(ii) that the document made no provision for the duration of the employment.
42 Mr Berry submitted that the document is to be strictly construed. I do not consider that to be the appropriate approach. This document was prepared by the third defendant and was a layman's document for consideration by laymen. There is no suggestion that it was subject to scrutiny by lawyers before the dispute arose between the parties.
43 In Carter & Harland - Contract Law in Australia (3rd ed.) the authors state the principle which I perceive to be relevant here in these terms:
" [260] Difficulty of interpretation distinguished from absence of meaning . It has frequently been said that the courts will interpret the language used broadly and fairly (especially when approaching a document drafted by laymen) (see Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 at 514; Cohen v Mason [1961] Qd R 518) and that it is their duty to place a reasonable meaning on that language unless this is 'utterly impossible' (Brown v Gould [1972] Ch 53 at 57; Hammond v Vam Ltd [1972] 2 NSWLR 16 at 18. See also Murphy v Wright (1992) NSW Conv R 55-652 at 59733). While it may be questioned whether the courts do in fact always avoid the temptation 'to repose on the easy pillow of saying that the whole is void for uncertainty' (In re Roberts (1881) 19 Ch D 520 at 529, discussed in Brown v Gould [1972] Ch 53 at 57) (alternatively described by Goff LJ as 'a counsel of despair') (Nea Agrax SA v Baltic Shipping Co Ltd [1976] 1 QB 933 at 948), the prevailing approach is one of upholding agreements wherever possible."
44 In Hammond v Vam Limited (1972) 2 NSWLR 16, Sugerman P said at 18:
"The courts are always loath to hold a clause invalid for uncertainty if a reasonable meaning can be given to it. Their duty is to put a fair meaning upon it, unless this is utterly impossible, and not, as has been said 'to repose on the easy pillow of saying that the whole is void for uncertainty'. See the cases collected in the recent judgment of Megarry J in Brown v Gould [1972] Ch 53, where his Lordship points out, citing from Lord Keith of Avonholm in Fawcett Properties Ltd v Buckinghamshire County Council [1961] AC 636, at p. 670 that 'the point is one of uncertainty of concept. If it is impossible, on construction of the condition, to reach a conclusion as to what was in the draftsman's mind, the condition is meaningless and must be read as pro non scripto'. Megarry J, put the question in another way, namely as 'one of linguistic or semantic uncertainty, and not of difficulty of ascertainment' (see per Lord Wilberforce in McPhail v Doulton [1971] AC 424, at p. 457); earlier he had referred to 'uncertainty of concept as contracted with mere difficulty of application' (p. 57)…
In relation to commercial contracts 'the problem for a court of construction must always be so to balance matters that, without violation of essential principle, the dealings of men may as far as possible be treated as effective, and that the law may not incur the reproach of being the destroyer of bargains' (per Lord Tomlin in Hillas and Co Ltd v Arcos Ltd (1932) 147 LT 503, at p. 512). 'Business men' said Lord Wright in the same case (p. 514) 'often record the most important agreements in wide and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is, accordingly, the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary the court should seek to apply the old maxim of English law, verba ita sunt intelligenda ut res magis valeat quam pereat.'"
45 Then in The Council of the Upper Hunter County District v Australian Chilling and Freezing Co. Limited (1967) 118 CLR 429 Barwick CJ said:
But a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. Lord Tomlins words in this connexion in Hillas & Co. Ltd. v. Arcos Ltd. (1932) 147 LT 503, at p 512 ought to be kept in mind. So long as the language employed by the parties, to use Lord Wrights words in Scammell (G.) & Nephew Ltd. v. Ouston (1941) AC 251 is not "so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.
46 See also Meehan v Jones (1982) 149 CLR 571 and in particular the judgment of Gibbs CJ at 578.
47 Mindful of the above statements of principle, I consider the writing in the present case.
48 According to the second plaintiff the explanation given by the third defendant for term 2 was to express a lesser rate of remuneration for the third defendant "because Dr Gangemi doesn't like to see a woman paid at the same rate as a male". Whether that unattractive explanation for Term 2 explains it or not, it is to be observed that once the second defendant worked any number of hours, this reduced the available number of hours attracting an hourly rate of $12, so that once the second defendant did any work at all, assuming the application of the rates stated in paragraph 2, it would not have been possible to reach $780 per week for an aggregate of only sixty-five hours of work.
49 Whether the magistrate considered the significance of this second condition, and the explanation for its introduction, when addressing the issue of the third defendant's authority to enter into the contract for the plaintiff is not apparent from the judgment. However paragraphs 1 and 2 each provide for a combined weekly wage of $780. Paragraph 2 provides that that sum is to be paid for sixty-five hours work and sixty-five hours work at $12 per hour totals $780.
50 In my opinion it would be inconsistent with authority to strike the agreement down as void for uncertainty because of what is provided for in paragraph 2. The two paragraphs are capable of a reasonable meaning, namely that the Salters were to be paid a combined wage of $780 per week for an aggregate of sixty-five hours work.
