C2001/605, Transcript of Proceedings [2001] AIRCTrans 1920 (14 August 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE BOULTON
SENIOR DEPUTY PRESIDENT DUNCAN
COMMISSIONER GAY

C No 2001/605

SECTION 45 APPEAL BY H. BLOOMFIELD
AGAINST THE DECISION [PR900692] OF
COMMISSIONER HODDER ON 30 JANUARY 2001
IN U NO 80060 OF 2000

ALICE SPRINGS

TUESDAY, 10 JULY 2001

PN1

BOULTON J: Yes, good morning.

PN2

MR GREEN: May it please the Commission, I seek leave to appear with my learned friend, Mr Angelopoulos, for the appellant.

PN3

BOULTON J: Thank you.

PN4

MS RICHARDS: I seek leave to appear for the respondent.

PN5

BOULTON J: Yes, leave is granted in each case. Mr Green.

PN6

MR GREEN: May it please the Commission, this is an appeal from a decision of the Commission given on 30 January 2001. May we supply to the bench a copy of the chronology that we prepared, together with a sheet of authorities.

PN7

BOULTON J: Yes, I will mark the chronology as Exhibit N1.

EXHIBIT #N1 CHRONOLOGY

PN8

MR GREEN: May we take it that both sides outlines of submissions dated 4 July have found their way off the file.

PN9

BOULTON J: Yes, there were, I think, two sets of submissions which were filed by the applicant.

PN10

MR GREEN: There were, your Honour. We would ask the Commission to treat the second set as the ones as to which the argument on the appeal will be directed.

PN11

BOULTON J: So I will mark the appellant's outline of submissions which was received and which is dated 4 July Exhibit N2.

EXHIBIT #N2 APPELLANT'S OUTLINE OF SUBMISSION DATED 4 JULY

PN12

MR GREEN: May it please the Commission.

PN13

BOULTON J: Do you want me to mark the other one or not?

PN14

MR GREEN: No.

PN15

BOULTON J: No. You don't want us to have regard to it?

PN16

MR GREEN: No we don't. Can you put it to one side please. May I also inform the Commission that the argument which is a short one you are about to advance, is directed to two grounds in the Notice of Appeal. Only grounds 13 and 1. We otherwise abandon the grounds in the Notice of Appeal. The employment of Mr Henry Bloomfield who was employed by Jayrook - I think he was Manager of Knotts Creek Station, was terminated by Jayrook by a letter dated 6 January 2000. Knotts Creek is a station that is almost due east of Alice Springs and only 100 kilometres - 140 kilometres away from the Alice.

PN17

In that letter which was addressed to Mr Bloomfield a Mr Avery wrote on behalf of Jayrook solely in that it is set out in exhibit HB2 to the statement which Mr Bloomfield made and which was tendered before the Commissioner.

PN18

BOULTON J: HB2.

PN19

MR GREEN: It is Bloomfield 8 is the exhibit, and it is attachment HB2. to Mr Bloomfield's statement.

PN20

MS WEARNE: It is Bloomfield 10.

PN21

MR GREEN: Bloomfield 10 I am sorry, not Bloomfield 8. That letter, if I read you the relevant passage from it starts as follows:

PN22

Dear Henry, I have been instructed and authorised by the directors of Jayrook to write to you on behalf of the company about the future of your employment as manager. Your current contract expired on 31 December 1999. It has no provision for renewal or extension beyond that date, accordingly the directors have resolved to advertise the management's position widely and to select the person for appointment from among the applicants following - - -

PN23

BOULTON J: Just give us a moment to actually locate the document.

PN24

MR GREEN: It is attached to Mr Bloomfield's witness statement which is Exhibit 10. Bloomfield 10.

PN25

DUNCAN SDP: And it is HB?

PN26

MR GREEN: HB2, your Honour.

PN27

BOULTON J: 6 January 2000.

PN28

MR GREEN: That is the one, yes.

PN29

BOULTON J: Yes, thank you.

PN30

MR GREEN: Thus far, your Honours and Commissioner, I have been reading from the first two paragraphs of that letter:

PN31

However your contract provides that if you continue to perform in management duties beyond the term of the agreement, ie after 31 December 1991 ...(reads)...are permitted to drive the vehicles. Regards, David Avery, for and on behalf of Jayrook Pty Limited.

PN32

According to the evidence, that letter was received on 6 February 2000, a month after its date, from a Mr Simon Kearney of Mr Bloomfield's home. There is in evidence of another version of that letter and that is attachment DA8 which was Exhibit J13, being a Mr Avery's statement received below J13 DA8 sets out the same letter as to the first page from which I have just read but if members of the bench go over the page you will see there is a cc to Debbie Miller - I think it is Debbie, who I am instructed is the bookkeeper of Jayrook and there is a postscript that one finds in this version but one doesn't find in the first version from which we read.

PN33

PS: I wish to emphasise that this letter is written on the instructions of the directors. I do not intend to continue any involvement with the internal administration of the company's affair but in Simon Kearney's absence and with other staff on leave, I have been asked to ensure this correspondence is sent.

PN34

Mr Kearney on the evidence was Rural Enterprise Unit coordinator of the Central Land Council.

PN35

Now we have come to the agreement which referred to Mr Avery's letter but it was an agreement dated 6 December 1996 for a 3 year term that was expressed to end 31 December 1999. That is to be found in attachment JY2 to J1's statement tendered below that was Exhibit J1. That agreement, as the Commission will see, was one that was capable of extension under Clause 1(b) for a respective period of 2 years. So if the Commission pleases, Exhibit J1, attachment JY2 sets out the agreement of 6 December 1996. Its antecedent or its predecessor was a written agreement dated 28 February 1994 and that is set out as attachment 1 to Mr Bloomfield's statement to which we have already referred which was Exhibit B10.

PN36

Save for the dates, both agreements are in all respects identical. The only exception is that the original engrossed, the December agreement specified a period of two years as a term. When one looks at the agreement one sees that there has been an amendment in hand, signed by both parties to the agreement, deleting 2 years and inserting instead 3 years; altering the end date to 31 December 1999. Now - and this is really the heart of the submission being advanced on the appeal - Mr Avery's letter written with Mr Bloomfield's contract of employment shows that conformably with subsection 170C(1) Mr Bloomfield is:

PN37

An employee whose employment has been terminated by the employer.

PN38

Upon that basis, the jurisdictional fact therefore is sought relief below in respect of the termination of that employment. That really is the appeal for Mr Bloomfield in a nutshell. He did so of course on the ground that termination was harsh, unjustly or unreasonable. The Commissioner will be aware of your decision of the Commissioner that that was not a matter ever pronounced upon, not even in the alternative because the Commissioner took the view that the jurisdictional point hadn't been determined adversely to Mr Bloomfield. The other question didn't arise.

PN39

Now, in the last bullet point of paragraph 46 of the decision if I can ask the members of the bench to go to that; the print is PR900692. The Commissioner set out his ultimate finding towards the bottom of page 30 of the decision:

PN40

I find that the employment of the applicant came to an end by reason of the effluxion of time in that the directors capable of renewing and extending the contract of the applicant saw fit not to do so in the manner of each primary occupant.

PN41

That ultimate finding was set out in a context where there were a number of findings that the Commissioner made. The first of which is set out at page 29 of the decision. Those findings were given in a context where they rested upon certain conclusions that the Commissioner had arrived at. Those conclusions are set out on the previous page, page 27; it is paragraph 31 through to 45. The ultimate conclusion upon which the first of the findings rests is at paragraph 45 the Commissioner agrees to. What is clear however is that on 22 December 1999 referred to earlier, the directors agreed with the applicant to extend the 1996/1999 contract until 28 February consistent with clause 11 of the contract. Clause 11 of the contract is a clause that may we inform the Commission that was directed to the ability of the parties to vary its terms and there we see that requirement that if variation it would have to be done in writing. That is what clause 11 contains.

PN42

Now may we say all respect to the Commissioner, but we take issue with the last of those conclusions, para 45. There was never any agreement as between the directors and the applicant that his contract would be extended until 28 February. There certainly was no agreement at the meeting of 22 December. The evidence shows that on 20 December the applicant was hand delivered a letter directing him not to attend the meeting held on 22 December. The evidence also shows that he was never present at the meeting. It follows from that that he could not have, at that meeting, entered into an agreement of the kind spelt out in para 45. Further, not even Jayrook advanced that contention in its submissions below.

PN43

If one goes to page 12 of the reasons, at the highest they put it on this question appears at about .5 of page 12; this is within para 17 where the Commissioner said "In addition, there is undisputed evidence" - this is quoting one should say - the Commissioner here is quoting the submission that was made on behalf of Jayrook. "In addition, there is undisputed evidence that on 22 December 1999 the directors formally resolved not to renew Mr Bloomfield's contract". That is as high as the respondent put it below.

