Case: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 
Outcome: cited
It was submitted by the applicants in the light of the foregoing authorities that in determining whether each of them is entitled to the relief sought in the present proceedings against CAO, it is necessary to consider the total relationship between the applicants and CAO, and hence all the facts and circumstances bearing upon the applicants' particular employment. In so doing, it was further submitted that the Court is entitled to have regard to conduct that occurred after the relationship commenced. I was referred to what was observed by Heydon JA (as he then was) in Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 163-164, commencing, 'The second relevant principle is that post-contractual conduct is admissible on the question of whether a contract was formed' , his Honour thereby citing authority, commencing with Howard Smith &amp; Company Limited v Varawa [1907] HCA 38 ; (1907) 5 CLR 68 at 77, in the context of his discussion of principles of contract formation. Further in Brambles at 177 on the subject of limitations upon an offer and acceptance analysis, Heydon JA adopted the following dictum of the New South Wales Court of Appeal in Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,118 (McHugh JA with whose reasons Hope and Mahoney JJA concurred) : 'Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In any dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.' It would be somewhat of an overstatement to describe the present context as involving a 'dynamic commercial relationship' , but nevertheless the foregoing dictum is by no means out of place in the present context. 117 The next segment of written submissions of CAO may be summarised to the effect that there is no evidence which established that either of the applicants perceived himself to have been in a contractual relationship with CAO, for the following reasons: (i) the applicants did not assert in evidence that they were employed by CAO during the course of their encounter with CAO; (ii) the applicants did not describe themselves in their respective applications to MES for employment in November 2004 as having been previously employed by CAO, but rather as each having been a 'contractor' at the HVO with 'the contracting company' (thereby referring to MES); I refer in that regard to their respective job application forms for permanent employment with CAO at the HVO appearing at pp 1045 and 1414 of Exhibit 1; (iii) the applicants did not describe themselves in their respective curriculum vitae as having been employed by CAO, but referred merely to their 'employment history', in the case of Mr Wilton as 'Mining Earth Moving Services 2001', and in the case of Mr Cumberland as 'Plant Operator Mining Earthmoving Services Muswellbrook...'; (iv) Mr Wilton did not describe himself in his taxation returns as having been employed by CAO, but he identified MES as the payer of his salary and wages in each of the years 2001 to 2005. In relation to that documentary material, it was pointed out by CAO that regard may be paid to subsequent conduct in order to ascertain whether a contract had or still existed (citing Brambles at [25] and Damevski at [85]), just as it is permissible to have regard to subsequent conduct in order to determine whether an intention to contract existed ( Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550, Gleeson CJ with whose reasons Hope and Mahoney JJA agreed and Damevski at [141] and [147]). 126 CAO acknowledged that the concept of a contract existing by mutual assent has been recognised in circumstances where the traditional analysis of offer and acceptance is inappropriate. I have earlier cited dicta (see [31] to [34]) in that regard appearing in Brambles, Integrated Computer Services and Damevski . In his concurring judgment in Brambles , Mason P referred to 'the difficulties of pressing too far classical theory of contract formation based upon offer and acceptance' . At the bottom line there must be satisfied at least the notion or test of mutual assent, viewed objectively from the point of view of reasonable persons on both sides to the objective candidature for establishment of a concluded bargain. Further in Brambles at [81], Heydon JA observed that '[i] n the light of the above cases, it is relevant to ask: in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the Council and a reasonable person in the position of the defendant think as to whether there was a concluded bargain?' Merely because some dealings have occurred between the prospective parties to a bargain does not necessarily mean that a contract exists. As McHugh JA said further in Integrated Computer Services at 11,117, '[t] he question in this class of case is whether the conduct of the parties, viewed in the light of the surrounding circumstances, shows a tacit understanding or agreement' , to which his Honour added '[t] he conduct of the parties, however, must be capable of proving all the essential elements of an express contract '.