O'Brien v Australian Native Landscapes Pty Ltd

THIRD RESPONDENT Sharon Atkinson (Soars) FILE NUMBER: IRC 3592 of 1998 CORAM: Hungerford J CATCHWORDS : Unfair contract - Contract of employment - Collateral arrangement as to superannuation - Claim to declare contract and arrangement void or varied - Claim for order for payment of money - Amendment sought to add to liability of a respondent for any monetary order - Whether amendment in the interests of justice - Prejudice to the respondent concerned - Delay by applicant in bringing the action - Lack of documentation - Difficulties thereby caused - Proper approach to follow - Contract avoided provisions of an industrial award - Whether employee or independent contractor - Underpayment of wages, annual leave and long service leave - Failure to pay agreed superannuation contributions - Representations as to availability of future work - Termination of employment - Redundancy - Proper level of severance/redundancy payments - Whether contract and arrangement unfair - Contract and arrangement declared void from commencement - Order for payment of money - Proper approach to award of interest - Costs. Annual Holidays Act 1944 Evidence Act 1995 s 128 Industrial Arbitration Act 1940 (repealed) s 88F LEGISLATION CITED : Industrial Relations Act 1991 (repealed) s 275 Industrial Relations Act 1996 s 105 s 106 s 109 s 170 Pt 9 Ch 2 Limitation Act 1969 s 14 Supreme Court Act 1970 s 94 Supreme Court Rules 1970 Sch J Abboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australia Branch (1995) 63 IR 1 Australian Nursing Federation, Re [1989] 31 IR 375 Clerks (State) Award, Re [1976] AR (NSW) 417 Clough and Rogers v Frog (1974) 48 ALJR 481, (1974) 4 ALR 615 Cropper v Smith (1884) 26 Ch D 700 Frost v Speaker of the Legislative Assembly of New South Wales (2000) 97 IR 461 Gala v State Bank of New South Wales t/as Colonial State Bank (No 2) (1998) 84 IR 216 Government Cleaning Service (Privatisation) Award (No 3), Re (1994) 55 IR 199, (1995) 59 IR 348 Horton v Jones (No 2) [1939] 39 SR (NSW) 305 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 CASES CITED : Howe v Teefy [1927] 27 SR (NSW) 301 Hurley v Art Printing Co Pty Ltd (Under Administration) (1994) 54 IR 254 Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 20 NSWLR 332, [1990] 32 IR 404 Irvine v Shell Company of Australia Ltd [1969] AR (NSW) 187 Pitcher v Langford (1991) 23 NSWLR 142 Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 R v Industrial Commission of South Australia, Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6, [1977] 44 SAIR 1202 Saliba v John Hearder Pty Ltd [1986] 15 IR 36 Smith v Craig Mostyn & Co Pty Ltd [1984] 2 NSWLR 393, [1984] AR (NSW) 565, [1984] 8 IR 344 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 69 Termination, Change and Redundancy Case [1984] 8 IR 34 Walker v Hussmann Australia Pty Ltd [1992] 44 IR 404 HEARING DATES: 11/20/2000; 11/21/2000; 11/22/2000; 12/08/2000; 03/15/2001; 04/17/2001 DATE OF JUDGMENT: 06/27/2001

APPLICANT Mr M J Lawler of counsel Solicitor: Mr P Byrne Friedlieb Byrne, Wagga Wagga LEGAL REPRESENTATIVES: RESPONDENTS Mr P P O'Loughlin of counsel Solicitor: Mr J Taylor Taylors, Mona Vale

JUDGMENT: - 80 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Wednesday, 27 June 2001

Matter No IRC 3592 of 1998 EDWARD JOSEPH O'BRIEN v AUSTRALIAN NATIVE LANDSCAPES PTY LIMITED, PATRICK SOARS AND SHARON ATKINSON Application under section 106 of the Industrial Relations Act 1996 re unfair contract. JUDGMENT [2001] NSWIRComm 145

1 The Court has before it an application by Edward Joseph O'Brien for orders under s 106 of the Industrial Relations Act 1996 declaring void or varying the contract or arrangement between him and the first respondent, Australian Native Landscapes Pty Limited, whereby he performed work for the first respondent in the transport and/or timber industry from about mid-1980 until mid-1991; also, an order was sought for the payment of money by the first respondent to the applicant in respect of additional remuneration, annual leave, sick leave, long service leave, termination payments and compensation for hurt and distress on termination of the work contract or arrangement. Further orders were sought against the second respondent, Patrick Soars, and the third respondent, Sharon Atkinson, as trustees of the first respondent's superannuation fund declaring that fund, as an arrangement collateral to the work contract, void or varied and for the payment by those respondents to the applicant of monies in connection therewith. In the result, the monetary orders claimed were increased by an interest component plus costs of the proceedings.

Background and grounds for relief 2 The background to and the way in which the dispute between the parties arose may conveniently be seen by reference to the grounds stated in the applicant's initiating summons, as follows : 1. The First Respondent was at all material times and is a company capable of being sued in and by its corporate name and style.

The Second Respondent was at all material times the person who had day to day control of the operations of the First Respondent, and further at all material times was one of two trustees of the Australian Native Landscapes Superannuation Fund.

The Third Respondent was at all material times one of two trustees of the Australian Native Landscapes Superannuation Fund.

Between 1965 and 1980 the Applicant worked for PGH at a mill near Tumut.

In about July 1980 the Applicant commenced employment with the First Respondent pursuant to a contract of employment ("the Employment Contract").

The Applicant gave up a long term secure job with PGH to take the position.

By the Applicant agreeing to do the work for the First Respondent, the First Respondent avoided losing the contract it had with PGH to buy bark. The First Respondent had been in danger of losing the contract if it could not provide someone considered by PGH to be reliable to run ANL's operations. PGH knew the Applicant to be a reliable person.

The First Respondent represented to the Applicant when he commenced that the Applicant would work one shift per day, Monday to Friday, but would also be on call from 5 am to 10 pm every day. The remuneration was to be $300 after tax, plus $2000 would be contributed into the Superannuation Fund by the First Respondent every year. Most of these representations were repeated in a letter dated 15 July 1980.

The Appellant's duties included filling trucks of the First Respondent with bark from a PGH site near Tumut and driving them a short distance and dumping the bark at a place where it was stored. He was also required to load the bark from that storage site into semi-trailers driven by other truck drivers of the First Respondent. He had further duties including maintenance, and paperwork. He was not supervised, and had responsibility for running the operation himself.

Between 1980 and about June 1985, the Applicant worked on average 46 hours per week, being a standard shift of 8 hours per day Monday to Friday plus an average of 6 further hours per week loading the semi-trailers as required. The additional hours would be worked at any time from 5 am to 10 pm, Monday to Friday, and sometimes later, and also on Saturday and Sunday.

Between about June 1985 until at least May 1990 the Applicant worked two shifts per day Monday to Friday from about 7.30 am to about midnight, plus often a shift on a Saturday and/or Sunday. He worked usually between 80 and 96 hours per week during this period. Until about October 1986 he got no extra pay for the additional hours. From about October 1986 he received an extra $100 per week. From about January 1988 he received an extra $180 per week.

In about mid 1990 the Applicant's work hours decreased. The Applicant worked between 10-12 hours per day in the period mid 1990 to mid 1991.

The mill from which the Applicant carted the bark for the First Respondent closed down for only 4 weeks every year during summer. The Applicant was required during that 4 week period to attend the site every day to check that the piles of bark were not smouldering in the heat and to take necessary remedial action. Accordingly the Applicant had to work during the 4 weeks he was supposed to be taking annual leave.

The Applicant was unable to take any sick leave throughout the whole of his employment because there was no-one else to do the work when he was ill.

During the Applicant's employment the Second Respondent made a number of representations to the Applicant to the effect that the Applicant would receive a substantial benefit in the long term if he continued to do the work on those conditions.

In about June or July 1991 the Applicant and the First Respondent agreed that from about August 1991 the Applicant would work for the First Respondent as a contractor carrying bark for $10 per tonne using his own truck ("the contractor arrangement"). That arrangement was to replace the employment relationship.

The First Respondent stopped paying the Applicant a wage in about July 1991 in anticipation of the Applicant commencing work as a contractor.

In about August 1991 the Second Respondent informed the Applicant that the First Respondent would not be offering him work under the contractor arrangement. The work still had to be done but the Second Respondent had determined that the work would instead be done by another person.

The notification that the work would not be given was made with no prior warning.

A lump sum payment on termination of employment was given of $2423.46 which may have been for long service leave. No payment was made for not giving the Applicant further work. No, or no adequate payments were made to the Applicant for accrued annual and long service leave.

The Applicant was told in 1991 that the Fund had only received one contribution from the First Respondent, that being in 1980, the Applicant's first year of employment. The Applicant was further told the amount standing to his credit in the Superannuation Fund was $6,570. The Applicant was further told that under the terms of the Trust Deed of the Superannuation Fund any payment for superannuation he would get would be reduced by any payment for long service leave made by the First Respondent.

No payments have ever been made by the Superannuation Fund to the Applicant.

Employment contract - Unfairness 3 As to the "employment contract" between the applicant and the first respondent from about July 1980, referred to in para 5 of the above grounds, the summons alleged it was an "unfair contract" within the meaning of s 105 of the Industrial Relations Act in that : (a) It provided for a remuneration that was less than fair or reasonable in all the circumstances and less than an employee would have received for doing similar work under an award;

(b) It required the Applicant to work every day during the only part of the year that was available to take as annual leave, effectively depriving him of any annual leave;

(c) It required the Applicant to work in circumstances when he should have had time off work on sick leave;

(d) It failed to incorporate a term that required the First Respondent to pay into the Superannuation Fund each year of employment the sum of $2000, or in the alternative, if it did incorporate such a term it failed to prevent the First Respondent from failing to make such a payment despite continued assurances that the money was being paid and further failed to require the First Respondent to provide the Applicant with regular financial statements of the amounts held in Superannuation Fund for his benefit;

(e) It failed to include terms that on termination the Applicant would receive a payment of an appropriate substantial sum to compensate him for all years he had been employed on very poor conditions, and further appropriate payments for redundancy and for notice;

(f) It failed to require the First Respondent to provide on-going work to the Applicant on fair terms in circumstances where the work was to be offered in the future on a contractor basis;

(g) It failed to require the First Respondent on termination to make a payment for accrued long service leave based on the full value of the fair remuneration for the work done;

(h) It invested the First Respondent with significant discretionary powers which may and have been used to the substantial disadvantage of the Applicant particularly in the circumstances relating to termination of the contract and/or failure to continue to provide the Applicant with work;

(i) The Applicant was at all material times in a position of unequal and inferior bargaining power in respect of his dealings with the First Respondent and was specifically in such a position at the time of termination;

(j) It did not allow or invite any negotiation of the conditions for the Applicant's proposed termination;

(k) The first Respondent advised the Applicant of his proposed termination in a manner which caused distress and anxiety to the Applicant;

(l) It permitted the First Respondent to deprive the Applicant of the significant benefit of long term secure income in the circumstances which were unconscionable;

(m) It failed to provide for the payment of compensation to the Applicant by the Respondent in circumstances where the First Respondent unreasonably terminated the contract in such a manner and for such reasons as would cause the Applicant distress, anxiety and damage to his good name and character;

(n) It failed to protect the Applicant against harsh, unjust and unreasonable dismissal;

(o) It failed to contain provisions and protection consistent with Australia's international obligations under the International Labour Organisation's Termination of Employment at the initiative of the Employer Convention (ILO Convention 158) to which Australia is a party; and

(p) It was otherwise unfair harsh and unconscionable, and contrary to the public interest, upon such grounds and for such reasons of this Honourable Court may find.

Contractor arrangement - Unfairness 4 The "contractor arrangement" between the applicant and the first respondent effective from about August 1991, referred to in para 16 of the above grounds, was said to be unfair within the meaning of the section for the following reasons : (a) The Contractor Arrangement between the Applicant and the First Respondent under which the Applicant was to do work for the First Respondent in the transport and timber industry was an "unfair contract" within the meaning of s 105 of the Act in that:

(b) It failed to provide for any, or any fair, payment to be made to the Applicant if the First Respondent determined to cancel the arrangement for any reason;

(c) It invested the First Respondent with significant discretionary powers which may have been used to the substantial disadvantage of the Applicant particularly in the circumstances relating to termination of the arrangement and/or failure to provide the Applicant with work;

(d) It did not allow or invite any negotiation of the conditions for the Applicant's proposed termination;

(e) It permitted the First Respondent to deprive the Applicant of the significant benefit of long term secure income in the circumstances which were unconscionable;

(f) It failed to provide for the payment of compensation to the Applicant by the Respondent in circumstances where the First Respondent unreasonably terminated the arrangement in such a manner and for such reasons as would cause the Applicant distress, anxiety and damage to his good name and character; and

(g) It was otherwise unfair harsh and unconscionable, and contrary to the public interest, upon such grounds and for such reasons of this Honourable Court may find.

Superannuation arrangement - Unfairness 5 The collateral arrangement as to superannuation between the applicant and the second and third respondents was alleged to be unfair within the meaning of the section because : (a) It did not require the First Respondent to pay into the Superannuation Fund the sum of $2000 per year that the Applicant was employed by the First Respondent;

(b) It did not require the Second and Third Respondents, as Trustees, to provide the Applicant with regular financial statements recording the moneys held by the Superannuation Fund on the Applicant's behalf;

(c) It failed to prevent the Second and Third Respondent from failing to pay to the Applicant moneys held in the Superannuation Fund for his benefit on the termination of his employment with the First Respondent;

(d) It included a term that the amount to be paid to the Applicant out of the Superannuation Fund on the termination of his employment was to be reduced by the amount paid to the Applicant by the First Respondent for long service leave;

(e) It invested the Second and Third Respondents with significant discretionary powers which may and have been used to the substantial disadvantage of the Applicant;

(f) The Applicant was at all material times in a position of unequal and inferior bargaining power in respect of his dealings with the Second and Third Respondents; and

(g) It was otherwise unfair harsh and unconscionable, and contrary to the public interest, upon such grounds and for such reasons of this Honourable Court may find.

Monetary claim 6 Counsel for the applicant, Mr M J Lawler, consistent with the applicant's evidence but sharply contested by Mr P P O'Loughlin of counsel for the respondents, prepared a spreadsheet outlining the quantum of the applicant's monetary claim which, in summary, was -

Item Amount Interest Total $ $ $ Wages underpayment 107,715 163,476 271,191 Annual holiday pay 8,839 14,998 23,837 Long service leave 5,601 5,090 10,691 Redundancy 44,200 40,167 84,367 Superannuation 18,000 35,313 53,313 Totals 184,355 259,044 443,399

(The award by reference to which the claim was based was the Transport Industry (State) Award.)

Statutory provisions 7 The unfair contracts provisions upon which the applicant relied are contained in Pt 9 of Ch 2 of the Industrial Relations Act. Section 105 relevantly defines a "contract" as meaning "any contract or arrangement, or any related condition or collateral arrangement" and an "unfair contract" is defined to mean a contract "(a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument" (an award). If a particular contract whereby a person performs work in any industry be found by the Court to be unfair then, pursuant to s 106, an order may be made declaring it wholly or partly void, or varying it: sub-s (1); such a contract may be found to be unfair at the time it was entered into or that it subsequently became so because of any conduct of the parties, any variation thereto or any other reason: sub-s (2); the contract may be declared wholly or partly void, or varied, either from its commencement or from some other time: sub-s (3); and, in making an order under the section, the Court may make such order as to the payment of money in connection with the contract concerned as is considered just in the circumstances of the case: sub-s (5).

