McMurtrie v Commonwealth of Australia

Court of Appeal (NSW)|2006-05-11|Before: Hodgson JA, Ipp JA, Basten JA, James J, McLelland CJ

CITATION: McMurtrie v Commonwealth of Australia [2006] NSWCA 148 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 8; Basten JA at 78

DECISION: Application for leave to appeal is dismissed with costs

CATCHWORDS: PRACTICE AND PROCEDURE - unrepresented litigant - whether appellant was denied procedural fairness - role of trial judge in ensuring that litigant receives a fair hearing (ND)

Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth) LEGISLATION CITED: Evidence Act 1955 (NSW) Fair Trading Act Trade Practices Act 1974 (Cth)

Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 and (1955) 93 CLR 546 (PC) Civil Aviation Safety Authority v Sydney Heli-Scenic Pty Ltd [2006] NSWCA 111 Helton v Allen (1940) 63 CLR 691 John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400 CASES CITED: Malouf v Malouf [2006] NSWCA 83 Placer Development Ltd v The Commonwealth (1969) 121 CLR 353 Reisner v Bratt [2004] NSWCA 22 Suttor v Gundowda Pty Limited (1950) 81 CLR 418 Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213 Watson v Foxman (1995) 49 NSWLR 315

PARTIES: Mark McMurtrie v Commonwealth of Australia

COUNSEL: In person - Appellant Mr D P Robinson SC - Respondent

SOLICITORS: In person - Appellant Australian Government Solicitor

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT DATE OF DECISION: 17 December 2004

LOWER COURT MEDIUM NEUTRAL CITATION: McMurtrie v ATSIC [2004] NSWSC 1198

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40581/05 SC 20448/99

HODGSON JA IPP JA BASTEN JA

Friday, 16 June 2006 MARK McMURTRIE v COMMONWEALTH OF AUSTRALIA Judgment

1 HODGSON JA: I agree with the orders proposed by Ipp JA and with his reasons.

2 In particular, I agree that Mr. McMurtrie cannot successfully appeal on a basis that was not put to the trial judge, where the opponent could have conducted the case differently before the judge if this basis had then been put: Suttor v. Gundowda Pty. Limited (1950) 81 CLR 418.

3 I would add that, even if Mr. McMurtrie were able, on appeal, to rely on evidence that payments had been made prior to 2 March 1992, I do not think the prospects of success on that basis would have justified the grant of leave to appeal.

4 For Mr. McMurtrie to succeed, he would have to satisfy either the Court of Appeal, or another trial judge if a new trial was ordered, not merely that there was an earlier agreement, but also that its terms were such that Mr. McMurtrie was, in the events that happened, unconditionally entitled to the same amount in each of the three following years as was to be paid in the first year.

5 The difficulties in proving the precise terms or effect of a conversation that occurred a long time ago are well expressed by McLelland CJ in Eq. in Watson v. Foxman (1995) 49 NSWLR 315 at 318-9 as follows: Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712.

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s52 of the Trade Practices Act 1974 (Cth) (or s42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration. That is the position in the present case.

6 This passage refers particularly to alleged representations in a conversation, but it applies also to alleged contractual promises; and in my opinion, it also applies to attempts to prove from recollection the contents of lost documents.

7 Having regard to the difficulties attending the evidence of Mr. McMurtrie, Ms. Ferguson and Mr. Budd as to the circumstances of entry into the alleged agreement, as discussed by the primary judge, I do not think there is any realistic possibility that Mr. McMurtrie could establish the terms of a lost document with the precision necessary to make out a case.

8 IPP JA: This is an application for leave to appeal and if granted an appeal against a judgment of Bruce James J. The proceedings concern an action for damages for breach of contract, alternatively negligence, originally brought by Mr McMurtrie, the applicant, against the Aboriginal and Torres Strait Islander Commission ("ATSIC"). Mr McMurtrie was unsuccessful in his action and the judge handed down a verdict and judgment for ATSIC.