51 Paragraph 5 provided for the manner of payment of phone and electricity charges:
" 5. Max and Jenny are responsible for Phone and electricity. Employer pays standing charges on phone and electricity.
52 Mr Berry, in written submissions, argued that this paragraph was internally inconsistent. He did not address this submission in oral argument but in my opinion the submission is not sound. The paragraph has this reasonable meaning: that the first and second defendants were to pay consumption expenses for phone calls made and electricity used, but the plaintiff was to pay charges such as telephone service and equipment charges, including phone rental, and the service availability charge for electricity.
53 Even if, contrary to the view I have reached, this paragraph was void for uncertainty, it would not call for the entire agreement to be struck down and no claim was advanced by the first and the second defendants for damages for the failure by the plaintiff to comply with paragraph 5.
54 Finally, Mr Barry has submitted that the document does not provide for the duration of the contract of employment. Plainly this is correct. However, it does not follow that there exists no enforceable contract. A distinction must be drawn between a case where a contract fails for incompleteness because the parties have reached no agreement, and a case where agreement has been reached but not all the terms have been reduced to writing. An agreement may be enforced where the agreement is proved to be partly oral and partly written, or where it is appropriate to regard a term or terms unexpressed in the document as implied into the arrangement. In Carter & Harland - Contract Law in Australia (3rd ed.) there appears the following relevant statement of principle:
" [268] Implication of terms . A seemingly incomplete agreement will often be enforced because the courts will imply in the contract terms relating to essential matters which the parties themselves have not expressly dealt with. These terms may be implied under a rule of law relating to the type of transaction in question or may be implied from the particular facts."
55 The evidence was that the first and the second defendants were in regular employment in Tamworth when they were approached by the third defendant. The first defendant was asked by the third defendant to supply details of the then existing terms of employment of the first and the second defendants and responded by advising the third defendant that their combined wage was $780 per week and that they were provided with a house and a vehicle. The third defendant responded by advising he would consider "whether we could match your current package". The third defendant later advised:
"I have worked it out that we can pay you and Jen $780 per week. We will find a house and we will pay the rent and we will supply a vehicle. I'll make up a draft contract and send it by fax to you for approval."
56 According to the first defendant, he then said:
"I don't want to finish up here unless it's permanent work down there."
57 The first defendant said that the third defendant responded:
"Yes, this is permanent work. We're in for the long term. This property is 4000 acres. It's been neglected. There is a hell of a lot of work to do. Dr Joe Gangemi has a five year programme but he has put pressure on me to get it done in two years if possible. If I'm to have any chance of getting it done in that time, I'll need you and Jen."
58 The evidence I have above reviewed was set out in the affidavit of the first defendant tendered in the proceedings before the magistrate. That evidence was not challenged and I note that the magistrate obviously formed a favourable impression of the first defendant, commenting that he "gave his evidence in a clear and honest fashion". The magistrate referred in his judgment to the circumstances in which the first and the second defendants were living in Tamworth before they went to "Newry Downs":
"The plaintiffs, Mr and Mrs Salter, were in permanent employment in the rural industry in Tamworth. They apparently were in a relatively comfortable situation with a house and vehicle with fuel supplied. I find on the facts that they were contacted by Mr Charles Davison, the manager of the defendant company, and were offered the opportunity to work for Gangemi Holdings Pty Limited…"
59 Consistently with the assertion that the first and the second defendants' participation in a two year programme was being sought by the third defendant was the fact that the third defendant arranged the letting of the house to accommodate the first and the second defendants for a period of twelve months with a twelve months option. Arrangements for the letting were on the evidence made in late December or early January 1996 and the lease was expressed to run from 1 February 1996 which was the date from which the agreement signed by the first and the second defendants and by the third defendant was expressed to be effective.
60 It seems to me that on the above unchallenged evidence it was appropriate to imply into the contract a term as to its duration and that Mr Berry's submission to the contrary must be rejected.
61 What was the term to be implied? The magistrate did not spell out his approach to this, but it is clear from the damages he assessed that he quantified damages on the basis that the contract was to be regarded as being one for two years. He accepted the claim as detailed and calculated on that basis in a document tendered on 21 December 1998 (T 2).
62 The magistrate has not stated his reasons for what he did but no ground of appeal complains of the failure to give reasons, nor as to the approach taken to the assessment of damages once the challenge to the contract on the basis of its uncertainty failed. In this regard Mr Berry's approach on this appeal has been entirely consistent with his approach at first instance, as reflected by his written submissions presented to the magistrate and made available to this Court.
63 Having regard to the way in which the hearing was conducted at first instance and having regard to the way in which the appeal has been argued, this Court is not called upon to consider either the aptness of the implication of a term of two years which the magistrate obviously found or the manner of quantification of damages. It suffices on the issues raised on the appeal to hold as I do that the claim does not fail for uncertainty or incompleteness because no term governing the length of the employment was expressed and that the facts of this case made it appropriate to imply into the contract a term as to its duration.
64 For the reasons I have stated, Ground (f) fails.