General positions of the parties 8 The quantum of the claim as calculated by Mr Lawler was not disputed by Mr O'Loughlin as to its mathematical accuracy based on the applicant's evidence of what occurred. The dispute as to the wages component essentially concerned disagreement as to the hours actually worked by the applicant when the mill commenced double shifts, including that a separate arrangement was made by the first respondent with the applicant that he perform the second shift as a contractor on an hourly rate of $20.00 plus expenses and for which he was fully paid. On this aspect, Mr O'Loughlin claimed the applicant received everything to which he was entitled and there was nothing relevantly unfair in the employment contract or in the contractor arrangement; the claims for annual holiday payment and long service leave fell with the wages claim. As to superannuation, the applicant's claim that he was to receive $2,000 per year was wrong and the agreement was for an amount of $10.00 per week ($520.00 per year). The redundancy claim had no support because the applicant in mid-1991 was not made redundant but simply the mill closed through no fault of the first respondent. In general terms, the respondents resisted the applicant's claim as being, as Mr O'Loughlin submitted, "a claim fed by Mr O'Brien's disappointment in not continuing in 1991 with the ANL contract and his post contract bad luck in relation to the garage and his subsequent bankruptcy". On the other hand, Mr Lawler described the substance of the applicant's claim as "a claim of unfairness because Mr Soars and Australian Native Landscapes failed to honour the promise made when the mill went to double shifts that he would be looked after and those promises made induced him to work extraordinary shifts without adequate remuneration and then when he is made redundant he is simply dropped without any payment whatsoever other than the trifling statutory holiday entitlements, and these were parsimonious".

Application to amend claim during the hearing 9 At the outset, I should deal with an application made by Mr Lawler to amend the initiating summons so as to make the second respondent liable, on a joint and several basis, with the first respondent for any monetary orders made in respect of the employment contract and the contractor arrangement. Such claims as originally made and argued in the proceedings were against the first respondent only. The application to amend was made at the end of the five-day hearing during counsel's address-in-reply. It was opposed by Mr O'Loughlin. I reject the application to so amend the summons and shortly state my reasons for doing so. I acknowledge the receipt from Mr O'Loughlin and from Mr Lawler, respectively on 21 March 2001 and 17 April 2001, of their helpful written submissions on this aspect.

10 Mr Lawler frankly admitted, whilst originally he had advised the applicant, that another counsel drew the summons and he "did not revisit it carefully enough before the hearing". Nevertheless, counsel submitted generally that the amendment should be allowed because the second respondent as a director of the first respondent was the active participant in relations with the applicant concerning the impugned employment contract and contractor arrangement and no real prejudice could be claimed by the second respondent to such an amendment at this stage. Mr Lawler relied upon the judgment of the High Court in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at p 155 for the proposition that "Justice is the paramount consideration in determining an application such as the one in question". Counsel made the following points in support of the amendment sought -

· The second respondent had failed to identify any particular prejudice which would be suffered by him if the amendment were permitted. · The suggestion that the case may have been run differently should be discounted in the absence of specification of how it would have been run differently and how, in consequence, prejudice arose to the second respondent. · The second respondent and his wife, the third respondent, were the sole directors and shareholders of the first respondent of which the second respondent was the controlling mind. In evidentiary terms, the second respondent was the mouthpiece of the first respondent and the source of all relevant instructions. The factual challenges made by the respondents could not have been any different if relief had also been sought against the second respondent personally at an earlier time. · Any right of indemnity of the second respondent against the first respondent for liability incurred by him was certainly not a source of prejudice to the second respondent. However, Mr Lawler did not suggest any imperative in the amendment being allowed to protect the interests of the applicant in enforcing a favourable verdict were the first respondent not be sufficiently viable to satisfy it; indeed, to the contrary, counsel accepted the first respondent was of financial substance with sales of $30.0 million per annum.

11 Mr O'Loughlin conceded, correctly in my view, the power of the Court to make any amendments to the proceedings, "necessary in the interests of justice", at any stage and on such terms as thought fit: see s 170(1) and (2) of the Industrial Relations Act. In resisting the amendment, counsel cited what was said by Jordan CJ in Horton v Jones (No 2) [1939] 39 SR (NSW) 305 at pp 309-310, as follows : It is now a commonplace that if a party to legal proceedings establishes to the satisfaction of the Court that he is genuinely desirous of amending his pleadings for the purpose of modifying or otherwise altering some existing claim or defence, or of introducing a new ground of claim or a new matter of defence, he should be permitted to do so, subject to the imposition of such terms as may be proper, unless the proposed amendment is so obviously futile that it would be struck out if it appeared in an original pleading, or unless it is one that it would be impossible to allow upon any terms without causing substantial injustice to another party to the proceedings. The question whether an amendment would cause substantial injustice must, of course, depend upon the circumstances of the particular case. Mr O'Louglin then referred to the circumstances of this case and, in particular, to the lateness of the application thereby occasioning tactical prejudice to the second respondent who had conducted the case on the basis his only exposure to liability was in respect of the superannuation claim. It was submitted that the second respondent's approach to the resolution of the claim may well have been different if he had, at the time of the s 109 conciliation conference, been aware of the possibility of being exposed to personal liability other than in respect of the superannuation claim. Importantly, counsel emphasised that the interests of the first respondent and those of the second respondent were not necessarily congruent; the second respondent may have chosen to seek separate legal representation and the course of the hearing may thereby have been different. In essence, counsel said "the point is that (the second respondent) has been deprived of the ability to choose what he would have done in the circumstances of his personal substantial liability because of the making of the application at such a late stage".

12 Although the second respondent was not a party to either the employment contract or the contractor arrangement, it is settled that a monetary order may be made under s 106(5) of the Industrial Relations Act against a person not party to the contract declared void or varied provided the necessary "connection" with such contract be established: see Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 and the cases cited therein. I am satisfied in the present case that the second respondent, on any view of the evidence, had the requisite relationship with the challenged contract and arrangement and, therefore, it would have been open and proper to seek a monetary order against him either on the initiation of the proceedings or in a timely way thereafter. The real question, however, which arose here was the extreme lateness of the claim to amend the summons to relevantly join the second respondent and what I consider to be the consequent prejudice to him at a stage when the case was all but completed. In reaching this conclusion, I am mindful of the well-known passage from the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 710 where his Lordship said : Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace. The Hight Court followed that approach in Clough and Rogers v Frog (1974) 48 ALJR 481; (1974) 4 ALR 615 and affirmed it in Queensland v J L Holdings (189 CLR at pp 152-153). It will be apparent, as I have said earlier, that the primary consideration in determining whether to allow an amendment is whether any injustice would be caused to the other party.

13 I regard the submissions made by Mr O'Loughlin as sufficiently making out a case of injustice if the amendment were allowed at this late stage. This, of course, says nothing of the question whether if the amendment were allowed a further s 109 conciliation conference would have to be held before the claim could be determined against the second respondent; as to that, it is unnecessary to express a final view but I am tentatively of the opinion that such a conference would have to be held in order to comply with the statutory terms of s 109 of the Industrial Relations Act. For those reasons, the proposed amendment should not be allowed.

Approach to exercise of available powers for relief 14 I will turn shortly to the issues whether the challenged contract and arrangements here on the evidence offended the test of fairness in ss 105 and 106 and the way in which, if unfairness be made out, discretion should be exercised to grant appropriate relief. However, before doing so, I wish to comment on some disquieting features of the case which not only presented difficulties in determining the respective merits but also in assessing the appropriate relief, particularly in monetary terms. One, I think, has to be mindful in exercising jurisdiction under the unfair contracts provisions of the wide scope of the powers available and the manner in terms of principle in which they should be exercised. In Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at pp 59-60, in relation to s 275 of the Industrial Relations Act 1991 as the statutory predecessor of s 106 of the present statute, a Full Court (Fisher CJ, Hungerford and Cullen JJ) of the former Industrial Court summarised the approach in the following way : 7. The test of unfairness involves the commonsense approach characteristic of the ordinary juryman by applying standards providing a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement, bearing in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement: Davies v General Transport Development Pty Ltd [1967] AR (NSW) 371 at 374; A & M Thompson Pty Ltd v Total Australia Ltd [1980] 2 NSWLR 1 at 13; and Baker v National Distribution Services Ltd [1993] 50 IR 254 at 271-272.

8. If a contract or arrangement be found to relevantly offend one or more of the grounds, such as it being unfair, contained in s 275(1) then the next question involves the exercise of a discretion, to be performed judicially, as to whether the contract or arrangement should be avoided or varied: Hodges v Streets Ice Cream Pty Ltd [1985] 11 IR 60 at 63; Autobake Pty Ltd v Budd [1986] 19 IR 18 at 20; and Baker at 267.

9. If it be decided to avoid or vary the contract or arrangement under s 275(1) then a further discretion arises as to whether an order should be made under s 275(3) for the payment of money in connection with the contract or arrangement declared void or varied: Hodges at 63; Autobake at 20; and Baker at 267.

11. The discretions allowed by s 275 to the Court are extensive and the Court should not interfere with bargains freely made by a person who was under no restraint or inequality, or whose labour was not being oppressively exploited: Stevenson v Barham (1977) 136 CLR 190 at 192; and Baker at 276.

12. The nature of the orders which may be made under s 275(3) for the payment of money cover a wide field; underlying the subsection is a broad concept of a restitution of the parties to a situation which existed before the making of the contractual arrangement as well as in an appropriate case to make remedial provision for what has taken place or been done under the contract in the meantime: Brown v Rezitis (1970) 127 CLR 157 at 164; and Baker at 277.

15 In similar vein, I had occasion in Hurley v Art Printing Co Pty Ltd (Under Administration) (1994) 54 IR 254 at p 258 in relation to certain troubling aspects of that case as to the exercise of discretion to comment : However, it must be recognised, it seems to me, that the very wide discretion available under s 275, like the former s 88F, is not at large and the authorities over the years have cautioned against the interference with bargains freely made without constraint or inequality; the intention or purpose of the section has been said to protect the victims of wrong dealings: Stevenson v Barham (1977) 136 CLR 190 at 192. As was said by Sheldon J, as to s 88F, in Davies v General Transport Development Pty Limited [1967] AR (NSW) 371 at 374-375: "On the other hand, the fact that the Commission has been given such massive power makes it imperative that it should be exercised with proper restraint. In particular, when issues arise under (a) or (b), it should not permit itself to become a refuge for those who are merely disgruntled with a bargain entered into on even terms. In my opinion, the discretion should be exercised to protect victims of wrong dealing not to prescribe anodynes." I think those comments are apt to apply in the present case.

Delay in bringing the claim - difficulties 16 The first aspect of concern here was the apparent delay by the applicant in not bringing the claim under s 106 until 2 July 1998 when he clearly had a right to do so from late-1991. Mr O'Loughlin made the point that in exercising its general discretion the Court could "withhold relief or ... tailor relief to take into account the time taken to bring proceedings" having in mind that the applicant "did nothing to pursue the claim during the period of his bankruptcy between January 1994 and January 1997" with the result that "delay should be taken into account in assessing his entitlement if any". Mr Lawler, on the other hand, emphasised that the reason for the delay was never put to the applicant in cross-examination to permit him the opportunity to answer it; even so, Mr Lawler said that the evidence made it plain the delay was caused by the strained financial circumstances of the applicant during his bankruptcy and he should not now be penalised for not acting earlier.

17 Delay was a factor which existed in Hurley v Art Printing Co and, as a consequence, the claim there for interest on monies ordered to be paid was allowed only from the date of filing the application just over five years after the events giving rise to it occurred. Here, of course, the period of the delay was seven years but in relation to events which commenced at least 13 years earlier and about which complaint was now made. Against that, however, it is to be noted the applicant commenced proceedings against the first respondent in the Supreme Court on 2 February 1992 to recover underpayments of wages said to be due to him under the relevant industrial award during the period of his employment and to recover superannuation entitlements due from the superannuation fund by reason of the first respondent's failure to make payments to that fund on his behalf - the first respondent, amongst other defences, pleaded the statutory bar in s 14 of the Limitation Act 1969 in respect of that part of the claim prior to 2 February 1986 and, in answer to the whole of the claim, pleaded "that the agreement made between the plaintiff and the defendant in July 1980 was illegal or immoral or contrary to public policy in that it was entered into with the intention on the part of the plaintiff to conceal from the Commissioner of Taxation the true income to be earned by the plaintiff as an employee of the defendant. Accordingly the agreement was entered into in order to defraud the revenue and is illegal and unenforceable by the plaintiff". I was informed by counsel that the proceedings in the Supreme Court were transferred to the District Court but have been stayed pending the determination of the s 106 claim in this Court. I should add, and as to which I will return, that the respondents here did not similarly defend the applicant's claim as being based on an agreement which was illegal and unenforceable and entered into to defraud the revenue. And neither did the respondents take any point under the Limitation Act as barring the applicant's claims; I think that was the correct course: see Frost v Speaker of the Legislative Assembly of New South Wales (2000) 97 IR 461 at pp 467-472.

18 In Hurley v Art Printing Co (54 IR at pp 258-259), I dealt with the effect of delay on claims by reference to earlier decisions in Irvine v Shell Company of Australia Ltd [1969] AR (NSW) 187 at p 189 and Saliba v John Hearder Pty Ltd [1986] 15 IR 36 at p 38. I have considered what was said by their Honours in those judgments and, as in Hurley v Art Printing Co, have decided in the circumstances here to exclude the factor of delay from preventing relief to the applicant. I take this view principally in light of the applicant's bankruptcy during a critical period and having in mind that the respondents since February 1992 have been on notice of the dispute with the applicant concerning issues the primary focus of which is now before this Court. But, as will later appear, the delay will be relevant in assessing any monies to be paid by the respondents to the applicant, particularly as to any interest thereon.

Lack of documentation - difficulties 19 Another aspect of concern in dealing with this case, and partly a consequence of the delay, has been the not insignificant difficulties caused by the lack of documentation produced by all the parties in answer to respective summonses served upon each of them. The applicant, it seems, kept relevant financial records (including pay envelopes from the first respondent, bank records, tax returns and various supporting documents) in a briefcase at his home until mid-1992 when they were stored at a service station at Tumut operated by him under a lease with an option to purchase; on the failure of the business in late-1993 he said "the vendors locked us out without warning ... refused to allow us to take out our financial records ... the vendors destroyed all our financial records"; the applicant said he did "not have records for the period following 18 January 1991".

20 As to the first respondent's business and financial records, including for the superannuation fund, covering the relationship with the applicant, again there was an absence (with some minor exceptions) - this was explained as to superannuation that the fund was wound up, as the second respondent said, "sometime in 1990, or 1991"; also, the first respondent was subject to a tax audit over the period from June 1990 to August 1993 following which, as the second respondent said, "the parting words to the Tax Officer I said: 'What will I do with the records?' He said: 'As far as I'm concerned, we've got what we can from you. You can do what you like with the records'. And it's quite possible that a lot of the files in reference to O'Brien went at that time". The destruction of such files, if indeed that was what occurred, seems strange having in mind that the second respondent knew in August 1993 that the first respondent had been sued by the applicant in February 1992 in relation to matters as to which the business and financial records were relevant. Be that as it may, and again as the second respondent said, "say from 89 to 93 where a lot of these records should be in my control are not in my control. Six years went by after that period ended and we haven't got the records".