9 Both Mr McMurtrie's claims were based on a contract that he alleged he entered into with a Commonwealth government department, the Department of Employment, Education and Training ("DEET"). Mr McMurtrie alleged that the contract had been entered into as part of a DEET programme known as the Training for Aboriginals Programme ("TAP"). In July 1992, DEET's responsibilities for the management of such programmes were transferred to ATSIC and, in terms of ss 7(k) and 8 of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth), the Prime Minister conferred on ATSIC the function to make payments to entities and persons who were the subject of agreements with DEET for TAP programmes. That is why Mr McMurtrie brought his action against ATSIC (and not DEET).

10 Prior to the hearing of the application for leave to appeal, the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 (Cth) came into force. By cl 192(1)(b) of Schedule 1 to this Act, the Commonwealth became "liable to pay and discharge liabilities of [ATSIC], other than class A or class B exempted liabilities … ". Mr McMurtrie's claim against ATSIC did not fall into the categories of Class A or Class B exempted liabilities. Accordingly, if ATSIC had committed the breaches of contract or had been negligent as Mr McMurtrie alleged, the Commonwealth would be liable to pay his claim. For this reason, the Commonwealth was made the opponent in these proceedings.

11 Prior to the trial, Mr McMurtrie - at times - was legally represented. He represented himself during the trial and in his application before this Court. The trial proceeded on his seventh further amended statement of claim. That statement of claim alleged that in February 1992 he entered into a contract with DEET by which DEET undertook to pay him quarterly amounts representing wages for his business and other monies to assist him in obtaining occupational training. Mr McMurtrie's business that he then carried on involved repainting aircraft and repairing motor vehicles. It traded under the name Evans Head Aircraft Refinishers.

12 The statement of claim alleged that the term of the contract was four years (beginning 2 March 1992). It alleged, further, that the contract contained the following terms (amongst others): (a) Mr McMurtrie agreed "to undertake, and be successful at, training commensurate with the operation of his business". (b) DEET agreed to pay Mr McMurtrie wages of $6,110 per quarter for a period of four years payable in advance. (c) DEET undertook to pay the costs of a traineeship that Mr McMurtrie was to undergo; those costs were to be negotiated each year between the parties.

13 The statement of claim alleged that ATSIC did not pay all of the wages to which Mr McMurtrie was entitled over the four-year life of the contract. It also alleged that ATSIC did not pay all of the training costs owing to Mr McMurtrie. The statement of claim alleged, further, that ATSIC had committed other breaches of the contract and claimed damages, exemplary damages and aggravated damages. The claim in tort was based on the allegation that ATSIC, negligently, had failed to perform its contractual obligations.

14 At the trial Bruce James J made an order that there should be a separate determination of issues relating to liability and damages. His Honour determined only the issue of liability and delivered a reserved judgment after a nine-day trial.

15 The balance owing under the contract as alleged by Mr McMurtrie is in dispute. The amount in question ranges from $11,000 to $35,000. There is no appropriate evidence before this Court as to the quantum of any other damages that Mr McMurtrie sustained. Accordingly, Mr McMurtrie does not have an appeal as of right and he is required to seek leave to appeal. In effect, he acknowledged this; hence, the application for leave to appeal.

16 At trial, Mr McMurtrie faced the difficulty that his case as pleaded alleged that the contract he had entered into with DEET was in writing, but he was unable to produce the document in question. He said that it had been destroyed in 1997 when he and his former wife separated. His documents had been left outside for him to collect and had been damaged by the weather. He was able to find the top "couple of inches of the document itself" but "didn't think to keep the document". He was allowed to give secondary evidence of the contract.

17 Initially, his testimony was that he, personally, had signed the contract and Ms Robyn Ferguson had signed it on behalf of DEET. The day after giving this evidence, however, he said: "Whether Robyn Ferguson signed the contract or whether or not that document was required to be signed by someone higher up in DEET, I am not sure. But Robyn Ferguson did sign documents in my presence in respect of the agreement."