PN44

Now, in fairness to the Commissioner, we should say that the way in which the issues are characterised before him to some extent moved him in a direction where he was deciding whether to accept a contention advanced on Mr Bloomfield below that in November 1999 there had in fact been an agreement to enter into a further term but that was rejected as a finding which we lost that point on the evidence before the Commission. It is no purpose of ours on this appeal to attack that finding in respect of that issue.

PN45

If one goes to the last day of the transcript which was 1 September 1999, the Commissioner spelt out for the parties the way in which he saw the issues that fell for resolution and once one informs oneself by this passage to which we are just about to take to the bench, one can understand the structure of the Commissioner's decision and the way in which he characterised the issues.

PN46

BOULTON J: What - - -

PN47

MR GREEN: It is at page 558, your Honour, of the transcript. At that stage the last of the witnesses, the appellant himself had withdrawn from the box and the parties were agreed, so it seems, they would go away and put it all in writing and the Commissioner said, at about point 8 of page 55:

PN48

Given that I will not get an opportunity to raise any questions with either of the parties because we are having written submissions, I just want to make a few comments to the parties. It seems to me that the applicant's...(reads)... Now, that is a thumbnail sketch of what I have seen and heard from the proceedings. Ms Richards: That is a pure thumbnail sketch, Commissioner.

PN49

At page 560 at about line 4 the Commissioner said that "Although there was a lot of evidence of documents, I think it is a narrow argument." Of course the question of either termination or non-continuation of that contract which is the one in which the Commissioner characterised one of the issues. That issue was decided adversely to the appellant and it is of that aspect of the submission - of the decision that he now complains.

PN50

I have said that we will take your Honours and Commissioner to the agreement. May we do that now? Exhibit J1, attachment 2, chronology discloses that Mr Bloomfield's employment with Jayrook as Station Manager began in the month of October 1992. According to the chronology there was a written contract of employment that ran from 1 June 1994 and on 6 December 1996 as the bench has seen, there was another contract entered into for 3 years. Now had the further term of 3 years that Mr Bloomfield was seeking in November 1997 been agreed to, that would have taken him through to a 10 year period of employment with the respondent.

PN51

Now the preamble sets out the business of the company which was the management of a cattle enterprise for the benefit of the traditional Aboriginal owners at the station of whom Mr Bloomfield on the evidence is one.

PN52

The company and he wish to enter into the agreement so that the manager could be employed to provide skilled assistance, management and training on the station for the benefit and purpose of the company and the traditional Aboriginal owners and that under the management agreement between the company, the CLC and the corporation, the lessee of the station, the appointment has been made in accordance with the Central Land Council's recommendation.

PN53

The term is set out in clause 1(a) to which we have referred. Clause 1(b) enabled an extension; 2 years by agreement.

PN54

In the event of such an extension the terms and conditions of this agreement, except for this subclause, shall as far as possible continue to apply unless expressly varied in writing and signed by both parties.

PN55

Consideration for the contract remained at $40,000 a year. The duties of the manager were set out; clause 2. They have expressed subject to clause 3 and then imposed some further duties upon him to act honestly and with care and diligence and skill etcetera. Observe directions, behave with due respect in regard for aboriginal culture and tradition, the traditional aboriginal owners of the station. Devote his whole time and attention during working hours to promoting the business and the interest of Jayrook and the station.

PN56

There are sundry other duties cast in the negative fashion through to the end of paragraph 5 addressed upon him. There are a couple of positive duties cast upon him in paragraphs J and K. It was a working hour, a minimum working hour at 40 hours a week gathered up in clause 4. He is to be provided with full board, accommodation and meals at the station for himself and his wife and his children, in addition to his $40,000 as part of his consideration for entering into the agreement.

PN57

There was provision for reimbursement for expenses, transport expenses incurred, telephone expenses. Clause 8 interestingly says:

PN58

Upon the termination or expiration of this agreement.

PN59

He is to deliver up the property to which reference was made in Mr Avery's letter of termination. Supervision was dealt with in clause 9 and then clause 10 is described in the side heading "Termination."

PN60

During the term of this agreement may be terminated by the manager by him giving one month's notice in writing to the company and the CLC. Then in the event that the manager continues in the performance of the duties beyond the term of this agreement with the consent of the company, this agreement may be terminated by either party, giving one month's notice in writing to the other subject to clause C. Notwithstanding anything to the contrary the company may terminate this agreement in the event of misconduct by the manager by giving him written notice signed by the director of the CLC or his delegate and by three directors of the company. Such notice shall be effective immediately upon its delivery in accordance with Clause 12.

PN61

Misconduct receives a description in paragraph (d). We have referred to clause 11 on variation. Clause 12 is headed "Notice":

PN62

(a) Any notice given pursuant to this agreement should unless otherwise specified be given in writing and (1) in the case of the company shall be posted to the registered office of the company and to the director of the CLC and in the case of the manager shall be given to the manager or posted to him at the station. The notices delivered by hand should be effective from the date of delivery. Notices sent by post should be deemed to be effective from the third day following the day in which such notice is to be posted.

PN63

Clause 13:

PN64

Mr Bloomfield agree that his responsibilities related to the station or to pursue jointly with any other manager who might be appointed from time to time by Jayrook.

PN65

14 deals with the law that governs the operations of the agreement and then the company put its seal on the agreement and both sides executed it in the formal fashion.

PN66

Now, may we make reference to the outline of argument that we have filed with the Commission. At page 3 of the outline we deal with the contract of employment. Paragraph 10 we observe that Mr Bloomfield's employment was covered by a contract for a 3 year term as we have discussed. The term was capable of an extension for 2 years but they were formalities as regards those - that extension. We advanced the submission that the contract impliedly recognised Mr Bloomfield would continue to be employed under the terms of the contract after 31 December '99 unless notice were given by Jayrook to him without a new contract being entered into and without fixed term variation and we have described that as a holding over period. That is the period beyond 31 December 1999.

PN67

Of course it is instructive that the letter of termination was written in the holding over period. Now if this were a mere effluxion of time case, we ask rhetorically why would there be any need to have written a letter of termination? The contract, according to its own terms, would have come to an end by the effluxion of time. The surprising aspect of this case is that the respondent who contended for an effluxion of time regarded it as being incumbent upon it to write a letter saying we wish to tell you that your contract will come to an end and your employment will come to an end on the last day of the month of February 2000. Now, it really is a contradiction in terms as it were for the respondent to contend for an effluxion of time. We say judge the respondent by its actions; not by the argument it advanced below or it might advance here above.

PN68

We challenge the respondent on this appeal to make good the contention that that letter dated 6 January 2000 did not constitute an act of termination on the part of the respondent. If they fail in that challenge, as we submit they will, it follows that this was a termination at the initiative of the employer. The evidence shows that it was the employer who took the initiative beyond the term of the contract to bring the contract to an end. We submit that is an illustration par excellence of a contract of employment being terminated at the initiative of the employer. That is our case. It is as easy as that and it as hard as that for the respondent to overcome on this appeal.

PN69

Now, in the outline we referred to some learning on the question. There was a reference in paragraph 22 to an English case called Khan's case. R v Secretary of State for Social Services ex-parte Khan, K-h-a-n (1973) Law Reports 187 and 191 from which that quotation in the outline was taken. An examination of the Khan case shows that there was under the National Health system in England an ability to bring employment to an end if certain temporal events took place. There was a quasi probationary system under which one, such as Dr Khan, was employed for an initial period of two years and one has to look at the particular terms of that agreement to understand the significance of what their Lordships were saying in that case.

PN70

But we have extracted Lord Buckley J dictum as a statement of principle that we submit is applicable to this case and may we say that our attention to his Lordship's judgment was excited by a reference to an Australian decision of a judgment of what was then the Full Court of the Industrial Relations Court in the case of Victoria v The Australian Teachers Union (1993), 49 Industrial Relations 149, 156. His Honour, the presiding judge, Northrop J, referred to the statement of principle by Lord Buckley J with approval. Your Honour, the presiding member here would be well familiar with that era of litigation where interim awards were made governing the voluntary separation packages and other grounds of termination for members of the teaching service in the State of Victoria.

PN71

Their Honours, Northrop, Keely and Ryan JJ were dealing with an appeal from a primary judge of the IR Court. That judge had determined - he had given an interpretation of the award. State of Victoria challenged his Honour's interpretation and in substance the operative part of the award on which their Honours pronouncing, forbade termination on the part of the employer unless it were for reasons of a disciplinary nature referred to in the Teaching Service Act of 1981. Now we advance the contention in our outline that Jayrook's termination of Mr Bloomfield's employment, as per Mr Avery's letter, is an illustration of termination by notice by one of the parties to the contract.

PN72

Just to round out the reference to termination, may we hand up to the associate some - a Macquarie Concise Dictionary definition of termination.

