Brambles Holdings Ltd v Bathurst City Council

LEGISLATION CITED: Industrial Relations Act 1996 ss163, 345, 346, 347, 349, 350, 351, 352

CASES CITED: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] 219 CLR 165

APPELLANT Mr A Moses of counsel Solicitor: Mr A Douglas LEGAL REPRESENTATIVES: Douglas Workplace and Litigation Lawyers

RESPONDENT Mr A Hatcher of counsel Transport Workers' Union of New South Wales

FULL BENCH CORAM: WALTON J, Vice-President MARKS J CONNOR C Wednesday 4 June 2008

Stegbar Pty Ltd and Transport Workers' Union of New South Wales (on behalf of Cruickshank Transport Pty Ltd)

Application by Stegbar Pty Ltd for leave to appeal and appeal against a decision of the Contract of Carriage Tribunal given on 16.10.07 in matter no IRC 2210 of 2006

1 The appellant, Stegbar Pty Ltd, has sought leave to appeal from a decision of the Contract of Carriage Tribunal ("the Tribunal") in proceedings brought against it before that Tribunal by the respondent to the appeal, the Transport Workers' Union of New South Wales on behalf of Cruickshank Transport Pty Ltd ("Cruickshank"). The decision of the Tribunal is reported at [2007] NSWIRComm 244. 2 The Contract of Carriage Tribunal is established by s 347 of the Industrial Relations Act 1996 ("the Act"). By s 346 of the Act, a contract carrier is entitled to bring a claim for compensation against a principal contractor. (Those terms are defined in s 345 of the Act). Section 346 is in the following terms: (1) A carrier whose head contract of carriage is terminated by a principal contractor may claim compensation from the principal contractor if: (a) the carrier entered into the head contract of carriage by arrangement with a previous carrier whose provision of services to the principal contractor under contracts of carriage was replaced by the carrier, and (b) under the terms of the arrangement between the previous carrier and the carrier, a sum of money was paid by the carrier to the previous carrier as a premium or fee in connection with the entry into the head contract of carriage by the carrier, and (c) it is a custom and practice in the relevant section of the industry or business of the principal contractor that such a premium or fee be paid, and (d) the principal contractor knew or ought reasonably to have known that such a premium or fee had been paid to the previous carrier, and (e) the principal contractor failed to take reasonable steps to advise the carrier that it was not a requirement of the principal contractor that such a payment be made or requested.

(2) A carrier is not prohibited from making a claim under this section because the carrier performs minor or incidental work for a person other than the principal contractor under the head contract of carriage. 3 The Tribunal is empowered to arbitrate any such claim for compensation if a mandatory conciliation process fails, as occurred in the context of these proceedings. By s 351 of the Act, sub-s 163(1) applies to the hearings of the Tribunal. That sub-s is in the following terms: (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 4 It will be observed from the provisions of s 346, which we have earlier set out, that in order to establish a claim for compensation, a carrier is required to establish the five matters which are set out in sub-s (1). 5 In the proceedings before the Tribunal, the respondent, on behalf of the named carrier, established each of these matters to the satisfaction of the Tribunal. 6 An appeal from a decision of the Tribunal is available to a Full Bench of this Commission by s 350 of the Act. However, such an appeal is subject to the provisions of s 188, which is in the following terms: (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench;

(2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted;

(3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal;

(4) This section does not apply to an appeal made by the Minister. 7 In seeking leave to appeal, and in any appeal if leave is granted, the appellant has sought to attack the findings of the Tribunal that the respondent had established each of the five jurisdictional requirements set out in s 346. 8 In essence, the appellant sought to rely on a number of discrete matters in sustaining its case that leave to appeal should be granted and the appeal should be upheld. These were: (1) The finding made by the Tribunal of the existence of a head contract; (2) The finding of the Tribunal that the remaining jurisdictional matters had been established, especially the custom and practice referred to in s 346(1)(c); (3) The calculation of compensation; (4) Whether the Tribunal had given any or sufficient reasons for the findings made by it. 9 We shall now deal with each of these matters in turn, and in doing so consider the arguments raised by the appellant as to the reasons given by the Tribunal in each of these areas.

