15 In cross-examination he gave the following evidence:
Q. When you placed your name with HR Partners and I think you said a number of other companies in late 2005 you were looking for a position that would utilise your experience and expertise.
A. Yes that's right.
Q. You weren't overly concerned with the period of that employment were you?
A. Well obviously I'd like to have as long a contract as possible because I have a young family, at that stage I had a new baby, sorry about a 12 month old baby so I was looking at long-term contracts rather short-term things.
Q. Yes but if you had been offered a suitable position or what you would consider a suitable position, you wouldn't have been concerned if it had been for a relatively limited period.
A. Well my preference would have been to have something long-term contract, normally I don't take 3 month contracts.
Q. But at the time you had received this offer from my client, you hadn't received any other offers had you?
A. Not at that stage.
Q. You were proposing to undertake some more interviews?
A. Yes.
Q. But that stage your contract with RailCorp was rapidly coming to an end?
A. That's right.
Q. And Christmas was coming around?
A. Yes.
Q. You were going to take some leave?
A. Yeah I already had a holiday planned, pre-booked.
Q. Once you came back from the holiday in mid-January?
A. Yes.
Q. You wanted to have a job in place didn't you?
A. I certainly wanted to - yeah if I could yes.
…
Q. You heard the word 'non-ongoing' in respect to the position you were being interviewed about didn't you at that interview?
A. Yes.
Q. And the word 'non-ongoing' which to a lay person may be somewhat meaningless meant something to you didn't it?
A. Yeah it meant there was no guarantee of ongoing employment.
Q. It meant it wasn't a permanent position that didn't have tenure as it were?
A. That's right.
Q. And it meant that it was for some fixed period?
A. Yes.
Q. Your understanding as a professional in the area of human resources would be that if it were for a fixed term, then there was no guarantee that at the end of the fixed term you have further employment with that organisation?
A. That's right.
…
Q. Ms Priestland was talking to you about a pilot programme which was about to get underway and she was suggesting to you that that programme might run for 12 months, is that not correct?
A. That's right.
Q. And that you might have a role in that if you were offered a position by the department?
A. Yes.
Q. You had to keep clear in your mind the difference between the project and your employment didn't you?
A. Oh yes.
Q. She emphasised to you didn't she that the actual scope, the duration of the project was not fully defined or worked out?
A. Yes.
…
Q. So you've understood that most of what was going to come out of this interview was the possibility that an offer would be made to you?
A. Yes.
Q. From your experience in human resources, particularly dealing with a Commonwealth Government department, it would be most likely that such an offer would come in writing?
A. Yes.
Q. You understood then from your years of experience in human resources what was important was what was in the written offer?
A. That's right.
…
Q. You understood did you not when you received the letter from Mr Caravis (sic) that let's just identify this letter, is this the letter that's at page 12 of your affidavit?
A. Yes, that's the one.
Q. And that's the letter that commences on behalf of Human Resources Partners, do you see that?
A. Yeah.
Q. Mr Caravis is saying that this letter says he's speaking on behalf of his employment organisation doesn't he?
A. No, well he says here 'congratulate you on your appointment with the Department of Defence' so that letter is stating that it is a fixed term contract for 12 months and that I'm to report to Orchard Hills on a set date so he's acting on behalf of the Department of Defence in my view as a HR Manager.
Q. Would you like to read the second sentence of the second paragraph to yourself?
A. Mm hmm.
Q. That makes it perfectly plain doesn't it that they - that is the Department of Defence will issue a formal letter of offer outlining the conditions of your contract?
A. Yeah, conditions of the contract yes which is now the detail, that's standard I think - standard practise in the HR field or an employment agency to do the initial letter of offer or letter of employment and then obviously you'd get more detailed information from the company you're working for.
Q. Yes but you understood at this stage that until you got a letter from the Department of Defence, they were going to be your employers. Until you got a letter from them and accepted it, you weren't employed by them?
A. No sorry, that's not true. That says commence on the 23 rd report to Wing Commander Percy, so to me that means you know, it is an offer of employment.