PN73

BOULTON J: Yes, Exhibit N3.

EXHIBIT #N3 DICTIONARY DEFINITION OF "TERMINATION."

PN74

MR GREEN: N3, your Honours and Commissioner, contains a definition of terminate in the second column which is at page 1041 of The Concise Macquarie. The first is a transitive verb definition:

PN75

1. bring to an end; put an end to. 2. to occur at or form the conclusion of.

PN76

We pass over 3, then the fourth, we come to the intransitive description:

PN77

4. to end, conclude, or cease.

PN78

Pass over:

PN79

5, 6. to come to an end.

PN80

So there is a passive sense as it were in which the intransitive is described in a more active sense than which the transitive description is given and we say that what happened here by Jayrook's action in writing their letter and sending their letter of 6 January was to either bring to an end the contract or the employment or to put an end to both of those things; pure and simple. In paragraph 23 of our outline we flag the point which really gathers up ground 1 in the Notice of Appeal. That was an attack with respect to the Commissioner on the last conclusion which was at paragraph 45. So we don't go over paragraph 23 and clause 11 - paragraph 24 of the outline really picks up a point that we made when we took the members of the Full Bench through the agreement itself.

PN81

We advanced the argument at the middle of paragraph 24 of our outline that Mr Bloomfield automatically moved into the holding over period come midnight on 31 December 1999 and at that time his employment was for an unspecified period of time once the chimes struck twelve that night. We advance this submission, with respect, the letter of termination concludes the questions that there was no agreement for a new fixed term contract and that Jayrook had terminated Mr Bloomfield's employment in the holding over period. Put another way, this is a case where the employer imposed upon the employee an act of termination and it is the imposition of that termination about which Mr Bloomfield complains. Now we submit for the reasons that we have identified in paragraphs 3, 6, 7, 10 to 18, 22 to 25 that the statutory requirement of demonstrating error on the part of the appellant has been made good by him. If we are right in our submission, it follows that the Commissioner's decision to dismiss the application was also officiated by error. We are talking here about a question of jurisdiction of fact. That, we submit is a founds a basis on which the grant of leave should be made. We submit that we have identified the error such the appeal should be allowed and we submit it is appropriate that the order dismissing the application should itself be quashed.

PN82

There were 5 hearing days before the Commissioner. He saw the witnesses; he got a feel for their demeanour, for the cut of the jib, if you could put it that way, with the witnesses. It would not be appropriate for this bench, we submit, to enter upon a task that the Commissioner didn't in pronouncing on the merits. We submit that if the bench is with us on our primary argument, the appropriate course to be adopted would be to remit the matter to the Commissioner and direct him to hear and determine the application in accordance with any reasons for decision this Full Bench brings down.

PN83

For all of those reasons, we submit that the application for leave should be granted and the appeal allowed with direction of the kind we've just mentioned being made.

PN84

BOULTON J: Would there be, in the event that the matter was remitted, a need for further evidence?

PN85

MR GREEN: We think not, your Honour. Sorry, I should qualify that. If the question of reinstatement is to be agitated on the remitted hearing, the answer is yes but as to whether the termination be harsh or unjust or unreasonable, we would think not. For example, it is likely that the Commissioner will be assisted by receiving some evidence of who, if anyone, is occupying the position that Mr Bloomfield occupied. If so; on what terms, what people's attitude is towards his reinstatement. Perhaps matters of that kind but we can't see any need for the reception of any evidence on any other issue.

PN86

BOULTON J: It is a claim for reinstatement?

PN87

MR GREEN: It is a claim for reinstatement. I think that it is also a claim for compensation and that claim was put I think in a free standing way or in combination with the reinstatement order. I am reminded that a Magistrate in Queensland, after the evidence we are dealing with this case, brought down a decision with respect to cattle and the station that involved Mr Bloomfield.

PN88

There may be a need too, for that decision - which is a public document - that the Magistrate to be put before the Commissioner. I don't think the Commission on the appeal will need otherwise trouble themselves. You can have a copy if you want to see it but if you don't think you need to, the invitation is open for you to see if you wish to but my learned junior reminds me that should the matter be remitted that decision would probably be placed before the Commissioner by the appellant, Mr Bloomfield. If the Commissioner pleases, it is for those reasons we advance the submission that the appeal should be allowed.

PN89

MS RICHARDS: If the Commissioner pleases, may I take it that the Commission has the submissions prepared for the respondent dated 4 July this year?

PN90

CMR GAY: Yes, I will mark those submissions Exhibit M1.

EXHIBIT #M1 Submissions

PN91

MS RICHARDS: Unfortunately a large part of those submissions now is irrelevant given the appellant has narrowed his argument to grounds 1 and grounds 13 of his grounds of appeal. I could just direct the bench's attention to the parts of the submissions that I apprehend are still relevant. The introductory comments as to appeal principles, the approach to be taken by an appeal bench in considering findings that are fact. Paragraphs 4 through to paragraph 7 are evidently still relevant.

PN92

The submissions in relation to leave to appeal at paragraphs 8 to 11 are still relied on. The summary of the Commissioner's findings at paragraphs 12 and then the comment at paragraph 13 are still relied on. Paragraphs 14 through to 18 would now appear not to be relevant. Paragraph 19 are still relied on. Paragraphs 20 and 21 are not relevant, although I will come back to the comment in paragraph 21 that it is elementary that the party is bound by the conduct of its case at first instance.

PN93

Paragraph 22 remains relevant and then in relation to the grounds of appeal, obviously the comments made in relation to grounds 1 and grounds 13 are relevant and the rest can be disregarded. Comments in relation to ground 1 appear at paragraphs 24 and 25 and in relation to ground 13 at paragraph 46 and there is a reference made there to paragraph 41; it is on page 19. Paragraph 41 should remain in and paragraph 46, and then in the last two paragraphs on page 23 since submissions were made as to the appropriate disposition, if the bench does grant leave to appeal and upholds the appeal. And it appears that we are now at one as to that issue that the appropriate disposition if the appeal were to be upheld would be to bring the matter to Commissioner Hodder for him to determine on the merits.

PN94

I understand from my learned friend's narrowing of his argument to grounds 1 and 13 and his abandonment of the other grounds, that the Commissioner's findings in relation to what took place at the directors meeting on 19 November 1999 and the next directors meeting on 22 December 1999 are not in issue and that the bench may proceed to rely on those in formulating its conclusions on appeal. What I understand to be an issue is the finding that the Commissioner made at paragraph 45 of the decision to the effect that on 22 December an agreement was reached between Mr Bloomfield and the directors of Jayrook to the effect that his contract would be extended until the end of February 2000. That appears to be the only factual issue that remains on appeal.

PN95

Before I proceed further, perhaps I could hand up a bundle of authorities that are referred to in the respondent's submissions. I am sorry, I haven't produced a list of authorities to preface those but I can indicate that the authorities that have been provided are the Full Bench's decision in Buink v Department of Social Security and there is a large extract from that set out in the respondent's submissions. The Federal Court, Full Court's decision in CFMEU v Australian Industrial Relations Commission and then two decisions of Full Bench's of this Commission; Aardvark Security Services which concerns the requirements for leave to appeal and Comalco Aluminium Limited v AWU finding, the Amalgamated Union which sets out the considerations that apply when a party seeks to advance on appeal an argument different from that advanced below.

PN96

Before I move on to my argument, can I inquire whether the bench has copies of the following documents. We were a little uncertain as to what had been provided in the appeal papers. There were outlines of submissions provided by both sides before the hearing commenced which would have been dated August - sometime in August 2000 and it appeared that from the papers that we were provided that the applicant's submissions to Commissioner Hodder were not included in the appeal papers. We have copies of those documents for the bench if that would assist.

PN97

BOULTON J: Yes. This is all material that was before Commissioner Hodder?

PN98

MS RICHARDS: Yes, yes it was, your Honour.

PN99

BOULTON J: But might, as a matter of convenience, it be better for us to mark this as an exhibit just so that the paperwork doesn't all go missing on us? Exhibit M2 and this is the submissions on behalf of the applicant.

PN100

MS RICHARDS: There are four documents in that bundle, your Honour.

PN101

BOULTON J: Yes.

PN102

MS RICHARDS: The first is the applicant's outline of submissions. I think it is headed differently but it was the outline that was produced by the applicant prior to the commencement hearing in accordance with the Commissioner's directions. Then there is the same document produced by the respondent which is headed the respondent's outline of argument. Then there are the submissions of the applicant which were produced in late September after the hearing so they were the applicant's principal written submissions and then the applicant's submissions in the file which is the larger of the documents at the back of the bundle. That was produced towards the end of October in reply to the respondent's submissions.

PN103

Now, the respondent's submissions were among the appeal papers that we received and I do hope to be referring to those in the course of arguments. If it turns out that the bench doesn't have those then we can arrange for copies to be provided, although most of the relevant parts are referred to in Commissioner Hodder's decision. Now, your Honour, I think you were going to mark that bundle.

