Dekmetzian v Advanced Medical Institute Pty Ltd - [2004] FMCA 682

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEKMETZIAN & ANOR v ADVANCED MEDICAL INSTITUTE PTY LTD

[2004] FMCA 682

TRADE PRACTICES – Whether misleading and deceptive conduct – consulting agreement – representation as to roster allocation – whether contract wrongly terminated – whether variation of written agreement.

Trade Practices Act 1974, s.51A, 52
Industrial Relations Act 1996 (NSW), s.105, 106

Hoyts Pty Ltd v Spencer (1919) 27 CLR 133
Bruce v AWB Ltd [2000] FCA 594 (10 March 2002)
Allan v Ferns Investment & Ors [2002] FMCA 16
Waipara Pty Ltd v Police Association (1998) Vic SC 89 (1 May 1998)
Pappas & Anor v Soulac Pty Ltd & Anor (1983) 50 ALR 231
Bell v Macquarie Bank [1998] FCA 1763 (15 May 1998)
Software Engineers Australia Pty Ltd v Bonket Pty Ltd [2002] FCA 1168 (19 September 2002)
Withers v General Theatre Corporation Ltd (1933) 2 KB 536
Commonwealth v Ammann Aviation Pty Ltd (1991) 174 CLR 64
Grout v Gunnedah Shire Council (No 3) (1995) 59 IR 248
O’Neill v MBF [2001] FMCA 16

Applicants:

PAUL DEKMETZIAN and BOND LEASE & FINANCE PTY LTD
(ACN 006 204 646)

Respondent:

ADVANCED MEDICAL INSTITUTE PTY LTD (ACN 095 238 645)

File No:

MLG 1240 of 2002

Delivered on:

8 October 2004

Delivered at:

Melbourne

Hearing Dates:

26 & 27 June, 25 July and 4 August 2003

Judgment of:

McInnis FM

REPRESENTATION

Counsel for the Applicants:

Mr M Rinaldi

Solicitors for the Applicants:

Kliger Partners

Counsel for the Respondent:

Mr A McNab

Solicitors for the Respondent:

Harwood Andrews

ORDERS

The application be dismissed.
The Applicants shall pay the Respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules, including reserved costs if any, based upon Schedule 1 of the Federal Magistrates Court Rules.
Pursuant to Rule 21.15 of the Federal Magistrates Court Rules the Court certifies that it was reasonable for the parties to employ an advocate to appear in the proceeding.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1240 of 2002

PAUL DEKMETZIAN AND BOND LEASE & FINANCE PTY LTD (ACN 006 204 646)

Applicant s

and

ADVANCED MEDICAL INSTITUTE PTY LTD (ACN 095 238 645)