Overcoming the difficulties - Proper approach 21 In the result, the difficulties occasioned by delay and lack of records simply mean, as both counsel acknowledged, that the Court will have to do the best it can on the available material. I will so proceed but I would propose to have in mind the comments by Handley JA, with whom Mason P and Beazley JA agreed, in Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at p 59 that compensation should be assessed : ... in a robust manner, relying on the presumption against wrong- doers, the onus of proof, and resolving doubtful questions against the party "whose actions have made an accurate determination so problematic": see LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1990) 24 NSWLR 499 at 508.

Special characteristics of claim as an unfair contract 22 It will be obvious that a major part of the applicant's claim effectively concerned the recovery of wages under the Transport Industry (State) Award said not to have been paid to him, particularly from the time the mill commenced double shifts; consequential claims related to the recovery of annual holiday and long service leave payments. For that reason, and no doubt for more abundant caution, Mr Lawler referred to Huskisson RSL Sub-Branch Club Ltd v Sullivan (1990) 20 NSWLR 332 at p 348; [1990] 32 IR 404 at p 417 where a Full Bench of the former Industrial Commission held that s 88F of the Industrial Arbitration Act 1940 (now s 106 of the present statute) should not be construed so widely as to provide simply an accumulative and/or alternative remedy to the very specific and express remedy available, but with time-bar limitations, under the recovery of wages provisions of the statute. Their Honours there commented that "an action under s 88F which involves the recovery of an amount due as wages under an applicable award requires some special characteristic which would also bring it within s 88F." The contract or arrangement there in question was held to fall within the literal terms of s 88F in that it "was designed to ... avoid the provisions of an award"; in so finding that s 88F could apply in that situation, their Honours commented that "it is difficult to see what force this provision of the statute could have if it did not apply in this type of case".

23 In the present case, Mr Lawler similarly identified special characteristics of the applicant's claim to bring it within s 106 and so as not to be merely a claim for the recovery of wages. He referred to the central thrust of the applicant's case as relating to the alleged unfairness which occurred when he commenced working double shifts at the mill on the reliance of promises made by the second respondent of future benefits. Mr O'Loughlin, very properly and fairly if I may say so, did not challenge Mr Lawler's approach and said he could not "make out a meaningful helpful submission in relation to that matter". I accept the concession so made by the respondents and will proceed to determine the applicant's claim under s 106 accordingly.

Evidence for the applicant 24 The applicant was the principal witness in his own case. He said his employment in the Tumut area was with a company called PGH at its mill at Gilmore (near Tumut) from 1965 until late-1980 as a driver of front-end loaders carrying timber. During that period the first respondent purchased bark chips from the PGH mill and transported them to a yard facility leased from PGH about 400 metres from the mill; the bark was stored at that yard prior to re-sale by the first respondent to its customers. The applicant met the second respondent as he performed his task of loading the bark into the first respondent's trucks. It seems, on the applicant's evidence, that the first respondent was concerned at losing the contract with PGH because its then employee at the yard was unreliable in transporting the bark from the mill and in attending to its storage at the yard. The applicant said the second respondent offered him the job with the first respondent and, although it was a difficult decision to leave PGH after 15 years, he agreed. The applicant deposed the offer was put to him in this way : 9. I had a couple of discussions with Pat Soars. At one or both of the meetings Pat said to me words to the effect of:

PS: "The hours will be Monday to Friday, 8 hours per day. About 3 or 4 times a week a truck will come in outside hours. You will need to be on call to pick up the bark on those occasions. I can offer you $300 per week clear. I can't give you any annual leave loading. You would be expected to be on call at all times. To make it worth your while I will make a contribution into a non contributory superannuation fund of $2000 per year." The "real incentive", as he said, for the applicant to accept the position was the offer of superannuation which he did not enjoy with PGH.

25 After commencing work in early-July 1980 at the yard, the applicant received a letter from the first respondent, under the signature of the second respondent as its managing director, welcoming him "to the staff of Australian Native Landscapes, and confirm our discussions in connection with wages, working hours etc.". The letter stated in part in relevant respects : As each day varies due to loading of trucks etc., I feel it is best to pay you a salary rather than weekly working out your hours, your duties will include;

1. Driving bark trucks at PGH on a 1 shift basis and also Saturdays when required.

2. Loading of ANL's semi's daily from 5 am to around 10 pm if required, these loading times are not applicable on weekends.

f. Removal of bark from Pyneboard daily or when required

g. Keeping of paperwork, associated with Pyneboard dockets.

Your salary will be $300.00 clear per week, which can be either taken down to you by one of the truck drivers or transferred to your bank account in Tumut.

On our books you will be written up for a gross wage of $180.00 per week and taxed $34.45, this will also be the rate which you will be paid holiday pay (4 weeks per year) public holidays and sick pay.

You will also be entered into our non-contributing superannuation fund, which basically is a life assurance policy covering you for 24 hours, 7 days per week with a retirement payout figure, should you stay with us until the age of 65. Sharon will send the forms down to you together with the Income Tax Instalment Declaration for you to fill out.

26 The level of salary and payment arrangements as specified in the letter became a major issue in the proceedings, including that it represented action by the first respondent through the second respondent to defraud the revenue by not paying the full required amount of group tax which it retained for its own use and benefit. The applicant maintained the arrangement was at the instigation of the second respondent whereas he was satisfied so long as he received a wage of $300.00 nett per week paid as $120.00 in cash and $180.00 into his bank account (the first respondent paid group tax of $34.45 per week). The second respondent, on the other hand, said it was the applicant who requested such arrangements, but it is to be noted that the second respondent agreed that other drivers employed by the first respondent were paid, albeit at wage rates up to twice that of the applicant, on a similar cash basis. Interestingly for present purposes, it is to be noted also that the applicant's payments for annual holidays, public holidays and sick pay were to be based on a gross wage of $180.00 per week. However, after admitting under cross-examination that for the first five years of employment he received, as agreed, $300.00 per week clear, the applicant was never asked about his taxation returns, specifically as to whether he included the cash payments as income, and he was never asked by the respondents to produce his copy income tax returns for the years of his employment by the first respondent.

27 As to the hours worked by him during the first five years up to mid-1985, the applicant deposed : 14. For about the first 5 years I worked the hours originally envisaged, that is, five 8 hour shifts, Monday to Friday, and then when needed at other times to load trucks. There were at least 3 or 4 trucks a week at times outside my normal shift hours. They came in up to 10 pm at night, with the odd one at 2 or 3 am. They would come on Saturday and Sunday as well, usually during the day. I estimate that with these additional trucks, I worked about 46 hours a week during this early period.

15. In all the years I worked for ANL there was no one to cover for me. I never had a single day off on sick leave. I worked when I was sick. A truck ran over my foot once but I still kept on working. I did not leave Tumut for more than part of a day in those years. Very occasionally I might go away for part of a day, for a wedding or the like, but I would always be in Tumut for part of a day throughout that whole time. Under cross-examination as to his commitment and attention to the job at the yard, the following evidence emerged : Q. I'm suggesting to you that you said these words to Mr Soars, "Look, I've got this farm and I am concerned if I work for you, any income I get might make will take my income up to the point I pay extra tax. Is there a way that we can do a deal where you pay me a fair bit of my salary in cash". Did you say that to Mr Soars? A. At no stage, no.

Q. Mr Soars, I suggest to you, replied, "Okay. I can pay you an additional amount out of petty cash for expenses including fuel and other things associated with your running an operation"? A. No.

Q. Can I also suggest to you that you said to Mr Soars, "Look, if I do work for you, you understand I'm trying to run a farm and I'll need to have some flexibility in the work I do for you, so I can come and work on the farm when I have to"?

Q. Mr Soars replied, "Yes, there is no problem but I want you to give my work priority"? A. No.

Q. Is it the fact that as at 1980 you had other interests apart from your employment with Mr Soars? A. No.

Q. What I'm asking you to accept is that between July 1980 and about the middle of 1985 you received $300 per week clear? A. Yes.

Q. You did the work as you had been directed to by Mr Soars? A. I did, yes.

Q. In paragraph 14 of your affidavit, and read it if you wish, you come to a grand total of 46 hours per week? A. Yes.

Q. Now, that is very much an estimate, isn't it? A. Yes, that's an estimate, yes.

Q. Because there is no one, or no one is available to give evidence, to corroborate the fact that you worked 46 hours a week, are there? A. No.

Q. There is no document? A. Only my wife would be able to do that.

Q. She knows you left the house, doesn't she? A. Yes.

Q. And you came back and she don't know what you were doing in the meantime? A. She knows what I was doing, yes.

Q. Only because of what you told her? A. She knew if I had a phone call to go out or whatever, she knew I was going out.

Q. There is no document to suggest you were working 46 hours a week that you can point to? A. No.

Q. How did you come to that estimate, Mr O'Brien? A. It worked out how the trucks would turn up and there would be an odd Saturday where I would have to come in too, to check the bark, or if I would have to come in and load a truck, make a special trip out to make sure there are no fires in the bark.

Q. They are all included in the 46 hours? A. Yes.

Q. Would you say it is any more than just a guess? A. No, it is not a guess, no.

Q. But certainly not anything that is based upon anything other than your own recollection or personal recollections of what you did? A. That is my personal recollection of what I did, yes.

Q. Can I suggest to you that you are exaggerating the hours that you worked between the period 1980 and 1985? A. No, I'm not, no.

Q. You really have no recollection of what you worked? A. No, I know what I worked.

Q. Thank you. Now, you say you never took any sick leave? A. I didn't take any sick days, no.

Q. You also say that you continued in your employment, notwithstanding the truck ran over your foot? A. I did, yes.

28 After the initial five years' period of employment, the PGH mill commenced to operate a second shift each day. The applicant said the second respondent asked him to work "double shifts" and he gave this evidence about the arrangement : 16. In mid-June 1985 PGH increased production and went to two shifts per day. PGH produced more bark as a result. The bark needed to be taken from their conveyor belt to the bark stockpiles. In about early June 1985 I had a conversation with Pat Soars to the following effect: PS: "As you know, the mill is going to double shifts. I can't afford to pay someone else to do the work. I want you to do double shifts. Just keep doing a good job for me mate. I'll look after you in the long run. You keep looking after our job for us." TOB: "If I am going to work double shifts can you pay me some extra money to do the extra work?" PS: "I can't afford to give you a salary increase. Things are pretty tight at the moment. Don't worry mate, I'll see you right in the long run." I believed Pat Soars when he told me things were tight. I considered Pat Soars a mate who would see me right.

17. From mid 1985 when the mill went to a doubt shift per day I worked the following routine. Monday to Friday I started at 7.30 am. I would usually have an hour off at lunch time when the mill stopped. I would go home for dinner after emptying the truck at about 6.30 pm. I would get home at about 10 minutes later, see the kids and have dinner, and be back at the yard at about 8 pm, having had about an hour at home. I would then work through to about midnight. The mill would also operate occasionally on Saturday and/or Sunday during this period and I would work on those days. I followed this pattern of work until about mid 1990 working double shifts on weekdays and occasional weekend shifts.

24. In about mid 1990 the mill installed a new debarking machine. That changed the method of work. It would strip bark quicker. It would get through the work in less than the full two shifts. Accordingly I started working less than 2 full shifts. To the best of my recollection I worked between 10 and 12 hours each day in the period between mid-1990 and mid 1991. Overall, the weekly hours worked from June 1985 to mid-1990 were calculated at an average of 88 hours per week and from mid-1990 they were reduced to an average of 60.5 hours per week. As to payments during the time he worked the "double shifts", the applicant said he received an increase to $400.00 per week from October 1986 and to $480.00 per week from January 1988; in addition, he received a cash payment of $150.00 per week.

29 Although the additional hours worked were not compensated in relatively comparable terms, the applicant accepted the situation because of representations said to be made to him by the second respondent on behalf of the first respondent, as he deposed, as follows : 20. The first such conversation I remember Pat said words to the effect of:

PS: "I'm going to open up a yard on the Gold coast and that will be yours".

21. On a later visit Pat Soars had dinner with my wife and I at our home. Pat said to my wife Judy words to the effect of:

PS: "You won't have to worry about money, as I'm going to look after my old mate!"

22. On the third occasion I recall, Pat's car "blew up" and I drove him to a plant at Tumbarumba and then to a plane in Wagga Wagga. During this trip Pat said to me words to the effect of:

PS: "Don't worry mate, I'll look after you when your turn comes to get into something of your own. You've looked after my interests on your own for so long you've really earned it."

23. All these promises to look after me in the future stopped me pursuing a proper wage.

30 It is necessary in this review of the applicant's work history to interpose the position that the PGH mill in late-1986 or early-1987 was taken over by the Timber Products Division of ACI Australia Limited. ACI, it appears, offered a contract for the wood shavings from the mill to be hauled about 7 kilometres to a site on the outskirts of Tumut and the applicant was successful in obtaining that contract. He deposed to the following discussions with the second respondent as to his ability to perform both the shavings contract and the yard work for the first respondent :

27. I had a conversation with Pat Soars to the following effect:

TOB: "ACI are looking for someone to cart wood shavings to the CSR Wood Panels site. I am going to try and get the contract and buy a truck if I can get the contract. I believe that I can do the work without interfering with the carting work for ANL. The new ANL truck is much bigger and I can leave it longer under the conveyor belt filling up with the bark. This will give me time to do a run of shavings while the truck is filling during slower times. And I can do shavings runs during my breaks. I will also be able to get my brother Assal to help when it is needed. He lives close by and can come up at short notice."

PS: "I would be pleased if you can get the work. Provided it doesn't interfere with the work you are doing for ANL I am happy for you to be doing other work."

28. I was successful in obtaining the ACI contract to cart the wood shavings to CSR Wood Panels. That work started in about April 1987. We were paid by the tonne. I bought a truck to do the ACI carting with a loan from the State Bank.

29. I could supervise or do the work for ACI because it involved carting from the same yard. I would do all of the ANL work myself, and what ACI work as I could do in my breaks. What I could not do in my breaks I got my brother to do. My brother would come over at short notice as he lived very close. For a period I also employed a man to do some of the runs.

30. The ANL work was my first priority. I never failed to do the work required for ANL. The applicant said he received an amount of about $1,000 per week from ACI for the shavings contract, but, of course, he employed other persons from time-to-time to do the shavings work when he was occupied with work for the first respondent and there were expenses in running the truck. Also, the remuneration, as he said, "was up and down ... fluctuating" and "some weeks you might only make $400" but generally he was able to make $50,000 per year from the shavings contract.

31 As it transpired, in mid-1991 ACI sold the bark mill to CSR Softwoods and, because of its operation of a more modern mill on an adjacent site (the site from which the applicant delivered the wood shavings), CSR decided to close the bark mill as from 2 August 1991. The applicant negotiated with CSR to carry wood shavings from the Softwoods site after the closure of the bark mill and discussed with the second respondent the possibility of him carting bark for the first respondent from the Softwoods' mill. He deposed as to those discussions : 34. At about this time I spoke to Pat Soars about carting bark for ANL after the PGH yard was to close. I understood he would get bark from the Softwoods site.

