Steele v Tardiani [1946] HCA 21

Steele v Tardiani [1946] HCA 21 - HCA 1946 case summary — Zoe

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feet and with a diameter of twelve inches. They further al that payment was to be at the rate of eight shillings per ton. the trial before E. A. Douglas J., without a jury, the plainti gave evidence that they had cut 2,000 tons of firewood in accordance with the terms of their contract. By his defence the defendant denied that the rate of payme agreed upon was eight shillings per ton, and alleged that th employment of the plaintiffs was in accordance with the provisi of the Firewood Cutting and Charcoal Burning Award - Southern Division made by the Industrial Court (Q.) on 23rd April 1942, which provided for a minimum rate of six shillings and one per per ton for cutting firewood of lengths not less than five feet inches and that extra work should be paid for at an additi rate as mutually arranged between the employer and his employ The defendant further alleged that the terms of the contract provide that the diameter of the firewood was to be six inches, and not twelve inches as claimed by the plaintiffs. The defendant clai that the work was not performed in accordance with the terms the contract, or the provisions of the award, and that as the work was covered by an award the matters in dispute were within the exclusive jurisdiction of the Industrial Court (Q.). At the trial defendant denied that the plaintiffs had cut the amount of wi that they claimed to have cut. F Section 17 of The Industrial Conciliation and Arbitration Ad 1932 to 1942 (Q.) is as follows: '' The jurisdiction of the Court all industrial causes, whether original or by appeal, conferred on by this Act shall be exclusive." An "industrial cause" is defined by s. 4 to include industri matters and industrial disputes. By the same section the ten "industrial matters" means inter alia matters or things affectin or relating to work done or to be done or the privileges rights 0 duties of employers or employees and includes all or any matters relating to wages allowances or remuneration of any person employ or to be employed. P The trial judge found that the contract was to cut firewood six feet in length and six inches in diameter. He also found that paj ment was originally to be at the rate of six shillings per ton, bu that, after three weeks, the rate was increased by agreement to eight shillings per ton. He also found that the amount of timb cut by the plaintiffs was 1,500 tons, split in diameters that va from six inches to fifteen inches. It appeared from the evidence that the defendant considered tha the plaintifis were bound by the restrictions imposed upon

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have been made between the parties the plaintiffs cannot recover any payment for any firewood not cut in accordance with the terms of the contract, that is, split to a diameter of six inches. In order to recover any payment in respect of such firewood the plaintiffs must claim upon a quantum meruit and such a claim cannot be allowed - unless there is evidence of a fresh contract to pay for that firewood. - It was strongly (and rightly) argued that the plaintiffs could not put the defendant in the position of having to pay for firewood not in - accordance with the contract merely because he used or sold that firewood. Such use or sale is not in itself evidence of a new contract. - The plaintiffs could not impose a new contract upon the defendant upon the basis that, unless he left the firewood to decay upon the - ground, he became bound to pay them as if he had employed them _ on other than the contractual terms. But there is, I think, sufficient evidence to support an inference of a new contract in the present - case. The relevant facts have been carefully analysed by my - brother Dixon in his reasons for judgment and I agree with the - conclusion upon this matter which he has reached. The learned trial judge calculated the value of the work by making an estimate of the quantity of firewood which was in accordance with the contract and of the quantity which was not in accordance with the contract and made a deduction from the contract price in respect of the whole quantity by making an estimate of the work which would be - necessary to make all the firewood accord with the contract. Such an estimate could not be precise, but there was evidence to support the finding made and the judgment on this part of the case should, in my opinion, be allowed to stand. It is contended, however, that the Supreme Court had no juris- diction to entertain the claim because the Industrial Conciliation and Arbitration Act of 1932 (Q.) provides in s. 7 that the Industrial Court shall have jurisdiction to hear and determine all questions arising under the Act and any question arising out of an industrial matter. ' Industrial matter" is defined (s. 4) to mean (inter alia) matters or things affecting or relating to work done or to be done. Section 17 provides that the jurisdiction of the Industrial Court in all industrial causes shall be exclusive. "' Industrial cause " includes - an industrial matter (s. 4). Section 68 provides that an award prevails over any contract so far as the contract is inconsistent with its terms. : The plaintiffs seek to avoid the application of these provisions by two arguments. In the first place it is argued that the award does not provide for splitting timber to a diameter, but only for cutting - into lengths, and that splitting is extra work under the award for -

