Hays Personnel Services (Australia) P/L v Motorline P/L
[2008] QDC 130
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- Unreported Judgment
- Appeal Determined (QCA)
- Hays Personnel Services (Australia) P/L v Motorline P/L[2008] QDC 130
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Hays Personnel Services (Australia) P/L v Motorline P/L[2008] QDC 130
Hays Personnel Services (Australia) P/L v Motorline P/L[2008] QDC 130
DISTRICT COURT OF QUEENSLAND
CITATION: | Hays Personnel Services (Australia) P/L v Motorline P/L [2008] QDC 130 |
PARTIES: | HAYS PERSONNEL SERVICES (AUSTRALIA) PTY LTD ACN 001 407 281 (appellant) v MOTORLINE PTY LTD ACN 077 303 523 (respondent) |
FILE NO: | BD 1911 of 2007 |
DIVISION: | Civil |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Beenleigh |
DELIVERED ON: | 27 June 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 June 2008 |
JUDGE: | Andrews SC DCJ |
ORDER: |
|
CATCHWORDS: | CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – Construction and interpretation of contracts – Custom and usage – Incorporation into contract – Knowledge of Both Parties – where respondent contracted to hire labour from appellant – where appellant’s terms of business included a right to further payment for workers later engaged by a “related company or associated firm” – where there was a prior course of dealing between the parties – whether terms were directly incorporated into the contract – whether terms were implied into the contract CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – Construction and interpretation of contracts – other matters – where respondent’s employee subsequently worked for a second company – meaning of “related company or associated firm” – principles for construction of a commercial contract – whether second company was a related company or associated firm PROCEDURE – Inferior COURTS – QUEENSLAND – Magistrates Courts – Appeal and new trial – Appeal – Practice – Hearing of Appeal – appeal from Magistrates Court – where appellant submitted that District Court should make further and different findings of fact – whether power to draw inferences of fact is limited to circumstances specified in s 47(a) Magistrates Courts Act 1921 Corporations Act 2001, s 9, s 50 District Court of Queensland Act 1967, s 113 Magistrates Courts Act 1921 s 45A, s 47(a) Uniform Civil Procedure Rules 1999, r 166 Barrymores v Harris Scarfe Ltd(2001) 25 WAR 187, applied Byrne v Australian Airlines Limited (1995) 185 CLR 410, cited Chattis Nominees Pty Ltd v Norman Ross Home Works Pty Ltd (receiver appointed) (in liq) (1992) 28 NSWLR 338, cited Décor Blinds Gold Coast Pty Ltd v Décor Blinds Australia Pty Ltd [2004] QSC 055, applied Eggleston v Marley Engineers Pty Ltd (1979) 21 SAS, considered Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1969] 2 AC 31, cited Hawkins v Clayton (1988) 164 CLR 539, cited Jones v Dunkel (1959) 101 CLR 298, cited |
COUNSEL: | C K Copley for the appellant S C Fisher (Sol) for the respondent |
SOLICITORS: | Robert Bakker Lawyers for the appellant Neumann and Turnour Lawyers for the respondent |
- [1]ANDREWS SC DCJ: This is an appeal from a decision of the Magistrates Court of Queensland at Beenleigh dated 13 June 2007. The appellant (“Hays”) provided labour for hire on temporary or permanent bases. The respondent (“Motorline”) obtained a worker from Hays on a temporary basis. That worker afterwards commenced permanent employment with Motorway Grand Prix Pty Ltd ACN 088 192 063 (“Motorway”). Hays’ case is that:
- in the contract formed when Motorline engaged Hays to supply a worker there were terms included being clauses 4.1 and 5 of “Terms of Business” in writing which appear in a number of documents;
- clauses 4.1 and 5 were express terms by being directly incorporated into the contract or implied by a course of dealing;
- pursuant to clauses 4.1 and 5 there was an obligation upon Motorline to pay a further fee to Hays if the worker supplied was later engaged by a “related company or associated firm” within 12 months after working at Motorline or as a result of an introduction by Motorline;
- the worker was later engaged by Motorway and Motorway was a “related company or an associated firm” and the engagement was within 12 months and as a result of an introduction by Motorline;
- if it is correct, Motorline should have paid it $6,041.52 and $604.15 GST.