The Head Contract 10 It is a fundamental requirement of s 346 that there be a Head Contract of Carriage of the kind and having the characteristics set out in s 346(1). 11 Section 345 defines "Head Contract of Carriage" as meaning an "agreement, arrangement or practice under which a principal contractor and carrier agree that the carrier is to provide services exclusively and on an agreed regular basis for the principal contractor". 12 The evidence in the proceedings consisted of a statement made by Mr Joe Cruickshank, the Director of the respondent company, a copy of the purchase agreement by which Cruickshank acquired a truck with accessories and equipment for $100,000 and with respect to which he also paid $50,000 in "goodwill", an undated deed of agreement between the appellant, Cruickshank and Mr Cruickshank signed on behalf of the appellant only, containing a reference to the year 2003, a deed of agreement containing the year 2005 purported to be made by the appellant but with no names of any other party stated in it, a "termination letter" from the appellant to Cruickshank dated 15 November 2005, various financial statements with respect to Cruickshank and a statement made by Mr Terry McQuillan, an organiser with the Transport Workers' Union of New South Wales dated 10 November 2006. Mr Cruickshank gave oral evidence and was cross-examined on behalf of the appellant. No evidence was led in the proceedings by or on behalf of the appellant. 13 In his statement, Mr Cruickshank said that he completed the purchase of the vehicle and the payment of goodwill on 16 September 2003. His solicitor was given a copy of the 2003 contract document on 3 October 2003. In cross-examination, Mr Cruickshank said that he had signed the 2003 agreement and, as we understand his evidence, it was his signature on the document which became evidence in the proceedings. 14 Mr Cruickshank said that in 2005 there were discussions with the appellant's personnel concerning a proposed new contract. Those discussions also involved Mr McQuillan and other drivers working out of the same location. There was no general agreement, on the basis of the evidence, that the drivers concerned were prepared to sign a new form of contract. 15 Mr Cruickshank said that in early November 2005 he received by post a document. He attended a meeting with other drivers at the appellant's premises where the Transport Manager said "If you don't sign the new contracts we're going to terminate your engagement". Thereupon, Mr Cruickshank said that he signed the document and handed it back that day. He said that he did not have the chance to read the document properly before signing it. 16 It was common ground between the parties that the document, which became evidence in the proceedings, was a copy of the document signed by Mr Cruickshank in November 2005. 17 That document is entitled "Deed of Agreement" and, as such, was in a form which required execution by the carrier under the common seal of the carrier. The document contains the name of the appellant as "the principal" but does not contain any names of any person or entity designated as "the carrier". Nor is the document dated. The document says that the parties are to be bound by the terms and conditions of the deed of agreement and that the agreement would commence on a "Commencement Date", but there is no reference in the document to a date so fixed (nor is there any evidence that a date was agreed between the parties). Furthermore, by cl 6 it is provided that "it is a condition precedent to this agreement that the carrier has obtained independent legal and financial advice regarding the terms and conditions of this Agreement". There was no evidence of any such advice having been obtained by Mr Cruickshank. 18 The proceedings before the Tribunal were conducted on the basis that the 2003 agreement was one which clearly had attached to it, on the only evidence before the Tribunal, an arrangement whereby a sum of money was paid by Mr Cruickshank to a previous carrier as a premium or fee as referred to in s 346(1)(b). The appellant relied substantially in the proceedings on an argument that, at the relevant time of the termination of the contract, the relationship between the appellant and Cruickshank was governed by the 2005 contract, being the one signed by Mr Cruickshank on 11 November 2005. This was denied by Mr Cruickshank. 19 In order to complete the factual picture, we refer to the letter of termination dated 15 November 2005. That letter referred, in general terms, to a significant downturn in production volume and the need to reduce the number of drivers from six to four. The letter referred to the provisions of an industrial instrument and also to the provisions of "the Deed of Agreement between Stegbar Pty Limited and Cruickshank Transport Pty Limited 2005...." in providing three months notice of termination effective on 16 February 2006. 20 The appellant's submission in this regard was that the 2005 contract had replaced totally the 2003 contract and that the 2005 contract, not having been entered into in association with the payment of a premium or goodwill, could not attract the provisions of s 346(1)(b). Thus the Tribunal was without jurisdiction to determine the matter. 