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had left on the ground only a total of three hundred and fifty-two and ahalf tons. But the defendant called a witness whose evidence, if accepted, would make this total impossibly high. He was an _ industrial inspector whom the defendant had invoked to settle the dispute and who had inspected the timber on 24th July 1943. The _ book, which this witness produced, purported to record an amount only of twelve and a half cords and sixteen hundred and eighty-nine pieces. On the other side, Tardiani estimated the timber they had cut at two thousand tons; and the sergeant of police to whom the _ plaintiffs were bound to report deposed that he saw a large amount _ of timber cut into lengths of about six feet which was later removed _ either to Landsborough railway station or by United States Army trucks and that he estimated the quantity at fifteen hundred tons. _ Pelleri said that in August 1943 there were twelve hundred tons _ lying on the ground. The plaintiffs also called a witness who had been taken by their solicitor as an expert to examine the timber. _ The solicitor and the expert went there on 12th August 1943, about _ a month after the issue of the writ. De Mauro showed them round. _ The expert, whose evidence the trial judge described as most reliable, said that he saw the cut wood lying thickly all over the paddocks and saw many hundreds of places whence timber had been removed, the marks of which showed its length. He estimated the quantity at two thousand tons and said that the lengths were six feet mostly. _ There were a few of twenty feet, but he had not included them in his estimate. The widths were six inches to fifteen inches, mostly about twelve inches. _ There was also evidence that the average woodcutter works at the rate of about six tons a day of such wood. he plaintiffs had _ eut wood five and a half days a week during their sojourn with the _ defendant. __ The parties were irreconcilably at issue not only about the quanti- _ ties cut and about the original terms and conditions ; there was also _ @ sharp contradiction concerning an increase of price. Tardiani _ Swore, and the defendant denied, that three weeks after the work _ had begun the defendant, in response to Tardiani's representations, had agreed to increase the rate by two shillings a ton, which, on _ Tardiani's view, made it eight shillings a ton. __ &. A. Douglas J., who tried the action, appears to have resolved _ most of the foregoing conflicts in favour of the plaintiffs and it is _ Plain that, in the main, he did not accept the defendant's version _ of the transactions between him and the plaintiffs. He found that

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so much per ton for firewood cut to a length of about six feet and to a width or diameter of about six inches, it is clear that, for the greater part of the wood they cut, the plaintiffs failed to split the wood to the required width. Upon what basis then can they recover remunera- tion in respect of work incompletely performed ? It is true that they were not employed to do a single piece of work under one entire contract so that, until the whole had been substantially performed, they would obtain no right to any payment. In that sense, it is not like the contract to build two houses for a single lump sum made by the unsuccessful plaintiff in Sumpter v. Hedges (1). The contract made by the three released Italians in the present case is infinitely divisible. For I assume that the amount per ton fixed, whether six shillings or eight shillings, is but a rate of remuneration to be applied to the actual firewood cut according to the requirements of the contract, even to hundredweights and quarters. I should not think that to-day a contract to produce paper at a rate per quire would be treated as giving no remuneration for part of a quire, as it was in the seventeenth century in Needler v. Guest (2). Moreover, it would seem that the plaintiffs were employed under a contract of service and one continuing until terminated by either side: See Sadler v. Henlock (3) and Blake v. Thirst (4) and contrast Queensland Stations Pty. Ltd. v. Commissioner of Taxation (5). But it can hardly be denied that the consideration which the employees were to give for the remuneration is firewood cut according to contract and, 80 to speak, only those billets or sticks can be counted which qualify by substantial or reasonable compliance with the specifications. In this sense the terms of remuneration are " entire," or, in other words, each divisible application of the contract is entire and is only satisfied by performance, not partial, but substantially complete. For such a case falls within the general proposition stated in #. V. Williams' Notes to Saunders, 6th ed. (1845), vol. I.: Pordage v. Cole (6) : - "Where the consideration for the payment of money is entire and _ indivisible, as where the benefit expected by the defendant under the agreement is to result from the enjoyment of every part of the _ consideration jointly, so that the money payable is neither appor- _ tioned by the contract, nor capable of being apportioned by a jury, no action is maintainable, if any part of the consideration has

failed; for, being entire, by failing partially, it fails altogether."