18 Later, he said that he could not be sure that he saw the person "with the appropriate delegation" sign the document. He then testified: "I didn't see them sign the document, but I did received a copy of it back signed. I can't remember exactly who signed it."

19 Mr McMurtrie gave this evidence on 13 and 14 September 2004. On 15 September 2004, in cross-examination, he admitted that, in interlocutory proceedings on 18 September 2003, he had told Studdert J that Ronald James Budd had signed the contractual document for the Commonwealth. He was then asked whether he said "today" that Budd had signed the contract and he replied: "I can't emphatically say yes but I certainly do not say no."

20 In early 1990, Ms Ferguson was a field officer in the Aboriginal Education Unit within DEET. She testified that she did not sign the contract as it was "out of what we call my delegation". She said: "I am not sure if I was involved in the signing of the document when it was complete".

21 Mr McMurtrie called Mr Budd. Mr Budd said that he was present at the signing of the contract. He said that, apart from himself, Robyn Ferguson and two other men were present. On 12 October 2000 Mr Budd had made an affidavit in which he stated that, while an employee of DEET, he entered into an agreement with Mr McMurtrie on DEET's behalf. In cross-examination, Mr Budd conceded that the statement in his affidavit (that he had entered into an agreement for and on behalf of DEET) was not true. Mr McMurtrie thereupon informed the judge that he had prepared the affidavit (from notes of a telephone conversation which he had had with Mr Budd) that Mr Budd had sworn.

22 Bruce James J concluded that Mr McMurtrie "was not a fully reliable witness". In making this assessment his Honour took into account a number of matters. These included the contradiction between his earlier evidence that Ms Ferguson had signed the contract and his later evidence that he did not know, and could not remember, whether she had done so; and the fact that he had prepared Mr Budd's affidavit containing the assertion that Mr Budd had signed the contract on behalf of DEET. The judge accepted that Ms Ferguson was an honest witness but found that she was not a fully reliable witness. His Honour found that Mr Budd "was a quite unreliable and, indeed, [a] dishonest witness".

23 A document, described at the trial as "Document 20", became an exhibit at the trial. This was a standard DEET form relating to TAP. The judge noted: "In the handwritten entries in the printed form [Mr McMurtrie] is named as the 'Trainee' and his business 'Evans Head Aircraft Refinishers' is named as the 'Employer'. The document provides for the payment of an employment subsidy for the period 2 March 1992 to 2 March 1993 and for the payment of a training allowance. The amount stated as being the amount of the employment subsidy, $24,400, is equivalent to the annual amount of what [Mr McMurtrie] claimed was the agreed employer's subsidy of four quarterly instalments of $6,110. The document has been signed by Garry Martin, the Regional Aboriginal Programmes Manager, and by [Mr McMurtrie]."

24 Mr McMurtrie contended before his Honour that Document 20 was merely a document created to facilitate the funds for the first 12 months of the contract being sent from DEET's State office to its regional office. The judge rejected this proposition. His Honour said: "In all the circumstances the inference is overwhelming that Document 20 (and the conditions overleaf) was the written agreement, and the only written agreement, entered into between [Mr McMurtrie] and DEET."

25 The judge found that no agreement in writing for a term of four years was made between Mr McMurtrie and DEET and the only agreement in writing made between him and DEET was for one year (namely, Document 20).

26 His Honour went on to say that, even if Mr McMurtrie were to be permitted to rely on an oral agreement (and not the written contract he had pleaded), he was satisfied that no oral agreement for a term of four years had been made between Mr McMurtrie and DEET by anyone having authority to make such an agreement on behalf of DEET.

27 The judge concluded: "…there was no agreement between [Mr McMurtrie] and DEET as alleged by [Mr McMurtrie] and, on this ground alone, [Mr McMurtrie's] action fails."

28 His Honour went on to hold that even if there was a contract as alleged by Mr McMurtrie "such agreement was not a legally enforceable contract but merely a conditional gift".