21 In its reasons for decision (which we accept were the reasons of the two part-time members of the Tribunal as provided for in s 352(2)), the Tribunal dismissed this aspect of the appellant's submission. In doing so, it gave three reasons. The first was that because Head Contract of Carriage, as defined in s 345, also included "an agreement, arrangement or practice" it was not restricted to a contract in the strict sense. However, having stated this conclusion, the Tribunal did not, in our opinion, go on to explain why the concepts of arrangement or practice would or could impact in some way upon the appellant's argument. If there was an arrangement or practice, the Tribunal was nevertheless required to consider, in our opinion, whether or not the arrangement or practice was the same arrangement or practice which, presumably, arose in 2003 and to what extent the 2005 document had any relevant effect. With respect, we find it difficult to understand the basis for this reasoning and we agree with the appellant's submissions that it adds nothing to the resolution of the issue at hand. 22 The remaining two reasons are set out in para [51] of the Tribunal's decision. The first reason is expressed cryptically by reference to the requirement for "a properly executed contract to form the basis of a new and different relationship". The failure to execute a new or different contract is not of itself necessarily determinative of the question as to whether a new contract or a variation of the 2003 contract had, in fact occurred in 2005. So much may be gathered from the observations of Heydon JA (as his Honour then was) in the NSW Court of Appeal in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153. At paras [71] and following Heydon JA discusses circumstances in which a Court will find the existence of sufficient mutuality such as to constitute a contract at law from the conduct of the parties, provided that that conduct allows all of the necessary elements of a contract to be identified. 23 However, we are of the opinion that the failure to execute the contract by the carrier, where coupled with the failure of the appellant to have completed the documentation prior to presenting it to Mr Cruickshank, does lead to the conclusion that no new contract or terms of contract were relevantly created in 2005 as contended by the appellant. 24 In a joint judgment in the High Court of Australia in Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] 219 CLR 165, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said: [42] Consistent with this objective approach to the determination of the rights and liabilities of contracting parties is the significance which the law attaches to the signature (or execution) of a contractual document. In Parker v South Eastern Railway Co , Mellish LJ drew a significant distinction as follows: In an ordinary case, where an action is brought on a written agreement which is signed by the defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents. The parties may, however, reduce their agreement into writing, so that the writing constitutes the sole evidence of the agreement, without signing it; but in that case there must be evidence independently of the agreement itself to prove that the defendant has assented to it. 25 As we have said, the appellant chose to call no evidence in connection with these proceedings. There is, accordingly, no evidence that either Mr Cruickshank or the appellant contemplated that some form of contract would come into being on the mere execution of the document by Mr Cruickshank personally, absent any evidence of execution by the appellant. Furthermore, there is no evidence of any kind of a contemplated commencement date as referred to in the body of the document and no evidence about any effective date. Indeed, it is difficult to contemplate that the appellant might have felt itself bound in some way by the 2005 agreement signed by Mr Cruickshank on 11 November 2005 when, by letter dated 15 November 2005, it purported to terminate that agreement. 26 In approaching the matter in this way, which we think is the preferred basis for consideration of what occurred, it is not necessary to consider questions of duress and as to whether what occurred detrimentally impacted upon the ability of the parties to enter into a form of contract (a further factor considered by the Tribunal). However, we find it difficult to understand how the question of duress may impact upon the issue of whether a contract was formed in 2005. 27 Although, as we have said, the reasoning of the Tribunal as expressed in the decision, suffered from its form of expression, we consider that the Tribunal was entitled to conclude that the relevant contract which governed the relationship between the parties as at 15 November 2005, was the 2003 agreement. In any event, we confirm the decision at first instance upon a basis different to that relied upon by the primary decision maker. We further agree, on the basis of the evidence, the Tribunal was entitled to conclude that s 346(1)(a) and (b) had been established. (We note in that respect that the appellant conceded that the 2003 agreement met those conditions.)