- [2]It is conceded by Motorline that s 45A of the Magistrates Courts Act 1921 does not prevent an appeal lying from the judgment of the Magistrate in the circumstances of this case.
- [3]It is further conceded by Motorline that, if Hays is successful, the quantum of the judgment should be $6,041.52 plus $604.15 for GST. Interest on the judgment is a separate issue.
- [4]The first issue to consider is whether the Magistrate should have found that a contract between Hays and Motorline included among its terms clauses 4.1 and 5 from the Terms of Business. The Magistrate did not find that the contract included those terms.
- [5]The second issue to consider is whether the Magistrate erred by failing to find that the requirements of clauses 4.1 and 5 of the Terms of Business were established on the evidence so as to oblige Motorline to pay a further fee. The Magistrate made no findings whatsoever on these issues. The inference is open that having found that clauses 4.1 and 5 were not terms of the contract the Magistrate determined that it was unnecessary to consider these subsequent matters unless the parties required it. The Magistrate asked the parties if further findings were required and received an equivocal answer from counsel for Hays. No criticism was made of the Magistrate in the appeal for making no finding on further factual matters, nor could criticism be properly made because of the answer given to the Magistrate. The absence of factual findings on critical issues created practical obstacles for an appeal of this type.
- [6]Hays made submissions to the effect that the District Court in this appeal should substitute its own findings on credit and reliability for those made by the Magistrate about the witnesses Hind and Trickett and that this court should make further and different findings of fact as a result.
Power to draw inferences of fact
- [7]It is important to consider what powers to draw inferences of fact the District Court may exercise in an appeal from a Magistrates Court exercising civil jurisdiction. The parties were unable to assist on this issue. So far as is relevant to this issue I note that s 47(a) of the Magistrates Courts Act 1921 provides:
“47 Jurisdiction of the District Court
On the hearing of an appeal … the District Court may—
- (a)draw inferences of fact from facts found by the Magistrates Court, or from admitted facts or facts not disputed…”
Section 113 of the District Court of Queensland Act 1967 provides:
“113 Power of District Court on appeal from Magistrates Court
The District Court has, for an appeal from a Magistrates Court, the same powers as the Supreme Court had for the same type of appeal immediately before the commencement of the District Court Act 1958…”
- [8]Before the commencement of the District Court Act 1958 the powers which the Supreme Court had for the same type of appeal were expressed in s 11(5) of the Magistrates Courts Act 1921 as it then appeared. Section 11(5) has since been repealed. That section was expressed in terms identical with s 47 of the Magistrates Courts Act 1921 save for the fact that the word “Supreme” appeared in s 11(5) wherever the word “District” now appears in s 113.
- [9]The effect of s 113 of the District Court of Queensland Act 1967 is to add nothing to the powers expressed in s 47 of the Magistrates Courts Act 1921.
- [10]I find that my power to draw inferences of fact is limited to the three instances described in s 47(a) of the Magistrates Courts Act 1921.
Express terms by direct incorporation
- [11]Hays submits by its counsel that the Terms of Business were directly incorporated into the contract. Fundamental to this submission would be a finding that Kim Trickett, for Hays, advised someone for Motorline by telephone that she would send Hays Terms of Business to Motorline and a finding that she then sent them. The submission is that this was Ms Trickett’s usual practice and the evidence of usual practice should have persuaded the Magistrate and this court that the conversation took place. On this particular point the Magistrate found[1]:
“There is no evidence of … any discussions that occurred during that conversation. I am satisfied … That the terms of the contract only relate to that raised in the telephone conversation and would include the request to provide staff, the supply of the staff and then restricted to limited issues raised when the two parties spoke. There is no evidence of any reference in the telephone conversation to the term of business agreement.”