Respondent

REASONS FOR JUDGMENT

In this matter Paul Dekmetzian (the first applicant) at all material times was a director of Bond Lease & Finance Pty Ltd (the second applicant).
The applicants ultimately relied upon what is described as a "third further amended statement of claim" in these proceedings.
It is not in dispute that the applicants entered into an agreement for the provision of consulting services with Advanced Medical Institute Pty Ltd (the respondent) and did so by agreement made on 3 September 2002 ("the consulting agreement");
Pursuant to the consulting agreement, it is not in dispute that the second applicant agreed to provide sales consulting services to the respondent through the first Applicant.
According to the recitals in the consulting agreement, the respondent carried on the business of providing clinics and doctors for the treatment of male sexual impotency throughout Australia. The recitals also refer to the applicant as being -
salesperson with expertise in areas relating to the business and/or carries on the business of providing the services of the sale person in areas relating to the business of the respondent.
In the claim before the court it was alleged by the applicants that there were terms of the consultancy agreement that the respondent would appoint the applicants to provide sales consultancy services "on four days per week, plus some Saturdays on a long-term basis" in accordance with the term of the consulting agreement and representations referred to in the statement of claim at paragraph 10. It is appropriate to refer to those representations regarding the length of the consultancy agreement as follows:
“(a)that the Respondent required the First Applicant's consulting services long term; and/or
(b)that the First Applicant could work with the Respondent until he reached retirement age; and/or
(c)the Applicants could easily be retained for over 10 years (collectively "the term of Consulting Agreement representations");
(d)that the Respondent would roster the First Applicant on a regular basis, at least 4 days per week;
(e)that the Applicants would be given the opportunity to earn Fees of up to $150,000 per annum.”
The commencement date of the consulting agreement is referred to in that agreement as 3 September 2002, namely, the date upon which the agreement was purportedly made between the parties.
It is noted in the consulting agreement that the first Applicant is referred to as the "salesperson" and the second applicant referred to as the "service company". Collectively, they are referred to as "the consultant". The Applicants agreed pursuant to clause 6 of the Consulting Agreement that they are not an employee of the Respondent but remain an independent contractor.
It is noteworthy that the consulting agreement provided for a commencement date and clause 4.1 stated that it shall continue until terminated pursuant to clause 13. Clause 13 provided the following:
“13Termination
13.1For the purpose of giving notice, notice to the Consultant may be addressed to either party (where two or more parties comprise the Consultant) and that notice will be sufficient to the Consultant.
13.2Any party may terminate this Agreement without any reason upon giving written notice to the other party. The notice period required is set out in Item 7 of Schedule 1.
13.3Any party may immediately terminate this Agreement upon giving written notice to the other party upon the occurrence of any one of the following events for the reasons set out below in paragraphs (a).
(a)the insolvency of the other party including
i)the commencement of winding up or bankruptcy proceedings;
ii)the appointment of a receiver or manager or receiver and manager to the assets or undertaking of one of the other parties or any part of the assets of that party or in the case of a party being a company the date of commencement of any official management of that other party pursuant to any relevant law; and
iii)the commencement of any step by a person to enter into a compromise or arrangement with the party's creditors;
13.4The Company may immediately terminate this Agreement upon the happening of any one of the following events. The termination need not be in writing and no notice is required. The events are:-
(a) If the Sales Person is not the Sales Person identified in Item 1 of Schedule 1 of the Agreement;
(b)If the Consultant fails to comply with or satisfy any of its obligations in this Agreement including any obligations in Clause 3.1 of this Agreement;
(c)If the Consultant is convicted of any criminal offence other than an offence which in the opinion of the Company does not affect their position as under this Agreement; and
(d)If the Consultant becomes incapacitated by reason of accident or illness, or otherwise unfit to provide the Service.”
Item 7 of Schedule 1 provides a notice period of "two" (2) weeks. The obligations of the consultant set out in clause 3 of the consulting agreement provide the following:
“3.Obligations of the Consultant
3.1 The Consultant
(a) Will use all his/her knowledge, information and expertise to provide the Services to the Company;
(b)Will ensure that the Sales Person in the performance of the Services:
i) observes and conforms to all laws and customs of that occupation in carrying out the Services for the Business;
ii)maintains or exceeds performance criteria and competencies as set out in Attachment 1;
iii)performs the duties and obligations in the manner proscribed in Attachment 1;
iv)is respectful, courteous and polite to the clients of the Business, and to other contractors and staff of the Company; and
v)attends the rostered sessions punctually;
(c)Acknowledges there are requirements under the Privacy Act, and will adhere to Privacy Act requirements and associated relevant Company policies in the conduct of their providing services for the Company and with the clients of the Business;
(d)Will not remove any property or information (whether confidential or not) from the Company's premises or make copies of the same except as directed by the Company; and
(e)Will reasonably assist the Company in promoting the Company's interests, maintaining the efficiency of the Company's operations and in further improving the efficiency of its operations.”
The consulting agreement provided for a remuneration described as "consultant's fees" of "7 per cent of all sales (excluding Medicare) to be paid as the moneys are received". There was a restraining period of three years with an area of within 5 kilometres of an existing Advanced Medical Institute Pty Ltd clinic. The consultancy agreement reserved to the governing law in clause 16 where it is noted that the deed:
“… shall be governed by and constructed in accordance with the laws being in force in the state of New South Wales.”
The consulting agreement further provided the following clause in relation to out-of-pocket expenses:
“8 Out-of-pocket Expenses
8.1The Company will meet all necessary out-of-pocket expenses, which the salesperson will incur in connection with the provision of the Services provided that the Consultant will not incur any out-of-pocket expenses without first obtaining the approval of the Company, and provided that all travel arrangements whenever necessary will be arranged by the Company at its expense.
8.2Where approved reimbursable expenses are incurred directly by the Consultant, the Consultant will prepare and submit to the Company a weekly schedule of such expenses along with supporting tax invoices and/or receipts.”
After referring to the various clauses of the consulting agreement the applicants in their statement of claim asserted that the respondent was obliged to act in good faith and fairly in relation to the performance of the consulting agreement and in the exercise of its powers under that agreement, including the allocation of shifts to the applicants and the termination of the agreement.