28 In essence, the remaining matters concern the provisions of s 346(1)(c), (d) and (e). These all refer to the establishment of a custom and practice that goodwill was paid by carriers engaged by the appellant and that the appellant had failed to take reasonable steps to advise Mr Cruickshank that it was not one of its requirements that such a payment be made or requested. 29 The controversy in this area was essentially factual. The evidence was that of Mr Cruickshank who said, firstly, that he had purchased his truck from a previous owner/driver, Mr Wheeler, that he had earlier received an offer to sell a truck working with the same company from another previous owner whom he named, that that previous owner had sold the 'truck and the work' for the appellant to another person whom he named, and that before entering into the transaction, he had spoken to four other owner/drivers whom he named and each of whom had told him that they had paid 'goodwill' to obtain work from the appellant. The evidence from Mr McQuillan was that he had had a conversation with a representative of the appellant who had said that he believed that four drivers had paid goodwill to work for it. 30 With respect to the understanding of the appellant that Mr Cruickshank was to make a goodwill payment, he gave evidence that he had told the Transport Manager of the appellant that he was paying the vendor monies for the truck and goodwill and nothing was said to him in response that it was not a requirement that he pay goodwill to be entitled to drive for the appellant. 31 The Tribunal dealt with this evidence at paras [53] to [55] of the decision in the following terms: [53] As an alternative submission, Mr Moses accepted that subparas (a) and (b) of s 346(1) of the Act had been established. He further conceded, properly in our view, that subpar (d) may also have been established. However, the respondent did not accept that a custom and practice of paying a fee or premium had been established on the hearsay evidence of the applicant. We reject this submission. In light of the respondent calling no evidence at all in this case - let alone any contrary evidence - or effectively challenging the applicant's evidence in cross-examination, it is open for the Tribunal to find that what the other owner drivers had told the applicant about the custom and practice in the yard, was truthful.