- [12]The submissions of Hays, in the written outline, were that “Kim Trickett’s evidence was that she usually, at the time of contract, made the client aware that she would send the appellant’s Terms of Business.” That submission, if correct, would lead me to conclude that the Magistrate erred when finding that there was no evidence of any discussions that occurred during that conversation. It would lead me to conclude also that the Magistrate erred in finding that there was no evidence in the telephone conversation of any reference to the term of business agreement. However, reference to the transcript at page 10 from about lines 34 to 41 from the evidence of Ms Trickett significantly reveals her to have said:
“(Question) Now, at any stage during this initial contact, were Terms of Business discussed?
(Answer) Terms of Business at that initial – sorry, the – the actual conversation to confirm the candidate?
(Question) Yes?
(Answer) Would I – I disclosed Terms of Business? I would have discussed the rate, the hourly rate and then the Terms of Business are sent automatically with the confirmation letter to the client.”
- [13]The passage of transcript suggests that Ms Trickett’s answer neither accepted nor rejected the notion that she disclosed the “Terms of Business”. If I have the power to substitute my own finding of fact for the Magistrate’s findings on this issue, the evidence does not satisfy me that Ms Trickett orally referred to Terms of Business or that she advised Motorline that terms would be sent by post.
- [14]Section 47(a) of the Magistrates Courts Act 1921, which allows me to draw inferences of fact in three specific circumstances, does not empower me to draw a different inference which would be inconsistent with the Magistrate’s findings of fact on that issue.
- [15]It was submitted for Hays on this issue that the failure of Motorline to call witnesses Everson and Kendall could assist me because I could apply the rule in Jones v Dunkel[2] as to the circumstances in which the contract was formed. It was submitted that I could be more willing to accept the evidence of Ms Trickett as to the usual practice. The weakness in this submission is that the evidence of Ms Trickett does not support a finding that she told Motorline by telephone that there were Terms of Business which would be incorporated in the contract and which would be sent.
Implied terms by course of dealing
- [16]Mr Copley submitted that there was an alternative basis for the incorporation of the Terms of Business because there had been prior dealings between the parties. I accept his submission that terms may be implied in a contract from a past course of dealing between the parties.[3]
- [17]Neither party made submissions as to what facts fell within the description of “admitted facts or facts not disputed” within the meaning of s 47(a) of the Magistrates Courts Act 1921. Because the Magistrate made no findings with respect to the Hays’ submissions that clauses 4.1 and 5 were implied by course of dealing it becomes necessary for me to consider which were the facts which were either “admitted facts or facts not disputed”. The Further Amended Statement of Claim at paragraph 3A(c) alleged:
“3A The Terms of Business were incorporated into the Agreement between the Plaintiff and the Defendant pursuant to:
…
- (c)further or alternatively, their having formed, on occasions of prior dealing between the Plaintiff and the Defendant, the terms of agreements for the provision of recruitment services by the Plaintiff to the Defendant for a fee when, on each such occasion, the Terms of Business were enclosed with a letter from the Plaintiff to the Defendant.
Particulars of Prior Dealing on Same Terms of Business
Date of Letter Enclosing Terms of Business | Person Placed Pursuant to Terms of Business |
13 February 2003 | Vanessa Auret |
13 May 2003 | Victoria Wilkinson |
24 May 2003 | Lianne Christian |
31 July 2003 | Joyce Anne Collins |
22 August 2003 | Kerrie-Anne Hilton |
8 September 2003 | Kerrie Lynne Zwoerner |
8 September 2003 | Jennifer Groom |
15 September 2003 | Michelle Louise Lindemann |
19 September 2003 | Joyce Anne Collins” |
- [18]Motorline by its amended defence at paragraph 4.6 and 4.8 pleaded to those allegations as follows:
“4.6 The Defendant objects in point of law that the Terms of Business formed part of any agreement between the parties on occasion of any prior dealing between the parties because the parties did not contract by reference to the Terms of Business which are referred to in the letters particularised after paragraph 3A(c) of the Further Amended Statement of Claim which were supplied only by way of information and not by way of having contractual intent or effect [emphasis supplied by this Court];
…
4.8 There were no prior dealings between the parties including the Terms of Business referred to in paragraph 3A(c) of the Further Amended Statement of Claim because the Defendant denies receipt of the Terms of Business document particularised by the Plaintiff after paragraph 3A(c) of the Further Amended Statement of Claim.”