29 Mr McMurtrie's notice of appeal sets out the following grounds of appeal: "1. The Plaintiff/Appellant was not afforded a fair and reasonable trial nor judgment by Mr Justice James in respect to the concerned matter. 2. Mr Justice James erred in judgment in finding for the Defendant/Respondent. 3. Mr Justice James erred at law in respect of his interpretation of the agreement between the Plaintiff/Appellant. 4. Mr Justice James erred in that he was biased in favour of the Defendant/Respondent and failed to ensure that there was no perception of conflict of interest in that as an employee of the Crown, Mr Justice James was imprudent in hearing a civil claim against the Crown."

30 Ground 1 asserts an absence of procedural fairness. This ground gives no detail of the lack of procedural fairness alleged but in the course of oral argument Mr McMurtrie gave particulars of his complaints.

31 Grounds 2 and 3 are merely bald assertions and reveal no details of any error said to have been committed by the judge.

32 Mr McMurtrie, in oral submissions, did not press the argument that Bruce James J was biased and there is no substance whatever in this proposition.

33 As to Ground 1, Mr McMurtrie submitted that he was "grossly disadvantaged" because he "did not have access to the documents tendered by [ATSIC] before the trial".

34 Mr McMurtrie did not seek discovery prior to the trial. As I have observed, prior to the trial he was, from time to time, legally represented. His failure to ask for discovery was not the fault or responsibility of ATSIC.

35 Mr McMurtrie said: "During the trial various documents that were tendered through various witnesses [sic], I was not allowed to see those documents. And on one particular specific occasion the only time I got to view the documents, for example, was over morning tea which seriously prejudiced me because the witnesses who were questioned in respect of those documents were questioned long before I got to see the documents and I wasn't able to properly go back over what was said in the trial or in the hearing whilst I was looking at the documents and then I wasn't able to go back and redress them."

36 The incident when Mr McMurtrie was told that he could view the file over morning tea occurred in the following circumstances. Mr Robinson SC, who appeared for ATSIC at the trial and for the Commonwealth on appeal, tendered a file of what he told the judge was "correspondence that is relevant to Mr McMurtrie's case". Mr McMurtrie asked: "How much of this am I entitled to look at?"

Mr Robinson replied: "You can look at it all."

Mr McMurtrie then asked for a copy of the whole file. The judge said: "I'm going to admit the file. You can have the file over morning tea to look at."

37 At this stage a witness, Mr Jermacans, was giving evidence in chief, having been called by Mr Robinson. When the court adjourned for morning tea, Mr Jermacans was still giving evidence in chief. During the adjournment, Mr McMurtrie was given the opportunity of looking at the file. He did not ask the judge for a further adjournment to examine the file. He did not say to the judge that he was prejudiced in any way by the procedure that had been adopted. He did not say that he needed more time. He did not again press for an opportunity to copy the documents in the file. It is not at all clear that anything in the file was of particular relevance to the evidence given by Mr Jermacans, or indeed in the case.

38 Mr McMurtrie was not unaware of his right to ask the judge to look at documents. At the commencement of the trial, Mr McMurtrie asked for access to documents produced in answer to a subpoena. His Honour granted Mr McMurtrie that request and asked Mr McMurtrie whether he wanted to look at the documents immediately or commence giving evidence. Mr McMurtrie said he would like to look at the documents right away. His Honour told him to "go ahead".

39 Mr McMurtrie asserted that he did not know that he was entitled to ask for more time to examine the documents tendered while Mr Jermacans was giving evidence, but this is difficult to accept. My impression from listening to Mr McMurtrie argue his case before this Court is that he is an intelligent, shrewd, and articulate person with an active mind. By the end of the trial he displayed familiarity with the procedure and even the laws of evidence. For example, on at least one occasion he successfully objected to a question on the grounds that it involved leading the witness.

40 The next complaint that Mr McMurtrie raised was put in the following terms: "I had written submissions which included questions that I wanted to hand up to his Honour and I made the point that I wanted to hand these up and his Honour didn't take them from me. He just utterly ignored me."