TOB: "CSR are going to close the mill at the PGH yard from 2 August 1991. CSR is prepared to offer me contract work carting wood shavings from the yard but they are not offering much money. I will need work from you to be able to make ends meet. I understand that you will be getting your bark from the CSR Softwoods mill."

PS: "After the mill at the PGH yard closes I will give you a contract to cart bark from the Softwoods site to the ANL yard. I will pay you $10 per tonne. You will no longer be paid a wage.

35. In about July 1991 ANL stopped paying me a wage. I was still waiting for the carting agreements with CSR and ANL to be finalised. There was a period where I had no work while I was waiting for the agreements to be finalised.

36. I reached agreement with CSR to carry wood shavings from the Softwoods site for $6.26 per tonne. This was a little over one third of what I had been paid by ACI for equivalent work. I accepted this amount on the basis that with the rate promised by Pat Soars for the ANL work I could make ends meet.

37. Shortly thereafter I rang Pat Soars and had a conversation to the following effect:

TOB: "I have signed with CSR to cart the shavings. I can start carting your bark as well for the price per tonne agreed."

PS: "I have had a change of plan. Elliot can do it cheaper. I don't need you to cart the bark."

Mr Elliott was another contractor. I then said some very strong words to Mr Soars that expressed what I thought of him for taking the work away from me after he had agreed to give me the work and after all his promises to me over the years. And so it was that the work relationship between the applicant and the first respondent ceased about August 1991. In consequence, because the applicant took the view that the CSR shavings contract was not viable without the bark contract with the first respondent, he did not perform the shavings work for CSR.

32 On the termination, the applicant said he received from the first respondent a total lump sum payment of $2,423.46 relating to his long service leave entitlement, although this was not entirely clear and could have comprehended also payment for annual holidays. No other payments were made to him.

33 As to the position with annual leave, the applicant said in his affidavit : 40. Throughout my time as an employee of ANL I did not get to take any proper annual leave. The mill closed for 4 weeks in December/January each year. When the mill was not operating I would not be driving my regular shift, but I was still on call. That was the peak time for bushfires. The bark was in large piles in paddocks. It was not covered so when it rained it got wet. In the heat the bark would combust. I had to visit the piles of bark every day, seven days per week, during the summer to check that there were no fires or smouldering. If it had started to smoulder I would move it around to cool it down.

34 The question of superannuation was an important issue in the proceedings. As indicated earlier, the applicant took it that the first respondent would contribute $2,000 per annum for his benefit into the Australian Native Landscapes Superannuation Fund whereas the second respondent said the amount was $10.00 per week, that is, $520.00 per annum. Nevertheless, and following his termination after the applicant through his solicitor made enquiries of the first respondent as to superannuation entitlements due, it emerged from advice by Scott & Co Management Services Pty Limited as the administrators of the superannuation fund that as to the applicant "an initial contribution was made on (his) behalf ... for the year ended 30 June, 1980. No further contributions were made subsequent to that date". No amount was specified for the contribution so made, but "the accumulated benefit, taking into account the earnings of the initial contribution up to 30 June, 1991, amounted to $6,570 at that date". That amount was never offered nor paid to the applicant; but, on 29 November 1993, the first respondent's solicitor offered a superannuation payment of $7,377.94, which included interest of $807.94 for the period from 28 November 1991 to 30 November 1993. The offer was not accepted by the applicant as being inadequate.

35 The applicant complained that during his employment he asked the second respondent about his superannuation accruals and was assured in words to the effect - "Don't worry about it. I'm your mate, I'll see you right. The money's going in alright".

36 After leaving the first respondent's employ, the applicant said he was unemployed until mid-1992 and his "only income during this period was from the sale of a few cows every now and then from the farm we were living on. I lived hand-to-mouth in this period". In early to mid-1992 the applicant, with his wife, purchased the lease of a service station at Tumut but the business failed and both he and his wife were bankrupt from January 1994 to early-1997. Since 1994, he has been employed driving concrete trucks for the firm of Burgess Excavations in the Wagga Wagga district.

37 The applicant's wife, Judith Patricia O'Brien, gave evidence in support of her husband. Her evidence related particularly to the hours worked by him at the mill and in the yard, including from mid-1985 after the double shifts started and when he worked "dramatically" increased hours of about 85 per week plus callouts at night with trucks arriving late to collect bark. During the first five years of the applicant's employment, Mrs O'Brien said he worked regularly eight hours for each of five shifts from Monday to Friday and at least three or four times per week he was called out at night and during the weekend. She confirmed also that the applicant, as she said, "never stayed home sick" and "we never took holidays away from Tumut in the years that he worked for Australian Native Landscapes". She recalled a conversation in the late-1980's at her house when the second respondent "spoke warmly" about her husband and the "good work" he was doing; she added that the second respondent said - "You won't have to worry about money, as I'm going to look after my old mate!"

38 Walter Thomas Murray, a now retired former supervisory employee of PGH at the Tumut bark mill, knew the applicant when he was an employee of PGH and then as an employee working for the first respondent. He recalled that in about the 1980's, perhaps 1984 but not as late as 1987, the mill started to work double shifts. He deposed in his affidavit that he observed the applicant "coming and going while ever the PGH mill was operating and that after the mill went to double shifts Ted (the applicant) did his work during both shifts". Mr Murray, after starting permanent day shift in 1984, based his statement of the applicant's night work on the fact that after he, Mr Murray, arrived at work next day his "responsibility (was) to check everything was clean and tidy which it always was" - the assumption was, therefore, that the applicant had indeed performed his job during the night shift.

39 A present employee of Weyerhaesur Australia (which now operates the Tumut mill), Graham John Milliner, was the final witness to give evidence in the applicant's case. He commenced working at the mill in 1980 and knew the applicant from that time. He deposed that in 1985, although it could have been mid to late-1984 or early-1985 but not as late as 1987, the mill commenced to work double shifts. He said "there was no difference in the operation of the mill between the day time shift and the night time shift, the mill was generally just as busy during both shifts". Mr Milliner added as to the applicant's work pattern that to his observation the applicant "worked during both the day shift and the night shift after 1985 and the work that he needed to do did not change between the day shift and the night shift". Although Mr Milliner himself did not work double shifts, he worked day shift and night shift on a weekly alternating basis; he was not, therefore, able to actually observe the applicant working at all times on both shifts but, as he said, "if Mr O'Brien wasn't doing his job, you would know very quickly because the bark trucks would be full, and once they filled up the mill stopped".

Evidence for the respondents 40 The second respondent gave extensive evidence in the case based on two affidavits sworn by him. As a general comment, his evidence was in sharp conflict with that called for the applicant in terms of conversations between them, the contractual arrangements, hours worked by the applicant at the mill and in the yard, and monies agreed to be and actually paid to the applicant. The relationship he had with the applicant was said by him to have commenced in about 1971 when they first met as he was then driving trucks for the first respondent. The second respondent said the applicant approached him for a job at the Tumut yard in early-1979 and in early-1980 discussions were held which led to the applicant commencing employment with the first respondent in early-1980; the terms and conditions of employment discussed were reflected in the letter dated 15 July 1980 to the applicant as set out earlier. Critically, the second respondent deposed : 18. About a month or so prior to 15 July, 1980 I recall having a discussion with Ted O'Brien in the context of the prospect of his becoming a fulltime employee of ANL. O'Brien: "Look I've got this farm and I am concerned that if I work for you, any income I might get might take my income up to where I pay extra tax. Is there any way that we can do a deal where you pay me a fair bit of my salary in cash." Soars: "Okay, I can pay you an additional amount as out-of-pocket petty cash expenses including fuel and other things associated with your running an operation."

19. In addition, Ted O'Brien said, O'Brien: "Look, if I do work for you, you understand that I am trying to run this farm and I'll need to have some flexibility in the work I do for you so that I can come and work on the farm when I have to." Soars: "Yes, there's no problem about that but I want you to give my work your priority." The applicant denied those conversations ever occurred. Specifically, he denied owning a farm at the time and said it was not until 1988 that he purchased with his wife the property known as "Bolero Park" on which they built a farm house in 1990. Apart from the second respondent's assertion, there was no other evidence, documentary or otherwise, to even suggest the applicant owned or operated a farm prior to 1988.

41 As part of the employment arrangements, the second respondent agreed there was "some discussion of superannuation" but said it "was to the effect that superannuation to the extent of $10.00 per week would be paid". He denied any mention of a contribution of $2,000 per year as claimed by the applicant. Nevertheless, the second respondent was cross-examined at length regarding the superannuation position, particularly in light of his non-production of documents relating to it and even though, absent documentation, he claimed the long service leave deduction for the applicant in accordance with the superannuation fund as at 7 November 1990 was precisely $2,501.99. Further, he was equivocal as to whether the weekly superannuation contribution for the applicant was $8.00 or $10.00. In any event, he seemed in evidence to suggest that regular superannuation contributions were made for the applicant's benefit but, of course, that was explicitly contrary to the advice from the administrators of the fund, Scott & Co, that only one initial payment was made in 1981 for an undisclosed amount - the absence of documentation on this aspect compounded its clarification. Relevantly on this aspect, including of documentation, the following cross-examination of the second respondent revealed : Q. Do you agree that there is not a single solitary piece of paper other than Mr Porter's letter asserting the global entitlement of Mr O'Brien in 1991, apart from that there is not a single solitary piece of paper that records figures of contributions made on Mr O'Brien's behalf, or the interests that may have accrued to his entitlement over the years? A. That's correct.

Q. There is not a single ledger, correct? A. That's correct.

Q. And there is not a single bank statement? A. That's correct. That doesn't mean there wasn't at the time.

Q. So tell me on what basis do you say to his Honour that contributions were made at the rate of the $10 per week? A. Annually the company paid in for the employees that were signed up for the super fund eight to ten dollars a week.

Q. So you are relying on your recollection, are you? A. At this point I am, I am sorry.

Q. You used, as trustees are entitled to do, the services of professional accountants to administer this fund for you, didn't you? A. I did.

Q. And that was Mr Porter of Scott & Co? A. That's correct.

Q. And you hadn't produced, had you, any of the records under your control as trustee of the superannuation fund from Scott & Co? A. The fund was wound up sometime in 1990, or 1991 and the members, including Mr O'Brien, were all paid out.

Q. Now that is just, insofar as you sought to include Mr O'Brien, an outright lie, is it, Mr Soars? A. Not a lie. It's the truth.

Q. You haven't paid him the $6,570 which Mr Porter says was standing to his credit at 30 June 1991, have you? A. I wish to offer an explanation of what I just said and I wish you could give me the opportunity.

Q. Will you answer the question? A. I will answer the question. Your client on three occasions had refused to accept the money.

Q. And you didn't hand it over to him because you required him to compromise and to release you entirely from any liability in relation to his other claims, didn't you? A. That's not correct at all. I made an offer and he refused the offer. When the money was transferred from the super fund into the solicitor's holding account, we made the same offer again. He just refused again.

Q. Why didn't you just send him the cheque? A. He didn't want to do. The man won't take the money. He is after hundreds of thousand dollars. He wouldn't take the money.

Q. That's just false? A. It's not false. It's the fact. The money is still sitting in an account. It has been sitting in the account for the last ten, whatever number of years. I have heard nothing from your client for six and half years, not a thing.

Q. Mr Soars, Mr O'Brien was claiming a far larger amount of superannuation than $6,570, was he? A. He is claiming $50,000.

Q. And you were asserting that his entitlement was as at August 1991, $6,570? A. That's correct.

Q. The position is this, is it not, that when the first notice to produce was served in 1999, very few documents were produced in response to it? That is the position, is it not, and then subsequent to the service of that notice, documents have come to light from time to time as a result of searches you have conducted; does that fairly state the position? A. No, to fairly state the position we were asked to provide documents early in 1991, and for six, six and half years, the passage of time, nothing was heard from your client, and I haven't got these documents now. I wish I did have these documents but I haven't got them.

Q. I will start again Mr Soars, and if you want this to be over quickly, would you attend to the question and answer the question. I am confining my question to the notices to produce in Exhibit 7, which are notices to provide in relation to this proceeding before this commission, I am suggesting to you that in relation to the first notice served in April 1999 very few documents were produced, and that subsequent to that time additional documents were located by you and produced from time to time relevant to the issues in the case. Does that fairly summarise the position? A. It does, yes.

Q. At the time you prepared and swore that affidavit (20 January 1999), you did not have an independent recollection that on 7 November 1990 long service leave was paid to Mr O'Brien in the precise sum of $2,501.99, did you? A. I'm sorry, can you ask me that again?

Q. January 99 when you prepared and saw that affidavit, you did not have an independent recollection of the precise amount of money paid to Mr O'Brien some nine years early in 1990? A. Somewhere in some correspondence somewhere I must have had that figure.

Q. But that correspondence has never been produced by you in response to the notices to produce or annexed in affidavit, has it? A. Well it appears it hasn't been, no.

Q. And you see, what has occurred in this case is that you have been very astute to seek out any document that you thought might assist your case, and you have not bothered to conduct any serious search for documents that might support the applicant's case; that is the position is it not? A. Well is that true or isn't it true, are they the payments made to your client? I tried to seek to answer your question - I am sorry, it's not true, as you just put to me.

Q. So you say, do you, that you have expended energy quite indiscriminately to search out all relevant documents without regard to whether or not they assist your case or the applicants case? A. I have, I looked for every document I could find.

Q. And you can offer no particular explanation for why it is that the document that was the source of the information upon which you relied to prepare paragraph 50 that has been produced to the Court has not been produced to the Court? A. Well when I was asked by my solicitor to present all - everything I had, that is exactly what I did. If I didn't have a copy of a letter, I'm sorry. I didn't have a copy of the letter.

42 The second respondent was referred to an exercise conducted by Mr Lawler in respect of the superannuation position which demonstrated, using Reserve Bank money market rates, that from mid-1981 to mid-1991 an initial payment of $600.00 would have increased to about $2,163; an initial payment of $2,000 would have increased over the same period to about $8,500 which, less the $2,500 long service leave amount, resulted in a nett amount of $6,000 which was very close to the $6,750 said by Scott & Co to be due to the applicant as a superannuation payout. The second respondent's answer was "that just can't be right". He added : Q. And what do you say, having done your own figures in the break, $500 would yield by the middle of 1991? A. Well I went back to the correspondence that your clients supplied us for my accountant, and in which case when Ted O'Brien started employment with the company in July 1980, it would appear that we made up payment for the whole year ended 30 June 1980, in which case - that is in the correspondence from my accountant. So taking that we made - taking into account that we made eleven payments between 1980 and 1991, we should have paid into that account $5,720 plus interest. So I just can't see how this spreadsheet relates to anything. The other point is that the spreadsheet only talks about the return on money, doesn't talk about any taxation issues, administration fees, accountancy fees, general charges or costs of the life insurance. So it's just totally irrelevant.

Q. Now the first part of that response assumes that there were eleven annual payments of $500 does it not? A. That's correct.

Q. And would you make a similar comment in relation to Exhibit 11, the $2,000 calculation, which assumes the balance has grown to some 2,400 by June of 1982; you would make similar comments in relation to that would you? A. Had we paid $2,000 per year, the accounts should have - we should have contributed eleven times $2,000, yes.