- [19]Paragraph 4.6 of the amended defence read alone admits the receipt of the nine letters referred to in the particulars in paragraph 3A(c) of the Further Amended Statement of Claim. A submission to that effect was made by counsel for Hays. Mr Fisher, for Motorline, does not concede that paragraph 4.6 of the amended defence should be interpreted that way because he says it should be interpreted in context with paragraph 4.8 of the amended defence. Paragraphs 4.6 and 4.8, if read together, are ambiguous. Paragraph 4.6 does not comply with the obligation imposed upon the defendant by UCPR r 166(4) which provides:
“166 Denials and nonadmissions
…
- (4)A party’s denial or non-admission of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue or cannot be admitted.”
Because of that r 166(5) applies and “the party is taken to have admitted the allegation”.
- [20]There are particular circumstances relating to this case which lead me to apply r 166(4) and (5) to find that Motorline has admitted receipt by it of the nine letters and that the letters were dated on the dates alleged and that they enclosed Terms of Business. There is no need to find further features to apply the rule in accordance with its terms. However, because the strict application of r 166(4) and (5) can sometimes be unjust or result in an unintended admission, I do note further features which lead me to apply the rule strictly. Firstly, the ambiguity does not lead me to conclude that the Defendant intended to dispute receipt of the nine letters. Instead, I interpret paragraph 4.8 as seeking to deny that the Terms of Business particularised in the Further Amended Statement of Claim in paragraph 4 were in terms identical with the terms in the Terms of Business enclosed in the nine letters. My interpretation is consistent with Mr Fisher’s submission that Motorline’s primary submission about the confirmation letter sent by Hays which enclosed Terms of Business was that the confirmation letters included a critical sentence “I have attached our Terms of Business for your information”. The significance of that sentence according to Motorline is that it was not expressed in the language of obligation but of information and that accordingly the court should conclude that the Terms of Business were not conditions of any contract.
- [21]For those reasons I find that on about the dates alleged in paragraph 3A(c) of the Amended Statement of Claim nine letters enclosing Terms of Business relating to eight different employees were sent by Hays to Motorline and that those are “facts not disputed” within the meaning of s 47(a) of the Magistrates Courts Act 1921.
- [22]Mr Fisher for Motorline, raised as an issue that there was a difference between versions 9 and 10 of the Terms of Business but conceded in argument that with respect to clauses 4.1 and 5 there were no material differences. Accordingly, I find that clauses 4.1 and 5 as alleged at paragraph 4 of the Further Amended Statement of Claim contain the terms of those clauses and are “facts not disputed”. As alleged in the Further Amended Statement of Claim they provide:
“4.6 SUBSEQUENT ENGAGEMENT OF A CONTRACTOR/OR TEMPORARY: If within twelve (12) months of the conclusion of an assignment of a contractor/temporary introduced to you by us, you engage that person for a limited or unlimited period, a placement fee will apply. The placement fee will apply to any contractor/temporary introduced to you by us who is engaged by you or any division, related company or associated firm on a permanent, contract/temporary, part-time or consultancy basis …
5 ONWARD REFERRAL: Introductions are confidential. Should you pass on an introduction which results in an engagement of a candidate, to any other division or any related or associated company or firm, or any other employer, you will be liable to pay us a fee calculated in accordance with the fee schedule above, as if the candidate had been engaged by you…”
- [23]Mr Fisher for Motorline conceded in argument that on the back page of each timesheet sent by Hays to Motorline with respect to employees supplied there appeared printed Terms of Business. The financial controller of Motorline, Mr Hind, agreed that with respect to each of the eight previous occasions when persons were hired he signed timesheets at exactly the same spot.[4] That spot was beneath the following words printed on the form:
“I accept the terms and conditions for the introduction of temporary workers by Hays Personnel Services”.