PN104

BOULTON J: Yes, Exhibit M2.

EXHIBIT #M2 APPLICANT'S OUTLINE OF SUBMISSIONS

PN105

MS RICHARDS: I would like to spend some time outlining what the case was before Commissioner Hodder and in particular the way the appellant put his case before Commissioner Hodder. It was common ground that Mr Bloomfield was employed on a 3 year contract that was to come to an end on 31 December 1999. It was also common ground that his employment in fact came to an end on 29 February 2000. The nature of his employment and the basis on which he was employed during that 2 month period was clearly a central issue. The case put by the appellant before Commissioner Hodder was that at a directors meeting on 19 November 1999 an agreement was reached between Mr Bloomfield and the directors that he would be given another 3 years of employment; another 3 year contract to take his employment up to 10 years.

PN106

That appears from a number of documents, commencing with the applicant's outline of submissions. If the bench goes to paragraph 3C of that document. The outline says:

PN107

Until December 1999 the applicant was employed on a written contract of employment and was told by Simon Kearney in December that the directors ...

PN108

And there are some words missing there:

PN109

... of the employment would continue. A new contract was entered into in January 2000.

PN110

That is not particularly clear but when it is read with the evidence that was filed with that document, it becomes quite clear that that is a reference to what was alleged to have taken place at 19 November 1999 meeting. It also appears from Mr Bloomfield's initial witness statement which is exhibit Bloomfield 10, at paragraphs 5 to 7 of this document, which was provided together with the outline of argument that I have just referred the bench to. Mr Bloomfield says:

PN111

By mutual agreement between myself and the directors of Jayrook in or about December 1996, the employment agreement was extended for a further 3 years. On or about late November or early December 1999 I attended a meeting with the respondent. In that meeting I was told my employment would continue beyond 31 December 1999 by Myra Hayes, Agnes Abbott, Keith Williams, Daniel Nader and Brian Young.

PN112

And then he goes on to explain in more detail what Mr Simon Kearney was alleged to have said about the extension of his contract in paragraph 7. More detail of this discussion and alleged agreement at the 19 November meeting was given in Mr Bloomfield's statement of reply which is Bloomfield 11. There are references throughout that document to the meeting on 19 November. The first of any note appears at page 14 of the document at paragraph 23 where Mr Bloomfield states that he was at the meeting on 19 November 1999. He:

PN113

Was told at the meeting in the absence of Simon Kearney and Donohoe - that is Peter Donohoe - by all directors, some of whom spoke to me in language, that I was to continue as manager for 3 more years to make it up to ten years.

PN114

There are further references and I wont go to each of them; I think if I just give the Commission the references. Page 16, paragraph 2. Page 20, paragraphs 2 through to 6; there is quite a detailed statement from Mr Bloomfield as to what he says occurred at that meeting. Page 31, paragraph 5 and page 36, paragraphs 10 through to 11, over the page. Mr Bloomfield was supported on this issue by Ms Little, Ms Karen Little who is his wife who's statement - quite brief statement - it appears as exhibit Bloomfield 8. So that was the case for the appellant; that was the way that issues were outlined at the commencement of the hearing. For the respondent's part it made its case very clear from the outset. In the respondent's outline of 4 August which was the second document in that last bundle I just handed to the bench.

PN115

I should say before I go to that, the respondent's case was that at the directors' meeting on 22 December 1999 the directors made a decision not to renew Mr Bloomfield's contract but to extend his employment only until the end of February the following year. Now that is made clear, first of all in the respondent's outline starting at paragraph 8 on page 2; it says quite clearly that:

PN116

The applicant was employed on a fixed term contract which expired on 31 December. On 22 December 1999 the respondent's board resolved to extend the applicant's employment only until 29 February 2000.

PN117

Then paragraph 9 is an acceptance that we weren't dealing with a contract for a specified period but that, both in respect of the written contract that ended on 31 December 1999 and the second contract for the period 1 January to 29 February 2000; the outer limits of both contracts were defined in advance. So the respondent puts its case very clearly in its outline that because of the decision that was taken by the directors at the 22 December meeting, the appellant's employment was terminated by the effluxion of time and not at the respondent's initiative.

PN118

That was reflected in the witness statements for the respondent. I don't propose to go to them in detail at all but the witness statements of the respondent address that allegation, and it was also put in opening before the hearing really got under way at page 4 of the transcript, so at the beginning of that page, page 4 as part of my opening remarks I said:

PN119

Mr Bloomfield was employed as manager of Jayrook from the beginning of the enterprise in 1992 ...(reads)... commenced 1 January 1997 and ended on 31 December 1999.

PN120

Sorry, does the bench have that?

PN121

BOULTON J: That is the transcript of what date?

PN122

MS RICHARDS: It is the first day of transcript, 28 August 2000. I beg your pardon, page number 4.

PN123

BOULTON J: Thank you. There is quite a wealth of material before us and - - -

PN124

MS RICHARDS: Yes, perhaps I should just slow down.

PN125

BOULTON J: - - - there is a limited amount of room up here for us to have our fingers easily on everything that you are taking us to but we see that now, page 4.

PN126

MS RICHARDS: Page 4. Now I'd read the first three sentences of that paragraph and then it continues:

PN127

In the last half of 1999 the directors decided over a period of some months not renew ...(reads)... to extend it only until the end of February and in the meantime to advertise for a new manager.

PN128

So those were the issues as they were defined before the commencement of the hearing. That was the basis on which the hearing was conducted. That was the way in which Commissioner Hodder summarised the issues at the conclusion of the evidence in the passage that my learned friend took to at pages 558 to 559 of the transcript, and unsurprisingly it was the issue that was addressed in submissions and in the Commissioner's decision. The two competing contentions were either there was an extension or new contract agreed upon at the 19 November meeting or there was a short term extension of the contract decided upon at the 22 December meeting.

PN129

At no time did the appellant advance the case that he has now advanced on appeal. It was not put, not even in the alternative, that the appellant somehow held over under clause 10B of the contract. Had that contention been put forward even in the alternative, the case for the respondent would have been conducted quite differently. For example cross-examination of the appellant would have concentrated more on the communication of the directors' decision of 22 December to him and the actions that he took subsequent to that communication.

PN130

There would have been an opportunity to address inconsistencies that appear between Mr Avery's letter of 6 January 2000 and the decision actually taken by the directors on 22 December, and I will take the bench to that evidence in more detail later. There may have been a decision taken to call the third person who was present at the discussion between Brian Young and the appellant that took place immediately after the directors' meeting on 22 December. There would have been an opportunity for the respondent to address this issue in evidence and because of the way the issues were presented at the hearing and the way the case was run, that opportunity has now been and gone and we find ourselves in a position of having to answer the case on appeal, that we didn't have an opportunity of answering below.

PN131

If I could refer the bench to one of the authorities that was in the bundle that I handed up. It was the last case in the bundle, print N4313 - it is a matter of Camalco v AWU FIME Amalgamated Union. The decision was an appeal from a decision of I think it was Commissioner Hoffman to create two new awards covering Camalco's operations at Weipa which were minimum rates awards. On appeal the unions attempted to put arguments that had not been put to Commissioner Hoffman below. The relevant passage in the decision appears at page 12 of this print at least, starting on the second full paragraph on that page. The bench states:

PN132

We believe that to grant leave for the purpose of raising issues not canvassed by the appellant before ...(reads)... would in our view lead to unsatisfactory consequences and proceedings at first instance.

PN133

Then the bench refers to two authorities - Calton and Halkam where the High Court says:

PN134

In a case where had the issue been raised in the Court below everything could have been given ...(reads)... that the point cannot be taken afterwards.

PN135

Then there is a reference to the High Court's earlier decision in University of Wollongong v Metwally Number 2 where the High Court says:

PN136

It is elementary that the parties found by the conduct of this case except in the most exceptional ...(reads)... failed to put during the hearing when he had the opportunity to do so.

PN137

On that basis the bench declined to consider the new arguments, the fresh arguments that were being put forward by the unions on appeal. Now in my submission those considerations apply in this case and leave ought not be granted for the appellant to in effect reformulate his argument having lost on his principal contention, his only contention on jurisdiction before Commissioner Hodder. Now in case the bench is not with me on that issue there is some evidence available for - - -

PN138

BOULTON J: Does that apply equally to matters going to discretion as to matters going to jurisdiction?

PN139

MS RICHARDS: In my submission, Commissioner, this is clearly a decision going to discretion, it doesn't - a decision going to jurisdiction it is not - it doesn't involve the exercise of any discretion on the part of Commissioner Hodder, but yes, in my submission it does because of considerations of fairness to the other party if an applicant chooses to run his case in a particular way and we had a five day hearing on this and a large part of the evidence was taken up with what occurred at the meetings of 19 November and 22 December.

