Case: Australian Broadcasting Corporation v XIVTH Commonwealth Games Ltd (1988) 18 NSWLR 540
Outcome: referred to
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]). 128 In the context moreover of the framework by CAO of issues and contentions, CAO emphasised that inclusion of a term or condition as to remuneration was normally an 'essential term' for expression in contracts for the provision of personal services, and submitted that what it described as the lack of contemplation or discussion relevantly as to remuneration meant that CAO did not have an agreement with either of the applicants on essential terms. I was referred in that regard again to Australian Broadcasting Corporation , where Gleeson CJ at 552 described 'the price' being 'the most important subject of their transaction' . CAO further emphasised that the applicants bore the onus of proof of the formation of an agreement referrable to essential terms. 185 To those circumstances may be added the four reasons set out in [117] above as demonstrative of and consistent with objective perceptions or intentions of each of the applicants as to an absence of his involvement in any contractual relationship with CAO consistently I think with the principle said to have been acknowledged in Australian Broadcasting Corporation . Moreover the further circumstances concerning the applicants enumerated at [120] are I think indicative of and consistent with the absence of a contractual relationship of employer and employee at all material times as between each of the applicants as an employee of the one part and CAO as the employer of the other part. Conversely, each of the matters enumerated in [122] and [123] above exemplify circumstances to the effect that CAO was privy to a contractual arrangement with MES for the supply to CAO of labour for reward to MES of persons (such as the applicants) engaged by MES to undertake mining work at the CAO mining operations conducted in the HVO, being work involving of course the operation by such persons of the mining machinery of CAO. 186 I am further of the view that CAO is correct in its postulation that each of the matters enumerated at [124] above demonstrate not only a lack of sufficiently compelling indications capable of bearing upon the existence of an employment relationship between CAO and the applicants, but indeed serve to evince the converse. Explanation is thereby implicitly provided as to why there was no requirement for CAO to enter upon, and moreover why it did not enter upon, any contract of employment with either of the applicants, and why CAO never recorded in any documentation the existence of any relationship of employment as between itself and either of the applicants.