Q. But if there had been a single payment only of $2,000 in 1980, and no subsequent payments, then compounded monthly you would agree produces by the middle of 1991 a figure in the order of $8,500, assuming money market rates as published by the Reserve Bank? A. Assuming that what you say is correct, it would appear money market would return that figure, yes.

43 The applicant's claims concerning the hours worked by him were dealt with as follows in the second respondent's affidavit : 31. The other part of Ted O'Brien's job involved the transportation of bark from the PGH mill and at best, that would mean 10 or 12 trips per day. Apart from that, Ted O'Brien's time was his own. It was very seldom, if at all that he had to load out of his normal shift hours. Loading in these circumstances was part of the arrangement which was reflected in the letter of 15 July, 1980. The majority of the trucks were loaded by the drivers, mainly at night when Ted O'Brien was not in attendance.

32. I never had any discussion with Ted O'Brien when he complained about working when he was sick, or was I ever told by him that his foot had been run over. Whilst I accept that he was at the ANL depot every day, there was no need for him to be there for a full eight hour day and this was not the arrangement that I had made with him.

44 The issue of "double shifts" again brought sharp disagreement in the evidence. The second respondent deposed in his affidavit as follows : 34. To the best of my recollection, the conversation that I had with him was to the following effect:- O'Brien: "Look, the mill's going onto a double shift. We're going to need to put a bigger truck there. If you do that I'll put the truck there at about 5 so it can be loaded, I'll move it after tea and bring it straight back so that by 11 o'clock at the end of the shift it'll be loaded. I'll move it round to the ANL yard at 7 o'clock the next day and add it to the pile."

36. The fact is that Ted O'Brien never went on to double shifts and there was never any agreement that he would do so. ANL provided a much larger truck which meant that Ted O'Brien had to load it less frequently. He also was loading his own truck and to the extent that he had to come in at night it was for his own business purposes and not for those of ANL. However, the second respondent conceded he visited the Tumut yard in the period from 1982 to 1991 "maybe three times a year" and in commenting on the applicant's hours of work had relied on "others reporting to me, drivers, managers, my own managers, and of course my meetings with O'Brien himself ".

45 It will be recalled that a reason given by the applicant for his regular attendance at the yard was as a precaution to check the bark, including moving it if necessary, against fires occurring in the piles from spontaneous combustion. The second respondent agreed there were no fires during the applicant's presence on the job but after he left in 1991, as he said, "from time to time there were fires" including a "major fire".

46 Although the second respondent claimed the applicant never worked two or double shifts each day, he did say the mill itself commenced double shifts in June 1987, not mid-1985 as the applicant and other witnesses had said. One thing which was clear, however, from the second respondent's oral evidence was that the applicant was regarded as an employee of the first respondent throughout the whole period concerned from mid-1980 to mid-1991. Apart from that admission by the second respondent, he gave the following evidence in cross-examination : Q. It was your understanding, was it not, that at the time Mr O'Brien was engaged he was an employee of ANL? A. He was engaged as an employee of ANL in 1980, yes.

Q. He was subject to direction by yourself and the other two supervisors nominated in the letter of engagement of 15 July 1980? A. Yes.

Q. He was paid a weekly salary? A. Yes.

Q. He had a list of duties that he had to attend to? A. That is correct.

Q. He was the only Australian Landscapes worker in the Gilmore Tumut area? A. Yes.

Q. He was a one man operation so far as ANL was concerned in Gilmore? A. Yes.

Q. He was part and parcel of ANLs operation, do you agree with that? A. Yes.

Q. You certainly had a right to tell him how to do things and when to do them? A. Yes.

Q. And that right subsisted throughout the 1980s? A. Yes.

Q. He didn't render you any invoices? A. No.

Q. He was paid long service pay in 1990 in respect of the whole of the '80s, correct? A. That is correct.

Q. He had hours of work as indicated in at least in the period '80 to '85 as indicated in the letter of engagement? A. That is correct.

Q. You expected there would be provision for annual leave of four weeks? A. He was paid annual leave four weeks every year of his employment.

Q. When the mill went to double shifts, whether it was in 1985 as Mr O'Brien contends or in 1987 as you contend, the nature of ANLs' operation didn't change but it continued in the same fashion whilst ever the mill was operating, would you agree with that? A. The type of work remained the same, yes.

Q. You regard him as an employee in 1991, didn't you? A. Yes. 47 The second respondent acknowledged the separate arrangement the applicant had with CSR regarding the shavings contract. He was vague, however, as to the nature of the relationship between the applicant and the first respondent concerning the work performed by the applicant on the second shift - his evidence ranged from the applicant never doing the work to there being a separate arrangement to do it on a "contract" basis for $20.00 per hour; in any case, he said, as will later appear, that the first respondent paid the applicant $24,960 as wages and $20,000 as contract fees up to December 1990.

48 The important issue in the proceedings regarding the monies actually paid to the applicant by the first respondent for work performed, apart from the superannuation question, was much debated in the evidence of the second respondent but, I have to conclude, with a result which was not entirely clear. I have detailed earlier the applicant's evidence as to what he said he received; I only add his further comment that "(he) did not receive pay slips during the time (he) was employed by Australian Native Landscapes Pty Limited". The second respondent deposed to searching the first respondent's records to locate various documents relating to the monies paid to the applicant but, it seems, without success except in very limited respects. The difficulties will be apparent from what the second respondent deposed in a further affidavit, as follows : 3. At about the time that the PGH Mill was going to go on double shifts and that more bark would be produced, Mr O'Brien came to me and

4. said: O'Brien: "Look, you've got to pay me more money. I'm going to be working longer hours. I want you to pay additional money at the rate of $20-00 an hour to O'Brien Contracting and I want it paid in cash."

5. I cannot recall any specific response which I made to this conversation however, I recall that I was reluctant to pay him any more money because the arrangement I had made with him when he first started enabled him to pursue his other activities.

11. After the arrangement with Mr O'Brien, I recall that initially he received $280-00 weekly which increased quickly so that by 1987 or so he received between $400-00 and $450-00 in cash weekly in addition to the amounts regularly paid to him by ANL as salary.

20. On 12 August, 1991 I spoke to Mr O'Brien about his proposal that he undertake contract work for ANL.

Soars: "I've looked at the figures and what you want is unrealistic. To December, 1990 ANL paid you $24,960-00 wages and $20,000-00 contract. That totals $44,960-00. If you divide that by 9384 for the bark invoiced to ANL for the same period, the rate is $4-79 per tonne plus the cost of the truck. I'll offer $5-00 per tonne."

21. This conversation occurred after the conversation which is referred to in paragraph 48 of my affidavit sworn 20 January, 1999 and was a last attempt by me to resolve the carting issue with Mr O'Brien. This is why I had extracted form ANL records prior to the call, the figures which appear under 13 August, 1991. $24,960-00 wages $20,000-00 contract $44,960.00

22. To the best of my recollection Mr O'Brien was paid $20,000.00 in addition to his salary for the twelve months period ending 31 December, 1990.

30. At an early stage of proceedings, when the claim had been made by Mr O'Brien in the Supreme Court, I was then represented by Fiddes Pogson & McKay, Solicitors of Manly.

31. I recall that I had been asked by Mr Pogson to extract the amount of the payments made to O'Brien Contracting from June, 1986 until 1991.

32. I extracted figures from the records then available and reported to Mr Pogson that in addition to salary payments made to Mr O'Brien, weekly payments were made to O'Brien Contracting averaging $387-00 per week.

33. I attached a schedule to a letter that I wrote to Mr Pogson but have been unable to locate that schedule in the records of ANL or the Fiddes Pogson & McKay file which is presently in the possession of Mr Taylor, my present solicitor.

49 Having in mind the absence of supporting documentation for that evidence but that it related to information prepared for the Supreme Court proceedings, the cross-examination of the second respondent continued in this way :

Q. So the position is this, you knew in 1992 or thereabouts, when Mr Pogson made this request that you were facing a claim from Mr O'Brien, correct? A. Of course I did, yes.

Q. And it may have been the proceedings had already been commenced? A. Well, the claim, as I remember, was for the cancellation of a contract and superannuation. There was no mention of outstanding wages or monies and all that seemed to creep in as time went on.

Q. That is just utterly fanciful I suggest to you Mr Soars. That was part of the original Supreme Court claim to your certain knowledge? A. If you say it was, it was.

Q. Well, are you denying what I put to you? A. You're obviously right, I'm wrong.

Q. Are you denying what I'm putting to you? A. No, I'm not denying it.

Q. To your certain knowledge the claim as originally filed in the Supreme Court included a claim for unpaid award entitlements? A. To my knowledge I went to O'Brien's solicitor in Wagga to try and negotiate a settlement on this. There was no mention ever up to that point about back wages or claims against overtime or the concocted story that is before us now. It was never mentioned. Only superannuation and contract cancelled. Nothing else.

Q. You went to see the solicitor to negotiate a settlement, didn't you? A. I did.

Q. And notwithstanding that that claim had not been finalised, you are unable to produce any of the records which you then collected together and which enabled you to come to the view that the average payment was $387 per week? A. Well, I disagree. There's at least two records there would justify an average paid over a year.

Q. You certainly can't produce the records that enabled the average to be identified across the entire period? A. I agree, yes.

Q. But just to finish then, you would agree with this much at least, that having undertaken that careful exercise that your solicitor requested, it cannot have been the case that the amount paid to Mr O'Brien averaged more than $387 a week for the period? A. I know why you asked me but I'm not an accountant and I did everything on the run. I looked at it, quickly replied to him, the letter was two pages long or I think it was one and half pages long, and it was done in a hurry. We could have paid him more, we could have paid him less but if I had said 380, well I must have come to that assumption from a set of records. So the answer must be yes.

Q. So you do everything on the run? A. Unfortunately, generally I do, yes.

Q. And necessarily when you do things on the run, you tend to make mistakes? A. We all do that.

50 A document produced by the second respondent for the first time during his cross-examination related to payments made to the applicant by the first respondent from 2 July 1981 to 1991, said to be obtained from the file of his former solicitor in the Supreme Court proceedings, was claimed by the second respondent to contain "a number of serious errors" - it was for that reason he did not earlier produce it in answer to summonses to produce documents. Without citing the whole of the contents of the document, it recorded the applicant being paid a gross weekly wage from 1 May 1985 of $266.58 and from 30 April 1986 to 1991 of $288.58; the document added : In addition to these payments E J O'Brien was paid into his transport company (business E J & J P O'Brien) starting approximately June 1986 a minimum weekly sum of $280.00. This amount was paid in cash and represented charges by O'Brien to operate a second shift. Other payments were also made from time to time in addition to the weekly amount. This method of payment was requested by O'Brien and was paid and documented by this company as petty cash along with other weekly expenses from our Tumut operation including repairs, tyres, fuel etc. Whatever else that document might establish it does show, at the least, that the second respondent knew the applicant was operating a second shift. In relation to the late production of this document, the second respondent said under cross-examination : Q. Well then, would you explain, please, why it is that the first time that this handwritten document by you prepared at the request of your solicitors and which records or purports to record actual wages paid to Mr O'Brien the first time that his Honour gets to see it is today? A. Well, I didn't think it was - I didn't think it was important. Mr O'Brien has admitted what money he received so I didn't think it was important.

Q. Mr Soars, you are astute enough I suggest to appreciate that perhaps the central contest in this case or at least one of the central contests is the amount of money that was paid to Mr O'Brien? A. No, I don't agree. Mr O'Brien has admitted that he received in transfer from the day he started to the day he finished an amount of money. I agree with the amount of money. We both agree on one thing. The contest in this whole case is how much he was paid for his contracting business, not what he was paid on the weekly wage.

Q. I suggest to you that your approach to production of documents in this case has been that you have selectively produced only those documents which you perceived to assist your case and you have withheld from the applicant and the Commission, notwithstanding notices requiring production of all documents that were fitting the description of the schedule to the notices, you have withheld documents, what do you say to that? A. I say that's absolute rubbish.

51 In relation to the events leading to the termination of their relationship in mid-1991, the second respondent denied any agreement had been made with the applicant to perform work from the Softwoods site after July 1991 when the mill closed because he rejected the applicant's offer to pay $10.00 per tonne. However, he admitted he was prepared to offer the applicant the contract at $5.00 per tonne "because of our relationship" and even though a Mr Elliot had quoted $2.50 a tonne to do the job. The applicant, on the second respondent's evidence, "became very aggressive and agitated". No agreement was ever finalised and, so, the relationship between them came to an end. Litigation, including finally the proceedings before me under s 106, was then initiated by the applicant.

52 The third respondent gave evidence. Again, I have to say, the evidence in her affidavit and that given orally was, like that of the second respondent, not entirely clear; the absence of documentary material compounded the problem. Nevertheless, she confirmed she was married to the second respondent; she was a director and shareholder of the first respondent and had been involved in its business on administrative functions for in excess of 20 years; and she was a trustee of the superannuation fund. The thrust of the third respondent's evidence was that the applicant for the first few years of his employment was paid by bank transfer and, at a later stage, additional weekly payments were made to him in cash of between $280.00 and $450.00 and such payments continued for about five years; for the period from 6 July 1988 to 28 June 1989, the cash payments to the applicant recorded by the first respondent ranged from $300.00 to $560.00 per week and totalled $16,440 in that period of 46 weeks thus giving an average weekly amount of $357.40.

53 William Eric Stewart swore an affidavit on behalf of the respondents. He had been employed by the first respondent since about 1982, originally as a truck driver; in 1986 or 1987 he worked in the first respondent's workshop at Badgery's Creek and in 1989 he was appointed as the workshop manager. The essence of his evidence was stated in his affidavit as follows : 7. From 1982, I regularly loaded bark at the Tumut depot of ANL. I loaded the bark from a stock pile at Tumut and drove it to Badgerys Creek.

8. I only recall seeing Mr O'Brien once during the day during my trip.

9. I do not recall ever seeing Mr O'Brien on any evening that I went there.

10. I do not recall seeing Mr O'Brien at the adjacent CSR Mill which was about 50 metres away during the evening.

11. I do recall seeing a truck which I identified as being used by Mr O'Brien under the conveyor at the CSR Mill loading pine bark. He added that he regularly took pay envelopes to the applicant and noted the attached slip showed "a payment to Mr O'Brien of about $400.00". As to his visits to the yard at Tumut, Mr Stewart gave the following evidence under cross-examination : Q. And your evidence earlier on today was that your purpose at the ANL yard was to get the truck in, get a load, and get it out? A. Yes.

Q. You weren't taking any particular notice of what else was happening to the point where you were unable to say who was driving the truck, but you did see unloading bark from time to time in the ANL yard? A. I had seen the truck, yes, on a couple of occasions, like I did say the majority of times that I went to that yard was in the night. I did the majority of my trips in the night.

Q. Just to focus on the question, you were intent on doing your job, getting the truck in and getting a load and getting out and not particularly focusing on what else was happening around to the extent that you are unable to identify who it was that was driving the truck, but you did see him loading bark from time to time? A. That's right.

Q. So you are not in any position to say that Mr O'Brien was in fact not working at the mill, or indeed driving that truck on the occasions that you visited the yard, that's correct, isn't it? A. That's correct.

Q. All you know, he may not have been working, you simply didn't see him, or didn't take any particular notice? A. He may have been.