PN140

The applicant chose to put his case in a particular way; that was met and successfully by the respondent and now the appellant comes and says it should have been put in a different way, the Commissioner should have considered arguments that were never presented to him below. As a matter of fairness in my submission it applies equally in relation to jurisdiction. In University of Wollongong v Metwally there is a reference by the High Court to exceptional circumstances where a party might be permitted to raise a new argument on appeal.

PN141

Those exceptional circumstances are the authority which I haven't brought with me, establishes - is where it wouldn't have made any difference to the conduct of the hearing at first instance, say for example where there is a jurisdictional point that doesn't depend on evidence and it wouldn't have mattered had it been raised below and there is no disadvantage in addressing it on appeal because evidence wouldn't have made a difference one way or the other. That would be an exception to the usual rule that a party can't reformulate its case on appeal, but where the outcome does depend on evidence and an opportunity was there to raise arguments below, in my submission there is no difference between a decision going to jurisdiction and one going to the exercise of discretion.

PN142

BOULTON J: What sort of extra evidence would you not agree?

PN143

MS RICHARDS: Well, if there was evidence, Commissioner that the decision of the directors made on 22 December was communicated to Mr Bloomfield. Now there was conflicting evidence about that but it didn't loom large as an issue on hearing. If this argument had been raised prior to the commencement of the hearing it would have loomed large and it would have been addressed by cross-examination of the appellant in evidence led from Mr Young, Brian Young and perhaps it would have led the respondent to seek leave to call in an additional witness who had been present at this conversation between Mr Young and Mr Bloomfield on 22 December, and that was a contractor, Billy Porter who happened to be there at the time.

PN144

The appellant also makes a great deal of the apparent inconsistency between Mr Avery's letter of 6 January and the decision taken by the directors on 22 December. Had this holding over argument been a live argument on the hearing there would have been the opportunity to direct Mr Avery's attention to that inconsistency and ask him to comment upon it.

PN145

BOULTON J: What is inconsistent with you?

PN146

MS RICHARDS: The directors decided on 22 December to not to renew Mr Bloomfield's contract but to extend it for a period of two months until the end of February. Mr Avery's letter talks in terms of a decision to terminate the contract which is not in fact what the directors had decided to do and not what had been communicated to Mr Bloomfield on 22 December by Mr Young. Now that - on the respondent's case the content of Mr Avery's letter was neither here nor there because the extension for a short period had been decided upon, had been agreed upon and Mr Bloomfield's contract came to an end on 29 February.

PN147

As it turned out Mr Avery's letter went astray in the mail and by the time Mr Bloomfield in fact received it, the agreement was well in place. There was of course a conflict as to whether Mr Bloomfield had been advised of the directors' decision on 22 December, but it is apparently the decision that that conflict wasn't resolved in favour of the respondent. Perhaps it would be easier if I took the bench to the evidence that the respondent relies on to establish that there was an agreement made following the directors' meeting on 22 December.

PN148

Prior to that date it was I think common ground that Mr Bloomfield's employment was due to end at the end of 1999. The future of his employment had been under active consideration by the directors for some months and the steps taken by them are summarised in the respondent's submissions to Commissioner Hodder that are set out at paragraph 6.6 through to 6.11 of the respondent's submissions. Perhaps I could inquire whether the bench in fact has those submissions because I do wish to go to them a little later in some detail?

PN149

BOULTON J: The submissions of who?

PN150

MS RICHARDS: The respondent's submissions to Commissioner Hodder and they were dated 10 October.

PN151

BOULTON J: Dated 11 October.

PN152

MS RICHARDS: That could be right, that could be right, your Honour. It looks like this, it has the respondent's submissions, it has a table of contents on the front page and it is 39 pages long.

PN153

DUNCAN SDP: I don't have that.

PN154

MS RICHARDS: Perhaps we can arrange to have copies supplied. We have one additional copy.

PN155

DUNCAN SDP: It is additional is it?

PN156

MS RICHARDS: Well it is my instructors copy.

PN157

MR GREEN: You can have a short term loan, your Honour.

PN158

DUNCAN SDP: Well that is what I was hinting at.

PN159

MS RICHARDS: It was included in our - the bundle of appeal papers that we received so we presented it on that basis that the bench had it as well but perhaps that has not been locatable. Now at paragraph 6.6 through to 6.11 of that document set out a number of discussions at directors' meetings throughout 1999 directed to the future of Mr Bloomfield's employment. I don't propose to go to them in detail but they are - that was a summary of the lead-up to the decision on 22 December 1999.

PN160

Now in relation to that meeting the evidence as to what was decided at that meeting was in the event uncontradicted and was quite clear. The minutes of the meeting are Exhibit Jayrook 5, attachment BY3.

PN161

CMR GAY: Shall we go to Jayrook 5, Ms Richards? Is that pivotal?

PN162

MS RICHARDS: Yes. It would be of assistance, Commissioner, yes.

PN163

BOULTON J: We just thought we were doing well, we found the last exhibit you were taking us to and soon as we get to that you take us to yet another exhibit.

PN164

MS RICHARDS: I am sorry about that but perhaps I can extend the obstacle course a little longer.

PN165

CMR GAY: This is the statement of Brian Young.

PN166

MS RICHARDS: The statement of Brian Young and attachment BY3 to that statement, minutes of directors meeting of 22 December 1999. On page 2 of that decision there is item 3 headed "managers contract". Now there are three proposals set out under that heading.

PN167

Proposal 1 - not to renew the manager's contract but to extend it only until the end of February and meanwhile advertise the manager's position as soon as possible in the new year.

PN168

Proposals 2 and 3 set out consequential actions to take place upon the implementation of proposal 1 and proposal 3 is:

PN169

Authorise CLC to inform the manager of this decision on Jayrook letterhead and to sign the letter for and on behalf of Jayrook.

PN170

Now those proposals were moved Keith Williams, seconded Clare Hayes and were agreed unanimously. There was evidence from two directors who were present at that meeting; a Mr Young and Ms Abbott as well as two staff members from the Central Land Council, Mr Avery and Mr Donohoe who all confirmed that that was the decision taken by the directors. The Commissioner made that finding in paragraph 46 of his decision.

PN171

Now the respondent's case was that immediately after the meeting on 22 December, Mr Young went to see Mr Bloomfield at his house and informed him of the decision that the directors had taken. That appears in Mr Young's statement which the bench should still have. It is the same exhibit, Exhibit Jayrook 5 at paragraph 13. Mr Young there responds to something that Mr Bloomfield said in his earlier statement. He says at paragraph 13:

PN172

I understand that Henry says that I went to his home Clive Impu after the directors meeting on 22 December and told him that his employment would continue as manager and that there would be another meeting after christmas. I did go to his house after the meeting; Henry wanted me to tell him what the directors decided. I went with Billy Porter, not Clive Impu, Clive was not a director then. I told Henry what the directors had decided; that he would stay on as manager until the end of February. I didn't just say his employment would continue; I told him it was only until February.

PN173

Now, Mr Young was cross-examined about this and he maintained that evidence under cross-examination. The relevant passage appears in the first day's transcript Monday 28 August and relevant passage appears at page 102. I might say while the bench is turning up that passage, I discovered yesterday evening that there is some disconformity between the page numbers in the electronic version of the transcript that I had been working with and the paper version that the bench has. That is matter that perhaps I might address after the hearing and if I could just submit a short note indicating any inconsistencies between the transcript references I have provided and the paper references.

PN174

Now the passage that I wish to take the bench to appears in the second paragraph, page 102 and this is during Mr Young's cross-examination.

PN175

When you went to his home after the meeting on December 22 you went to Henry to talk about what had happened at that meeting didn't you?---Yes, I told that he was still on 'til February.You told him you went to tell him what was going to happen didn't you?---No, he just wanted me to go back and tell him if they were putting him on and I said "Yeh, they put you back on 'til February".

PN176

Then the cross-examination moves on to other topics. So there was evidence from which Commissioner Hodder could conclude that Mr Bloomfield had been informed of the directors decision. Mr Bloomfield, for his part, agreed that this conversation had taken place but differed as to the substance of it. He said that he had been told that his employment would continue but didn't include the qualification that it would continue only until February. In fact, clearly there is conflicting evidence. The Commissioner found, at paragraph 45, that there was an agreement on 22 December that the appellant's contract would be extended until the end of February 2000. That finding must involve a reliance on Mr Young's evidence in preference to Mr Bloomfield's on this topic.

PN177

I refer the bench to the passage from Abalos v Australian Postal Commission that is quoted in New Ink at two places to the effect that where the finding of fact is made that is inconsistent with the witnesses's evidence, that finding involves implicitly a rejection of that evidence.