I find that “facts not disputed” include facts that:
- timesheets were supplied by Hays in connection with each of the eight persons placed with Motorline on nine occasions prior to the supply by Hays to Motorline of the worker the subject of the current dispute;
- on the back of each timesheet appeared printed Terms of Business;
- each timesheet was signed either by Hind or some other person employed by Motorline.
- [24]There was no evidence of objection ever having been taken by Motorline to the Terms of Business. Further, Mr Hind for Motorline agreed that he never on any occasion raised any objection to the Terms of Business located on the back of the timesheets. I find a fact not disputed is that Motorline did not object to the Terms of Business after receipt of them on nine occasions prior to the supply by Hays to Motorline of the worker the subject of the current dispute.
- [25]Mr Copley for Hays urged in his submissions that there was other evidence to support the incorporation of the Terms of Business by prior dealing. However those submissions were not framed on the basis that the other evidence was either found by the Magistrate or admitted or a fact not in dispute.
- [26]Mr Copley submitted and Mr Fisher conceded that when considering whether the Terms of Business were incorporated in the contract by a course of prior dealing between the parties that a court should look at objective matters and not subjectively at whether employees of Motorline held the opinion that the Terms of Business were conditions of the contract.
- [27]Motorline relied upon Eggleston v Marley Engineers Pty Ltd (1979) 21 SAS and other cases in support of a proposition that the Terms of Business cannot be part of the contract unless Hays can demonstrate that Motorline knew of the actual contents of the terms and not merely of the existence of some terms impressed upon a post‑contractual document. This submission does not assist Motorline to rebut the part of Hays’ case based upon a course of prior dealing. Hays’ case is not that the terms were impressed upon a post-contractual document but that they were impressed upon documents during a course of dealings which occurred prior to the relevant contract. If Motorline’s submission is intended to be construed more widely to include an implied submission that Hays has an onus of proof that Motorline knew of the contents of the Terms of Business and not just of their existence it would be inconsistent with the concession made by Mr Fisher that the court is to be concerned with objective matters and not subjective when considering the issue of incorporation of terms by course of dealing.
- [28]Mr Copley relied on the following cases as examples of occasions where terms were implied from a past course of dealing:
Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association [1969] 2 AC 31;
Chattis Nominees Pty Ltd v Norman Ross Home Works Pty Ltd (receiver appointed) (in liq) (1992) 28 NSWLR 338.
- [29]I accept the submission of Mr Fisher for Motorline in reliance on Barrymores v Harris Scarfe Ltd[5] where it was held:
“Contractual terms may be inferred from the business relationship of parties if the course of their dealings raises the reasonable expectation that terms imposed on previous occasions will form part of the contract on a subsequent occasion. For that to be done four requirements need to be satisfied:
- the terms previously used must be identifiable (usually by reference to contractual documents);
- those previous occasions must be sufficiently numerous and frequent;
- the conduct must be consistent enough to constitute a regular course of dealing;
- which raises the reasonable expectation that the same terms should be included in the subsequent contract.”
- [30]Mr Fisher submits I should not regard the nine letters sent by Hays to Motorline which referred to and enclosed Terms of Business because each letter was expressed “I have attached our Terms of Business for your information”. It was submitted that that was not the language of obligation or of contract but would be construed as simply the provision of information. In determining how a reasonable person might construe that sentence I take into account that the enclosed document was headed “Terms of Business”. In the whole of those circumstances I find that a reasonable person receiving such a letter would regard the “Terms of Business” as contractual in nature.
- [31]From the facts admitted I infer that the Terms of Business were identifiable, were supplied prior to the relevant contract on sufficiently numerous and frequent occasions and were supplied on each occasion when an employee was supplied by Hays to Motorline prior to the contract the subject of this dispute and that this raised the reasonable expectation that the same terms would be included in the contract the subject of this dispute.
Requirements of Clause 4.1
- [32]The terms of clause 4.1 are set out at paragraph [22] above. Motorline concedes that “engage” and “engagement” respectively include “employ” and “employment”.
- [33]The Magistrate made no finding about whether any of the matters in clause 4.1 or clause 5 were satisfied.