It is claimed that this term was "implied by law".
The applicants claimed to have provided a consultancy service pursuant to the consulting agreement between 3 September 2002 and 8 October 2002 and based upon the set-up fee asserted that fees were earned over that period totalling $5824.70.
It was claimed that the respondent breached the consulting agreement by terminating the agreement on 10 October 2002 without notice and had failed to give the applicants two weeks' written notice that the agreement was terminated in breach of clause 13.12 and item 7 of schedule 1. It was further claimed that the respondent had failed, neglected and/or refused to pay the applicants the sum of $5824.70 plus GST being the fees that the applicants earned under the consulting agreement. It was claimed that the respondent had failed to provide to the applicants shifts on four days per week on a long-term basis in breach of what was described as the "long-term four days per week term". That term is noted to have been a term allegedly agreed to in conversation between David Adams, Chief Operating Officer of the respondent, to the applicants in the course of a conversation between Dr Adams and the first Applicant on or about 30 August 2002.
The conduct of the respondent in terminating and allegedly not providing the allocation of shifts was further relied upon as a failure to act in good faith.
The applicant claimed to have suffered loss and damage in the sum of fees not received of $5824.70 and what was claimed to be a loss of benefit of consultancy agreement and were not given two weeks' notice amounting to a claim of $3106.50 being the average rate allegedly earned over the 15 days work by the first Applicant multiplied by eight days (two weeks minimum four days per week). It was acknowledged that the respondent had paid to the applicants the sum of $2072.07 on 30 September 2002 in reduction of the fees owed to the applicants.
In the alternative, the applicant claims that representations were made regarding the length of the consulting agreement as follows:
(a) that the respondent required the first applicant's consulting services long term; and/or
(b) that the first applicant could work with the respondent until he reached retirement age; and/or
(c) the applicants could easily be retained for over 10 years;
(d) that the respondent would roster the first applicant on a regular basis at least four days per week;
(e) that the applicants would be given the opportunity to earn fees of up to $150,000 per annum.
It was claimed that those representations were as to future matters and were made by the respondent without reasonable grounds for making them and the representations relied upon by the applicants and then used by the applicants to enter into the consultancy agreement, perform the consultancy service for the respondent and cause the first Applicant to fly to Adelaide at his own expense to undertake training with respect to the respondent's products and further caused the applicant not to seek alternative permanent employment or engagement.
It was claimed that contrary to the representations and despite demands by the applicants, the respondent did not roster the first Applicant to at least four days per week, terminated the consultancy agreement on or about 10 October 2002 and refused to pay the remuneration owed to the applicants.
The representations were claimed to be false, misleading and deceptive and the applicants relied upon s.51A of the Trade Practices Act 1974 (the TPA). It was further argued that the respondent had engaged in conduct in trade and commerce in contravention of s.52 of the TPA.
It was further claimed that had the applicants known the respondent would not comply with the consultancy agreement the applicants would not have provided the consultancy services or undertaken the expense of flying the first Applicant to Adelaide and would have sought permanent employment or engagement elsewhere. The loss and damage claimed to arise from the alleged misleading and deceptive conduct of the respondent included the following particulars:
That the applicants:
a)have lost the security of the consultancy agreement;
b)have incurred expense in flying to Adelaide;
c)have not been paid the fees earned referred to earlier;
d)have lost fees which would have been earned over a long term in accordance with the consultancy agreement.
It was further argued it was unconscionable for the respondent to withhold payment of any outstanding fees or deny the term of the consultancy agreement representations or deny the long term four days per week term or to rely upon the express notice term. The applicants claimed the respondent is estopped from withholding such payment, denying the term of the consultancy agreement representations, denying the long term four days per week term, and relying upon the express notice term. It was further claimed that the respondent would be unjustly enriched if it was permitted to withhold such payment. A further argument was raised that the applicants were entitled to payment of fees on a quantum mueruit or otherwise pursuant to the principles of restitution.
A separate and discrete argument was advanced for and on behalf of the applicants that the consultancy agreement is harsh and unfair within the meaning of s.106 of the Industrial Relations Act 1996 (NSW). Further, it was claimed in the alternative that the respondent had engaged in unconscionable conduct in trade and commerce in contravention of s.51AA of the TPA.
It should be noted that the applicant filed particulars of loss and damage prior to the trial of the action claiming an amount of $171,376. That claim comprised the following:
$120,000 by three years   $360,000
Saturdays $12,000 by three years (20 Saturdays per year)      $36,000
Half cost of setting up new business     $8000
Unpaid fees      $2200
TOTAL $406,200
Less:
Earnings from Money Strength Pty Ltd   $18,824
Expected returns - new business
Year 1 (net profit return) $36,000
Year 2$72,000
Year 3 $108,000
TOTAL $234,824
TOTAL CLAIM   $171,376
The respondent denied liability and specifically rejected any suggestion that the written agreement was not intended to contain all the relevant contractual terms and thereby specifically rejected the suggestion that any oral agreement as alleged by the applicants should apply to the arrangement between the parties. Otherwise the claims under the Trade Practices Act were denied, as indeed was the claim for damages. Specifically, any claim for outstanding fees could not be made until those fees had been paid by the clients of the business when the respondent would duly account to the applicant pursuant to the contract. Any representations made for the opportunity to earn fees of up to $150,000 per annum, whilst being denied, were, in the alternative, dependent on the basis that the opportunity to earn any fee would be subject to performance of each sales consultant and the availability of work. During the course of the hearing emphasis was placed upon the words "up to" as alleged by the applicants. Any breach of the consulting agreement was denied and other issues were raised as to the availability of the applicants to perform work when available.
It was denied that the respondent would roster the first Applicant on a regular basis of at least four days per week and asserted that the rostering was subject to the number of patients the respondent had at any point in time. The respondent otherwise admitted placing an advertisement in the newspaper on 3 August 2002 where the words "up to 150K p.a." appeared. The other allegations raised by the applicants were otherwise denied.