Q. From HR Partners?
A. On behalf of the Department of Defence.
Q. Well it doesn't say that does it? It says on behalf of HR Partners.
A. No the first part is about congratulating me on getting it. I mean, I don't want to get into an argument about it, I've got 30 years in HR but basically as far as I'm concerned that was the letter of offer and on that basis I turned up at Orchard Hills on 23 January. ...
Q. So you're saying that you just ignored the words 'formal letter of offer' in the second paragraph of that letter?
A. No I didn't ignore that as being the offer of employment because they've told me the date that I had to report to ..(not transcribable)..
…
Q. Mr Knevitt, the next thing that you say that happened was that you received some paperwork in January in relation to security clearance, is that correct?
A. Yes, there were some papers sent out by Canberra just to fill in - they needed those done prior to me commencing…
Q. And you've understood those documents were not a formal offer of employment, being the one referred to in Mr Caravis' letter didn't you?
A. Yeah they were a separate series of documents that were needed for security clearance and that yes.
Q. This is because you had to work for the Department of Defence?
A. Yes.
…
Q. So you signed the letter [of 23 January 2006] understanding that by doing so you were accepting an offer, is that correct?
A. Well the main thing was I was completing the paperwork with all the details.
Q. Mr Knevitt you've been engaged in human resources for 30 years, you don't regard what you call paperwork is of no importance do you?
A. No, no like I mean every department has its procedures.
Q. Yes. But if you turn to the first page of that letter you will see that's addressed to you--
A. Yes.
Q. Yes, and it says "I'm pleased to advise you that you have been selected for employment, as a non ongoing APS employment with the Department of Defence and your employment will be for a term specified in the attached notice". So upon reading the first couple of sentences of that letter, your attention would have been drawn to the attached letter of engagement would it not?
A. Yes, I certainly would have read all the documents there.
Q. You would have read all the documents when you got them?
A. Yes.
Q. But you say now in paragraph 14 of your affidavit that you did not notice the dates in the notice of engagement?
A. Yeah I didn't - I didn't realise that that only said 5 months basically at the time, I just took it as being six months and that was, I didn't really, wasn't expecting to sort of see any change.
Q. Mr Knevitt you've just said that you read these documents on receiving them, that's correct isn't it?
A. Yes.
Q. Yes and you signed the second page of the letter and returned it to somebody by way of acknowledgement?
A. Yes.
Q. But you say also that you didn't understand the dates appearing in the notice of engagement. How do you expect the court to accept that Mr Knevitt?
A. Well I just took generally to do the six months I guess that's what my, what at the time and there was a whole series of pages I was going through signing and.
Q. What you're really saying Mr Knevitt is you didn't take a great deal of care of your own position did you?
A. I don't know that I'd put it that way.
Q. Well if somebody came along to you and consulted you in your expert capacity and said I've just signed a contract of employment but I didn't look at it very carefully, you would be somewhat critical wouldn't you?
A. Well I would ask them the question around yes it (sic) and I would ask them to go back and talk to the person concerned.
Q. And are you saying therefore that after you signed this letter on 23 January and returning it you didn't ever read it again until after the end of your employment with the Department of Defence?
A. Well yes it was in a folder with a whole series of documents.
Q. In the succeeding months then you just ignored this letter you didn't go back to it and have a look at it?
A. I had no need to at the time.
Q. Because your case Mr Knevitt in this court is that you were entitled to be employed for 12 months isn't it?
A. Yes.
Q. And the document you got was offering you employment for five months?
A. Yes, I've already explained that though, we did that for ease of getting me started and you know the period of time that the department wanted me to start employment.
…
Q. Mr Knevitt we're talking about the letter of 23 January 2006 from my client. There's nothing in that letter that talks about 12 months is there or indeed six months. It says nothing about six months?
