Case: R v Associated Northern Collieries [1911] HCA 73 ; (1911) 14 CLR 387
Outcome: cited
On Monday 20 August, Sutherland sent an email to Mighell which stated: 'Dean - Attached is a draft agreement as prepared by our solicitors. Please call me call me on Tuesday, if you can. Regards Col [Sutherland] ' 74 The email attached a draft heads of agreement between Edison and the CEPU that had been prepared by Corrs. The draft heads of agreement was phrased in language that differed considerably from the 13 August letter. Clause 4.1 of the draft heads of agreement provided: '4 THE COMPANY SHALL 4.1 The Company [Edison] shall request that companies that: (a) are contracted to work for the Company at the Site; and (b) who employ people whose employment is governed by the National Electrical, Electronic and Communications Contracting Industry Award 1998; have acceptable industrial arrangements in place before work is commenced.' 75 Sutherland gave evidence that he thought that the draft heads of agreement would be 'the solution' he and Burns were looking for. He was not examined on whether he spoke to Mighell on Tuesday 21 August as foreshadowed in his 20 August email, although Sutherland confirmed that it was his intention to speak to him the day after sending the email. 77 On 23 August, an email was sent to Burns' email address at 3.49 pm from an officer of the CEPU, Jesse Maddison ('the CEPU's email'). The CEPU's email stated: 'Col [Sutherland] , Please find attached document as discussed. Peter [Mooney] * ==================== * Jesse Maddison Industrial Officer Electrical Trades Union of Australia 516-520 Swanson Street Carlton South VIC 3053' 78 A marked-up version of the draft heads of agreement was attached to the CEPU's email. An additional sentence had been added to cl 4.1, which is of particular significance in the present case. As revised, cl 4 provided: '4 THE COMPANY SHALL 4.1 The Company shall request that companies that: (a) are contracted to work for the Company at the Site; and (b) who employ people whose employment is governed by the National Electrical, Electronic and Communications Contracting Industry Award 1998; have acceptable industrial arrangements in place before work is commenced. What constitutes acceptable industrial arrangements includes having a current certified agreement with the union. ' Sutherland was not asked any questions about the discussion with Mooney that Mooney refers to in the CEPU's email. 79 Upon receipt of the CEPU's email, Burns and Sutherland discussed Edison's proposed response. They agreed that the proposed changes should be accepted and a response put back to the CEPU as a matter of urgency. Sutherland recalled thinking that he had had enough of this issue and it was of paramount concern to press on in order to get the Simon Engineering site agreement signed. Burns said that he was standing beside Sutherland as Sutherland dictated the reply email to Ms Jongerius, Burns' personal assistant. Sutherland said that they discussed the response by telephone he said he was in Melbourne but confirmed that the actual words of the email were at his suggestion. I prefer, and accept, Burns' evidence. 80 The reply email was sent to the CEPU from Burns' email address at 4.19 pm. It stated: 'Urgent Attention: Dean Mighell, Peter Mooney This note is to confirm Edison Mission Energy's acceptance of your attached document (no changes made by EME) as the text of our Agreement pertaining to contract labour on the proviso that the Simon Engineering Valley Power Site Agreement is appropriately signed today. Our signed copy of the Contract Labour Agreement will be delivered to your office tomorrow morning in exchange for a copy of the signed Simon Engineering EBA. Regards, Col Sutherland\Paul Burns.' 81 Burns said that he understood that the revised cl 4.1 specified that an EBA certified with the union would be a prerequisite for the contractors that Edison would employ. He considered that cl 4.1 represented a change in Edison's practices, as Edison had not previously insisted that contractors have a certified EBA with the union in place prior to carrying out work at the Loy Yang B site. He said that Pearson and Buckley would implement the change because maintenance work was undertaken by their department. 112 Parallel conduct can constitute circumstantial evidence from which an arrangement or understanding may be inferred: Email at 386. Where there is no direct evidence of an arrangement or understanding, an inference that such an arrangement or understanding existed may be drawn from evidence that the parties' conduct exhibits 'a concurrence of time, character, direction and result': David Jones at 468 applying R v Associated Northern Collieries [1911] HCA 73 ; (1911) 14 CLR 387 (' Northern Collieries' ) at 400. Inferences of an arrangement or understanding are apt to be drawn from circumstantial evidence when the facts are particularly within the knowledge of a party who is not called to give evidence: Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 (' Jones v Dunkel' ); see also David Jones at 465. 121 In many cases it will be necessary and appropriate to infer the subjective purpose from evidence of the conduct of the parties: see Northern Collieries at 402 per Isaacs J. Statements as to purpose from the witness box may be highly probative, but they must be tested closely and received with great caution: ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No 1) (1990) 27 FCR 460 ( 'Pont Data' ) at 482-483. 163 Sutherland's covering email to Mighell on 20 August said: 'Dean Attached is the draft agreement as prepared by our solicitors. Please call me on Tuesday, if you can. Regards Col' The terms of this email indicate Sutherland had previously discussed the question of a draft agreement with Mighell and that Mighell was aware that a draft agreement between Edison and the CEPU dealing with contract labour was being prepared by Edison's solicitors. 164 It is clear that Sutherland was in direct discussion with CEPU officers about the heads of agreement. In addition to the suggestion in the 20 August email that Mighell should call Sutherland on Tuesday, the CEPU's email of 23 August shows that Sutherland was in direct discussion with Mooney about the heads of agreement. Between 20 August and 23 August, most probably on 23 August, Sutherland told Burns that the way the draft heads of agreement was worded was not satisfactory to the CEPU because it did not give the union anything. This exchange confirms that Sutherland was in direct discussion with Mooney, and perhaps other CEPU officers, about the heads of agreement. 165 In my opinion, the fact that Edison sought and obtained Corrs' assistance in drafting the heads of agreement in the week of 13 August does not alter the probability that the 13 August letter was dispatched by Sutherland on 13 August. It is not uncommon for those charged with finding a solution to a commercial problem to arrange a solution and then seek legal advice in relation to the documentation of that solution, especially when the matter is urgent.