The evidence

The first Applicant gave oral evidence and adopted an affidavit sworn by him in support of the application. Apart from correcting dates in the affidavit, he adopted his affidavit evidence which provides background and employment history of the applicant. In brief terms, he commenced employment in 1976 with the National Australia Bank and since then has worked in numerous areas of finance and sales. He has been self-employed as a finance broker and part business owner of a motor repair business between June 1984 and September 1992. He brokered loans to businesses and property developers who financed construction, equipment and motor vehicle leases. In 1992 he decided to pursue a career in real estate and between October 1992 and June 1993 was employed by a property group as a salesman and sold house and land packages in the south-eastern suburbs.
Between July 1993 and April 1995 he was employed as a contractor by a software games distributor and worked as the Victorian Sales Manager. In that position he claimed a remuneration was earned of approximately $95,000 per annum. In March 1995 he started a software retail and mail order company. He sold that business at a substantial profit in October 1997. The business under the new ownership failed and the applicant then repurchased the business in August 1998 and then established a mail order software business at the same location. He claims to have worked three days per week most of the time the company was trading and drew a wage of approximately $50,000 per annum.
At the same time he developed real estate with another company of which he was a sole director, namely, the second applicant, Bond Lease and Finance Pty Ltd. He asserted that between 1996 and 2001 his average personal taxable income was $80,227 per annum after deducted business expenses. In 2001 he sold the software business. Between May 2002 and September 2002 he did not earn an income from the second applicant. He was paid a severance sum from his partner in the mail order software business on 20 September 2002. Prior to that he had commenced searching for employment, particularly in relation to a sales position. He had family commitments which made it difficult for him to work on Wednesdays.

