that he was at his solicitor's office. That evening Mr Comino called at Mr Lidden's home and apologised to him for "going off", told him that he could not do the run himself and asked Mr Lidden if he wanted to start back that night. Mr Lidden replied, "No, as far as I am concerned you terminated me last night. I'll take my chances in court". Mr Comino said he would give him a week to make up his mind and shook Mr Lidden's hand and left.
66 Over the next few days, Mr Comino tried to contact Mr Lidden approximately ten times but he did not return the calls. He managed to find a driver in Dubbo who could go to Orange towards the end of the Inverell to Orange run. The Orange run stopped almost exactly six months after Mr Lidden commenced working for Mr Comino and was then re-located to Brisbane. Mr Comino continued on that run for approximately two weeks. In the first week of January 2005, Mr Comino was informed by the abattoir that there was no work for him and that they had decided to give the contract to a larger firm that had undercut his rates. Mr Comino was unemployed for a week but was then contacted by the abattoir to say that the its courier had not worked out so he recommenced the run on 13 January 2005.
67 Mr Comino presented evidence from Bindaree Beef Pty Ltd that the contents of the blood being carried was free from communicable disease to humans or other animals. The blood carried by Mr Lidden was not placental calf blood but was foetal calf blood extracted directly from the heart of the calf.
68 In oral evidence, Mr Comino said that he had been a courier driver for 12 years and had carried the blood product for 11 years. In that period, he had worked for four companies which had all used his courier business. He had been put off four times because cheaper rates were offered by other courier companies but was always re-engaged. In relation to the employment agency advertisement, he said that it did not represent what he had told the operative and there had been another option that was that he would put a driver on wages and buy a utility and give him the chance to purchase the utility after a trial of two weeks.
69 In the first conversation with Mr Lidden, Mr Comino said that he told Mr Lidden that he would purchase the utility and trial Mr Lidden for two weeks. If everything worked out, Mr Comino would sell the utility to Mr Lidden. Mr Lidden agreed to that proposal. The next day, Mr Lidden telephoned Mr Comino and told him that he had bought a utility: Mr Comino told Mr Lidden that he was an idiot. In the discussion that followed, Mr Comino advised him to operate as a sole trader and Mr Lidden said he would set up his own company.
70 On the first occasion that he met Mr Lidden, which was on the first night of the run, Mr Comino asked him for his business documents. Mr Lidden said that he had them and had made all the arrangements but the documents were with his accountants. He had a look at the utility purchased by Mr Lidden for $3,000 and regarded as an "average" vehicle., but it was "rough".
71 On the second day, he arrived to transfer the Eskies to Mr Lidden's utility, Mr Lidden was not there. He asked to see Mr Lidden who came from the house looking as if he had come straight from bed. He looked tired as if he had done a full day's work. For the whole of the two weeks that Mr Lidden did the Orange run, it was a totally bad experience and he did not regard Mr Lidden as being up to the work - he was absolutely appalling. He was told three times by Mr Lidden that his daughter was driving the run, but it was not mentioned whether she was driving to Orange or back from Orange.
72 Mr Comino said he became worried and spoke to a solicitor, Mr Watts. He told Mr Watts that Mr Lidden was continually complaining about the freight going to Brisbane and that Mr Comino was becoming stressed by the comments. Mr Lidden had asked how he was employed and Mr Comino told him he was on a two week trial employed on a daily basis. On the last night, there was another argument with Mr Lidden and Mr Comino said that he had enough of Mr Lidden's tantrums, his daughters driving the run and his overall attitude. He said that Mr Lidden stood over him and, pointing his finger, said: "I could cost this company a lot of money". Mr Comino thought that probably the product would not arrive at the destination. This occurred at the end of the two week trial and although there were problems, Mr Comino found himself in a spot of bother in having the work performed, needing to have it performed and decided he would give Mr Lidden a go. All the problems were then raised in the argument and he told Mr Lidden that he was not required and that he was finished.