- [34]It was submitted to me by Mr Fisher and as a result of that submission I accept it as a fact not in dispute that when Hays would supply an employee to Motorline, Motorline would pay Hays a fee and Hays would pay the employee. The employee, the subject of this dispute, was a Ms Munson. Hays pleaded[6] that Munson was employed by Motorway within a period of 12 months of the placement (with Motorline on and from 2 January 2004 until 30 January 2004) namely on or about 2 February 2004. Hays denied the allegation because[7] “the Defendant cannot plead to when Munson commenced engagement with Motorway as the allegation is not within the knowledge of the Defendant”. That denial’s wording leads me to find that it is not in dispute that Munson commenced engagement with Motorway. By Exhibit 1 Motorline by its solicitors admitted that Munson was employed by Motorway and enclosed a filing receipt dated 6 February 2004 confirming that an Australian workplace agreement between Motorway and Munson was filed that day by the Employment Advocate. I find that those facts are not in dispute and I infer from them that Ms Munson was engaged by Motorway in or about February 2004 within 12 months of the conclusion of an assignment of Ms Munson being a temporary introduced to Motorline by Hays.
- [35]The real issue remaining to determine whether the requirements of clause 4.1 apply in this case is the issue of whether Motorway was a “related company or associated firm” within the meaning of those words in clause 4.1 with respect to Motorline. Hays concedes Motorway was not a division of Motorline.
- [36]No fact found, admitted or undisputed will lead to the conclusion that Motorway was an associated firm. The clause distinguishes firms from companies. Motorline and Motorway are each companies.
- [37]Was Motorway a “related company”? In December 2003 when a contract relating to Munson was entered into between Hays and Motorline and during the earlier course of dealing in 2003, the Corporations Act 2001 (“the Act”) did not define “related company”. Both parties made submissions on the false assumption that the Act instead defined “related corporation”. The Act did not define “related corporation”.
- [38]Motorline submitted that “related company” should be understood to mean “related body corporate” within the meaning of to s 50 of the Act. Section 50 of the Act at the relevant dates in 2003 provided:
“50 Related bodies corporate
Where a body corporate is:
- (a)a holding company of another body corporate; or
- (b)a subsidiary of another body corporate; or
- (c)a subsidiary of a holding company of another body corporate;
The first-mentioned body and the other body are related to each other.”
- [39]Motorline gives no reason for its submission that “related company” should be understood to mean “related body corporate” within the meaning of s 50 of the Act. One implication in the submission is that the use of the word “related” in the Terms of Business was a deliberate reference to the word “related” in s 50 of the Act and that the use of the word “company” in the expression “related company” was an error. Motorline submitted that the expression “related company” was meaningless unless understood within the sense of s 50 of the Act and submitted that companies cannot be “related on the basis of a common director”. This submission loses force when one sees that at the relevant time in 2003 s 9 of the Act defined “related entity” as follows:
“related entity, in relation to a body corporate, means any of the following:
…
(k) a body corporate one of whose directors is also a director of the first‑mentioned body”.
When interpreting clause 4.1 I do not interpret “related company” to mean bodies corporate related in the sense used in s 50 of the Act.
- [40]The wording “related company or associated firm” in clause 4.1 can be contrasted with the wording “related or associated company or firm” in clause 5. The differences in wording do not appear to have been deliberate but are an indication of an unwitting imprecision. This imprecision assists me to conclude that the words “related company” in clause 4.1 were not intended as some legal term of art.
- [41]Both parties referred to the principles set out by her Honour Atkinson J in Décor Blinds Gold Coast Pty Ltd v Décor Blinds Australia Pty Ltd [2004] QSC 055 at [26] as the appropriate principles for the construction of a contract in a commercial context. Among the 12 principles set out by her Honour the following seem apt when considering the problem created by the words of clause 4.1:
“The following principles apply to the construction of a contract in a commercial context:
- (1)The court’s primary task is to construe the words used by the parties in the contract;
…
- (6)If the words have more than one possible meaning, then the construction will be preferred which is not capricious, unreasonable, inconvenient or unjust;
…
- (8)Commercial contracts should be construed so as to make commercial sense of them – a conclusion that reflects business common sense is to be preferred to one that flouts it;
…
- (12)A commercial contract should be construed fairly and broadly whether or not the contract was drawn with the assistance of lawyers.”