Ultimately the applicant saw an advertisement from the respondent in The Age newspaper on Saturday, 3 August 2002 which provided the following:
Sales representative
Up to 150K p.a.
A new and rapidly expanding national medical services co. requires an experienced sales representative for our busy medical clinics throughout Melbourne and country VIC. Part to full‑time. Attractive commission structure for the right person, immediate start.
The advertisement also provided contact details.
The first Applicant claims that he spoke to Rod Adams of the respondent in the first week of August 2002 and claims he was told the respondent was very busy and had an opening for a number of sales consultants. There was a discussion about the first Applicant's sales experience and he was then asked to contact another officer of the respondent company. The first Applicant forwarded a resume to the respondent which was followed by an interview in late August 2002 between the first Applicant and Rod Adams. The first Applicant claims that he was seeking employment for a minimum of four days per week and that he had commitments on Wednesdays which meant he could not work on that day. He was told that the clinics were open on Saturdays and he advised that he would be available to work that day.
It is relevant at this point to set out the precise words of the affidavit of the first Applicant in relation to the further discussions that took place at the interview as follows:
I also recall advising Dr Adams that I was looking for a position where I could be employed on long-term basis. Dr Adams assured me that the respondent was looking for long-term sales consultants. He indicated that the company was growing and that it did not have enough sales consultants. He specifically stated that the clinics were extremely busy and received a steady flow of customers. He said words to the effect that the company was looking for sales consultants to work on long-term basis, and that as I was then 44 years old I could well work with the respondent till retirement age.
The first Applicant claims he was told that his application would be favourably considered and that he would be provided with a formal answer as soon as possible. He was told the appointment would require training and that the respondent would appoint his company and the first Applicant on four days per week plus some Saturdays at various clinics as required. In his affidavit the first Applicant states that it was never suggested or implied that rostering would depend upon performance of a sales consultant or that he would receive less than four days per week.
Although not referred to in the affidavit, the first Applicant gave evidence that at the same meeting he was given examples of salespersons able to earn and achieve amounts considerably higher than $150,000 as specified in the advertisement, which it will be recalled referred to "up to 150K p.a." He could not recall in evidence the specific people referred to in the conversation and stated:
We were just talking in general terms.
The first Applicant received some training and agreed that training days would be at his expense. He trained at Box Hill Clinic with a person named Beverly Beattie and continued the following day at another clinic.
During the course of his evidence the first Applicant referred to the workload and the expectations he had arising from conversations and stated the following when asked to consider the contents of the affidavit of Mr Rodney Adams of the Respondent. The following exchange occurred –
“In 9.2, which is on page 5 of Mr Rodney Adams' affidavit he says that he asked you at this time, having referred to 4 December 2002, "if he had other work to go to", that's if you had other work to go to and that you said you required three to four days and that he said to you that the number of days depends entirely on the clinic days and the bookings or calls made to the call centre. What do you say about that?---I recall the conversations about clinics and rosters in general terms but I don't recall that. As far as I was concerned I had an arrangement where I was working four days per week and some Saturdays as required. I suppose that's why I was so surprised in my conversation with Rod when I was dismissed.”
(Transcript p.64 lines 6-15)
In answer to criticism that he had not absorbed the training and literature appropriately the following exchange occurred:-
“Paragraph 9.9 on the same page at the bottom. Mr Adams says, "It would appear that Mr Dekmetzian had not understood and has not absorbed the training and literature on the cost‑effective benefits to a sexually dysfunctional man by taking a longer‑term program." What do you say about that?---One can only do their best in the circumstances where you're not being offered much training. I absorbed the literature as best as I could and conveyed the information in that literature to the patients in an honest and a fair way. Perhaps that didn't equate to huge sales or to sales that were enormously higher than the averages but I believe that I conveyed the information in a correct way and in an accurate way.”
(Transcript p.64-65)
During the course of his evidence the first Applicant claimed that during the short period of approximately 5 weeks over which he was engaged as a sales consultant, his sales figures were somewhere in the middle when compared to others in the one report that he had received. He explained his performance in the context of there being a lot of information to absorb particularly when he had not come from a medical background. He agreed that he did not believe it was necessary for him to show people how to inject medication and would arrange for a nurse to explain that to the patient. He denied suggestions that when he was coached by Mr Rodney Adams that on each occasion he felt threatened and asked if he was being put off or if the contract was terminated. He further denies suggestions by Mr Rodney Adams that he had become abusive though conceded at one point asking Mr Rodney Adams, “Do I have a job?” He claimed he liked his work and thought that he was improving and was concerned about there not being the appropriate number of shifts which he had expected to be made available to him. He agreed that he told Mr Rodney Adams that he was unhappy with his treatment and told him that could not treat people that way and that he was going to see his solicitors or lawyers. He otherwise denied threatening anyone. Whilst asserting that he believed he was a capable sales person and wanted his figures to improve so he could make more money, he acknowledged that the company was experiencing some ‘booking issues’. He denied saying something like, “You are not going to get away with this” though conceded by saying “You can’t treat people like this and I am going to do something about it” and that those words may be similar to what had been asserted by Mr Rodney Adams of the Respondent. In the context when referred to the affidavit evidence of Mr Rodney Adams where he claims to have asked the first Applicant “What would prevent him following through on his threats” the following exchange in evidence occurred:-
“What about 13.9? What do you say about that paragraph?---Rod Adams was taken aback with my comment that I would see my lawyers and he felt very - I felt he felt very uncomfortable about that. He basically said, "Okay. Well, what would stop you doing that?" and I said, "Well, look, pay me what you owe me," what anybody would normally say in the - what anybody might say, "Pay me what you owe me. Release me from my contract." By, "Release me from my contract," I meant, "Release me from a three‑year restraint of trade," which why would - why would I have signed that contract if, you know, I didn't expect it to be long term but anyway - and that would be the end of it. As far as wanting to start up a business and operation or working for a competitor or something, that's just nonsense.”
(Transcript p.69 lines 20-30)
In evidence he agreed that David Adams did not say that he wanted the first Applicant to work until he retired though claimed that David Adams had promised three to four days work per week when signing off on the contract.
During cross-examination the first Applicant agreed that he had been a manager in business and involved in commercial development of property in the past. The second Applicant company had been in existence and controlled by the first Applicant for a period of approximately 20 years. He agreed that from his experience when he signs a contract he is careful to ensure that he understood whats in it as a result of his commercial experience.
During cross-examination a relevant exchange occurred regarding the issue of the position being subject to satisfactory performance. The first Applicant agreed that he had made the statement that “everybody is subject to satisfactory performance” and then the following exchange occurred:-
“You know that as a result of your experience in business?--- Its common ….
You accept that when you took this position through the company that your performance was going to be monitored?---Yes, of course.
And that if your performance was unsatisfactory you wouldn't have a job?
---Well, yes.
You were under no illusion about that, were you?---It's the same as any job.
This is particularly the case in sales, isn't it, because sales is so performance based?---Well, yes, but there's a time for training as well.
If you don't sell you don't get the work. That's correct, isn't it?---That's correct.”
(Transcript p.102 lines 30-41)
He denied however being told by David Adams that the best consultants get the most work though agreed there was general discussion about rosters in Queensland. At one point he then agreed that David Adams had made a statement to him that the number of days depends entirely on the number of bookings though resiled from that concession on the grounds that he “was a little bit confused”. He reiterated that there was only general discussion in the context of talking about busy clinics. Ultimately he claimed that he could not really recall the details of the discussion.
The first Applicant agreed that he intended to be bound by the contract when he signed it.
The first Applicant agreed in cross-examination that he was upset that he had not been rostered on for duty after about 15 days of working in the business and had sent a letter claiming monies owed. The letter dated 26 June 2002 signed by the first Applicant under the second Applicant’s name simply states the following:-
“I wish to advise that I have attached an account for money owed to me.
The money is due and payable within seven (7) days.”
The total amount claimed to be then due and payable was $7,752.25 which included $5,824.70 for the total due to clinic days worked plus two weeks payment in lieu of notice claimed to be calculated on an average day over a four day working week. Whilst accepting that the amount due for work completed would not be paid under the contract until the clients had paid the Respondent, the first Applicant claimed that he thought it was fair that he should ask for the money “then and there”. He stated that he felt “that they had broken the contract and that that rule didn’t apply and they should pay me the money straight away”. Had that not occurred he agreed that the money would not be paid to him until it was collected by the Respondent from the clients.
During the course of evidence the first Applicant denied any suggestion that he was not returning appropriate figures or what is described as conversion ratios and asserted that he believed that he was “pulling in income for the company every day that I worked – to the best of my ability …” He recalled however having discussions about improving sales figures and telling Rod Adams that he was doing everything he could in order to improve the figures. He denied being aggressive to Rod Adams when presented with sales figures.
Specific questions were put to the first Applicant in relation to a letter dated 17 October 2002 from the Respondent to the first Applicant by way of reply to his demand for payment of amounts allegedly outstanding. That letter contains the following:-
“1.We had not discontinued your services & therefore no payment in lieu of notice is applicable. The contract of service is for a variable number of rostered days depending on booking appointments received from potential patients. Accordingly you can expect some variability in number of days you are rostered on each week.”
In relation to that letter the first Applicant agreed in cross-examination that it clearly states that the Respondent had not discontinued his services. He went on to state however that he “felt the letter was a device to cover themselves when in fact I had already been terminated”.
It is noted that in the letter dated 17 October 2002 from the Respondent to the first Applicant, the following appears:-
“It appears that you jumped to a conclusion based on one week where you weren’t rostered on any clinics. AMI had not decided to end your services contract & was surprised to receive your fax. We are now unclear about your intentions to continue with the service contract & accordingly until the matter is resolved you are not being included in the roster.”
The letter asks the first Applicant to “confirm your intentions regarding your desire or not to continue with the service contract”.
When confronted with those extracts of the letter the first Applicant stated in evidence, “I felt that I was terminated at that stage when I received that letter”. The following exchange then occurred:-
“What about that letter suggested to you that you were being terminated in that letter?---Nothing in that letter.”
The witness claimed that he referred the letter to his lawyers but agreed that there was nothing to stop him telephoning the Respondent saying “I am available for work”.