73 In cross-examination, Mr Comino said that he did not tell Mr Lidden that he had the job - it was just that there were no other suitable candidates. On the second night at his home, Mr Lidden looked tired and every other night thereafter he looked tired as if he was "out on his feet". Nevertheless, Mr Comino asked Mr Lidden to help him out by doing an extra run to Narrabri and Mr Lidden performed that run. Mr Comino confirmed that he had terminated Mr Lidden because he would not sign the document. He rejected Mr Lidden's suggestion that he had never offered to buy a utility for Mr Lidden to purchase after a two week trial and asserted that there was a two week trial.
74 Mr Lidden had told Mr Comino that he did not have the money to set up a business and purchase a utility and that is why he made him the offer of buying his utility. Mr Comino denied that Mr Lidden had told him that he would to purchase a vehicle of the same value as the utility ultimately purchased .
75 In relation to Mr Comino's observations on the second night of performing the run, he rejected the suggestion that he was invited into the house and shared some birthday cake and coffee with Mr Lidden that night. On the first night, Mr Comino said that he asked for evidence of WorkCover insurance and which was not produced and Mr Lidden told him that all the documents were with his accountant. He rejected the suggestion that all the documentation was presented to him inside the house in a black folder.
76 Mr Comino said that he continued to perform the run for two to three weeks after terminating Mr Lidden. He then found another person to take over the work. The work was likely to last for five to six months but there was no guarantee that the work would continue for that long or thereafter. Mr Comino had his attention drawn to his solicitor's letter replying to Mr Lidden's solicitor's letter of demand in June 2002. Mr Comino accepted that he had given instructions for that letter to be sent and had seen it. In that letter, it was stated that the last trip that Mr Comino performed on the Orange run was on 20 June 2002 and, at the date of the letter 16 July 2002, the work had not resumed and had been terminated because the laboratory in Orange was not suitable. The letter also said that Mr Comino did not know if he would obtain any further work. Mr Comino said that was an accurate statement, that there had been a break of a few weeks but, after another two to three weeks, the work resumed and he continued to perform that work.
77 John Watts, solicitor, gave affidavit evidence that he had a discussion with Mr Comino towards the middle of June 2003. Mr Comino had told him that he was worried about the Orange run and the "casual driver" doing the run from Coonabarabran. He said that on the night before they had "a bit of a row" and his driver had threatened to ruin the whole business. Mr Comino said that part of the reason for the disagreements involved his concerns about Mr Lidden's vehicle and his need for a back-up vehicle and comprehensive insurance. Mr Comino said that Mr Lidden had said "I could cost this company a lot of money", and told Mr Watts that he was worried that Mr Lidden would do something to damage the blood. Mr Comino said that he simply paid Mr Lidden for each run and that he did not have a contract for the work himself. Mr Comino had also heard from the abattoir at Orange that Mr Lidden was "mouthing off" to workers there and speaking about how he did not like the work. A person from the abattoir rang Mr Comino and told him that Mr Lidden sounded like "a bit of a troublemaker". Mr Comino said that he would have to look for another driver but that he would have to keep using him until that arrangement was in place. He also mentioned that it was day-to-day work and it could stop at any time. There was then a discussion with Mr Comino about a propsoed agreement to be signed by Mr Lidden. Mr Watts was not required for cross-examination.
DELIBERATION
78 The essential issue to be determined, before consideration can be given to the applicant's monetary claim, is the terms on which Mr Lidden undertook the run to Orange and the extent of the arrangements with Mr Comino for that work to be performed. There was no written agreement or contract and the evidence of the parties is in substantial conflict as to the essential elements of the arrangement.
79 Mr Lidden's version of events obtains support from his wife and his daughters' evidence as to the discussions about the run being for an initial period of six months. It is also supported by Mr Lidden's diary notes made at or about the same time as conversations he had with Mr Comino. Those notes support a finding that a representation was made that there was six months' work, although there is nothing to suggest that the word "guaranteed" was used.
