For the reasons expressed earlier in this judgment, I would dismiss both the appeal and the cross-appeal with costs and direct that the costs of the one be set off against the costs of the other.
[2]
I agree with Callaway, J.A., but wish to add some observations of my own on the claim in contract.
[3]
I was at one time attracted by the argument for the appellant that the entry of "approx 2 years" in the column headed "Estimate [sic] Duration" in the Attachment B signed on behalf of the appellant on 13 August 1996 constituted a formula yielding "the completion date", duly modified, within the meaning of the notation on the amendment dated 22 April 1996 to the Temporary Staffing Agreement. But the considerations to the contrary are insuperable. First, to take only the passages to which I have referred, there is the concept of estimation as well as that of approximation. This is not a case where the expressions can be rendered certain by reference to other provisions (such as the rate of payment) because the question (on the appellant's argument) ineluctably comes back to the meaning of the entry in the column headed "Estimate Duration". The words relating to duration were, in my view, "words of estimate, expectation or belief" and duration "was not contracted for": ; at 438, 443 and especially 444. Moreover, the column in question does not on its face purport to state a completion . (I would not, however, reject reliance on the notation on the ground, advanced for the respondent, that the words "if any" in the notation modify the words "the completion date", amongst others, for they seem to me clearly to apply to the words nearest to them, namely, "previous amendments".) Again, to fasten upon the documentary passages to which I have referred is to disregard the fact that the contract was, and was indeed pleaded by the plaintiff-appellant to be, partly oral. Secondly, if the "Estimate Duration" column of Attachment B has contractual force, the columns relating to the monetary commitment on the part of the respondent cannot be treated as non-contractual. Except fortuitously, they will yield a different duration from the entry in the column headed "Estimate Duration". Since they are quite precise they must prevail over it. (The appellant did not, and could not, accept a construction that the duration of the agreement as amended was until the total commitment of $120,000 had been incurred or approximately two years, whichever first occurred.) Thirdly, the construction under consideration is inconsistent with the notice provisions in clause 12. Although her Honour's view of this clause was not challenged on appeal, the clause may, I think, be taken into account: see R.64.22(7). Fourthly, as counsel for the respondent pointed out, that construction was not advanced below.
I would not endorse everything that her Honour said in the judgment, but I consider that her conclusions were substantially correct: there was no two-year commitment and no misrepresentation to the appellant on which it relied. Accordingly I do not need to recall the caution that an appellate court must show before displacing findings of fact or her Honour's evident use of her advantage in seeing and hearing Mr. Gilmour, Mr. Yelland and Mr. Winstanley give their evidence. See and compare Jones v. Hyde[1989] HCA 20; (1989) 63 A.L.J.R. 349; Abalos v. Australian Postal Commission[1990] HCA 47; (1990) 171 C.L.R. 167; Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472; State Rail Authority of N.S.W. v. Earthline Constructions Pty. Ltd.[1999] HCA 3; (1999) 73 A.L.J.R. 306 and Feo v. Pioneer Concrete (Vic.) Pty. Ltd.[1999] VSCA 180. I have reviewed the evidence for myself.
The deficiency in s.74 is that an appeal lies from the County Court to the Court of Appeal on a question of costs without leave. The Constitution (Court of Appeal) Act 1994 amended s.74 to prohibit appeals from judgments or orders of the County Court in interlocutory applications except with the leave of this Court, but it did not incorporate provisions about costs equivalent to s.17A(1) of the Supreme Court Act1986. The exceptions in s.17A(4)(b) were not incorporated either. See also s.17A(5) and (6). Another deficiency was recently identified in Connell-McDowell v. Bleechmore[1999] VSCA 68, where it was pointed out that the provisions of s.74(4) relating to stays are apt to work injustice under modern conditions. The legislature may well consider that s.74 should be replaced in its entirety with a new section putting civil appeals from the County Court to the Court of Appeal on substantially the same footing as appeals from the Trial Division of the Supreme Court.