19 In Automatic Fire Sprinklers v Watson, the employee succeeded in obtaining remuneration by way of salary, notwithstanding that his services had been discharged by the employer. That, however, was because of orders then in force which forbad not only the termination by the employer of the employment without permission of the relevant authority, but also the employer standing the employee down or suspending him from duty (at 469-470).
20 If what Dixon J called "the common understanding of a contract of employment at wages or salary periodically payable" is applicable in the circumstances of this case, there is at least a plausible contention requiring investigation as to whether the defendant is entitled to payment of salary when it is common ground he has not performed work for the plaintiff during the period for which the salary is claimed.
21 The defendant says that his contract of employment remains on foot. The correspondence to which I have referred, and the conversations about which Ms Crabbe gave evidence, show that there is an issue as to whether he abandoned his employment. But even if his contract of employment has not been terminated, there is still the question which will require determination of whether he is entitled to wages, as distinct from unliquidated damages. Although he did not provide work, it may be that the defendant will be found to be entitled to wages for proffering services on the principle that, "they also serve who only stand and wait". But whether that is so or not will depend upon a closer investigation than can be had in these proceedings of the events of 28 February and 1 March 2006, and the events surrounding the email correspondence of 8 and 9 March 2006.
22 Hence, counsel for the defendant understandably accepted that if it were open to the plaintiff to advance this ground of dispute, and if what Dixon J described as the "common understanding of a contract of employment" was applicable in this case, there was a genuine issue as to whether the defendant was entitled to salary.
23 The defendant sought to outflank the dispute, relying upon three grounds. First, it was said, this ground is not open to the plaintiff on the principles in Graywinter Properties Pty Limited v Gas and Fuel Corporation Superannuation Fund (1996) 70 FCR 452 and Process Machinery Australia Pty Ltd (trading as DCL Engineering) v ACN 057 260 590 [2002] NSWSC 45 at [22].
24 Secondly, counsel submitted that it is not necessarily the case that wages are only payable in return for services rendered. It is perfectly competent for parties to make a contract of employment under which payment of wages is independent of service provided (Inland Revenue Commissioners v Duke of Westminster [1936] AC 1; Automatic Fire Sprinklers Pty Limited v Watson at 465).
25 Counsel for the defendant submitted that the onus did not lie on the defendant to establish any particular terms of the defendant's employment which might have entitled him to payment of salary independently of the provision of services. He submitted that, in the absence of evidence identifying the terms of the defendant's employment, it was purely speculative to say that the defendant was only entitled to salary if he performed work for the plaintiff, either at its premises or from home.
26 Thirdly, counsel submitted that this ground lacked genuineness because it should be discerned from the plaintiff's correspondence and affidavits that its principal contention - indeed, counsel submitted, properly understood, it was the plaintiff's only contention - was that, if there were any employee, it was CCH, not the defendant, and only CCH, not the defendant, provided services to it.
27 The defendant's first contention is that the ground for disputing the debt was not raised in the supporting affidavit filed within the 21 days after service of the statutory demand, and that, in order for such a ground to be raised by the affidavit, it must be clearly delineated. These principles are well established, although it is sufficient that the area of controversy be clearly delineated by necessary inference, so it is identifiable as one or more of the grounds for disputing the statutory demand made available by ss 459H or 459J of the Corporations Act.
28 In my view, the second ground was clearly delineated in the affidavit filed by the plaintiff within the 21-day period. The evidence of Ms Crabbe, to which I referred earlier in these reasons, was contained in her affidavit of 3 July 2006. In that affidavit, which accompanied the originating process, Ms Crabbe stated, in paragraph 6:
" The plaintiff denies that it owes the debt claimed in the Demand. The Defendant has never been an employee of the Plaintiff, and further did not provide any services to the Plaintiff during the period 20 February 2006 to 11 June 2006. "