41 The only occasion when Mr McMurtrie mentioned written submissions was in opening his case at trial. He then said: "You have to forgive me, I'm not 100% au fait with the processes here, so if I step out of line please just let me know. Sir, my written submission [is] in respect of my opening address that I wish to give to the Court."

42 He went on to make detailed submissions. The transcript does not show that he offered his written submissions to the judge. When this was put to Mr McMurtrie during the course of argument on appeal he said: "I held the document up to the bench and he just waved it away. I just wasn't able to hand it up. I didn't know I was supposed to say: Your Honour can I hand this up? I didn't know that."

43 In the course of Mr McMurtrie's opening at trial, the judge explained to him that under s 29(2) of the Evidence Act 1955 (NSW) a witness might give evidence wholly or partly in narrative form. Mr McMurtrie said that he understood that that meant that the witness "tells the story". His Honour invited Mr McMurtrie to give evidence in narrative form. Mr McMurtrie, however, had obvious difficulties in doing this. The judge said that he would ask Mr McMurtrie some questions to assist him "to get started". His Honour proceeded to asked Mr McMurtrie questions, the answers to which, in substance, constituted his evidence in chief. The procedure was effective and accepted without demur by both parties.

44 At the end of the first day of the trial, while Mr McMurtrie was still giving evidence in chief, his Honour said: "There is not much longer to go. I am unsure about what further questions I should ask Mr McMurtrie. I will give him an opportunity by asking an open-ended question to say what else he wants to say. But I would like an opportunity to look at the documents carefully because I think there may be further questions which in his interests I should ask him. If neither of you want to say anything further I will adjourn at this stage."

45 When Mr McMurtrie was later recalled to continue his examination in chief, Bruce James J went on to ask him further questions. These were all designed to assist Mr McMurtrie in bringing out his case. Eventually the following exchange occurred: "Q. … Is there anything else you wish to say? A. Not at this stage, sir, if I could reserve possible later comment on. HIS HONOUR: Yes. If something arises or if you want to tell me something further you will be given the opportunity."

46 It is quite apparent from a reading of the transcript that the judge went out of his way to enable Mr McMurtrie to present his case. He often alerted Mr McMurtrie to what he needed to do. Mr McMurtrie was given full scope to ask whatever questions he wished, to hand up to the judge anything he wanted to hand up, and to inspect any documents that he wished to inspect. It is true that he presented his case without legal representation, but the judge made every effort to prevent him from being unfairly prejudiced.

47 In Reisner v Bratt [2004] NSWCA 22 Hodgson JA (with whose reasons I agreed) said at [4]: "Parties are entitled to appear unrepresented in proceedings in the Court, and sometimes, because of lack of funds or other reasons, they have no alternative. The Court has the duty to give such persons a fair hearing, and it may be appropriate for the Court to give some assistance to such persons in order to fulfil that duty. However, the Court hearing a case between an unrepresented litigant and another party cannot give assistance to the unrepresented litigant in such a way as to conflict with its role as an impartial adjudicator."

48 In Malouf v Malouf [2006] NSWCA 83 Mason P (with whom McColl JA and Bryson JA agreed), said at [94]: "The restraints upon judicial intervention stemming from the adversary tradition are not relevantly qualified merely because one of the litigants is self-represented."

His Honour said, further, at [100]: "The trial judge gave ample opportunity for the appellant to present his case in accordance with the rules of evidence and the dictates of fairness to the other side. As I observed in Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213 at 219; [37]: 'The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. A party's failure to make proper use of that opportunity is not the concern of this branch of the law …'"

49 In my opinion Bruce James J fulfilled, completely, his duty to give Mr McMurtrie a fair hearing. Mr McMurtrie's complaints on this issue are entirely without substance.

50 I now turn to the substantive grounds of Mr McMurtrie's appeal.

51 The grounds of appeal contained in Mr McMurtrie's notice of appeal give no particulars as to the respects in which he asserts that Bruce James J erred. In his oral submissions Mr McMurtrie sought to show that the judge was wrong in finding that Document 20 was a contract entered into between him and DEET on 2 March 1992 (that being the date on which Document 20 was signed) and that there was no other contract between the parties.