Respondent’s evidence

Mr Rodney Adams, National Clinic Sales Manager of the Respondent gave evidence and adopted an affidavit sworn by him on 11 June 2003.
He referred to the background set out earlier in this judgment. In his evidence he agreed that instructions given to the first Applicant occurred on 3 September 2002 and not as deposed on 4 September 2002. He stated that the first Applicant had required three to four days work and had told him that the number of days depended “entirely on the clinic days and the bookings or calls made to the call centre”. He further deposes that he “explained the process with AMI is the best consultants get the most work”. He further stated that he asked the first Applicant on two occasions whether he had other work to go on to if it gets quiet and was told by the first Applicant “yes”. He confirmed that the first Applicant required Wednesdays off and that he had told him that should not be a problem.
Mr Rodney Adams otherwise confirmed the contract arrangements and produced rosters demonstrating the number of clinics varied from week to week and that variations of clinics occurred week to week prior to the commencement of employment by the first Applicant. Clinics were allocated variably between consultants as well as assessors with some being allocated 5 and 6 clinics per week while others were allocated 1,2,3 or 4 clinics per week. He claimed that on or about 8 October 2002 the number of client calls had declined “quite dramatically compared to previous weeks of routine advertising by the company”. He referred to a conversation with the first Applicant on 9 October 2002 where he claims he explained to the first Applicant that his performances continued to slide and told him that the Respondent had no work for him for the next week. He produced a table and graph depicting calls and bookings made to the clinics Australia wide for the weeks ending 1 September to the week ending 2 November 2002. He claims that when asked by the first Applicant about the following week he told him, “It did not look good”. It was then that the first Applicant allegedly became abusive and threatening which Mr Rodney Adams claimed caused him considerable stress. He then claims that “as it turned out with an aggressive advertising campaign the second week caused bookings to increase for week 3. The first Applicant would have had work in the third week if he had chosen to accept it and not acted pre-emptively, asserting that he had been terminated.”
Mr Rodney Adams referred to what he described as the first Applicant not being prepared to “listen to anything” that he had to say and threatening behaviour. He denies putting the first Applicant off on a permanent basis. He denied that the first Applicant was ever promised three to four days per week and claimed that a promise of that kind would not be made as the Respondent is subject to market demands and operates its business accordingly.
At the time of the appointment of the Applicants, Rodney Adams indicated that the Respondent was taking on more consultants as the situation was changing constantly. The busiest periods were generally July, August and September. He agreed that he discussed the level of earnings with the first Applicant and acknowledged that earnings could be up to $150,000 per annum or “more”. He agreed that it was quite possible for the first Applicant to earn fees in that range though stated, “Yes, if he was able to perform”. At no stage did he promise the first Applicant four days and reiterated under cross-examination that the best people get the most days and whilst not able to promise four days the Respondent was happy to give the first Applicant Wednesday off.
In dealing with the issue of the first Applicant’s performance and the criteria for that performance the following evidence is relevant:-
“But apart from saying that you should aim to sell more than $500 per patient, it is correct, is it not, that there was no actual target or budget or performance criteria which it was stated Mr Dekmetzian had to meet, ie, a certain amount a day, a certain amount a month?---The performance criteria was that he was actually rated against the others that were over a period of time and it really didn't matter whether it was $300 or $500, but what mattered was where they were because as we said, we only had - the best people got the most clinics and so on a performance basis if the best person was only doing 500 and Paul had done 600, for example - for example, Bev does, maybe, $700 to $900 per patient perspective, if the next person was only doing three or four hundred then they got the next lot of work.
But I'll just ask you the last time. There was no target, budget, monthly, daily, given to Mr Dekmetzian?---I don't think Paul stayed around long enough for the racing game. There was one in August and there was one, I think, when he left and threatened the company. There was one that was coming out for the September of a whole sheet of - but I did inform him that there was a racing game and that there were awards and bonuses of, on a clinic basis, on the total number of direct debits, on all of these different things, where he could earn extra money, you know, for himself.”
(Transcript p.215 lines 24-44)
He confirmed in his evidence that there was no written notification to the first Applicant regarding his performance but rather the matter was “verbally discussed”.
Upon analysing the performance of the first Applicant compared with other consultants in the first week Mr Rodney Adams conceded that a 71% conversion rate could be described as “good” though the following week dropped to 58% which was a cause of concern where he described it as being “some problem with the process”. The first Applicant he agreed was approximately in the middle of the consultants in the third week though at 57% being below 60% he described as being “is really a worry”. He claimed that he discussed the matter with the first Applicant on three or four occasions. He described the analysis as considering overall consistency of performance, opportunities he claimed are given to consultants to work in different locations and in a variety of clinics. The statistic presented do not however take into account the locality of the clinic or number of clinics attended by a consultant. He described the concern about the first Applicant as the wide range of performance and what is described as conversions and was carefully cross examined about other consultants and performance according to the material.

During the course of his evidence he reiterated that on a number of occasions when he approached the first Applicant he was asked by the first Applicant whether he was “being put off”. He claimed that from time to time those who were not performing did not get shifts.
In relation to the response of the first Applicant to the discussion concerning performance and the unavailability of rostered work the following exchange occurred during cross examination:-
“And also that, "You're not going to get away with this." Can you remember him saying that?---He did say that as well.
Yes?---He did say that we weren't going to get away with it, yes.
You can understand why he said that, can't you? He felt that he'd been unfairly treated?---No, I couldn’t understand that at the time because we hadn't put him off and he'd signed a contract. I actually stated to him that he'd signed a contract as a subcontractor and reminded him that the work was performance based and that's when he went on this vicious attack.
You at no time discussed with him the likely longevity of the employment? How many years he might expect to be working there or anything of that nature?---No, not at all.”
(Transcript p.239 lines 4-17)
Rodney Adams stated under cross-examination that he did not contact the first Applicant again on the advice of solicitors once the first Applicant had referred to pursuing a claim and consulting his lawyers. He was concerned not to contact the first Applicant and instructed not to do so “because of the threats he made to the company”. The nature of those threats in these proceedings are in dispute though in passing it is noted that at the very least it is common ground that the first Applicant by forwarding a letter of demand had pursued a claim and indeed foreshadowed seeking legal advice. Rodney Adams denied telling the first Applicant that he had been put off on a permanent basis as indicated in the following extract:-
“You say at paragraph 14.4 of your statement, Mr Adams, that at no time did you put Mr Dekmetzian off on a permanent basis. I suggest to you that you did, you told him there would be no more shifts?---No, that's not true. It was on a temporary basis that there wasn't enough, according to his performance, at that moment.
And I suggest to you that is an explanation that you have come up with for the purposes of this court case?---No, that's not true.”
(Transcript p.242 lines 23-30)
Rodney Adams gave evidence of another consultant who likewise had a variation in performance and who he thought had less shifts because of that factor.