PN178

DUNCAN SDP: Why would it follow that the Commission's conclusion requires that Mr Bloomfield was wrong in denying that he was told that by Mr Young? I can understand the point when you say what the agreement was but as to whether Mr Bloomfield was told that.

PN179

MS RICHARDS: There was a clear conflict on whether Mr Bloomfield had been informed of the substance of the directors decision. Mr Bloomfield's version was he had been told that his employment would continue, full stop. And Mr Young's version was that he was told that his employment would continue until the end of February.

PN180

DUNCAN SDP: So to find that the agreement was as you have just described it.

PN181

MS RICHARDS: Yes.

PN182

DUNCAN SDP: It is necessary to accept Mr Young's statement.

PN183

MS RICHARDS: Yes, yes.

PN184

DUNCAN SDP: I follow you.

PN185

MS RICHARDS: Mr Bloomfield - on the basis that that was what Mr Bloomfield was told because the employment would continue only until the end of February, Mr Bloomfield signified that his acceptance of that by continuing in his employment, continued performing his duties and, as it turned out, ceasing his employment on 29 February. There are two possible contractual outcomes that arise from that sequence of events; the director's decision, the communications to Mr Bloomfield and the fact that Mr Bloomfield continued in employment after 31 December.

PN186

The first is that there was a short two month extension of Mr Bloomfield's existing contract of employment and the second was that there was a new contract for the limited period of two months starting on the 1 January and ending on 29 February 2000. Before Hodder C that there was no issue as to which of those it was and the bench will see in looking at the submissions and the arguments that sometimes they have been used interchangeably. Sometimes there is a reference to a new contract; on other occasions there is a reference to an extension.

PN187

As I understand Mr Green's submissions, the point is now taken that there could not have been a variation of the contract because the formalities required by the written contract were not complied with so that the extension wasn't documented in writing as is required by clause 11 and if any notice had to be given to Mr Bloomfield, it wasn't given in accordance with clause 12. It is not clear why a notice was required but I understand that point to be taken. So the appellant then says, well there was therefore no effective variation of the contract because it wasn't formally documented as the existing written contract requires and notwithstanding the substance of the directors' decision, the fact that Mr Bloomfield knew about it and the fact that he continued working as he had been informed, he gets to take advantage of the holding over clause in clause 10B and embarks upon an ongoing period of employment with no defined input.

PN188

Now there is some irony in the appellant now saying that that lack of formality is critical to the respondent's argument on this issue. It was quite good enough for Mr Bloomfield to have a 3 year extension - 3 year extension. There was submissions put as to both without any documentation of that at all arising out of 19 November meeting, but notwithstanding that, formal documentation for a two month extension is insisted upon. Of course the lack of formality - and I have to concede that there was nothing in writing, other than the directors meetings. There was no written offer to Bloomfield and nothing was signed by him. That doesn't exclude the conclusion that there was a new contract entered into for that limited period and that that contract was entered into as a result of the decision of the directors, the communication to Mr Bloomfield and his continued employment for that 2 month period.

PN189

A new contract of course would not be subject to the constraints of variation that existed under the written contact that came to an end on 31 December. It is important to note that the directors decision was taken and communicated to Mr Bloomfield before his written contract of employment came to an end on 31 December. This case is not like the case of the appeal by the HSUA that is relied upon by the appellant. Print P1209 - in that case the end date of the fixed period of employment had been and gone without anybody saying anything to the employees about their future employment. They continued to perform their duties, they continued to be remunerated and well after the end date had passed there was an attempt to again set up a fixed term employment relationship and the bench in that case found that that was too late and there was an ongoing employment relationship by the time that attempt was made.

PN190

But in this case, the decision and the communication took place before Mr Bloomfield's contract of employment came to an end on 31 December. So, in summary, the respondent's argument is that after the directors decision on 22 December and its communication to Bloomfield, his ongoing employment at all times had a defined end point and that end point was the end of February 2000. And when his employment came to an end on that day it was by the effluxion of time and not as a result of an act of termination imposed by him by the directors. Now there is an alternative argument that I can just put briefly if the bench is satisfied that Hodder C was in error in finding that there was an agreement on 22 December and that provides us as a matter of the application of clause 10B of the contract. If I can just remind the bench that is attachment JY2 to Exhibit J1, the statement of J1.

PN191

BOULTON J: Which clause is it?

PN192

MS RICHARDS: Clause 10, your Honour, and specifically clause 10B. Now that clause provides:

PN193

That in the event that the manager continues in the performance of the duties beyond the term of the agreement with the consent of the company, this agreement may be terminated by the party giving one month's notice. Now an important part of that clause is that the continuation of performance of the duties must take place with the consent of the company.

PN194

It is not something that can occur simply by Mr Bloomfield continuing to work, notwithstanding that his contract of employment had expired. On the evidence and on Hodder C's findings, the consent of the company had a defined end point. Before this holding over clause could ever have kicked in, if in fact it did, the company had only consented to a further two months of employment. Now, the final issue - - -

PN195

SDP DUNCAN: Just before you leave that point, what is there in 10B which requires there to be a term as part of the consent arrangement? Or put it the other way, what is it in 10B that deprives either party of the right to give one month's notice to terminate the contract just because there is a fixed term?

PN196

MS RICHARDS: There is nothing and if the directors had decided - - -

PN197

SDP DUNCAN: To give two months and then decide in the negative.

PN198

MS RICHARDS: To say, well Mr Bloomfield's employment will continue until the end of February and then he had done something that made them come to the conclusion that his employment needed to end earlier, they could either have acted under his conduct provision in clause 10C or have given one month's notice.

PN199

SDP DUNCAN: Under 10B.

PN200

MS RICHARDS: Yes. Now, an issue that remains for me to deal with is what the bench is to make of Mr Avery's letter of 6 January.

PN201

SDP DUNCAN: So, let me understand. What do you say in relation to the application of 10B. Did that apply or not?

PN202

MS RICHARDS: No. No, your Honour,

PN203

SDP DUNCAN: You say it didn't because there wasn't the consent of the company?

PN204

MS RICHARDS: There was consent of the company for a two month period, but my submission is that there was either a two month extension of the contract or a new contract for a period of two months and that if clause 10B had any work at all to do during that period, it was simply to prescribe the notice period that Mr Bloomfield and Jayrook were entitled to during that period but this was not a case where because of inadvertence or mutual agreement, Mr Bloomfield's employment had simply continued beyond 31 December without anybody deciding anything but there being a consensus that his employment was to continue and his employment converting from employment for a fixed term to ongoing employment subject to termination on one month's notice. Does that answer your Honour's question?

PN205

BOULTON J: Yes, I think in part. Yes, thank you.

PN206

MS RICHARDS: If I can move then to the letter written by Mr Avery on 6 January 2000. It was common ground, certainly by the end of the hearing, that it was not received by Mr Bloomfield until 6 February 2000 when Mr Bloomfield was given a copy of the letter by Simon Kearney, another employee of the Central Land Council. It was Mr Avery's evidence that he wrote the letter as instructed by the directors in accordance with proposal 3 of the minutes of 22 December. Now it is clear in my submission that the authority for Mr Avery to write a letter of that sort on behalf of the company arose from the directors' decision and their adoption of proposal 3 in those minutes of 22 December.

PN207

I should say the Mr Avery's authority to write the letter at all was strongly challenged on the hearing and I don't think there is anything exceptional in - it might be upsetting to the appellant to say the Mr Avery's authority to write the letter was constrained by the instructions given to him by the directors on 22 December. By the time Mr Bloomfield received the letter he was already working under this fixed term either extension or new contract for a two month period, and he was more than half way into that period of employment. That agreement had been made; it was being implemented well before Mr Bloomfield received the letter.

PN208

The letter changed nothing. It confirmed that Mr Bloomfield's employment was to end on 29 February. There are however some inaccuracies in the letter and it might be convenient for the bench to turn that up again. It is part of exhibit Jayrook 13 which is Mr Avery's statement and it is attachment DA8 to that statement. Now the second paragraph of that letter states:

PN209

Your current contract expired on 31 December. It has no provision for renewal or extension beyond that date.

PN210

Now as the appellant was quick to point out in his submissions, that is in fact not correct and Mr Green has taken the bench to the provision in the contract that it allows for extension. Then paragraph DA8, sorry paragraph 3 goes on to say:

PN211

However, your contract provides that if you continue performing management duties beyond the term of the agreement, ie after 31 December, with the company's agreement then the agreement may be terminated on one month's notice.

PN212

Well that is accurate so far as it goes but it is the second sentence that is not in accord with the decision that the directors in fact took on 22 December:

PN213

Accordingly the directors have instructed me to give you notice that the company wishes to terminate the agreement and your employment as manager on 29 February 2000.