54 Jeffrey Warren Lennox, who had been employed by the first respondent since about 1987 as a truck driver, gave evidence for the respondents. Between 1987 and 1991 he regularly travelled in his work between Sydney and the Tumut mill. During this period he delivered pay envelopes to the applicant and noted the amount was about $400.00. Mr Lennox said "(he) regularly saw Mr O'Brien when (he) went to the Tumut yard during the day but not always" and "from time to time (he) went to the yard at night and saw him much less frequently". In cross-examination, Mr Lennox gave the following evidence : Q. You used to see him on a regular basis when you were visiting the yard I take it? A. Yes, on a regular basis, yes.

Q. That was during the day time and during the night time as well? A. Most of my daily runs, because we had a set run, I had to go into Canberra first, deliver a load if I will a load but generally pick up a load from Canberra to take to the CSR in Tumut and then leave the CSR mill and go up to our yard which is only a couple of kilometres away and then load and come home.

Q. But did you see him at night as well on the odd occasions you did the night trip? A. On the odd occasion. If it required going down at night time I did see Teddy on occasions, yes.

Q. And you saw him less frequently because those trips were much less frequent? A. That is right, yes. The night times ones, yes.

55 William Bernard Hart gave evidence for the respondents. He had been employed by the first respondent since about 1979 as a driver on the Tumut run for about three years and then became the first respondent's workshop manager at Terrey Hills for two years. In 1983 or 1984 he was appointed the operations manager at the Badgery's Creek workshop. Central to his evidence is what he said in his affidavit as follows : 14. In about 1985 I recall having a conversation with Pat Soars.

Soars: "Teddy is now working on contract for us at about $20-00 an hour. He'll call you with his hours and you can tell us about it. We'll give you cash and you can give it to a driver to deliver to Teddy."

15. Thereafter, I had a discussion with Ted O'Brien in which he said to me:-

"Pat's arranging to pay me some additional money which you are to send to me. If I'm not there, just tuck the envelope under the seat in the loader.

16. Thereafter, I regularly spoke to Ted O'Brien either weekly or monthly.

56 Interestingly, Mr Hart said in cross-examination that the applicant "became a contractor" in about 1985; however, I observe that that was inconsistent with the second respondent's evidence who said the applicant during the whole period was an employee of the first respondent. In response to the proposition that he did not know very much at all about the Tumut position with the applicant, Mr Hart responded "well, I used to go down there for a couple of years myself driving".

57 The final witness for the respondents was Gail Ash who swore an affidavit but was not cross-examined. Ms Ash was presently employed by the first respondent on a part-time basis as an accounts/payroll clerk and recalled the applicant worked for the first respondent at Tumut until about 1991. She recalled also that the first respondent made regular payments to the applicant out of petty cash but she could not recall the amount or frequency of those payments.

Approach to the evidence and assessment of witnesses 58 The written outlines of submissions by both Mr Lawler and Mr O'Loughlin helpfully identified the issues to be decided in this case by reference to the evidence. It should be observed that that evidence was quite detailed and much of it was in conflict, compounded no doubt by the difficulties of the relationship between the parties lasting for 11 years but commencing 21 years ago, the delay in bringing this action and the absence of relevant documentation. I have endeavoured earlier in these reasons to set out as completely as possible the major pieces of evidence to enable a determination of the issues. Having in mind the identified difficulties, I have approached the process consistent in a conceptual way with what was said by Street CJ, with whom Gordon and Campbell JJ concurred, in Howe v Teefy [1927] 27 SR (NSW) 301 at p 306, namely : The question in every case is has there been any actual loss resulting from the breach of contract complained of. There may be cases where it would be impossible to say that any assessable loss had resulted from a breach of contract, but, short of that, if a plaintiff has been deprived of something which has a monetary value, a jury is not relieved from the duty of assessing the loss merely because the calculation is a difficult one or because the circumstances do not admit of the damages being assessed with certainty.

59 Here, of course, the task under s 106, it being common ground that the subject contract and arrangement met the necessary jurisdictional test of leading to the performance of work in an industry, is to determine whether those transactions offended one or more of the grounds of "unfairness" specified in s 105 so as to constitute each of them as an "unfair contract"; if a positive finding be found in that respect then the question involves the exercise of a discretion as to whether an order of avoidance or variation should be made; and, if that too be decided in a positive way, then the next step in the exercise of discretion is whether an order should be made for the payment of money in connection with the contract and arrangement so declared void or varied: see Port Macquarie Golf Club v Stead (64 IR at pp 59-60). Howsoever difficult that process may be in the circumstances here, it is a process which must necessarily be completed on the evidence available and with a conclusion reasonably and properly open on that evidence.

60 In attending to the issues it is necessary to compare the evidence of the principal witnesses, respectively the applicant and the second respondent. I have to say I did not feel entirely comfortable with the evidence given by either of them. I do not suggest they deliberately set out to avoid the truth of what actually occurred but rather that each sought to put the most favourable view of the position consistent with their own interests. I think exaggeration, perhaps coloured by some reconstruction of events and conversations, no doubt in an attempt to give as complete a picture as possible, is one way in which to view the evidence.

61 Notwithstanding the long lapse of time, the applicant put his case at its highest based on his allegedly clear recollection of events occurring from 10 to 21 years ago but absent documentation which detailed the position in a continuous manner. Even so, and to be fair to him, the applicant could be expected to recall the general course of his employment history as to the initial work arrangement (supported by the letter of 15 July 1980 from the first respondent and signed by the second respondent), the time he first owned and worked on a farm, the arrangement regarding superannuation, the approximate date the Tumut mill commenced double shifts (supported by the evidence of the weighbridge records and the evidence of Mr Milliner, Mr Murray and Mrs O'Brien), his status in performing the work on the second shift as an employee and not as an independent contractor (including any understanding discussed with the second respondent as to remuneration), the general scope of his work, the arrangement discussed in 1991 for the carting of bark following the closure of the mill and the events leading directly to the termination of the relationship. The areas of concern I had about the applicant's evidence concerned the high number of hours allegedly worked by him (particularly after the commencement of the double shifts at the mill), his failure to take any annual leave or sick leave in the 11 years of employment, the extent to which he was on-call and actually returned to work at the yard, his apparent failure to complain to the first respondent about working from 60.5 to 88 hours per week during the period of six years from mid-1985 to mid-1991 (particularly in light of the level of payments made to him for that work) and his ability to perform long hours of work for the first respondent from about April 1987 when he commenced the contract to cart wood shavings for ACI.

62 I observe, however, that those matters which I accept were within the reasonable recall of the applicant related more to issues of liability for or exposure to an order under s 106(1) for avoidance or variation of the contract or arrangement whereas the identified areas of concern about his evidence related more to the making of a consequential monetary order under s 106(5) in connection with the contract or arrangement so declared void or varied. It is in that latter respect, it seems to me, that the difficulties in assessing the evidence arose and as to which the process of quantification has to be approached doing the best one can with the evidence as it stands. Otherwise, I think the applicant's evidence was credible and presented as a consistent history during the operation of the work relationship from mid-1980 to mid-1991.

63 As to the second respondent's evidence, overall I found it to be unimpressive. In reaching that view, I have taken into account in his favour the absence of documentation and resultant difficulties he must have had in recalling events. However, those difficulties, in a sense, were self-inflicted by the destruction of the records at a time when the second respondent (and, hence, the first respondent) knew of the claims by the applicant in the Supreme Court in relation to underpayment of wages and superannuation. A troubling aspect, of course, was the way in which some documents came to light during the course of the proceedings before me for the first time with an explanation by the second respondent that he had not earlier produced them because he did not think they were relevant or were erroneous - in my view, the documents concerned, on their face, were plainly relevant to the present issues. Even so, the second respondent gave forthright evidence as to what he said occurred but which, on a review of it, disclosed internal inconsistencies and improbabilities, including differences with the evidence given by witnesses called for the respondents. I formed the view that he was aggressively defensive in his answers to questions, seemed to take exception at having to meet the claims brought by the applicant (described by the second respondent as "fabricated and false") and, most importantly, answered many questions either by avoidance or in an equivocal manner and in a way best suited to the respondents' case. I mention too that on a number of occasions the second respondent objected to answering questions relating to taxation matters on the ground that his answers might tend to incriminate him and he thereupon gave evidence with the protection of certificates issued under s 128 of the Evidence Act 1995.

64 I accept Mr Lawler's criticism of the second respondent's evidence, to the effect that, as counsel said, "your Honour would not have been impressed with Mr Soars' evidence. He was repeatedly evasive. He repeatedly gave contradictory evidence. He repeatedly gave evidence that was just patently unsatisfactory ... ". In the result, where inconsistency arises I prefer the evidence of the applicant to that of the second respondent. In doing so, I acknowledge Mr Lawler's submission that the applicant "gave generally credible and consistent evidence" whilst at the same time conceding "a few points of tension due to (the applicant's) manner of answering questions". In any event, as will appear from an analysis of the evidence, apart from the single issue of credit there were other objective factors established supporting the applicant's version of events as distinct from that put by the second respondent.

Unfairness in the initial contract and arrangement 65 The nature of the initial contract made in mid-1980 is fundamental to the issue of the liability of the respondents in this case. I am satisfied that the relationship was entered into following concerns held by the second respondent that the first respondent was at risk of losing the source of wood bark from the PGH mill, a source which was crucial to and formed a large part of the first respondent's business, because of the unsatisfactory performance of its employee then doing the job. The applicant had long experience at the mill as an employee of PGH, was familiar with its operation and was regarded as competent by PGH - he was, therefore, ideally suited for the first respondent's purposes to be employed as its sole operator in the area to perform the specific work. It is clear to me that the applicant was somewhat reluctant to leave PGH, due to his long service of 15 years, but he was prepared to work for the first respondent for more money and, in particular, to obtain the benefits of superannuation which he did not enjoy with PGH; his requirement was for a weekly wage of $300.00 nett. The first respondent, as the second respondent admitted in evidence, was not prepared to pay more than $300.00 and, so, it structured its offer as set out in the letter of 15 July 1980 confirming the agreement reached, namely, "$300.00 clear per week" but where the first respondent's books were "written up for a gross wage of $180.00 per week and taxed $34.45". The effective result was that the applicant achieved the wage he desired and the first respondent achieved its aim of not paying more than $300.00 (plus tax of $34.45). It is unnecessary for present purposes to explore further the tax implications and it is sufficient to note that the wage arrangement as formed represented a gross payment to the applicant of $334.45 per week.

66 Putting aside the issue of superannuation which will be dealt with separately, I do not find the contract of employment, on its face, was unfair in terms as to wages at the time it was entered into. The remuneration received by the applicant for 40 ordinary hours work per week plus overtime of about six hours per week was, on the agreed figures under the Transport Industry (State) Award, up to $42.00 higher than the award rate. That position continued until the beginning of 1984 when increases in award rates, without increases in remuneration to the applicant, resulted in weekly underpayments to him of from about $37.00 in 1984 to $54.00 during the first half of 1985. In the result, the contract when made had the real potential to become unfair as being designed to, or did, avoid the provisions of an award: see para (d) of the definition of "unfair contract" in s 105. I find, therefore, that the contract for that reason was an unfair contract as from its commencement in July 1980.

67 As to annual holidays, public holidays and sick leave the contract provided that payment therefor would be at the rate of $180.00 per week instead of the total wage paid to the applicant of $334.45. Such a contractual provision was directly contrary to the Annual Holidays Act 1944 as to the rate of payment for annual leave and against the provisions of the Transport Industry (State) Award as to the rate of payment for public holidays and sick leave. I find, therefore, that the contract for that reason was an unfair contract from its commencement in July 1980 as being unfair and against the public interest: see paras (a) and (b) of the definition of "unfair contract" in s 105.

68 To the extent the first respondent claimed the applicant himself dictated the terms of the original contract, and thereby relieved the first respondent of any unfairness, I find no support for that in the evidence. It was said by the second respondent that the applicant owned a farm and desired flexibility in the work arrangements to allow him time to work on the farm and, also, he was concerned at the taxation consequences of earning too much additional income from the first respondent so that the irregular nature of the agreement as to remuneration thereby favoured the applicant. I am satisfied, on the evidence, that there was no support for that approach. Plainly, in my view, and I think the second respondent eventually acknowledged this in evidence, the applicant did not own a farm until 1988; further, there was simply no evidence, nor even was it suggested in the cross-examination of the applicant, that he set out in making the contract to achieve for himself taxation advantages. The only inference open, and which I draw, was that the contract as formed not only contained the elements of unfairness as indicated above but was so formed on the initiative of the second respondent with taxation advantages accruing to the first respondent. That conclusion is supportive of the said contract being avoided under s 106 from its commencement in July 1980.

69 I interpose at this point consideration of the collateral arrangement dealing with superannuation. Accepting, as I have, the evidence of the applicant in preference to that of the second respondent, it follows that the agreed rate for superannuation contributions was $2,000 per annum as alleged by the applicant and not $520.00 per annum as claimed by the second respondent. In any case, there were other factors supporting this conclusion. The availability of a superannuation benefit was, of course, the incentive the applicant needed to change employment from PGH to the first respondent - he was emphatic about that. The letter of 15 July 1980 was silent on the contribution rate, mentioning only it was a "non-contributing superannuation fund, which basically is a life assurance policy covering you for 24 hours, 7 days per week with a retirement payout figure, should you stay with us until the age of 65." However, the only documentary material initially produced concerning superannuation was by the applicant being a series of letters during August and September 1991, following the termination of the relationship between the parties, and the trust deed of the superannuation fund with the rules thereunder. In a letter dated 29 August 1991 to the second respondent as a trustee, the administrator of the fund, Scott & Co, indicated that "an initial contribution was made on behalf of the (applicant) for the year ended 30 June, 1980. No further contributions were made subsequent to that date". The quantum of the single contribution was not stated but it was said in the letter that on termination "the amount due to (the applicant) would be the above mentioned $6,570 less any long service leave, as appropriate". Then, during the course of the proceedings, the respondents' solicitor produced a letter dated 29 November 1993 from the first respondent stating that, with interest, the principal amount of $6,570 had increased to $7,377.94 as an amount due to the applicant.

70 Mr Lawler completed an exercise, based on Reserve Bank money market rates and as detailed earlier in these reasons, which showed a single contribution amount in 1980 of $600.00 would have increased to about $2,163 in 1991; a corresponding contribution of $2,000 would have increased to about $8,500 but, with a deduction for long service leave, the nett amount would be $6,000. It is evident that that exercise cogently favoured the initial contribution as having been $2,000. The fact only one annual contribution was made is beside the point on this aspect of what was the rate agreed in 1980 at the commencement of the employment - I find it was to be $2,000 per annum. That the arrangement as to superannuation permitted the first respondent to make only one contribution, contrary to the agreed position for annual payments, and even then in a context where it was argued by the first respondent that the contribution was agreed as only $520 per annum, in my view, makes as relevantly unfair, harsh and unconscionable the superannuation arrangement collateral to the contract of employment from its commencement in July 1980: see para (a) of the definition of "unfair contract" in s 105.