80 Mr Comino's evidence is based on his recollection, some of it well after the discussions held in early 2002 when the arrangements were entered into to perform the Orange run. There are no internal memoranda or notes made by Mr Comino to support his version: the terms of the advertisement placed on the Joblink Plus website show that it was represented that there was a "contract up to six months to start". While that statement may be thought to be a little equivocal, it is a clear reference to six months and is consistent with the evidence of the Lidden family that Mr Comino stated on a number of occasions that there was at least six months' work available. At various times during his evidence, Mr Comino confirmed the six month duration of the work although the future beyond that time was unclear. Mr Comino challenged the accuracy of the Joblink Plus advertisement, stating that he had not been given a copy of it, had not checked it and that it did not represent what he had communicated to the agency operative. As the evidence came out, it appears there is nothing incorrect about what is in the advertisement and that Mr Comino believed that there was a second option he had discussed, namely, that if he could not obtain an experienced driver he would buy a utility and employ somebody for a period of two weeks after which, if it worked out, he would offer the utility to the employee to take over the run as effectively his or her own business. No evidence was sought from the employment agency by way of Summons for Production or otherwise as to the terms of the advertisement.
81 Mr Comino's version of what he wanted advertised does not necessarily favour his version of events. On his own account, there would be an experienced driver (and Mr Lidden was an experienced driver) for the Orange run for "up to six months" using his own company and vehicle but it was only if there was no such experienced person available would the employment option be offered. Mr Lidden denied that he was ever offered employment or the purchase of a utility after a two week trial. There was no mention in the advertisement of a trial period of any kind. The offering of an engagement to Mr Lidden as a trial was not raised in the solicitor's letter of response to Mr Lidden's letter of demand in July 2002, nor was it alleged as part of the defence in the Reply to the Summons. The allegation of a trial period for Mr Lidden, who was not engaged as an employee, first arose in Mr Comino's affidavit of 3 February 2005 and was not mentioned in his first affidavit of 8 September 2003.
82 There are other examples in the evidence where Mr Comino's account was called into question by the detailed account of both Mr and Mrs Lidden. One example of that is Mr Comino's evidence that, on the second night he could not find Mr Lidden, who eventually came from the house as if he had just woken after a day's work, which raised concerns about Mr Lidden's capacity to perform the work. Mr and Mrs Lidden's detailed evidence was that it was Mr Lidden's birthday which the family was celebrating and that they had invited Mr Comino inside to share cake and coffee. Mr Comino could not remember any of this. The second clear example is the first night, when Mr Lidden was required to show Mr Comino all the documentation relating to the setting up of the company, insurance of the vehicle, the ABN number and his WorkCover green card. Mr and Mrs Lidden again gave detailed evidence of that documentation being contained in a black folder and being laid out for Mr Comino to examine. Mr Comino's oral evidence was that the material was not available and that Mr Lidden had said it was with his accountant. In affidavit evidence, Mr Comino said that he was presented with documentation on the night. Mr Lidden said that, at that time, he had no accountant. Ultimately, Mr Comino's evidence was that there was work available for five or six months and that work continued after Mr Lidden was terminated to almost precisely six months. In his oral evidence, Mr Comino said that the work continued except for a short break when he was rehired but, in instructions given to his solicitor in July 2002, he asserted that the work finished a few nights after Mr Lidden was terminated, although in his oral evidence, he said he continued to do the work for another three weeks before obtaining another driver.
83 Mr Comino's evidence demonstrated a certain degree of inconsistency and a tendency to exaggerate the circumstances to favour his case. A few examples follow:
(a) in his solicitor's letter of 16 July 2002, it was asserted that Mr Comino did not threaten to terminate the contract if Mr Lidden did not sign the new contract but in oral evidence Mr Comino accepted that was precisely why Mr Lidden was terminated;
(b) the same letter of July 2002 mentioned Mr Lidden's threat against the product and how he could cost the company a lot of money but made no mention of Mr Lidden standing over and threatening Mr Comino. In his oral evidence, Mr Comino spoke for the first time of being "stood over" by Mr Lidden but having regard to the fact that Mr Comino was a much younger and larger man and having observed their demeanour during the proceedings, it seems highly unlikely that was an accurate description of what took place. The "standing-over" allegations had not been put to Mr Lidden in cross-examination;