David James Adams

David Adams adopted an affidavit sworn by him on 10 June 2003. He is the Chief Operations Manager of the Respondent who commenced a twelve month contract with the Respondent in November 2001. He conducted an interview with the first Applicant who he claimed presented himself as very well dressed with a slight reserve about his manner and who explained his years of experience in sales with Rodney Adams forming the view at the end of the interview that he should be short-listed for the position of Sales Consultant. He claims that he told the first Applicant that if he was successful and performs to the satisfaction of the company then he could well make a career with the company due to the large need for the product and services. He otherwise referred to the contract and was told by the first Applicant that he would provide an ABN number and other details were provided. Reference was made to the inability of the first Applicant to work Wednesdays and David Adams told him that sometimes Saturdays were available to work and less frequently a Sunday. He disputed any suggestion that the first Applicant was the first choice out of the short-list of candidates and otherwise confirmed completion of the contract which he signed on behalf of the Respondent. To some extent he endeavoured to corroborate the evidence of Rodney Adams who he recalled telling the first Applicant that his performance was not bad but that there was others who were performing better and that in his presence the first Applicant was told the number of clinics available for the week combined with his lower performance meant that Rodney Adams would not have space for him. This was a telephone conversation where he only heard what was said by Rodney Adams who he heard say to the first Applicant that he was not “being laid off work” and that “it was the availability of clinics and his performance that caused him to be off the roster for a period”.
During the course of his evidence David Adams referred to the potential earnings of the consultant of “up to $150,000 per annum” as being achievable by somebody working full time. He otherwise denied suggesting that the first Applicant could work until retirement age. He further claimed in evidence there was never the intention of the Respondent to let the first Applicant go as he had been quite impressed with him at the beginning. It was not the intention to terminate his employment and nor had it been a decision made by management but rather the view adopted by the first Applicant.

Gillian Romano

Gillian Romano gave evidence and adopted an affidavit sworn by her on 16 June 2003. She is a Clinical Consultant employed by the Respondent and denied every introducing herself to patients as a registered nurse. She referred to the training and that she was only qualified to handle rehabilitation program, prices, length of programs and medications that may be available for a doctor to prescribe on the programs.

Beverley Jane Beattie

Beverley Jane Beattie gave evidence and adopted an affidavit sworn by her on 12 June 2003. She had applied for a position as Sales Consultant in a similar manner to the process followed by the first Applicant and had been working with the Respondent on a contract basis since July 2002. She trained the first Applicant though the first Applicant had referred to her presentation style she claimed that he had not mentioned anything about that issue to her nor was she aware that the first Applicant had any problem with her during the time as a fellow consultant with the Respondent. She referred to her success in the sales position. It seemed clear to the Court that a great deal of the time questioning this witness related to perceived criticisms about the approach of the Respondent and/or its Sales Consultants to the task. Whilst that may have given the first Applicant some cause for concern it did not seem particularly relevant to the Court in relation to the claim presently considered. It was noteworthy however that Ms Beattie claimed that she averaged three days per week and confirmed that she did not always get four days a week and that she would have earned approximately $80,000 up to the date when she was giving evidence.

Jacov Viasman

Jacov Viasman gave evidence and adopted an affidavit sworn by him on 10 June 2003. He is the Chief Executive Officer of the Respondent who expressed concern that the case of the Applicant had not been resolved and confirmed that he had endeavoured to telephone the first Applicant to discuss the issue. He claimed to have offered the first Applicant his job back and invited him to come back to work as a consultant. He claimed to have promised to give him the best clinics so he could have every opportunity to prove his worth as sales person. He did not receive a reply and the proceedings continued. He claimed that this and another attempt were simply a gesture of good faith in the circumstances. When cross examined he did not resile from his affidavit evidence and referred to the first Applicant as being a contractor not an employee who received work on the basis of positions then available.

Joseph Vaysman

Mr Vasyman is a State Manager of the Respondent for Victoria adopted an affidavit sworn by him on 16 June 2003 where he also sought to resolve the dispute between the parties. He rejected the suggestion that the job was for retirement and would not advise the Respondents to make any offer to the first Applicant on that basis though tried to address issues raised by the first Applicant concern practices of the Respondent. I do not regard his evidence as particularly relevant to the issues agitated in this application.

Submissions

Applicants’ Submissions

The Applicant made submissions based upon the way in which the case was presented which I have already set out earlier in this judgment (see paragraphs 13 to 18 (both inclusive).