PN214

Now unfortunately that does not accurately convey the decision that the directors made on 22 December which was not to renew the manager's contract but to extend it only until the end of February. The directors did not decide to terminate the contract and they did not decide to give Mr Bloomfield notice of termination of the contract. Now I should say by way of explanation this was a case where the very fact of decisions made by the directors was hotly disputed and there was a great deal of evidence directed to exactly what decisions the directors had made and how they had been communicated, so that it is quite consistent with the way the case was run to go back to what the directors actually decided rather than the way it was communicated by someone who was not a director and was not an employee of the company.

PN215

The directors' evidence was to the effect that they didn't dismiss Mr Bloomfield, didn't sack him, that they let his contract run out and that is consistent with the decision that they took on 22 December. Now to the extent that this suggests the contrary, it is inconsistent with that result or inconsistent with that decision. Since the directors decision had already been communicated to Mr Bloomfield and had already been acted upon the letter, in my submission, was not relevant to the jurisdictional issue because a chain of events had already been set in train by which Mr Bloomfield's employment was to come to an end on 29 February 2000.

PN216

BOULTON J: Can you just remind me, in what capacity is Mr Avery writing this letter?

PN217

MS RICHARDS: Mr Avery is an employee of the Central Land Council; he is the manager of legal services at the Central Land Council. In the course of his duties he sometimes attends Jayrook meetings and the bench may recall that Commissioner Hodder reviewed early in his decision the evidence as to the relationship between Central Land Council and Jayrook, and the third proposal that was adopted by the directors on 22 December was to instruct the CLC to write to Mr Bloomfield informing him of the decision that had been taken by the directors at that meeting. So it was in that capacity that Mr Avery wrote.

PN218

BOULTON J: Was he present at that meeting, Ms Richards?

PN219

MS RICHARDS: He was present, yes. Yes, he was present. I should say his evidence about the meeting was quite limited. He wasn't cross-examined about it at all on my recollection and there is a short passage in his statement - - -

PN220

BOULTON J: Where are those minutes again?

PN221

MS RICHARDS: The minutes are attached to Mr Young's statement, Jayrook 5 and they are attachment BY3 to that statement.

PN222

CMR GRAY: Attached to Brian Young's statement?

PN223

MS RICHARDS: Brian Young's statement, yes. It is attachment BY3 and it is at page 2 the minutes.

PN224

BOULTON J: Isn't the explanation that there was authorisation given to inform Mr Bloomfield about what had taken place and that the decision that was taken at the directors' meeting was indeed not in accordance with the contract that was in existence between the company and Mr Bloomfield? The contract provides for an extension of two years.

PN225

MS RICHARDS: Yes.

PN226

BOULTON J: It doesn't seem to provide for an extension of a number of months. It wasn't the extension in 1B that seems to have been decided upon.

PN227

MS RICHARDS: No.

PN228

BOULTON J: So here we have the directors authorising the CLC to inform the manager of this decision on Jayrook letterhead and to sign the letter for and on behalf of Jayrook, but that being done in a way which seems to have had more regard to what might be the legal niceties of the situation.

PN229

MS RICHARDS: Well, if I could say at the outset this was never an issue that was explored at the hearing, so - - -

PN230

BOULTON J: Yes, I understand that but the difficulty with that is that if it is a jurisdictional issue and we were, for example, not to grant leave to appeal what is to stop the applicant from simply taking it to the Federal Court?

PN231

MS RICHARDS: On the issue of whether there has been a constructive failure to - - -

PN232

BOULTON J: Well, it seems that if there has been a jurisdictional error it doesn't mean the end to the matter and the Court might take the view that if there has been a jurisdictional error of that magnitude then it should be corrected.

PN233

MS RICHARDS: Well, your Honour, if the bench were to take that view, in my submission the only appropriate course would be to remit the matter to Commissioner Hodder on the issue of jurisdiction so that the respondent has an opportunity to meet the arguments that have now been raised. It would be - - -

PN234

BOULTON J: But how would you meet the argument? Would you say that in fact what you have is a contract for a specified period of time and that that contract is being, as it were, finished by the effluxion of time not at the initiative of the employer.

PN235

MS RICHARDS: Yes, well now that the distinction between an extension of the subsisting contract and a new short term contract has become - - -

PN236

BOULTON J: Well the argument would have to be one that it is in fact a new contract.

PN237

MS RICHARDS: Yes.

PN238

BOULTON J: Then there would be an argument about what were the terms of that new contract.

PN239

MS RICHARDS: Yes, there might be, but given that the contract began and ended in the term that had been defined by the directors' decision of 22 December, no issue really turns on what the terms of the contract were so that - - -

PN240

BOULTON J: Well, see the flavour of the letter that Mr Avery wrote is that it was a situation of him continuing to perform the duties beyond the terms - it seems to be a letter framed with some sort of reference to clause 10.

PN241

MS RICHARDS: Clearly it is framed with reference to clause 10 but what it doesn't do, in my submission, is to actually communicate the decision that the directors made not to renew the contract and to extend it only until the end of February.

PN242

BOULTON J: Well it does doesn't it because it says "Your current contract expired on 31 December 1999".

PN243

MS RICHARDS: Yes, and then goes on to advise - - -

PN244

BOULTON J: It said it has no provision for renewal or extension, well that is wrong, it does have provision for extension but the extension was - seems to be for 2 years.

PN245

MS RICHARDS: Although, if I might say, your Honour, there might be some issue about whether that clause enables extension for a period up to 2 years, and again that is not something that was agitated before Commissioner Hodder.

PN246

BOULTON J: Yes.

PN247

MS RICHARDS: It may enable an extension for a shorter period.

PN248

BOULTON J: It has been 5 days and it seems that there might still be some issues remaining.

PN249

MS RICHARDS: Yes, well of course the hearing didn't proceed only on jurisdiction.

PN250

BOULTON J: Yes.

PN251

MS RICHARDS: It proceeded on the merits and there was a large amount of evidence that went to whether in the event that there had been a termination at Jayrook's initiative, the termination was harsh, unjust or unreasonable.

PN252

BOULTON J: I am always tempted in cases like this that at least have a flavour that they might continue for some time to ask whether there is any prospect of the parties settling their differences short of a continuation of litigation.

PN253

MS RICHARDS: It is something that has not been explored for some time, Commissioner. As I understand it there was - sorry, your Honour - I shouldn't enter into it but the parties' positions have been fixed for some time in relation to what is sought from the application. I expect that my client would be amenable to some further discussions but there would need to be a compromise.

PN254

BOULTON J: Yes. The effluxion of time often brings different views.

PN255

MS RICHARDS: It may have done.

PN256

BOULTON J: Perhaps change positions on what can and can't be achieved, in particular through proceedings like this and what might be involved in the proceedings including the expense and the time and delays which seem to be built into the system.

PN257

MS RICHARDS: Yes, your Honour. You asked Mr Green whether - if the matter were to be remitted to Commissioner Hodder whether there would be a need for further evidence; for our part we anticipate that there would be. The respondent now has further evidence which simply was not available to it at the hearing that goes to the merits and we would seek leave to introduce that evidence, and there would of course have to be some evidence as to remedy the - whether reinstatement might be appropriate; what steps Mr Bloomfield has taken to mitigate his loss; how any compensation might be calculated. They are all issues that would need to be the subject of fresh evidence before Commissioner Hodder.

PN258

BOULTON J: Mr Green, what do you say about those matters that have just been raised in .....?

PN259

MR GREEN: Well, that will be a matter that will probably need to be debated, your Honour.

PN260

BOULTON J: Not in the evidence, but the possibility of some further exploration as to whether the matters can be settled.

PN261

MR GREEN: Your Honour, if I may say so, have bent our mind to that. We think that the prospects of resolution by agreement will be considerably greater once the appeal is disposed of. We can think of a lot of good reasons for example if - - -

PN262

BOULTON J: Do you mean in your favour?

PN263

MR GREEN: It wasn't meant to be a bribe, your Honour, but may I say this, we are conscious of the very issues - - -

PN264

BOULTON J: The prospects of resolution, if the appeal was otherwise disposed of might - - -

PN265

MR GREEN: Well, there will be resolution one way or the other, your Honour, following upon this Full Bench's disposition of the appeal.

PN266

BOULTON J: The uncertainty of results often means that the ability to compromise is enhanced on both sides.

PN267

MR GREEN: What I am really saying in a coded way, your Honour, is that we think our point is so unanswerable that it is likely to lead to a favourable outcome for the appellant and should that occur we think there is a prospect of its resolution by agreement. We've heard nothing from my learned friend yet that would make us think otherwise. But, we are very conscious of the issues that you've raised with our learned friend, time, expense, uncertainty, delay and the like. They are all factors which, if I may say so with respect to everyone, the parties would do well to contemplate.

PN268

BOULTON J: You have got your client, he is in the hearing room?

PN269

MR GREEN: Yes. Yes, he is here and members of his party are here.