(c) Mr Comino said that he had proposed employing Mr Lidden and buying a utility to drive and after the trial period allowing Mr Lidden to purchase the utility to perform the work on his own account. Mr Lidden had told him that he had no money to buy a vehicle. If this was so, it was highly unlikely that after the two week trial period Mr Lidden was going to be in any better position to purchase a vehicle, even Mr Comino's utility, in circumstances where he would then be off wages as an employee and would have to undertake the setup costs of the business. Mr Comino did not specify how much he would spend in purchasing this vehicle, surely a matter he would have to discuss with Mr Lidden. Mr Comino, however, also gave evidence that he had to restrain Mr Lidden from buying a new vehicle - an unnecessary step if Mr Lidden was "broke" and was to be provided with a vehicle as an employee. Mr Lidden said that he told Mr Comino that he had been considering purchasing a car the week before and would spend the same amount in purchasing a utility for the job. Mr Comino in oral evidence also said that it made no difference as to whether Mr Lidden got the job whether or not he had his own vehicle. That was quite contrary to the terms of the advertisement. The provision of the utility as part of an employment package and on a trial was never pleaded by the respondent;
(d) Mr Comino was apparently concerned from the second day of the job that Mr Lidden was always tired, at one stage could not even lift an Esky and looked as if he had being working in another job. He was concerned for the wellbeing of the product being delivered yet at no stage did he pursue Mr Lidden over his capacity to do the work but in fact asked him to perform additional work, namely, the Narrabri run when Mr Comino could not perform that run. Although Mr Lidden was thought to be dangerously tired and a threat to the wellbeing of product, Mr Comino did not look for anyone else to perform the work and indeed, after terminating him, offered him to continue in the work, admittedly while looking for a new driver;
(e) Mr Comino expressed concern about Mr Lidden's daughter driving this valuable product yet there is no evidence of a direction being given to Mr Lidden that his daughter was not to drive the product to Orange. In fact, Mr Comino complained that despite his constant requests that there be a back-up vehicle available he had received no guarantee of such availability from Mr Lidden, a matter denied by Mr Lidden. Nevertheless, it was clear that any back-up vehicle was likely to be driven by Mr Lidden's wife or daughter. Mr Comino gave no direction for an experienced driver to be nominated as a back-up;
(e) in cross-examination, Mr Comino stated that he had never offered the position to Mr Lidden but did not indicate what was the nature of the relationship;
(f) in oral evidence, Mr Comino said there was a lot of stress placed on him by Mr Lidden's constant complaints and described it as the worst stress he had ever experienced on a job. He referred to Mr Lidden's tantrums, being stood-over, thinking that the product would end in a gully and generally that Mr Lidden was driving him mad. He finally reached the point where he did not want to employ Mr Lidden on any type of agreement at the end of two weeks. This "stress" was not articulated, in terms, in any pleadings or earlier affidavit sworn by Mr Comino. Bearing in mind that the men met for 20-40 minutes each night to change over the Eskies, the alleged level of "stress" appears to be an extraordinary claim;
(g) again, in oral evidence, Mr Comino said that by putting Mr Lidden off it cost him money although he continued to perform the work until a replacement driver was found. How this cost Mr Comino money was not explained;
(h) in the course of the argument, Mr Comino agreed that Mr Lidden had stated that Mr Comino could not do this to him because he had been guaranteed six months' work. That statement was at least consistent with Mr Comino's advertisement and all of Mr Lidden's evidence but according to Mr Comino there was nothing but a trial period and day-to-day work offered with no mention of six months' work.
84 The Court is then left in the position of having the firmly given evidence of Mr and Mrs Lidden supported by their daughter and the detailed accounts of the discussions leading up to the arrangements, following the arrangement and during the period Mr Lidden performed the run. Against that detailed evidence, are Mr Comino's recollections, some of them spread over a number of years and well after the event, unaided by any notations, memorandas or written notes of what occurred, including a challenge to the very wording of the advertisement of the position placed with Joblink Plus. He readily conceded in oral evidence that his memory of these events was "hazy" after so many years. Having closely observed the witnesses give their evidence, I am satisfied, from the detail maintained by Mr and Mrs Lidden, that their evidence is accurate and where it conflicts with that of Mr Comino, their evidence is to be preferred.