52 Mr McMurtrie submitted that documents and financial exchanges "clearly show the contract was in place" before the signing of Document 20 on 2 March 1992.

53 A number of documents indicate that money was paid out by DEET to Mr McMurtrie before 2 March 1992. A letter dated "4/2/92" signed by Ms Ferguson on behalf of DEET advised Mr McMurtrie that a cheque for $6,110 for "wage release for wages McMurtrie Period 2/3/92 to 29/5/92" had been released "on the 4/2/92". A letter dated "24/2/92" signed by Ms Ferguson on behalf of DEET advised Mr McMurtrie "that a cheque will/has be/been released on 24/2/92. The amount stands at $179.15 and is for Materials + Fees". Mr McMurtrie also sought to tender new evidence showing a deposit of $96 made by him on 20 February 1992 with the National Australia Bank. He asserted that the $96 was for assistance received from DEET for tuition fees.

54 The judge assumed that the documents signed by Ms Ferguson were erroneously dated, but I accept, as Mr McMurtrie submitted, that this evidence shows "interaction on a financial basis" between him and DEET before the existence of Document 20.

55 Nevertheless, at trial Mr McMurtrie did not argue the case on the basis that DEET had made payments to him, in terms of the contract, before 2 March 1992. Indeed, Mr McMurtrie testified on a number of occasions that the first payment was made on 2 March 1992 or shortly thereafter. This explains the judge's assumption as to the error in the dates of the documents signed by Ms Ferguson.

56 In his evidence in chief Mr McMurtrie said: "[T]he first payment was made to me in respect of that contract on 2 March or shortly after 2 March 1992".

On two further occasions in his evidence in chief Mr McMurtrie said that he received payment "from March 1992".

57 Also, in his evidence in chief, Mr McMurtrie agreed that he had been paid $2,781 or $2,881 for training costs (for "the whole academic year") which he received in "about the beginning of March 1992". He said that this sum was "to cover textbooks and writing materials, all that sort of thing".

58 Mr McMurtrie's case at trial was unequivocally that payments under the contract were first made to him at the beginning of March 1992 (and not in February 1992). His evidence to this effect appears to have been accepted at face value by the judge (and, also, by ATSIC). His Honour cannot be criticised for dealing with the case on the basis that the first payments were in fact made on 2 March 1992. It is now not open to Mr McMurtrie, on appeal, to base a case, for the first time, on the proposition that the first payments were made in February 1992. The Commonwealth did not have an opportunity, at trial, to deal with a case put in this way.

59 I should add that Mr McMurtrie also based his argument on the submission that Ms Ferguson testified that DEET would not have made any payments unless it had entered into a contract with the recipient. Thus, he argued, the fact that payments were made before 2 March 1992 demonstrates that a contract must have existed before that date (and, hence, the contract could not have been Document 20).

60 The evidence of Ms Ferguson on which Mr McMurtrie relied was the following: "Q. Firstly, you are saying no payment could be made before 2 March 1992? A. No payment could have been made unless that was actually approved, yes, that's right."

61 In this exchange, Ms Ferguson testified that DEET would not have made payment "unless that [the payment] was actually approved". She did not say that payment would not be made without a contract having been entered into. Ms Ferguson accepted that the documents in evidence were consistent with a contract coming into existence on 2 March 1992.