- [42]It was accepted by Motorline during submissions that the evidence disclosed several matters set out in the written submissions of counsel for Hays. The effect of Motorline’s concession is that the following are “facts not disputed”:
- One Everson was a director of Motorline and Motorway;
- One Rose was a director of Motorline and the secretary of Motorway;
- One Hind was a secretary of Motorway and was financial controller for Motorway and for Motorline and signed Munson’s timesheets for Motorline;
- The registered office for Motorline and for Motorway was the same;
- The registered office for Motorline and Motorway was the address of Rose;
- Motorline and Motorway had the same registered principal place of business;
- Motorline and Motorway each operated from its own building on one block of land on one title;
- Motorline and Motorway had a single landlord said to be the Rose Family Trust;
- One café was provided for the use of the customers of each company;
- The two companies had a common telephone system;
- A World Wide Web site “www.motorline.com.au” advertised the products of both Motorline and Motorway;
- There is some evidence that the company that sold a certain brand of new car sold the other’s brand of used car.
- [43]Company searches of Motorline and Motorway revealed that LW Rose was the beneficial owner of the two issued shares in Motorline while PS Rose was the beneficial owner of the two issued shares in Motorway and the address of PS Rose and of LW Rose was the same being suite 1, 310 Whitehorse Road, Balwyn, Victoria, 3103. Evidence of Mr Hind, financial controller of each company, was that on 16 August 2004 he signed an email “Motorline Group, Clyde Hines, Financial Controller” and that Motorline Group is not a registered entity but is referred to as encompassing both Motorline’s and Motorway’s operations at Daisy Hill. No evidence appears which is inconsistent with any of the facts in this paragraph. I find these facts to be “facts not disputed” within the meaning of those words in s 47(a) of the Magistrates Court Act 1921.
- [44]I find on the basis of facts not disputed, that Motorway was a “related company” within the meaning of those words in clause 4.1 with respect to Motorline.
- [45]On the basis of admitted facts and facts not disputed I find that within 12 months of the conclusion of the temporary engagement by Motorline of Ms Munson who was introduced to Motorline by Hays, Ms Munson was engaged by a related company of Motorline being Motorway. Such of the requirements of clause 4.1 as were in issue between the parties are established by these findings.
- [46]As to the application of clause 5, counsel for Hays submitted that I should find that Ms Munson was introduced by Motorline to Motorway and that liability to pay a fee arose independently of clause 4.1 pursuant to clause 5 because of that introduction. I do not accept this submission for two reasons. Firstly, I cannot conclude that, on the balance of probabilities, Ms Munson came to the attention of Motorway because of an introduction by Motorline. I cannot exclude the equally probable possibility that Ms Munson brought herself to the attention of Motorway or the equally probable possibility that she came to the attention of Motorway without any introduction. I regard these as equally probable possibilities because Motorway and Motorline shared a common café and were housed in buildings on the same title. Secondly, such facts as are admitted or are not disputed or have been found by the magistrate are not such as to allow me to draw an inference that there was an introduction of Ms Munson to Motorway by an employee of Motorline.
- [47]I order that there be judgment for the appellant against the respondent for $6,041.52 plus $604.15 for GST. I will hear the parties as to interest on the judgment and as to costs.
Footnotes
[1] Commencing at decision p 4, line 35.
[2] (1959) 101 CLR 298.
[3] Hawkins v Clayton (1988) 164 CLR 539 at 573 per Deane J followed in Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 422 per Brennan CJ and Dawson and Toohey JJ.
[4] T 79 l 35.
[5] (2001) 25 WAR 187 at 207 per Roberts-Smith J and citing D W Greig and J L R Davis ‘The Law of Contract’ (Law Book Company Ltd 1987 at 575).
[6] Further amended statement of claim para 6.
[7] Amended Defence para 7.4.