[54] As to the respondent taking reasonable steps to advise that it was not a requirement for a fee or premium to be paid, we accept the applicant's evidence that he was not told of this requirement at the time of interview with Ms Nuttal, or any relevant time subsequently. As it was open for the respondent to call Ms Nuttal or such other management persons to deny the practice, we believe a plain Jones v Dunkel inference is available. We also consider that reliance on the words of a contract, which was provided three weeks after the applicant commenced work, does not absolve the respondent's obligations under s 346(1)(e) of the Act. In short, it was too late.

[55] Accordingly, we find that all of the jurisdictional prerequisites under s 346(1) of the Act have been satisfied. 32 The appellant submitted that the Tribunal should not have accepted the evidence of Mr Cruickshank because it was hearsay, unsupported and uncorroborated. It was, therefore, unsafe to do so. 33 We have previously set out the provisions of s 163(1) of the Act. The appellant, properly, conceded that the Tribunal was not bound by the strict rules of evidence but, nevertheless, submitted that it was unsafe for the Tribunal to rely only on the uncorroborated evidence of Mr Cruickshank. However, a submission which would have the effect of excluding evidence which was strictly hearsay evidence and impermissible to be relied upon in a court of law governed by the laws of evidence, is too limited in its application to the proceedings of the Tribunal. Obviously, there will be occasions when it would be inappropriate or unsafe to rely upon untested, uncorroborated evidence which is clearly hearsay. However, we do not accept that the evidence in question, whilst undoubtedly having hearsay elements, could be so described. 34 What the Tribunal is required to do is to carefully consider and evaluate such evidence as is before it. That assessment and evaluation will determine whether it is appropriate and safe to rely upon particular evidence, particularly of a hearsay kind. This requires a consideration of the totality of the circumstances which apply to the proceedings before the Tribunal. Mr Cruickshank gave evidence both by way of statement and oral evidence. It may be assumed that the appellant had had an opportunity of considering that evidence before the commencement of the hearing or during the course of the hearing in circumstances where it might wish to test that evidence. The evidence could be tested, as it was, by way of cross-examination and it could be tested by calling any contrary evidence. Mr Cruickshank was not asked any questions in cross-examination with respect to his knowledge of the transactions entered into by other drivers and the asserted payment by them of goodwill. Mr McQuillan was not asked any questions by way of cross-examination on his conversation with a representative of the appellant. Accordingly, as we understand the proceedings before the Tribunal and the evidence which was led in those proceedings as revealed in the transcript, the Tribunal was entitled to accept that what Mr Cruickshank said in evidence had been said to him by the other drivers. This was the only evidence about these matters. There was not, in our opinion, any reason why this evidence should not have been accepted by the Tribunal as establishing the matters which were necessary for it to consider, especially given the fact that the appellant chose to call no evidence of any kind. It follows, therefore, that no attack can be properly made on the assessment and evaluation of this evidence in establishing the other jurisdictional matters required by s 346. 35 In this aspect also, the appellant's challenge fails.

36 Compensation may only be awarded in the circumstance as set out in s 349 of the Act, which in turn is predicated upon a finding that the termination of the Head Contract of Carriage was unfair, harsh or unconscionable. Section 349 is in the following terms: (1) The Tribunal may determine that compensation is payable in relation to a claim only if it is satisfied that the termination of the head contract of carriage concerned was unfair, harsh or unconscionable;

(2) The Tribunal may direct that any person (including, but not limited to, a previous principal contractor) who or which is not a party to a claim notified to the Industrial Registrar under section 348 (1), is to be a party to the arbitration proceedings;

(3) Subject to subsection (4), the Tribunal may order that a carrier, previous carrier, principal contractor or previous principal contractor joined as such a party is liable to pay solely, or jointly with another party or parties, compensation under this Part;

(4) In determining whether or not compensation is payable and, if so, the amount of compensation, the Tribunal is to have regard to the following matters: (a) the amount of the premium or fee paid by the carrier as referred to in section 346; (b) any amount paid to the carrier by the principal contractor (including but not limited to redundancy payments) in respect of the termination of the head contract of carriage, whether or not such payment was made expressly on account of the payment of that premium or fee; (c) the duration of the head contract of carriage; (d) the likelihood of the carrier being able to use the motor vehicle required by the head contract of carriage for other types of work, and the availability of any such work; (e) the re-sale value of the motor vehicle; (f) the preparedness of the principal contractor to guarantee a flow of work to the carrier for a specified period in the future.

(5) If the Tribunal determines that compensation is payable by more than one party, the Tribunal is to determine the respective proportions of the total sum to be paid by each;

(6) Quantification of any compensation is to be approached as though in a claim for damages for breach of contract and compensation is payable only in respect of pecuniary loss resulting from termination of the head contract of carriage. Without limiting the amount of compensation that may be determined to be payable, compensation may include the whole or a part of the amount of premium or fee paid by the carrier;

(7) A claim for compensation may not be dealt with by the Tribunal if the claim (however described) is the subject of an application before, or has been determined by, any court or other tribunal;