62 Mr McMurtrie argued that Document 20 was used only for the purposes of releasing funds from the DEET State office to its regional office in Lismore and was not a contract. This argument was rejected by Bruce James J on the ground that it was not supported by the actual terms of the document. His Honour accepted the evidence of two DEET witnesses, Mr Milne and Mr Martin, that was inconsistent with Mr McMurtrie's submissions in this regard. Mr Milne was the DEET Area Director and Mr Martin (who signed Document 20) was an officer below Mr Milne and Ms Field - the Executive Officer - in the DEET hierarchy. His Honour said that Document 20 was consistent with the evidence given by Mr Milne and Mr Martin that: "[O]n 2 March 1992 Mr Martin sent to Mr Milne the facsimile transmission, exhibit 7, in which Mr Martin submitted to Mr Milne for approval a number of proposed projects for funding, including a proposal to fund [Mr McMurtrie's] business for 12 months at a cost of $28,000 and the document is consistent with Mr Milne's evidence that he exercised his delegation or authority to approve the project for [Mr McMurtrie's] business".

I am not persuaded that his Honour erred in these findings.

63 In argument before this Court Mr McMurtrie submitted that a computer printout (Exhibit 7) showed that, according to the DEET computer system, the "delegation" or authority conferred by Mr Milne was effected on 28 February 1992 and not on 2 March 1992. Mr McMurtrie submitted that Exhibit 7 established that Mr Milne and Mr Martin were "lying" when they testified that the delegation occurred on 2 March 1992. Mr McMurtrie based this submission on a line in Exhibit 7 (which referred to Mr McMurtrie's project) reading as follows: "Commencement: 02Mar92 Cessation: 01Mar93 Info Session: 28Feb."

64 To the extent that the line in question refers to Mr McMurtrie's project as commencing on 2 March 1992 and ceasing on 1 March 1993, it does not support Mr McMurtrie's contention. Mr McMurtrie relied, however, on that part of the line reading "Info Session: 28Feb". He asserted that these words meant that Mr Milne had given his "delegation" at the "Info Session" on 28 February 1992.

65 There is, however, no evidentiary support for Mr McMurtrie's submission. The mere reference to an information session on 28 February 1992 does not, without more, establish that the delegation occurred on that date. Mr Milne did not testify that he gave his delegation on 28 February 1992. He said that it occurred on 2 March 1993. Mr McMurtrie cross-examined Mr Milne but did not ask him any questions about the "Info Session". The evidence casts no light on the significance of the Information Session. The claim that Mr Milne and Mr Martin were "lying" is a serious one, and is not justified without evidentiary backing. That backing does not exist.

66 On 2 March 1992, prior to the execution of Document 20, Mr Martin sent a facsimile to Mr Milne referring to a "revised budget" for certain projects. Amongst the budgets was one relating to the project concerning Mr McMurtrie. That budget was formulated on the basis that Mr McMurtrie's business would be funded for 12 months only (at a cost of $28,000). As Bruce James J pointed out, this budget supported Mr Milne's evidence that he approved the project for Mr McMurtrie's business and authorised Mr Martin to sign Document 20.

67 On 2 July 1992 Mr Milne signed a Project Status Report relating to the contract with Mr McMurtrie. In this report the duration of the programme was shown as being from 2 March 1992 to 1 March 1993.

68 A document headed "DEET Project File Cover Sheet and Review Check List" signed by Ms Trevena (an employee of ATSIC) on 28 October 1992 supported the finding that the contract between Mr McMurtrie and DEET was for a period of one year only. This document indicated on its face that DEET had an outstanding commitment under the contract with Mr McMurtrie amounting to $14,708.10 for the balance of the year 1992/1993, but no commitment in other years. Ms Trevena, in her evidence, confirmed that this was the case.

69 Bruce James J accepted the evidence of Mr Milne, Mr Martin and Ms Trevena as to the authenticity and accuracy of these documents, as he was entitled to do.

70 Mr McMurtrie pointed out that Document 20 was an incomplete form and submitted that this showed that it was not a contract. Mr McMurtrie is correct in describing Document 20 as "incomplete". That, however, does not necessarily mean that it could not constitute a contract as ATSIC alleged and the judge found.

71 The only person on behalf of DEET who dealt with Mr McMurtrie in regard to the contract was Ms Robyn Ferguson. Mr McMurtrie had no dealings with either Mr Milne or Mr Martin. Therefore, he submitted, the only two people who had knowledge of the alleged contract (he and Ms Ferguson) both testified that Document 20 was not the contract that had been entered into. He contended that, on this ground, his evidence and that of Ms Ferguson should have been accepted.