A. No.
16 Ms Priestland swore an affidavit dated 13 June 2008. At the relevant time she was working as the HR Manager for EWSD in the DMO. She gave evidence of the interview which she had conducted on 9 December 2005 with Mr Karavas and the appellant. She said that she told the appellant that:
The position that has been created is not one that existed previously and has only been estimated, from what we expect now, as a need for 12 months. The position is not a permanent one so this interview is not about permanent engagement into the Public Service. The full requirements of the role are not fully known. It will be part of this position's responsibility to provide any further definition of the full extent of the issues or planning to uncover, so there is a chance that the role might require more or less duties in the future. It is just not known, which is why the position is not permanent and it will only be filled on a temporary basis. I can only talk to you in terms of the position as we envisage it now.
17 She said that when the appellant asked her if the job was going to be for a year she had replied:
At this stage the work we expect to be done and if no dramatic changes are identified, we expect the project to be completed in one year. But we are not 100% sure which is why we cannot recruit for this role permanently. I cannot make any promises. Perry and I are simply meeting with all the interested candidates today. I have other candidates to meet with today and I am sure when a decision is made Perry will contact the successful candidate and we will go to the next step of the process then.
18 She also said that:
I did not make any guarantees that the defined position would be 'contracted' for 12 months. I was not in a position on the day of the meeting to negotiate actual contract details, and dependant on the successful candidate a contract may not have been the engagement tool. I discussed the package with all applicants in terms of position, level of difficulty expected, packet of expected work and role needs describing it as a 'non-ongoing position' and not a 'non-ongoing contract'. A non-ongoing position is one which has a finite term generally for a short period. I did not make undertakings regarding a 'contract' as stated by Mr Knevitt.
19 She said that on 11 December 2005 she phoned Mr Karavas and asked him to ascertain if the appellant was still interested in the position. She was subsequently informed by Mr Karavas that he was. She also explained that her task was to identify suitable candidates and that it was for others to make a decision about their employment.
20 In cross-examination she denied that she had told the appellant that she was unhappy with his progress. She said that she had had nothing to do with the decision not to extend his contract and that her role was simply to communicate the decision which had been made by her superiors. She also said that she was not aware of any process of putting some-one up for a period of 6 months to "speed up the paperwork process".
21 Ms Doyle swore an affidavit on 17 June 2008. She said that she had received instructions from Ms Priestland to complete a non-ongoing employee form so that the Recruitment Services section of DoD could prepare a contract of employment for the appellant. For that purpose she said that she had spoken to Craig Smith who was the manager for Recruitment Services for the ACT. She said that they had a conversation to the following effect:
Me: I need assistance bringing on a person in a temporary role for a 12 month period.
Craig Smith: I have had issues with the recruitment process and who was responsible for the action of the employment. The problem for recruitment was that the work was in Orchard Hills and came under the NSW office of Recruitment Services but the process was driven by the ACT office. However, I agree that we need to progress the matter. But the Department can't offer Mr Knevitt a 12 month contract. We can progress the paperwork for a 6 month contract.
22 She said that she had subsequently spoken to Mr Karavas and that they had had a conversation to the following effect:
Mr Doyle: We are unable to offer Mr Knevitt a 12 month contract. Can you please find out whether Mr Knevitt is prepared to accept a 6 month contract?
Karavas: What happens at the end of 6 months?
Mr Doyle: We can ask for an extension of the contract for up to a further 6 months. To offer Mr Knevitt 12 months employment the department would need to use 2 non-ongoing contracts over this period.
23 However, she denied having at any stage said to Mr Karavas or to the appellant that he would be guaranteed employment for two 6 month periods. She described the assertion by Mr Karavas, in his letter of 22 December 2005, that the appellant would be retained on "a fixed term contract for a period of 12 months" as "an incorrect statement".
24 The Magistrate expressed his findings about this aspect of the evidence in the following terms:
Mr Knevitt signed the letter made (sic) by Mr Smith on 23/01/2006, the day he arrived to commence employment. By completing the details under the heading 'PROSPECTIVE EMPLOYEE TO COMPLETE' he acknowledged that he wished to be engaged as a non-ongoing APS employee for a term specified in the Notice of Engagement commencing on 23/01/2006, and acknowledged that he was informed that his engagement did not imply that he would be offered subsequent employment.
