Case: Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95
Outcome: applied
The issue here arising, as to whether or not a contract of employment was mutually intended to be established between the applicants and CAO, was emphasised by the applicants in any event to fall for determination by the Court objectively, and in that regard at least largely by inference from the conduct of the relevant parties, as exemplified in the following dicta of Gaudron, McHugh, Hayne and Callinan JJ appearing in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 ; (2002) 209 CLR 95 at [25] , shortly after the High Court's decision in Hollis : 'Because the inquiry about this last aspect may take account of the subject matter of the agreement, the status of the parties to it, their relationship to one another, and other surrounding circumstances, not only is there obvious difficulty in formulating rules intended to prescribe the kinds of cases in which an intention to create contractual relations should, or should not, be found to exist, it would be wrong to do so. Because the search for the "intention to create contractual relations" requires an objective assessment of the state of affairs between the parties (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word "intention" is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties.' The circumstances in Ermogenous related to the engagement of a minister of religion, and hence were somewhat distant from the industrial context here involved, and in addition there was not present as here the competing element of the existence of a third party. Nevertheless the emphasis there given to the need to take account of the subject matter of a relevant agreement, the status of the parties thereto, their relationship to another, and other surrounding circumstances are factors of present importance. I would add reference to the need for the determination objectively of the mutual intention of the contracting parties, evidence of mere subjective intention being usually of controversial weight. 109 It was contended by CAO at the outset that in order to constitute an employment relationship, the asserted parties thereto must be in a contractual relationship. So much was said to be at least implicitly exemplified by what appears in Byrne at 421 and 436. Given the variety of ways that a relationship of employer and employee may come about, formally or informally, the effectuation or otherwise of an employment relationship will not necessarily be readily cognisable, as the discussions for instance in Ermogenous at [24] and following under heading 'Intention to create contractual relations' exemplify and in Dalgety Farmers at [4] imply, see also the reference of Kirby A-CJ at [5] of Dalgety Farmers as to the need '... to look to the circumstances of the engagement and to ascertain who it was that offered employment, and whether the worker accepted that offer' . 159 CAO drew attention to the purported characterisation of the so-called triangular arrangement appearing at [52]-[53] of the reasons of Mummery LJ. I have already extracted earlier (at [85] in these reasons) much of what appears in [53]; in [51] his Lordship referred to the legitimacy of having regard to ' the fact, if it be the case, that a series or a number of transactions are intended to operate in combination with one another or are ingredients of a wider transaction intended as a whole'. That approach does not sit readily with the approach taken in the Australian authorities in relation to circumstances involving labour hire operators (such as in Forstaff). CAO's contentions were in summary to the effect that the analysis of Mummery LJ (and implicitly therefore also of Sedley LJ) fell 'rather short', in that the first issue normally required to be resolved in labour hire cases, such as Brook Street , is simply whether there existed a contract at all between the worker and the client of the labour hire agency, or else between the worker and the labour hire agency. I was referred to Ermogenous and Teen Ranch , both of which involved an issue as to whether the parties mutually intended to enter into a contractual relationship, the element of intention in that regard being paramount. The respective factual circumstances in those United Kingdom and Australian cases were some distance removed from the industrial context of the relationships involved in the present proceedings. 169 I would next move to a consideration of the detailed attention afforded by the parties to Cable &amp; Wireless , which I have earlier foreshadowed that I would do more extensively in the context of my recitation of CAO's submissions than did the applicants, CAO having given perhaps more extensive attention to Cable &amp; Wireless . That case was decided by the United Kingdom Court of Appeal subsequently of course to Brook Street by a different bench being Sir Anthony Clarke MR and Smith and Kay LJJ. The joint judgment of their Lordships at [35] expressed the opinion that '... the view of the majority in Dacas was correct'. It was submitted by CAO nevertheless that the decision in Cable &amp; Wireless was 'not compelling', in that the United Kingdom Court of Appeal once more did not address 'the fundamental problem of intention to create legal relations as a threshold question', or more precisely, to create a contractual relationship. In that latter regard, it was submitted by CAO that the Court of Appeal's reasoning in Cable &amp; Wireless was 'out of step with the law in Australia', exemplifying in that regard Ermogenous and Teen Ranch , and in any event, that the decision in Cable &amp; Wireless was of little relevance to the present case because of what was described as its vastly different factual circumstances.