SUBMISSIONS
For the applicant
28 Mr A Hatcher of Counsel submitted that each of the five jurisdictional requirements in s 346(1) of the Act had been made out. As to subpar (a) there could be no doubt that the applicant's company, Cruickshank Transport Pty Ltd, had taken over the business of D & K Wheeler Pty Ltd in so far as its work for the respondent was concerned. As to subpar (b) of s 346(1), similarly, there could be no doubt, from a perusal of the sale documents and the applicant's cross-examination, that an amount of $50,000 was paid as goodwill in the sale process. That is the amount of the claim in respect to the premium paid and other claims are also sought.
29 Mr Hatcher relied on the applicant's evidence about conversations he had with five other drivers concerning the custom and practice at the yard of trucks being sold with work. In the absence of any contrary evidence, the Tribunal was entitled to conclude that the other drivers were telling the truth. In addition, Mr McQuillan recounted a conversation with a Stegbar Manager, Mr Simpson, in which Mr Simpson acknowledged that goodwill applied to at least four of the owner drivers in the yard. Mr McQuillan was not called for cross-examination and Mr Simpson was not produced to contradict what it was said he had told Mr McQuillan. Mr Hatcher cited Truckbug Pty Ltd v Blue Circle Southern Cement Ltd [2001] NSWIRComm 88 at paras 18-26 as to the approach the Tribunal would adopt as to the question of whether a custom and practice of the payment of goodwill had existed.
30 As to the fourth requirement - that the principal contractor knew of the practice of goodwill - Mr Hatcher again relied on the uncontradicted evidence of the applicant, in that at the time of the sale of Mr Wheeler's business, he had told Ms Nuttal he was paying goodwill for Mr Wheeler's business. Accordingly, it was obvious that the respondent knew of the transaction and had done nothing to discourage the applicant from paying goodwill (subpar (e) of s 346(1)). Moreover, a contract which was provided to the applicant well after he had commenced work, and which referred to the prohibition of goodwill, could not possibly be used to support a proposition that the respondent had taken the necessary steps required in subpar (e) of s 346(1).
31 Mr Hatcher referred to three elements of unfairness in the termination of the applicant's contract, by again relying on the uncontradicted evidence of the applicant. Firstly, the respondent produced no evidence of the stated reason for the termination; namely, a downturn in work. Moreover, it was demonstrably unfair for notice of termination to be given only two working days after the signing of a new contract.
32 Secondly, Mr Hatcher said that a number of authorities have found unfairness where an owner driver had been terminated due to a downturn in work, without being paid compensation for the loss of goodwill: See Beck v Incitec Ltd t/as Chemtrans (1996) 86 IR 38 and Monier Roofing Pty Ltd v Quintrell (1997) 78 IR 38.
33 Thirdly, Mr Hatcher put, to make matters worse, there was another reason given by the respondent for terminating the applicant's contract - misconduct. The applicant's evidence surrounding this matter was uncontradicted and demonstrated a complete denial of procedural fairness. The applicant was never given any opportunity to answer the allegations of damaging product. The Tribunal would therefore, conclude that the allegations were entirely unfounded.
34 Mr Hatcher then dealt with the issue of compensation. He said it was plain that the applicant had completely lost the goodwill payment of $50,000. He had suffered a period of unemployment of around four weeks, equating to $14,636. He was required to refit his truck for $10,000. These claims totalled $74,636. In addition, the applicant would be entitled, for a reasonable period, to the difference between his earnings at Stegbar with his earnings at Premier and Mattrans. As total compensation, an amount of $100,000 was not unreasonable.
For the respondent
35 Mr A Moses of Counsel raised a fundamental threshold issue which he claimed was fatal to the applicant's claim being accepted by the Tribunal. Mr Moses submitted that the applicant's contract had been terminated under the contract he had signed in November 2006. Therefore, the relevant contract for the purposes of these proceedings must be the second contract which replaced the contract he signed in 2003. It followed that as the second contract had no premium or goodwill associated with it, none of the jurisdictional prerequisites to permit the claim proceeding were available. Mr Moses relied on Grech to support this proposition.
36 As an alternative submission, Mr Moses firstly, conceded that subpar (a) of 346(1) had been established, and while subpar (b) might be said to have been established, there was no specific evidence of how the $50,000 for goodwill had been determined.
37 As to subpar (c), Mr Moses submitted that the applicant's hearsay evidence, as to the custom and practice of paying premiums at the yard, was not probative evidence and a Jones v Dunkel inference could apply because the applicant had failed to call any of the other owner drivers to give evidence. He said it required more than a mere assertion by the applicant of what was said to him by others. The evidence of a custom and practice is a question of fact which must be determined by reference to the facts of a particular case.
38 In respect to subpar (d), Mr Moses conceded that, on the state of the evidence, it was open for the Tribunal to conclude that the respondent ought reasonably to have known that the premium or fee had been paid by the applicant to the previous carrier, Mr Wheeler.
39 As to subpar (e), Mr Moses submitted that the respondent had taken reasonable steps to advise the applicant that it was not a requirement for a fee or premium to be paid. Notwithstanding the evidence that the applicant received the contract after commencing work, he and his solicitor knew full well of its terms and, in particular, the prohibition of goodwill in cl 20.
40 Mr Moses put that there had been no suggestion that the reason for the respondent terminating the applicant's contract was a sham; it was a reconstruction of its business due to a downturn in work. The respondent gave the appropriate contractual notice. Nevertheless, Mr Moses accepted that there might be some potential for a finding that payment between 25 January 2006 and 16 February 2006 should be made.
41 As to any further compensation, Mr Moses submitted that the Tribunal would acknowledge that for a period of two and a half years the applicant earned considerable amounts of money; sums in excess of $170,000 a year. Whatever be his taxation arrangements, these were irrelevant to the significant amounts he had earned. Mr Moses said that there was no attempt to amortise the value of the goodwill: See Transport Workers' Union (on behalf of S & M Cincotta Pty Ltd & Ors) and Visy Board [2005] NSWIRComm 178 ('Visy'). Further, the claim of $10,000 for modifying his truck merely added value for any future resale. Mr Moses questioned why there should be a claim against the respondent for such a modification. Mr Moses added that there was no basis for a claim of the difference in the applicant's earnings after the termination of the contract where three months notice had been given; albeit if three weeks unpaid fell short of the total notice.