The Notice of Engagement is set out in part as follows:
As a delegate of the Secretary to the Department of Defence under the Public Service Act 1999, I (a) engage the person…
The term 'I engage" makes it plain that the engagement occurred when Mr Knevitt signed the letter.
There is no evidence that on 23/01/2006, before signing the letter, Mr Knevitt raised any concerns that the Notice of Engagement did not reflect his understanding of what he perceived was an oral agreement. Further, there is no evidence that he made a request that it be rectified. Mr Knevitt has not pleaded non est factum. Nor has he pleaded that the agreement was partly oral and partly in writing, and in any case the oral agreement pleaded by Mr Knevitt contradicts the letter signed by Mr Knevitt. Having signed the letter of 22/12/2005, Mr Knevitt is bound by it. (It is apparent from what I have said earlier that the letter which his Honour intended to refer to was the one dated 23 January 2006.)
25 In reaching his conclusion, his Honour indicated that he was relying upon the decision of the High Court in Equuscorp Pty Ltd and Anor v HGT Investments Pty Ltd (2004) 218 CLR 471 in which the Court (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ) observed that:
It is, and always has been, common ground that each of the respondents executed a written loan agreement on 30 June 1989. The respondents alleged that the "operative agreement" was not contained in that writing. It was said that the relevant agreement was reached earlier and was wholly oral. Yet it was not said that the written agreement should be rectified. It was not said that a defence of non est factum was available. It was not said that the written agreement was executed by mistake, or that its execution was procured by misrepresentation as to its contents or effect. ( The misrepresentation alleged was as to what had been said in the conversations, not what the document was or provided .)
The respondents each having executed a loan agreement, each is bound by it. Having executed the document, and not having been induced to do so by fraud, mistake, or misrepresentation, the respondents cannot now be heard to say that they are not bound by the agreement recorded in it. The parol evidence rule, the limited operation of the defence of non est factum and the development of the equitable remedy of rectification, all proceed from the premise that a party executing a written agreement is bound by it. Yet fundamental to the respondents' case that the operative agreements between the parties were wholly oral, and reached earlier than the execution of the written agreements, was the proposition that the written agreements subsequently executed not only may be ignored, they must be. That is not so. Having executed the agreement, each respondent is bound by it unless able to rely on a defence of non est factum, or able to have it rectified. The respondents attempted neither.
There are reasons why the law adopts this position. First, it accords with the 'general test of objectivity [that] is of pervasive influence in the law of contract'. The legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions.
Secondly, in the nature of things, oral agreements will sometimes be disputable. Resolving such disputation is commonly difficult, time consuming, expensive and problematic. Where parties enter into a written agreement, the Court will generally hold them to the obligations which they have assumed by that agreement. At least, it will do so unless relief is afforded by the operation of statute or some other legal or equitable principle applicable to the case. Different questions may arise where the execution of the written agreement is contested; but that is not the case here. In a time of growing international trade with parties in legal systems having the same or even stronger deference to the obligations of written agreements (and frequently communicating in different languages and from the standpoint of different cultures) this is not a time to ignore the rules of the common law upholding obligations undertaken in written agreements. It is a time to maintain those rules. They are not unbending. They allow for exceptions. But the exceptions must be proved according to established categories. The obligations of written agreements between parties cannot simply be ignored or brushed aside. (at paras 32-35) (emphasis added)
26 It is apparent that Grounds 4 - 7 of the appeal pertain to the contract claim. It is nonetheless convenient to deal first with that aspect of Ground 7 in which it is asserted that the Magistrate erred insofar as he "misapplied" Equuscorp. In developing this argument, the appellant relied upon the following passage from that decision:
The conclusion that the respondents are bound by the written loan agreements may leave open the possibility that an earlier consensus reached by the parties was in each case a collateral agreement (made in consideration of the parties later executing the written agreement), but that has never been the respondents' case. In another case it may leave open the possibility that the contract is partly oral and partly in writing. (at para 36) (footnotes omitted)
27 The appellant submitted that his case fell within one of the two exceptions identified in Equuscorp. It was thus contended that either the contract between the parties was partly oral and partly written or that there was a "stand alone contract which was collateral to the employment contract". The appellant also referred to the analysis of the principles which are applicable in deciding whether an agreement is one that is wholly written or partly written and partly oral which was undertaken by Campbell JA in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 [at para 90].