(8) The Tribunal must not make a determination under this Part if the determination has the effect of altering or varying a contract agreement or a contract determination. 37 Relevantly, the Tribunal found that the termination of the Head Contract of Carriage was unfair, harsh and unconscionable in the circumstances in which it occurred. The Tribunal noted that Mr Cruickshank had suffered the loss of goodwill, an ongoing expectation of work and a short period of unemployment. Furthermore, Mr Cruickshank was required to modify the vehicle and suffered a subsequent loss of income. 38 In determining compensation, the Tribunal amortized the goodwill payment of $50,000 and reduced the award of compensation to reflect this compensation to $40,000. It ordered that Cruickshank be paid $11,000 representing three weeks short payment of monies under the notice period. Compensation was also awarded to reflect the cost of modification of the truck body post termination of $10,000, reduced to $5,000 and a sum of $6,000 was awarded to compensate for a loss of earning post termination. The total compensation awarded was $62,000. 39 The appellant submitted that the Tribunal had failed to consider in precise terms each of the matters referred to in s 349(4) and that it had failed to apply principles for the quantification of compensation mandated by sub-s (6). 40 We agree that it may be said that the Tribunal did not pay particular regard to all of the matters referred to in s 349(4). For example, there was no specific consideration of the resale value of the motor vehicle. However, it is possible that a matter of this kind may have militated towards a higher award of compensation rather than a lower one. Unfortunately, the lack of specificity in the reasons given by the Tribunal for the calculation of compensation, having regard to each and every one of the six components of s 349(4) may lead to a difficulty in assessing whether or not the Tribunal had regard to each and every one of those matters. Even though we acknowledge that the reasons given by the Tribunal are inadequate, on the evidence before us, the overall result is such that it could not be said that the Tribunal had misdirected itself in its conclusion as to the appropriate compensation that should be awarded. 41 The same approach may be taken with respect to s 349(9). Again, the Tribunal did not state in specific terms that it had approached the matter in the manner mandated by sub-s (6). Nevertheless, such reasoning of the Tribunal as is available and an assessment of the overall result would not lead us to conclude that the decision of the Tribunal was inconsistent with the requirements of this sub-section. Accordingly, we reject the appellant's submissions in this regard that the Tribunal's decision in this area gives cause for review.

42 We have already indicated in traversing the various grounds of appeal that in some respects the reasoning of the Tribunal was so inadequate as to provide a basis for appellate intervention itself. However, for the reasons which we have given, we do not conclude that the reasoning or lack of it within the decision of the Tribunal was such that there is a warrant for interference by way of review, as we do not consider that the findings of the Tribunal as to jurisdiction or its assessment of compensation were erroneous.

43 In considering whether leave to appeal should be granted we are mindful of the necessity to demonstrate that there is some matter of public interest which would warrant the grant of leave. Whilst the public interest may be attracted by reference to points of law and by reference to outcomes, particularly involving a misapplication of facts or a defective fact finding process, the mere assertion that these factors or factors of this kind exist does not per se attract a public interest. The designation of a particular matter in terms which are designed to attract interest on appeal does not create a matter of such interest if, on inquiry, the particular point is seen to have unimportant significance. Such is the case here. Although there are technical points that may be considered concerning the impact upon the relationship between the parties of the 2005 document, there is, as we have found, no significance in those propositions. On this basis, any public interest in this point evaporates. 44 Here we are unable to discern any apparent error in the ultimate conclusions reached by the Tribunal concerning any particular issue. Furthermore, we cannot discern any matter of general principle which would apply to proceedings before the Tribunal or which would affect persons or parties other than the parties to these proceedings in a general way. If left to those considerations alone we would have refused leave to appeal. 45 However, we consider that leave to appeal should be granted in this matter because of the inadequacy of reasons, particularly in relation to the compensation issue. The inadequacy of reasons may, of course, be enough in itself to establish an appeal. In this case, we consider that, on balance, error has not been established but that the appellant was entitled to a review of the merits of the decision at first instance because of the inadequacy of reasons presented by the Tribunal which opened, in our view, at least, the prospect for real issues in relation to the compensation question.

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