85 Having reached that conclusion as to the competing evidentiary position of the parties, I am satisfied that, whatever terms were actually used in the discussions, Mr Comino made representations to Mr Lidden that there was six months' work involved in the courier service to Orange and that, depending on developments, that work might last considerably longer. The short term security of the work for a period of six months is also supported Mr Comino's evidence that his alternative proposition was that he would buy a utility and place an employee in that work for a trial period of two weeks, then give that person the opportunity to buy the truck and continue the work in his own business. For that proposition to be viable there had to be something more than merely casual work or day only work. In a similar vein, it is unlikely that Mr Lidden would give up his existing work, expend money on buying a utility and face the costs of setting up a company for the prospect of day-to-day work with no guarantee that there would be work on each day of the week or that there would be some continuity of the work, even if limited to six months. Mr Comino did not deny that he had spoken about his own experience in the work and although it had started with a relatively short term of six months, it had evolved into an ongoing business that allowed him to purchase a new vehicle. The proposed new agreement (that brought about the termination of the arrangement) seems to have at least as one of its purposes the entering into of a new arrangement of daily hire as opposed to the secure term of six months spoken about in the advertisement placed by Mr Comino. That combination of matters serves to support the case brought by Mr Lidden and a finding that he acted on the representations made by Mr Comino that there would be secure employment of six months' duration in this work.
86 The unfairness claimed by Mr Lidden arose during the course of the arrangement and through the conduct of Mr Comino. Relying on the absence of a written arrangement, I am satisfied that Mr Comino attempted to alter the arrangement so as to remove any obligation to engage Mr Lidden for the minimum period of six months. Mr Comino's evidence was that he was angry that Mr Lidden had apparently told somebody else about the work because an unidentified person had contacted him making enquiries about the work, how much was charged for the work and also because the beef company had indicated that it had been approached by somebody else about the work. It was common ground that Mr Comino wanted to keep the fact of the work a secret so that it would not be subject to competition by other courier services. There was no explanation in his evidence as to why he thought Mr Lidden was responsible for disclosing the work but it appears that he was not only angered by the fact that the work was made known to others, he had also formed the view without any established evidence that Mr Lidden was responsible for leaking that information. Whatever else might have been concerning Mr Comino about Mr Lidden's work and, having regard to the limited contact they had over a short period of time, this aspect of the respondent's case appears to be exaggerated. It is clear that Mr Comino decided that Mr Lidden could not be trusted to keep secret the nature of the work, although he had no basis for that view, and determined to replace him on the run. I accept the evidence that Mr Comino was already aware of and had sighted the documents setting up the company and the insurances that had been arranged by Mr Lidden and reference to these matters in the proposed new contract appears to be little more than window dressing for the central purpose, which was to place Mr Lidden on a daily contract so that he could be quickly dispensed with once a new driver was found.
87 The termination of the arrangement with Mr Lidden in those circumstances was unfair. It provided him with no opportunity to continue in the business so as to recoup his costs in setting up the business to perform the work for Mr Comino and it failed to make any provision to adequately reimburse him for those costs if the six month term was prematurely terminated. In all the circumstances, considering the fact that the arrangement actually operated for just over two weeks, the appropriate course is to declare the contract and arrangement as being unfair and to void the contract and arrangement ab initio except in regard to payments already made to Mr Lidden.
88 The next issue raises the question of what, if any, money order should be made in favour of Mr Lidden. The Amended Summons for Relief sought the payment of the unexpired portion of the six month term, being 24 weeks at $1,325 per week. Establishment costs of $6,200 were also sought and legal costs of just over $900. It might be noted at this point that, although there was some evidence of the dangerous nature of the blood being transported the evidence did not establish that position, although I accept that Mr Lidden was not informed of the possible danger of Q Fever and the need for precautionary inoculation until 12 June, more than a week into the operation of this contract or arrangement. Apart from alleging that it was unfair not to be properly informed of these dangers and to be advised of proper markings to be placed on the vehicle, no money order was sought in relation to these matters: Mr Lidden did not claim that he incurred medical costs or became ill in a way that inhibited him from obtaining employment nor did he frame any claim for the payment of money on the basis of these matters. In those circumstances, it is not necessary to rule on the validity of those allegations and denials by the respondent.