71 As the letter of 29 August 1991 noted, cl 14.3 of the superannuation trust deed provided on the termination of a member, such as the applicant here, the absolute discretion vested in the trustees to deduct from any benefit payable from the fund the amount payable to that member for long service leave due at the date of termination. Such a provision arose for consideration by Watson J in Smith v Craig Mostyn & Co Pty Ltd [1984] 2 NSWLR 393; [1984] AR (NSW) 565; and [1984] 8 IR 344 as to whether it offended against s 88F of the former Industrial Arbitration Act. His Honour observed (at p 404; p 574; and p 352) :

Clause 14(iv) is clearly an anachronistic provision. Combined with cl 14(ii) it is revealed as a device which in effect requires a member of the fund to defray the cost to the company of his long service leave out of moneys to his credit which, if maintained on a basis which paid some regard to long service, would be at a substantially higher figure in the case of a long service member such as the applicant. In the light of the Long Service Leave Act 1955, s 5(3), I am satisfied also that, with respect to the applicant, it must follow that it is also a provision which can be said to be against the public interest within the meaning of s 88F(1)(c). I respectfully agree. Therefore, I find for this reason that the superannuation fund as a collateral arrangement was unfair and against the public interest, insofar as the applicant was concerned, from its commencement in July 1980: see paras (a) and (b) of the definition of "unfair contract" in s 105.

Unfairness in the operation of the contract and arrangement 72 The applicant continued to work under the contract of employment as made in July 1980 until, as he claimed, the PGH mill commenced to work double shifts in mid-1985. Following discussions with the second respondent, the applicant agreed to work both shifts, that is, the day shift and the night shift. The second respondent was of the view that the double shifts commenced in mid-1987. I accept that the correct date was mid-1985 as alleged by the applicant and supported as it was by the evidence of Mrs O'Brien, Mr Murray, Mr Milliner and Mr Hart.

73 It was common ground, as indicated earlier in these reasons, that the applicant was an employee of the first respondent as from July 1980. However, the parties were at issue as to the nature of the relationship for the performance of the second shift at night. The applicant maintained he was an employee and, although the first respondent did not immediately pay him extra money for the night shift, he relied upon a statement, said by Mr Lawler to be a representation on which the applicant relied, by the second respondent to the effect that "I can't afford to give you a salary increase. Things are pretty tight at the moment. Don't worry mate, I'll see you right in the long run". As it happened, the applicant said his wage of $300.00 per week was increased to about $400.00 in October 1986 and to about $480.00 in January 1988. The earlier representation upon which the applicant said he relied was added to, on his evidence, shortly after the second shift commenced when the second respondent allegedly told him that a new yard to be opened on the Gold Coast would be his and the earlier promises of the second respondent looking after the applicant were repeated - the applicant said such "promises to look after me in the future stopped me pursuing a proper wage". On the other hand, the second respondent varied in his evidence from the applicant never working the second shift to doing the work as an independent contractor for $20.00 per hour. Given my acceptance of the applicant's evidence, the question remaining is whether he did the work as an employee of the first respondent or on an independent contractor basis.

74 I have no doubt, on the whole of the evidence, that the applicant performed work for the first respondent on the night shift at the PGH mill and that he did so as an employee of the first respondent. Apart from the applicant's evidence supporting that conclusion, my view is that the second respondent's evidence, as outlined earlier, leads to the same conclusion when he referred to the work performed, weekly salary arrangements, the direction and control exercised over the applicant, the applicant being "part and parcel" of the first respondent's operation and, significantly, the second respondent regarding the applicant as an employee from 1980 to 1991. The evidence as to the nature of the relationship concerning the work on the second shift was, in my view, only consistent with a relationship of employer-employee: see Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; Pitcher v Langford (1991) 23 NSWLR 142 at p 160 per Handley JA, Kirby P agreeing at p 147; and the review of the authorities by a Full Bench of this Court in Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 69 at pp 85-87.

75 It is clear to me, from the unchallenged evidence of the wage rates under the Transport Industry (State) Award, that once the applicant commenced to work the second shift the award requirements as to the level of wages for overtime and the rate of payment for long service leave, annual leave, public holidays and sick leave were, contrary to paras (a), (b) and (d) of the definition of "unfair contract" in s 105, not met. Further, if the applicant were in the circumstances as found here to be paid an amount of $20.00 per hour for working the second shift as an independent contractor then that would have been contrary to para (c) of the said definition as providing "a total remuneration that is less than a person performing the work would receive as an employee performing the work": see Huskisson RSL Sub-Branch Club v Sullivan. I would conclude, therefore, that the variation to the contract of employment made in mid-1985 when the applicant commenced to work double shifts relevantly offended the terms of s 106 as being unfair.

Termination of the employment contract 76 The circumstances of the termination of the relationship between the parties was also an issue. It appeared to be common ground that in mid-1991 the PGH mill, then owned by ACI, was sold to CSR Softwoods but was earmarked for closure in August 1991 because CSR operated a similar activity at its adjacent Softwoods mill. Thus, at that point, the closure of the PGH mill meant the work previously done there by the applicant was not to be performed by anyone. However, the first respondent made arrangements to obtain its supplies of wood bark from the CSR Softwoods mill and, with that knowledge, the applicant approached the second respondent to obtain the carting work for the first respondent from the Softwoods mill. The applicant maintained the second respondent was prepared to grant him the carting work, not as an employee on a wage but as a contractor, for the price of $10.00 per tonne. He was prepared to accept that, no doubt because of the contract he negotiated with CSR Softwoods to carry wood shavings for it for $6.26 per tonne. He said he ceased employment with the first respondent but, while awaiting commencement of the new contract, was advised by the second respondent he was no longer needed as another contractor, a Mr Elliot, had been engaged to do the work at a lower rate. The consequence for the applicant, on his evidence, was that he declined the CSR Softwoods contract because it was not financially viable without the contract with the first respondent. The ensuing period of unemployment suffered by the applicant until mid-1992 and his later difficulties has been referred to earlier in the review of the evidence and I do not repeat it. For the second respondent's part, he denied any agreement between the first respondent and the applicant for the carting of wood bark from the Softwoods mill and maintained he offered the contract to the applicant for $5.00 per tonne even though he had a price of $2.50 per tonne from Mr Elliot. The relationship between the parties thus came to an end.

Whether termination of contract a redundancy 77 Mr Lawler's argument was that there was a concluded oral agreement between the applicant and the first respondent for the cartage of wood bark from the CSR Softwoods mill which was repudiated by the second respondent. It was put, because of that unreasonable conduct by the second respondent, that the termination of the contract of employment was for reasons of redundancy for which the applicant should receive proper compensation. Also, it was said by counsel the second respondent failed to honour his representations to the applicant to look after him with future work and, to that extent, the contract of employment was unfair in not making proper provision for compensation to the applicant on the promises being broken.

78 Mr O'Loughlin denied on the facts that a situation of redundancy arose and relied upon what he described as the "classic definition" of redundancy formulated by Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd (1977) 16 SASR 6 at p 8; [1977] 44 SAIR 1202 at p 1205, as follows : ... the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him, but because the employer no longer wishes the job the employee has been doing to be done by anyone.

That definition has indeed, as I understand it, been generally adopted: see Termination, Change and Redundancy Case [1984] 8 IR 34 at p 56; Re Australian Nursing Federation [1989] 31 IR 375 at p 378; Walker v Hussmann Australia Pty Ltd [1992] 44 IR 404 at pp 449-450; Re Government Cleaning Service (Privatisation) Award (No 3) (1995) 59 IR 348 at pp 360, 366; and Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australia Branch (1995) 63 IR 1 at pp 4-5. It is significant to note that in Government Cleaning Service (Privatisation) Award (No 3) a Full Bench of the Commission was required to determine whether dismissed employees were redundant when the dismissals arose as a consequence of the privatisation of the Government Cleaning Service - a situation of redundancy was found. In dismissing the appeal against the decision of Schmidt J ((1994) 55 IR 199) in this respect, the Full Bench (59 IR at p 366) approved her Honour's reasoning and the reliance by her Honour on the following extract from Re Clerks (State) Award [1976] AR (NSW) 417 at p 431: It can fairly be said that in industrial circles the term redundancy payment had come to mean compensation for losses of various kinds suffered by employees who have given substantial service to an employer and whose services are terminated because, for one reason or another, the employer no longer needs them. In Australian Nursing Federation (31 IR at p 378), a Full Bench of the former Industrial Relations Commission of Victoria expressed the view that "termination of employment as a result of the sale of a business falls within this commonly accepted definition of redundancy."

79 In the circumstances of the present case, I accept that the closure of the PGH mill and the resultant termination of the applicant's employment, albeit that the first respondent obtained wood bark from the nearby CSR Softwoods mill by utilising Mr Elliot on a new and separate contract, should properly be described as a situation of redundancy. The fact that the mill closed through no fault on the part of the first respondent was, in my view, irrelevant. To the extent the applicant's employment contract with the first respondent failed to adequately provide, or to provide at all, for his redundancy was, in my view, relevantly unfair under s 106. And that was particularly so where the applicant was merely paid up to the time of his termination and without consideration for any severance payment for redundancy or otherwise. The unfairness so resulting manifested itself in his period of unemployment for about one year thereafter.

Summary of findings as to the challenged contract and arrangement 80 The findings I have made in relation to the impugned contract of employment and the collateral superannuation arrangement may be summarised as follows - (1) The contract made in or about July 1980 between the applicant and the first respondent was a contract of employment whereby work was performed in the transport industry.

(2) The gross weekly wage paid by the first respondent to the applicant at the commencement of the employment was $334.45, comprising a cash element of $300.00 and $34.45 group tax.

(3) The contract of employment had the real potential to become unfair as to the level of payments having in mind award provisions changing from time-to-time in the future.

(4) Initially, the weekly payments to the applicant satisfied the requirements of the Transport Industry (State) Award for ordinary hours pay and overtime, but from the beginning of 1984 the potential for unfairness crystallised as award requirements exceeded those allowed under the contract. Therefore, the contract was unfair from its commencement in July 1980 due to its potential to provide benefits less than the award.

(5) The rate of payment under the contract for annual leave, public holidays and sick leave of $180.00 per week was directly contrary to the Annual Holidays Act and the Transport Industry (State) Award, as the case may be, so as to be unfair and against the public interest from its commencement in July 1980.

(6) The contract in its terms was so formed on the initiative of the second respondent with taxation advantages accruing to the first respondent.

(7) The superannuation arrangement between the applicant, on the one hand, and the second and third respondents, on the other hand, providing benefits to the applicant under the Australian Native Landscapes Superannuation Fund was an arrangement collateral to the contract of employment.

(8) The rate of contribution by the first respondent to the superannuation fund was to be $2,000 per annum for each year the contract of employment subsisted.

(9) The first respondent made only one contribution to the superannuation fund for the benefit of the applicant in the amount of $2,000 in respect of the year ended 30 June 1981. By so permitting the first respondent to make only one contribution, instead of continuing annual payments, to the superannuation fund, the superannuation arrangement was unfair from its commencement in July 1980.

(10) The provision in the trust deed governing the superannuation fund permitting the trustees in their absolute discretion to deduct from any benefit payable to the applicant the amount payable to him for accrued long service leave due at the date of termination of employment made the superannuation arrangement unfair and against the public interest as from its commencement in July 1980.

(11) The PGH mill commenced to work "double shifts", that is a day shift and a night shift, as from mid-1985 and the applicant, in addition to continuing to work the day shift, performed work for the first respondent on the night shift and he did so as an employee of the first respondent by way of a variation to the subsisting contract of employment.

(12) Although there was no additional money paid by the first respondent to the applicant for the extra work on the night shift, the second respondent represented to the applicant that he would be looked after and benefit in the future.

(13) The contract of employment as so varied in mid-1985 was relevantly unfair in terms of the level of wages, overtime rate and the rate of payment for long service leave, annual leave, public holidays and sick leave. The applicant's weekly wage of $300.00 per week was increased to about $400.00 in October 1986 and to about $480.00 in January 1988.

(14) On the closure of the mill on 2 August 1991, the work previously performed by the applicant at that site, including in the yard, ceased and was no longer performed by anyone. The applicant was thereby terminated in his employment by the first respondent by being made redundant.

(15) The redundancy arose in a situation where the first respondent, contrary to its earlier representations and promises to the applicant, failed to provide the applicant with further work and failed to pay him any severance payments on the termination of the contract on 2 August 1991. The contract of employment was relevantly unfair in not making any, or any proper, provision for compensation to the applicant on being made redundant.

Contract and arrangement to be declared void 81 In light of the findings thus made, the question arises whether discretion should be exercised under s 106 to avoid or vary the contract of employment and collateral superannuation arrangement so found to be unfair. Notwithstanding Mr O'Loughlin's submissions to the contrary, my view of the nature and degree of the respective aspects of unfairness found in relation to the contract of employment, as varied in mid-1985, and in the collateral superannuation arrangement are such that I consider as irresistible the step of allowing appropriate relief to the applicant. I have in mind, as emphasised by Mr O'Loughlin, the factor of delay in the present claim being brought, but, as stated earlier, that may more conveniently be dealt with in determining any monies to be paid to the applicant by the respondents, including as to interest thereon.

82 In the circumstances of the nature of the unfairness, with it occurring from the commencement in July 1980 and continuing throughout the performance of the contract until its termination in August 1991, I think the appropriate relief is to declare wholly void (other than as to benefits received by the applicant thereunder) from July 1980 the contract of employment and the collateral superannuation arrangement. I propose to make orders to that effect. It remains to deal with whether any monetary orders should be made in connection with those transactions to be so declared void and, if so, in what amounts.

Hours of work 83 Fundamental to a consideration of monetary compensation to the applicant is the issue of the hours worked by him during the period of 11 years of his employment by the first respondent viewed, conveniently I think, in two periods: first, from the commencement in July 1980 to mid-1985 when he worked the day shift; and, second, from the commencement of "double shifts" in mid-1985 to the termination of the contract in August 1991 during which period he worked on both the day shift and the night shift. Involved in that exercise is a consideration of the effect on the hours worked by the applicant from April 1987 when he obtained the separate contract with ACI to cart wood shavings and the reduction in work hours from mid-1990 when a new debarking machine was installed at the mill to enable the faster stripping of wood bark.

84 In the first period, the applicant's evidence, which I accept, was that he worked 40 ordinary hours per week (8 hours per day from Monday to Friday) plus 6 hours per week overtime from call-backs to load trucks, which arrived up to 10.00 pm and occasionally at 2.00 am or 3.00 am, at weekends as well as during the week. That evidence was supported by the letter of 15 July 1980 from the first respondent confirming the employment arrangements as being "based on a 5 day week" with driving of bark trucks on "Saturdays when required" and the loading of trucks "daily from 5 am to around 10 pm if required, these loading times are not applicable on weekends". The evidence of the second respondent to the contrary, which I do not accept, was inconsistent with the terms of the appointment letter of 15 July 1980 and endeavoured to minimise the applicant's working hours because he took time off to work on his farm (but, on the evidence, he did not own a farm until 1988). Also, the second respondent minimised the hours worked by claiming there were regular break-downs of the PGH mill equipment so that the applicant had nothing to do for some days during the working week and he did not have to load trucks at night. The second respondent's position, I have to say based on very indirect and remote knowledge by him of what occurred at the Tumut site, was that the total of 46 hours work per week was merely an estimate without reference to any supporting documents. The evidence of Mr Stewart and Mr Lennox, witnesses for the respondents, did not support in any meaningful way the second respondent's evidence as they visited the site only from time-to-time when they drove trucks to collect loads but without any direct attention to what the applicant was doing. I consider the amount of 46 hours per week as claimed to have been worked by the applicant in this first period to be reasonable, made up of 40 ordinary hours plus 6 hours overtime.