72 Ms Ferguson testified that she had not signed the contract Mr McMurtrie had entered into with DEET. Therefore it is not correct to say that Mr McMurtrie and Ms Ferguson were the only persons involved with that contract. In any event, as I have observed, the judge did not regard Mr McMurtrie and Ms Ferguson as "fully reliable" witnesses. I have set out the matters that influenced the judge's view of the credibility of Mr McMurtrie. As regards Ms Ferguson, the judge referred to factual errors she had made in her testimony. He considered that in some respects her recollection of events "was clearly astray".

73 The assessment of the weight to be attached to individual witnesses was essentially a matter for the trial judge and there is nothing to suggest that his Honour erred in the findings that he made. Accordingly, Mr McMurtrie's argument based on the oral evidence he and Ms Ferguson gave as to the entering into of the contract fails. His Honour rejected their evidence in this regard and, in my opinion, he was entitled to do so.

74 Mr McMurtrie drew attention to the fact that Mr Milne was the only person in the regional office of DEET who had authority to approve a project of the size contended for by Mr McMurtrie. Mr McMurtrie pointed out that Mr Milne's approval was consistent with the four-year contract he alleged.

75 Ms Field had authority to approve a one-year contract as contended for by the Commonwealth. According to the evidence, however, at the time that Mr McMurtrie's contract came up for approval Ms Field was in Sydney and away from the regional office. For that reason, Mr Milne dealt with the approval. Accordingly, the argument based on the fact that Mr Milne approved the project is not persuasive.

76 Mr McMurtrie made a point of the fact that a file of documents tendered as part of ATSIC's case contained documents numbered chronologically commencing with a document numbered 11. He submitted that there must have been other documents, numbered one to 10, which could have included the contract for which he contended, as well as related documents. Mr Robinson explained, however, that his instructing solicitors had compiled the file and numbered the documents. They had removed irrelevant documents from the file, including the documents that had previously been marked 1 to 10. In these circumstances, no inference as sought by Mr McMurtrie can be drawn.

77 In my opinion, all Mr McMurtrie's arguments have been shown to be without substance. It is not necessary to deal with the issue of contractual intent. In my opinion the application for leave to appeal should be dismissed with costs.

78 BASTEN JA: I agree with the orders proposed by Ipp JA and his Honour's reasons.

79 Given the conclusion that there was no contract extending beyond the 1992/93 financial year, there is no need to address the further finding that such a "contract" would not, in any event, have been legally enforceable: see [28] above. Had it arisen, that finding may have warranted a grant of leave to consider the application of Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424 and (1955) 93 CLR 546 (PC). There is a wide variety of circumstances in which Commonwealth departments and agencies provide benefits to individuals by way of welfare payments, or assistance for the purposes of housing, training or education. Such payments will often be made pursuant to a statutory scheme which does not involve a contractual relationship, but that does not mean there is no legally enforceable obligation of any kind. In other cases, there may be a contractual relationship. See, generally, John Fairfax & Sons Ltd v Australian Telecommunications Commission [1977] 2 NSWLR 400; Placer Development Ltd v The Commonwealth (1969) 121 CLR 353, including Windeyer J (dissenting) at 373; Civil Aviation Safety Authority v Sydney Heli-Scenic Pty Ltd [2006] NSWCA 111 at [65]-[66] (Santow JA). However, in the circumstances, the issue does not arise.

05/03/2007 - Incorrect spelling in catchwords - Paragraph(s) nil

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(ND) Aboriginal and Torres Strait Islander Commission Act 1989(Cth)

Aboriginal and Torres Strait Islander Commission Amendment Act 2005(Cth)

Evidence Act 1955(NSW)

Trade Practices Act 1974(Cth)

Aboriginal and Torres Strait Islander Commission Act 1989(Cth)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (103 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (11)