28 At this stage it is convenient to set out the remainder of the paragraph from Equuscorp upon which the appellant relied. It is in the following terms:
But that cannot be so here. The oral limited recourse terms alleged by the respondents contradict the terms of the written loan agreement. If there was an earlier, oral, consensus, it was discharged and the parties' agreement recorded in the writing they executed. It is the written loan agreement which governed the relationship between Rural Finance and each respondent. (para 36)
29 In my view, what appears in that extract together with the earlier passages from Equuscorp to which I have already referred, provides a complete answer to the appellant's argument in respect of the contract claim. Nonetheless in deference to the other submissions which were advanced on the appellant's behalf, I will now consider them as well.
30 The appellant pleaded in the Amended Statement of Claim that "in or about January 2006 he entered into an oral agreement with the defendant" and that it "was a term of the oral agreement that the plaintiff would be employed by the defendant for a period of 12 months in two periods of 6 months". It was contended that the existence of that term was established as a consequence of what the appellant said he had been told by Ms Priestland in his interview with her and then by what he said he had been told by Mr Karavas when he was informed that he was the successful candidate for the position.
31 His Honour made the following further findings:
[Ms Priestland] was given the task of finding a suitable person to address issues relating to cultural and process reforms at the Guided Weapons and Explosives Ordnance Branch (GWEO). She engaged HR Partners to find suitable candidates. She did not have the authority to employ persons on behalf of the Commonwealth .
In December 2005 Ms Priestland interviewed the candidates identified by HR Partners [including] Mr Knevitt.
Mr Knevitt was selected for the position. Ms Priestland conveyed the information to Mr Knevitt, who accepted the position. Ms Priestland then instructed Ms Doyle to prepare a contract for a period of twelve months. Ms Doyle spoke to Mr Smith, a delegate with the authority to engage Mr Knevitt as an employee in the Australian Public Service for employment in DoD , who told Ms Doyle that a contract could only be prepared for a period of six months. Ms Doyle then spoke to Mr Karavas of HR Partners to find out whether Mr Knevitt would accept a contract for a period of six months.
In any event since Mr Knevitt knew that Ms Priestland was conducting interviews he knew that whatever she said did not amount to an offer.
Mr Knevitt appears to be wrong in his assertion that Ms Priestland said "we will initially put the paper work through for a six month contract", since later in time, Ms Doyle having been directed to commence the recruitment process by Ms Priestland, asked Mr Smith for a twelve month contract. It was only when Mr Smith declined to offer a twelve month contract that Ms Doyle asked Mr Karavas whether Mr Knevitt was prepared to accept a six month contract.
The evidence of the interaction between Ms Priestland and Ms Doyle, and between Ms Doyle and Mr Smith show [sic] that Ms Priestland intended that Mr Knevitt be employed with a contract for twelve months, however Mr Smith, the delegate would only allow a contract for a period of six months . (emphasis added)
I presume that Mr Knevitt asserts that Ms Priestland offered him a contract for a period of twelve months because of the conversation with Mr Karavas. There is no evidence from Mr Karavas. The alleged conversation is at odds with the sequence of events, and the roles of the participants. It was Ms Doyle who spoke to Ms Karavas about the need to obtain two contracts not Michelle Priestland. The role of Ms Doyle was to process the employment of Mr Knevitt. The role of Ms Priestland was to process the selection of the candidate. It is highly unlikely that Ms Doyle would have said to Mr Karavas "Michelle would like to offer Mr Knevitt the job". Mr Knevitt is mistaken in saying Ms Priestland said: "we will initially put the paper work through for a six month contract". For the reasons set in this paragraph, I find that Mr Knevitt is mistaken in saying that Mr Karavas said: "Michelle…would like to offer you the job"
32 As is apparent, the Magistrate did not accept the appellant's evidence concerning his conversation with Ms Priestland. Counsel for the appellant realistically conceded that there was simply no basis upon which that part of his Honour's decision could be impugned. This meant that the evidentiary basis for the existence of the so-called "oral contract", or indeed the existence of a collateral contract, lay solely in the evidence given by the appellant about the conversation that he said that he had had with Mr Karavas. However, the fundamental problem confronting the appellant is that, as the court in Equuscorp observed, even if there had been "an earlier, oral, consensus, it was discharged and the parties' agreement [was] recorded in the writing they executed".