89 This is an appropriate case for orders to be made that largely restore Mr Lidden to the position he was in prior to entering the arrangements with Mr Comino and expending financial resources to set up a business to undertake the work involved in the courier service to Orange. During the course of the case, Mr Lidden readily accepted that his actual loss was not $1,325 per week but on his own calculations he was netting between $600 - $800 per week out of the arrangement, although there could be additional costs within that figure, bearing in mind that there could be additional costs in operating this business over the initial six month term of the arrangement. I believe it would be just, in the circumstances of this case, that Mr Lidden be awarded $700 per week for the 24 weeks of the term that he was not able to complete the work because of unfair treatment at the hands of Mr Comino. That would result in an order for the payment of $16,800 to Mr Lidden.
90 The provisions of s 106(6) of the Act require the Court to take into account whether or not the applicant took any action to mitigate the loss. In applying this provision, the Court bears in mind the discussion of the principle of mitigation found in Westfield Holdings v Adams (2001) 114 IR 241 and in English v Aradlay Insurance Brokers Pty Ltd (2005) 145 IR 129. It is sufficient to say the assessment of appropriate compensation under s 106(5) as well as under s 106(6) involves an act of judgment on the part of the trial judge where the general law principles as to mitigation and damages are relevant, but are not decisive as to what order or award is made. In the present matter, although there were representations that the work would initially last for six months with only a prospect of further work, Mr Lidden did not work again until February 2003. I am satisfied on his evidence, which was uncontested, that he took numerous steps to obtain other employment and was unable to do so until February 2003. However, an issue arises about the respondent's offer, after terminating the original contract or arrangement, to return to work because Mr Comino was finding it difficult to perform his other work and the Orange run. The first thing to note about this issue is that it was clear from Mr Comino's evidence that this work would only continue until another person was found to undertake the run. Although there is some confusion in his evidence as to precisely when this took place, it appears that another person was ultimately found to perform the Orange run. The other matter to consider is the fact that this work would continue on a daily basis only and was not an offer to reinstate the minimum period of engagement of six months. Mr Lidden declined to take up that offer because it was only an offer of daily hire when he was after some more security than daily hire but also because, importantly, he regarded Mr Comino's actions as a breach of trust and was not prepared to work with him again. Although Mr Lidden might be justified in rejecting the offer of further work on both those counts, nevertheless, some small amount should be allowed by way of mitigation and as a recognition of the fact that Mr Lidden could have earned some amount of money while looking for other more secure employment. However, the circumstances do not warrant a significant reduction in the amount that should be paid to Mr Lidden. In all the circumstances, it is appropriate to order the payment of $14,500 to Mr Lidden in relation to this part of his claim.
91 There was some cross-examination as to the establishment costs calculated in the sum of $6,200. Mr Lidden had not brought to Court the documents that justified that figure but gave evidence that it involved the expenditure of $3,000 on the purchase of the Ford utility with the remainder of the sum being made up of the costs of purchasing material and building the cage to secure the Eskies for transport, the purchase of tyres, insurances and the set-up costs for the company (which were in evidence). The respondent sought no particulars of these establishment costs prior to the hearing. While Mr Lidden's evidence on these matters can generally be accepted, he should not be reimbursed for the cost of the utility which he continued to use and which was purchased in circumstances where the family was already considering buying a second vehicle. He therefore obtained continuing use and benefit from the vehicle although not for work and it would not be appropriate in those circumstances that the purchase price of the vehicle be reimbursed to him. Because of the lack of precision in calculation and the limited evidence as to establishment costs, it would be just, in the circumstances of this case, to award $2,000 for the establishment costs arising from the requirement to set up the business.
92 Mr Lidden claims $910.80 for legal expenses. These expenses appear to be incurred in taking steps to commence the proceedings and relation to the Amended Summons for Relief he filed. Bearing in mind that Mr Lidden appeared for himself during the proceedings and the fact that the claim for specified legal expenses was clearly articulated and not contested, I think it is appropriate that there be an order for legal costs in the sum of $910.80 in favour of Mr Lidden.
93 The orders of the Court are as follows:
- The contract and/or arrangement between the applicant and the respondent whereby the applicant performed work in the courier industry is declared to have become unfair during its course because of the conduct of the respondent.
- The contract and/or arrangement between the applicant and the respondent is declared void ab initio, except in relation to payments made by the respondent to the applicant.
- The respondent is to pay the applicant $16,500 in relation to the contract and/or arrangement declared void.
- The respondent is to pay the costs of the applicant in the sum of $910.80