85 An assessment of the applicant's hours worked during the second period from mid-1985 to mid-1991 is more difficult. The effect of the applicant's evidence was that with the "double shifts" he worked hours as follows Hours worked per week Monday to Friday

In mid-1990, with the use of the new debarking machine, the applicant said he worked between 10 and 12 hours each day so that his total weekly hours were reduced from 88 to 60.5. It should be noted that during 1985 the ordinary hours of work under the Transport Industry (State) Award were reduced from 40 to 38 per week.

86 The evidence of Mrs O'Brien supported the claimed hours worked by the applicant and, in particular, the additional work performed by him during weekends. When the applicant commenced the ACI shavings contract in April 1987, Mrs O'Brien said she went to the mill on a regular basis each day after taking the children to school and she loaded the wood shavings into trucks ready for the drivers to transport; at those times, she saw the applicant performing his usual work in relation to the wood bark. Mr Murray's evidence was to the effect that, as a supervisor for PGH at the mill, he saw the applicant during both shifts of the mill's operation and he "did his work during both shifts". Mr Milliner said the mill was equally busy during both the day shift and the night shift and from his observations the applicant worked during both shifts performing the same type of work. I should add that both Mr Murray and Mr Milliner were permanently employed at the mill during the relevant period. Against that evidence, witnesses for the respondents visiting the mill either during the day shift or the night shift did not always see the applicant but they conceded the irregular nature of their visits and where in fact the applicant may have been present. In balancing that evidence, and accepting as I do the overall thrust of the applicant's evidence, it emerges at the least that he performed work during the period concerned on both shifts to a not insignificant degree and where he responded as required to call-backs. The position may be tested once one accepts, and I have no reason not to do so, Mr Milliner's evidence that "the mill was generally just as busy during both shifts"; there was no issue in the proceedings that the work to be performed on both shifts by the applicant was not performed and so much was clear from Mr Murray's evidence, unchallenged as it was, that "everything was clean and tidy which it always was".

87 Notwithstanding, as I have said, my acceptance of the overall thrust of the applicant's evidence, I have difficulty in accepting the particular quantum of the hours claimed to have been worked by him during this second period from mid-1985 to mid-1991. For instance, and allowing for weekend work, 80 hours for a 5-day week would mean the applicant worked 16 hours per day for some years; and then he worked a further 8 hours on Saturday and/or Sunday. Whilst not impossible, I consider that position to be unlikely week after week, particularly given his lack of sick leave. The delay existing in this matter leading to the associated difficulties of recalling events 10 to 16 years ago means, in my view, that the weekly hours claimed during this second period are unreasonably high. I do not for one moment suggest that in some weeks the applicant may not have worked 88 hours but, looking at the whole period, I do not think he did so each week.

88 Doing the best I can on the evidence, I find that from 1 July 1985 to 30 June 1990 the applicant worked under his contract of employment with the first respondent total average weekly hours of 64 (60 ordinary hours from Monday to Friday, 2 hours on Saturday and 2 hours on Sunday); and from 1 July 1990 to 2 August 1991 he worked total average weekly hours of 54 (50 ordinary hours from Monday to Friday, 2 hours on Saturday and 2 hours on Sunday). I have not reduced the work hours from April 1987 when the ACI shavings contract started because that reasonably appeared to have been accommodated by the applicant during breaks and by using the services of his brother, Mr Assal O'Brien.

89 I was concerned at the applicant's claim he did not have the opportunity during his employment "to take any proper annual leave". This seemed to arise, notwithstanding the annual close-down of the mill for four weeks during the Christmas-New Year period, due to his on-call commitments. Also, as the period was a peak time for bush fires, he said he was required to attend the mill every day during the close-down to check the security of the piles of bark from fires caused by the spontaneous combustion of wet bark subject to the heat of the day. Mrs O'Brien confirmed his duties in this respect and complained they were thereby unable to absent themselves from the area during the holiday period. In this respect, in assessing the applicant's evidence, I note the second respondent's concession that no fires occurred during the period of the applicant's employment but after he left in 1991 fires did occur, including a major fire.

90 Another concern I had about annual leave was the second respondent's admission that it was paid at a much lower rate than the ordinary wage received by the applicant, certainly less than the award rate. Accordingly, the applicant claimed payment during the annual close-down period for annual leave underpaid and for call-backs of four hours for each of six days a week for four weeks.

91 I accept the applicant's evidence that he was required to attend the mill during the close-down period each year to check the security of the wood bark, but, I am not prepared to accept the frequency and duration of his visits. I find the applicant so attended, on average, on four occasions per week for one hour on each occasion for each of the four weeks of every annual close-down period.

92 I summarise my findings relating to the average weekly hours worked by the applicant as follows - (1) In the period from 1 July 1980 to 30 June 1985, the applicant worked total hours of 46 - 40 ordinary hours from Monday to Friday, 3 hours on Saturday and 3 hours on Sunday.

(2) In the period from 1 July 1985 to 30 June 1990, the applicant worked total hours of 64 - 60 ordinary hours from Monday to Friday, 2 hours on Saturday and 2 hours on Sunday.

(3) In the period from 1 July 1990 to 2 August 1991, the applicant worked total hours of 54 - 50 ordinary hours from Monday to Friday, 2 hours on Saturday and 2 hours on Sunday.

(4) During each annual close-down of 4 weeks over the Christmas-New Year period, the applicant worked one hour on each of 4 days per week for each of the 4 weeks during the close-down.

Termination of employment 93 I turn now to deal with entitlements of the applicant on the termination of his employment, which I take to be on 2 August 1991, in terms of long service leave and severance/redundancy payments. As to long service leave, his total service of about 11 years and 1 month made him eligible for the appropriate payment under the Long Service Leave Act 1955. The evidence showed he was paid an amount of $2,501.99 for long service leave. However, that amount, I think, would have been calculated on the rate of pay actually paid to him by the first respondent but which rate was less than the award rate. I find as to long service leave that it is only proper for a re-calculation to be made and for payment to the applicant for any balance due.

94 The termination of the applicant's employment was not accompanied by any period of notice, any severance payment in lieu of notice or any payment for redundancy. The contract of employment simply did not provide for such matters. The applicant, as earlier noted, had a period of employment with the first respondent of just in excess of 11 years and, in my view, the contract in failing to provide for a severance/redundancy payment was unfair. I find he is entitled to consideration in that respect. In Gala v State Bank of New South Wales Ltd t/as Colonial State Bank (No 2) (1998) 84 IR 216 at pp 225-226 a Full Bench of the Court, in determining a period of 9 months' salary as appropriate in that case, relevantly said on the assessment of such a payment : In assessing the amount of compensation in these circumstance we therefore consider what benefits an employee in the appellant's position might reasonably expect to receive if the respondent had retrenched the employee after 11 years of satisfactory service in a senior specialist professional position when, through no fault of the employee, that position had been made redundant. In the R edundancy Awards Case (1994) 53 IR 419 the Full Commission determined a scale under awards, on a "safety net" basis, of severance pay for employees whose employment is terminated by the employer for reasons arising from the introduction of major changes in production, programme, organisation or structure that are likely to have significant effects on employees. The standard award clause arising from that case (see, for example, Electrical Contracting Industry Redundancy and Technical Change (State) Award (287 IG 749)) provides for periods of notice (four weeks for employees with service of five years or more), and severance pay benefits (up to a maximum of 16 weeks' pay for employees with service of six or more years). Employees aged 45 years or over receive an additional 25 per cent. The Full Commission made clear that the scale was fixed on a "safety net" basis, and that many examples of employers having more beneficial schemes had been examined in the proceedings. One of those schemes was that applying in the New South Wales Public Service, described by the Full Commission as seeming "to be the lowest of all major examples tendered". That scheme provided for (at 425-426) : · four weeks notice or pay in lieu, plus · severance pay at the rate of two weeks per year of continuous service with a maximum of 26 weeks, plus additional payments where employees accept an offer of voluntary redundancy within two weeks of the offer being made: · less than one year service: two weeks pay. · one year and less than two years service: four weeks pay. · two years and less than three years service: six weeks pay. · three years service and over: eight weeks pay

Another example referred to (at 426) was the Commonwealth Bank of Australia Officers Award 1990 (unreported, AIRC, MacBean DP, Print J6205, 31 December 1990) where the severance pay scale is stated to be three weeks' pay for each year of service with a maximum of 79 weeks' pay.

The Full Commission continued (at 426-427): "Also presented were a number of private agreements or awards too numerous to note. But notice and severance pay were dealt with. Two levels of notice commonly appear, usually four or six weeks up to 45 of age and thereafter increased periods of notice and sometimes lump sum payments (eg Dunlop, Aeorospace NUW & Ors - 6 weeks in lieu $1500 ex gratia)

Ceilings of payments varied widely, the equivalent of income to retirement at 60 years or 65 years sometimes appearing, 75 weeks, 90 weeks, 79 weeks, 100 weeks. Rates of accumulation varied considerably with perhaps four weeks per year of service being the most common.

Again in a tabulated series of examples in New South Wales - three or four weeks per year of service is strongly predominant over the sample with a 10 per cent to 25 per cent increase for employees over 45 years most commonly appearing." 95 In the present case, the applicant suffered a lack of notice and was not afforded benefits which may usually be expected to flow on termination of employment by reason of, as occurred here, a redundancy situation. In addition, with the variation of the employment contract in mid-1985 when the applicant worked extra hours to accommodate the double shifts worked at the mill, the then representations and promises to him by the second respondent on behalf of the first respondent that he would be "looked after" were never given effect. I find it reasonable for the applicant to be paid an amount for lack of notice of termination of employment and for the first respondent's failure to pay redundancy benefits. I consider such amount so as to cover both aspects should be assessed at 34 weeks' ordinary pay based on the rate under the Transport Industry (State) Award.

Monetary order - Contract of employment 96 In light of the findings I have made concerning the unfairness in the contract of employment, I consider the appropriate exercise of discretion in the circumstances of this case warrants the making of a monetary order in favour of the applicant against the first respondent. Such order should reflect the earlier findings I have made as to the hours worked, underpayment of wages, call-backs during annual leave and payment on termination of employment for long service leave and severance/redundancy. However, I propose that two qualifications be made to that assessment. First, I accept Mr O'Loughlin's submission in respect of the period of employment from 1 July 1980 to 30 June 1985, during which the applicant worked without complaint, as not requiring any adjustment for underpayment of wages or for call-backs during annual leave. I reach that view having in mind it occurred from 16 to 21 years ago and, I emphasise, the applicant made no complaint until February 1992 at the earliest and the present proceedings were not initiated until July 1998. The second qualification concerns the interest claimed by the applicant on monies found to be due to him calculated on an annual basis for each year since 1985. In my view, it is well settled that in proceedings under s 106 the awarding of an interest component is a matter of discretion to be exercised in the particular circumstances of the case: see Abboud v State of New South Wales (Department of School Education) (No 2) (2000) 99 IR 299 at pp 303, 306-307. In Hurley v Art Printing Co (54 IR at p 286), a case, as here, which involved a delay in the bringing of the action, I had occasion to comment : For the reasons set out earlier as to the delay by the applicants in bringing this action, I am not prepared to award interest on the monies due to them for any period before the summons was filed on 20 April 1993. I am prepared, however, to allow a component for interest for the period from then until the date of judgment on the monies found to be due to the applicants using as a basis the rates prescribed in Sch J to the Supreme Court Rules 1970 for interest up to judgment under s 94 of the Supreme Court Act 1970.

97 For the same reason, here I would allow an interest component on monies found to be due to the applicant but only from the date the summons was filed on 2 July 1998 until the date of judgment. For completeness, I make clear that the interest component should be referable to the monies due as to underpayment of wages, annual leave, long service leave and severance/redundancy payments. I do not propose in this judgment to myself calculate the quantum of the monetary order. Mr Lawler during the proceedings provided a spreadsheet which calculated in a detailed manner the amounts concerned in accordance with the applicant's claims and in respect of which there was no issue as to its mathematical accuracy. I think it preferable for the monetary calculation to be made by the parties by applying the findings I have made to the figures concerned.

Monetary order - Superannuation arrangement 98 It remains to deal only with the applicant's claim in relation to the superannuation arrangement. In accordance with the findings I have made in this respect, I would propose a monetary order be made for a benefit payable to the applicant by the second and third respondents, on a joint and several basis, calculated as an annual contribution of $2,000 commencing on each 1 July for the 11 years from 1980 to 1990, that is, total capital contributions of $22,000. I note that Mr O'Loughlin conceded commercial interest should be payable on any superannuation amount found to be owing to the applicant. I think that concession was properly made and I will adopt it, such interest to accrue on the respective cumulative capital sums from 1 July 1980 to the date of judgment.

Orders 99 In summary, I find the subject contract of employment, as varied from time-to-time, and the superannuation arrangement to be relevantly unfair within the scope of s 106 of the Industrial Relations Act. I would propose orders be made under s 106(1) and (5) thereof to the following effect -

(1) A declaration that the contract of employment made between the applicant and the first respondent in or about July 1980, as varied in mid-1985, is wholly void with effect as from its commencement on or about 1 July 1980, other than as to benefits received thereunder by the applicant.

(2) A declaration that the superannuation arrangement made between the applicant and the respondents in or about July 1980 is wholly void with effect as from its commencement on or about 1 July 1980.

(3) An order for the payment of money by the first respondent to the applicant, less payments already made to him, in connection with the contract of employment so declared void to reflect the findings made as to the components of :

(a) underpayment of wages referable to the hours worked from 1 July 1985 to 2 August 1991 at the rates prescribed from time-to-time by the Transport Industry (State) Award;

(b) call-backs during periods of annual leave in each close-down over Christmas-New Year for the six years from 1985 to 1990;

(c) re-calculation of annual leave payments due for each of the six years from 1985 to 1990 and proportionate annual leave due on termination of employment on 2 August 1991, pursuant to the Annual Holidays Act 1944 by reference to the ordinary rates of pay prescribed at the relevant times by the Transport Industry (State) Award;

(d) re-calculation of long service leave due on termination of employment on 2 August 1991, pursuant to the Long Service Leave Act 1955 by reference to the ordinary rate of pay prescribed at that date by the Transport Industry (State) Award;

(e) severance/redundancy payment of 34 weeks' wages based on the ordinary rate of pay prescribed by the Transport Industry (State) Award as at 2 August 1991; and

(f) interest on the total amounts in paras (a) to (e) inclusive hereof from 2 July 1998 to the date of judgment at the rates prescribed in Sch J to the Supreme Court Rules 1970.

(4) An order for the payment of money to the applicant by the second and third respondents, for which amount each of those respondents shall be jointly and severally liable, in connection with the superannuation arrangement so declared void to reflect the findings made as to the components of :

(a) an annual contribution rate of $2,000 per annum; and

(b) interest on the cumulative amounts in para (a) hereof at commercial rates from 1 July 1980 to the date of judgment.

(5) An order that the respondents pay the applicant's costs of and incidental to the proceedings, for which amount the respondents shall be jointly and severally liable, in an amount as agreed or assessed.

100 Draft minutes of orders to give effect to those so proposed should be prepared by the applicant to be filed and served within 12 days of the date hereof. I appoint 9.30 am on Monday, 16 July 2001 to settle and make final orders. _______________________

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.