33 The appellant also sought to draw some comfort from the letter of 22 December 2005 from Mr Karavas, which referred to his appointment to "a fixed term contract for a period of 12 months", as giving effect to the oral agreement. His Honour dealt with that argument in the following fashion:
When Mr Knevitt received the letter dated 22/12/2005 from HR Partners, he knew that he would be offered a six month contract even though the letter states that "this role is a fixed term contract for a period of 12 months."…From the letter he also knew that he would receive a "formal letter of offer outlining the conditions of the contract."
34 Moreover, the letter alludes to earlier discussions. That could only be a reference to the conversation in which the appellant contends that he was offered a 12 month contract consisting of two consecutive 6 month terms. That being the case, it is somewhat surprising that the letter contains no reference to that latter detail.
35 The formal letter of offer outlining the conditions of the appellant's contract are contained in the Notice of Engagement which he accepted and signed on 23 January 2006. It could not have been in clearer terms and the appellant, a man with 30 years experience in HR issues, acknowledged by signing the agreement his willingness to accept the conditions contained in it. Nor, as his Honour concluded, did the appellant raise an issue about any of those conditions.
36 The appellant also contended that the Notice of Engagement should be read in conjunction with the pleaded oral agreement. As is apparent his Honour rejected that argument upon the basis that the alleged oral agreement was inconsistent with the conditions specified in the written agreement. In my view, his Honour was correct to do so. First, the written agreement provided for a term of only 5 months rather than 6 months. It seems that that was because of a mistake made by Ms Doyle when the contract was being prepared. Although the appellant makes no complaint in that respect (by, for example, pleading mistake) the fact remains that the term specified in the written contract is inconsistent with the term said to have been nominated in the alleged oral contract. More importantly, the written agreement made it patently clear that "the fact that the appellant was engaged in no way implies that [he would] be offered any subsequent APS employment in the Department of Defence". That stipulation is also plainly at odds with the appellant's assertion that he had been guaranteed an additional 6 month term at the expiration of the first term. Nor is the reference in the notice of engagement to a probation period consistent with the case put on the appellant's behalf.
37 Neither, for similar reasons, can the appellant's contention that the pleaded contract amounted to a collateral agreement be accepted. It was not, to employ the language in Equuscorp, an agreement which was "made in consideration of the parties later executing the written agreement".
38 The respondent also drew my attention to the following passage in Esanda Ltd v Burgess and Anor [1984] 2 NSWLR 139 in which Samuels JA observed that:
In Maybury v Atlantic Union Oil Co Ltd (1953) 89 CLR 507 at 517 the court (Dixon CJ, Fullagar and Taylor JJ) said:
"… A collateral agreement made in consideration of a main agreement cannot effectively subsist unless it is consistent with the main agreement. Once an agreement is made in writing it is treated, unless the parties are shown otherwise to intend, as the full expression of their obligations. If it is established that the writing was intended to contain only part of a fuller agreement it may be otherwise. That, however, is not the present case. But it may be established that an entirely separate agreement was made by the parties. One of them may give a collateral promise in consideration of the other entering into the principal agreement. But if such a collateral agreement is to have effect as a contract it must be consistent with the provisions of the main agreement, the making of which by the other party provides the consideration. If the promise sought to modify, control or restrict the principal agreement it would detract from the very consideration which is alleged to support he promise."
The same principle was earlier enunciated by Isaacs J in Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133 at 147.