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It is impossible, therefore, for the plaintiffs in respect of timber not split to about six inches in width to recover upon the sp contract while it remains thus open and unperformed; unless, that is, there are grounds in the facts of the case for treating them as dispensed from the necessity of splitting the wood to such a width as a condition of payment. To recover under a quantum meruit for wood split to substantially different widths from that required, the plaintiffs must show circumstances removing their right to remunera- tion from the exact conditions of the special contract. For, if no more appears, the fact of such a contract, open and, to that extent, unperformed, excludes any implied obligation on the part of defendant to pay a fair and reasonable remuneration for the work done by the plaintiffs in cutting his timber to dimensions outside those allowed by the contract. It is not enough that the work has b beneficial to him by turning his standing timber into the more valu able form of firewood. " It isa commonplace of the law that there can be no implied contract as to matters covered by an express contract until the express contract is displaced. . . . But where workis done outside the contract, and the benefit of the work is taken, a contract may be implied to pay for the work so done at the current rate of remuneration, and the terms of the express contract may remain binding in so far as they are not inconsistent with the implied con- tract": per Scrutton L.J., Steven v. Bromley & Son (1). But, "taking the benefit of the work " means that the defendant has done so in the exercise of some choice that was actually open to him. As it is put in a recent treatise, " An implicit promise to pay connotes a benefit: received by the promisor, but the receipt of the benefit is not in itself enough to raise the implication. No promise can be inferred unless it is open to the beneficiary either to accept or to reject the benefit of the work": Law of Contract by Cheshire and Fifoot, 1s ed. (1945), pp. 352, 353. The chief example of work of which the - advantage must be received and in that sense accepted by the person for whom it is done, is that of the erection or repair of a building upon the land of the person benefiting, but not erected or repaired according to the conditions of the contract: see Bullen & Leake, 2nd ed. (1863), p. 33; 3rd ed. (1868), p. 41. Of such a case Lord Campbell C.J. speaks as follows in Munro v. Butt (2) : - '" Now, admitting that in the case of an independent chattel, a piece of furniture for example, to be made under a special contract, and some term, which in itself amounted to a condition precedent, being unperformed, if the party for whom it was to be made had yet

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firewood necessarily gave him, however unsuitable to his purpose might be the actual lengths and widths ? Was he to allow the wood to rot on the ground? What practical choice had he except to make - it clear to the plaintiffs that, to obtain payment, they must split wood to the contract width, and, when they refused or failed to do so, to employ other labour for the purpose of reducing its width o1 "diameter " so far as otherwise he was unable to dispose of the firewood. Why should he be precluded from selling his wood in the shape the plaintiffs wrongfully left it? It was his wood and why - should his dealing with it imply a new contract with the plaintiffs? If it were true that he made it clear to the plaintiffs before they departed that they must complete their contract by splitting the wood to the specified width, these considerations would indeed place him in a strong position. If his evidence were accepted, the plain- tiffs would occupy the situation of a party who abandons a special contract to perform work on the property of another before com- pleting the work and leaves that other party no effective choice in accepting or rejecting the benefit. But the defendant's evidence was _ not accepted by the judge at the trial, who, on the contrary, held that, - as the timber cut, whether over six feet or not in length and whether over six inches or not in width, was sold by the defendant, he must pay a reasonable sum for that which he took and sold, even though it did not strictly comply with the terms of the original contract. What detailed facts the learned judge found on which to base this conclusion there is no express statement to show. But the rejection of the defendants testimony generally is involved in other findings _ and I think that we must take it that the defendant did not base his refusal or failure to pay the plaintiffs on their failure to split the wood to the specified width, or, at all events, did not express to the plaintiffs his insistence or desire that they should so cut it. Indeed, even in his pleading, the defendant did not take the point as to dia~ meter or width and it was only during cross-examination that it was - developed as part of the defence. . On the other hand, there is evidence, which his Honour may have - accepted, and which the learned judges of the Full Court certainly - treated as representing fact, which would authorize a conclusion adverse to the defendant. Upon the evidence it would be open to con- clude that the defendant considered that the plaintifis were bound by the restrictions imposed upon them to go on working for him and that it was for this reason that he did not pay them regularly, that he allowed them to continue cutting timber and splitting it to a~

At a glance

Court

Decision date

Before

Source

Judgment (136 paragraphs)