PN270

BOULTON J: Do you have instructions, Ms Richards?

PN271

MS RICHARDS: No. No, your Honour, I don't and none of the directors are present in Court today.

PN272

BOULTON J: So there wouldn't be any point in this, as it were, seeking to have a short adjournment - - -

PN273

MS RICHARDS: No.

PN274

BOULTON J: - - - to explore the possibilities?

PN275

MS RICHARDS: No, your Honour. Look, I couldn't even tell the bench where the directors were today. Some of them may well be out at Littlewell Outstation which is some distance from Alice Springs. I simply couldn't pretend there was any chance of assembling a quorum of the directors, and even if that were possible I'm not sure it would be appropriate given the way that the directors make their decisions. It would be necessary for there to be notice to be given for as many of the directors as were able to attend to be present at any conciliation.

PN276

BOULTON J: Yes, well, you should continue with your submissions, Ms Richards.

PN277

MS RICHARDS: I have in fact finished my submissions, your Honour, unless there are any other matters I can be of assistance with.

PN278

BOULTON J: That is it, is it?

PN279

MS RICHARDS: Yes.

PN280

BOULTON J: Yes, thank you. Mr Green?

PN281

MR GREEN: May it please the bench. In reply we say that Mr Avery letter pays regard to substance, tenor and text. He then says that Mr Avery was writing that letter with an eye to the content of clause 10B of the contract of employment. When he said, as he did, in the third paragraph "Your contract provides that if you continue performing management duties beyond the term of the agreement" etcetera, "then the agreement may be terminated on one months notice." He was picking up the terms of clause 10B.

PN282

Those words, "beyond the term of the agreement", find expression in clause 10B. It was a letter too, we should say, that on the evidence, was written by a legal practitioner, a practitioner who had occupied the position of Manager Legal Services at the Central Land Council since 1986. So at the time that letter was written he had been in the job at least 13, possibly 14 years. He said in paragraph 1 of his witness statement, J book 13 "My responsibilities are to manage a small team of lawyers and to provide legal advice to the council as its senior lawyer. As part of my duties I am occasionally requested to provide legal advice and assistance to Aboriginal organisations which are either associated with Aboriginal land or land under claim, which is the case with Loves Creek Pastoral Lease."

PN283

Now, more than the text - more than his being mindful of the text of that letter, Mr Avery was conscious, on the evidence, of the significance of that letter. If one goes to page 6 of his witness statement, J book 13, there is a somewhat hopeful side getting before paragraph 24: "Decision not to renew Bloomfield's contract" and we ask the bench to contrast that favourable editing of the substance and tenor of the letter of termination. But, be that as it may, he said at paragraph 27 of his witness statement and this answers your question, Commissioner Gay, in a direct sense "I attended a meeting of the directors on Wednesday 22 December 1999, at that meeting I was instructed by the directors to write to Mr Bloomfield in terms of the instructions recorded in the minutes of the meeting. On 6 January 2000, I wrote to Mr Bloomfield, addressing the letter to the address shown on his contract of employment."

PN284

Again, he was framing the letter by reference to the contract:

PN285

I personally took the letter to the Alice Springs Post Office and posted it I believe on 6 January 2000.

PN286

The evidence indicates that you have a very senior lawyer taking the step of actually posting the letter himself as if conscious that its - that whether it had been sent was going to be the subject of debate later. So in all respects, internally and externally it is a letter that was a very significant letter so far as its author was concerned and as we said to the bench in our primary submissions, version number 2 of the letter where there was - Debbie Miller was copied in, he emphasised the point that the letter was written on the instructions of the directors. I've noted it was abundantly clear from the text of the letter anyway, that he felt it necessary to make assurance, double sure, that everyone understood both Mr Bloomfield and beyond, that it was a letter written on instructions.

PN287

The other thing we would mention about the letter is that my learned friend has said, well the letter wasn't relevant, question of jurisdiction. But, both sides tendered the letter. My learned friend, as if conscious of the difficulty that the letter poses for her meeting the jurisdictional point, has gone back to the meeting of 22 December and said, well, that is where the decision was taken and there was evidence showing it had been communicated to the appellant. But we would say, as to my learned friend's point, that if it be so that the contract just cut out come 31 December, why was it necessary, we ask rhetorically for a decision to bring the matter to an end to be the subject of a resolution at all?

PN288

Either way the initiative is being exercised on the part of the respondent employer to put an end to the contract. The effluxion of time argument that found favour with the Commissioner, can't be understood unless one bears in mind what it was that was actually advanced by the respondent before the Commissioner. Now we make this submission in a context where it said, well, this jurisdictional point was never put below and the point that was put below by my learned friend was there wasn't a termination the initiative of the employer, there wasn't such a termination because it was effluxion of time that brought the contract to an end.

PN289

Now, the structure of the decision is instructive because what it shows is that the Commissioner set out extensively the written submissions advanced on behalf of the respondent who were prosecuting the point of no jurisdiction. Then he set out the competing contentions of the applicant below. At page 20 of the decision, this is within paragraph 21, the appellant submissions - the respondents submissions, I beg your pardon, are set out under the side heading, termination by effluxion of time and what was said below and which was in effect ruled upon in favour of the respondent by the Commissioner, was this; Mr Bloomfield's written contract of employment came to an end on 31 December 1999, it didn't we would advance. On 22 December 1999 the directors resolved to extend his employment until the end of February 2000. This decision was conveyed to Mr Bloomfield by Mr Young immediately after the meeting. Mr Bloomfield continued to work after 31 December 2000, he did in fact finish his employment on 29 February 2000. A 2 month extension of Mr Bloomfield's contract was offered by Jayrook and accepted by Mr Bloomfield, his continued employment had a defined end point, 29 February 2000. Mr Bloomfield was invited to consider accepting an early termination of his contract, prior to 29 February, he declined.

PN290

Had the directors wished to terminate his employment, rather than allow his contract to run its course, they would have done so at this time. Mr Bloomfield's employment by Jayrook came to an end on 29 February by reason of the effluxion of time and not because his employment had been terminated at Jayrook's initiative. Division 3 part 6(a), applies only to the termination of an employees employment at the initiative of the employer. It has no application where that employment comes to an end because its term has expired, now the advice of those submissions, as with the advice of the submissions here on the appeal, is that that critical part of the submission pays no regard to Mr Avery's letter of 6 January, that is the fatal flaw of the characterisation of the argument for reffluxion of time.

PN291

Once you factor in Mr Avery's letter that characterisation is dead in the water by reason of the terms of Mr Avery's letter. Even since we were instructed this proceeding was - even since the act of termination, Mr Avery has taken an active part in this matter, he was being instructed at conciliation conference before Commissioner Eames, at which Mr Avery appeared on behalf of the respondent and the Commission filed, we submit, and disclosed that fact. So the question of his authority is an ongoing one, travels beyond the point at which he wrote the critical letter of 6 January 2000.

PN292

That is the embarrassment to the respondents argument about whether there is an initiative that the employer involved in. The real complaint, as we define it from the respondent, is that it has no answer to the point on jurisdiction that we have put, but my learned friend said, well, if this point as our opponents have put it, had been agitated below, we might have done the case differently. We ask the rhetorical question, why would that be necessary? The argument is founded upon two things, both of which are in writing, the first is the contract of employment and the second is the letter of 6 January 2000.

PN293

Both are documents, both of whose contents speak for themselves. There is no viva voce evidence that could be put on that that could admissibly inform the question of the construction either of one of the documents or the other or both. We submit, there is just nothing in the put - my learned friend's put, that the case might have been put differently. Indeed the question that fell from your Honour, the presiding member, was never given the answer. One has to, of course, judge one's deeds as well as one's words and it is instructive, we submit in the context of this present argument that my learned friend hasn't sought any adjournment on the hearing of the appeal.

PN294

Whatever else might be said about this case have nailed our comments to the mast by our outline of 4 July. That was the point we put then, 6 days later that is the point we run with on the appeal. So understood there really is no impediment we submit, with respect to the Commission's acceptance of the characterisation of events that this was an act of termination by the employer at the initiative of the employer, if the Commission pleases.

PN295

BOULTON J: Yes, there is nothing further, is there?

PN296

MS RICHARDS: No, your Honour.

PN297

BOULTON J: Yes, thank you for your submissions, the Full Bench will reserve its decision in this matter, we will publish our decision in due course.

PN298

MR GREEN: May it please the Commission.

ADJOURNED INDEFINITELY [12.18pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #N1 CHRONOLOGY PN8
EXHIBIT #N2 APPELLANT'S OUTLINE OF SUBMISSION DATED 4 JULY PN12
EXHIBIT #N3 DICTIONARY DEFINITION OF
PRIVATE EXHIBIT #M1 Submissionstc \f P \l 9
EXHIBIT #M2 APPLICANT'S OUTLINE OF SUBMISSIONS PN105