But, in any case, in order to make good the alleged collateral agreement, it was necessary for the respondents to show that what Mr Turner said, assuming he had authority to bind the appellant, was promissory and not merely representational ( J J Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435 at 442 and Ross v Allis-Chalmers Australia Pty Ltd (1980) 55 ALJR 8; 32 ALR 561); that, in other words, he intended to make an enforceable promise. (at 145-6)
39 See also the helpful summary of the relevant case law in McMurtrie v Commonwealth of Australia & Ors [2002] NSWSC, 1147 [at paras 49-56].
40 I accept the respondent's submissions that the considerations referred to in those authorities apply equally to the present case.
41 The appellant asserts in Ground 6 that the Magistrate erred in not finding that the respondent was bound by the representations made by Mr Karavas. His Honour made the following observations about that conversation:
It is possible that Mr Karavas made the statement attributed to him by Mr Knevitt, being:
Great, I'll send you out a letter confirming the twelve months employment but to get you started the Department of Defence will put in for six months and then followed by another six months in July.
The statement attributed to Mr Karavas could be his interpretation of the conversation with Ms Doyle, or a presumption by Mr Karavas that Mr Knevitt would be engaged for a subsequent six months, or a gloss put on the real situation.
42 Given his Honour's findings which I have referred to at some length in disposing of Ground 7, it was strictly unnecessary for his Honour to have given any further consideration to the conversation which the appellant maintained that he had had with Mr Karavas.
43 Nevertheless the nub of the appellant's complaint is that his Honour erred in not accepting in unequivocal terms the conversation which the appellant said that he had had with Mr Karavas. I do not discern error in his Honour's approach to this issue. As I understand the situation, his Honour was merely indicating that even if Mr Karavas had uttered the words which the appellant attributed to him, his remarks did not accurately represent what his Honour described as the "real situation". Furthermore, there was nothing in his Honour's reasoning which suggested that he regarded Mr Karavas as the agent of the respondent or that what he said or did was intended to bind it contractually. Indeed, in the extract to which I referred earlier, his Honour made a finding that such authority was exercised by Mr Smith. Nor on my reading of it, did the evidence establish that Mr Karavas had any such authority to bind the respondent in respect of the terms and conditions of his contract of engagement. His role was to assist in the recruitment process for which the respondent was to pay him a fee. At best, the evidence upon this issue could be described as equivocal. Moreover, it is of considerable significance that the appellant chose not to call Mr Karavas to give evidence especially as the conversation between them was pivotal to his case and was a matter in respect of which he bore the onus. For all those reasons, I was of the view that Ground 6 should be rejected. It follows that the various grounds which purport to challenge his Honour's conclusion in respect of the contract claim must also fail.
44 I have already referred to the fact that the appellant can appeal as of right "but only on a question of law": see generally Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) at 138; Azzopardi v Tasman UEB Industries Ltd (1985) NSWLR 139 at 155; R v PL [2009] NSWCCA 256. I have proceeded to determine the merits of the contract claim upon the assumption that Grounds 4-7 properly identify a matter which raises "only a question of law". Although I am not immediately persuaded that any of the grounds do, I accept that some of them may nevertheless raise a question of "mixed fact and law". A matter that is properly so characterised requires, as I have said, the appellant to obtain the leave of the Court. The appellant was given the opportunity to amend his summons to seek leave but elected not to do so. Were it necessary to determine the question of whether leave should be granted, one consideration which would militate against granting it is that the appellant did not plead in his Amended Statement of Claim that the contract was either partly oral and partly written or that there was a collateral contract. As I understand the situation, that latter contention first arose in submissions in the Local Court after counsel for the respondent had referred to the decision in Equuscorp (supra). There is clear authority for the proposition that a party should be bound by its conduct of the proceedings at trial: Coulton & others v Holcombe & others (1986) 162 CLR 1. Nor of course did the appellant seek to amend the pleadings: see generally Aon Risk Services Australia Ltd v Australian National University [2009] 83 ALJR 951.
45 Were it otherwise necessary to have decided the issue of whether to grant leave, there are other factors which may well also have warranted its refusal including the fact that the appeal does not involve any issue of principle and nor does it affect third parties: see Baring v Russell Edwards Design Services Pty Ltd [2008] NSWCA 58 [at para 24].