Respondent's submissions

It was submitted on behalf of the respondent that reliance upon any conversation which occurred between the first Applicant and David Adams of the respondent on 30 August 2002 should not be relied upon in circumstances where it is claimed to have contractual force despite the fact that the conversations postdate the time when the agreement had been entered into between the parties. It was submitted that any conversations following the consulting agreement are irrelevant in determining the contractual terms between the parties.
Pleadings which rely upon the advertisement as forming part of the contract or claims regarding the duration of the contract beyond the written terms of the consulting agreement cannot succeed as reliance upon those matters would clearly introduce collateral oral agreements inconsistent with the terms of the written agreement (see Hoyts Pty Ltd v Spencer (1919) 27 CLR 133).
It was noted, in any event, that the first Applicant had not given evidence regarding the clause concerning termination as set out in the consulting agreement to the extent that it was agreed the clause would not apply. A proper examination of the evidence, including the affidavit evidence of the first Applicant, reveals, at best, that the first‑named applicant was looking for a long-term position which he wanted to be available for the foreseeable future. Reference was made to his evidence, however, where he stated:
He would not presume to think that David Adams was saying that I could work with the respondent until retirement.
In further evidence and in conversation between the first Applicant when dealing with the issue of working until retirement he stated:
If they were happy with me and I was happy with them.
It was noted in his evidence the first Applicant agreed that his employment was subject to satisfactory performance and that he had no illusion that his performance would not be monitored. In relation to the consulting agreement, the applicant acknowledged that he received it by mail and not by facsimile as originally pleaded and that he signed it around the time he started work. He agreed that he had read the contract and intended to be bound by it. The first Applicant understood from the contract that termination was on two weeks' notice by either party for any reason. When he read the contract he thought it was fair and had no objection to it.
Specific reference was made to the decision by the first Applicant to enter into the contract through the vehicle of the second applicant and he stated:
I read it and I contemplated it over a day or so. I contemplated whether to use the service company or not. I could have an ABN either personally or through a company. I asked David if I could use my service company. Towards the end of the interview I made the point about the service company. Thinking back - the issue of using a service company was raised in the later part of the discussion between me and David Adams.
The first Applicant agreed that after starting with the company nothing occurred to change his view that the consultancy could be terminated pursuant to the agreement on two weeks' notice and that nothing had happened since he commenced employment which had changed to make the contract unfair.
The respondent submitted that on the evidence the court should not make a finding that there was any agreement that the clause regarding termination would not apply and there is no evidence to suggest the parties intended the contract on any basis other than that set out in the written agreement. No evidence was given of any oral agreement by which the written agreement was varied, and in the circumstances the parallel evidence rule applies to exclude any evidence of oral representations now claimed to form part of the contract (see Bruce v AWB Ltd [2000] FCA 594 (10 March 2002) Sundberg J).
As to the trade practices claim arising out of an alleged breach of s.52 of the Trade Practices Act, it was submitted there is no evidence to support a finding that the representations as pleaded were actually made. The fact that the representations are pleaded in the alternative indicates what was described as a "lack of credibility in the allegation". Had a clear representation been made, it would have been a simple matter to plead the precise terms of the representation rather than plead alternate representations as has occurred in paragraph 10 of the statement of claim. Specific reference was made to the representation that the first Applicant could work with the respondent until the retirement age (paragraph 10(b) of the statement of claim). It was submitted there was no direct evidence from the first Applicant which would support this representation.
Likewise, the representations made concerning retaining the applicants for over 10 years or rostering the first Applicant on a regular basis at least four days per week were not supported by the evidence. Likewise, the suggestion that the advertisement constituted misleading and deceptive conduct should be rejected. Reference was made to the decision of this court in the matter of Allan v Ferns Investment & Ors [2002] FMCA 16 regarding the use of the expression "up to". In that case the court in dealing with a franchise agreement stated the following:
“71.It is important to remember that the words “up to” should be interpreted in the normal manner. It should be stated that whilst the term may have led to some degree of confusion or perhaps even unrealistic expectations on the part of the applicant, it does not in my view constitute sufficient to lead this Court to make a finding that this constitutes a misleading and deceptive statement. The expression “up to” is frequently used in advertising and promotion of products. It means what it says. If words were used which conveyed the impression that there was a guaranteed minimum of five times the life of cooking oil, then the applicant’s case would have been much stronger. In the present case however there was no representation of that kind. The words “up to five times” do not mean guaranteed five times but simply indicates a range from something above zero to five.”
It was submitted that there has been no misrepresentation as to the nature of the engagement when the position was offered by the respondent to the first Applicant. It was always as a sales position and training for the position occurred over a very short period of time. It was argued that any prospect of the engagement being long term was an expectation only and not founded on any of the circumstances of the engagement or on any representation made.
The facts of the present case it was submitted may easily be distinguished from those cases where a representation is made to a party in secure employment to take up the position. Reference was made to the introductory comments of Ormiston J in Waipara Pty Ltd v Police Association (1998) Vic SC 89 (1 May 1998) where Ormiston J states the following:
“As a result in the five appeal books there are included innumerable drafts of every relevant (and seemingly irrelevant) document, designed to demonstrate to the court that that which was agreed between the parties was not so agreed but was qualified by what had been said or done by one or the other along the way. What was so said or done was said to be relevant, although on almost every such occasion the parties, or one or other of them, had stated that that which was at the time committed to paper was "conditional upon the lessor and the lessee entering into a lease on the terms and conditions approved by both parties" or was made subject to a term in words to like effect.
The purpose of words of this kind may be obvious to those familiar with cases such as Masters v Cameron (1954) 91 CLR 353, but one may be forgiven for thinking that these days litigants are encouraged to concentrate on the periphery of the parties' understandings, not on the essentials of their agreement. Thus the principal letter here in contention and relied on by the appellants, one more often than not bearing date 8 December 1989, was redrafted or reproduced (with some minor variations) some five times and preceded the ultimate signed agreement by over six months, while those directly or indirectly involved in its drafting or signing (arguably up to eight people) were cross-examined six years later as to what precisely they then thought or intended, but in all versions described by them the critical terms in the letter bore the very same "subject to contract" endorsement. Despite ingenious and subtle arguments based on more recent authority, it should now be obvious that I consider that whatever was then said or even agreed could and did not amount to a representation or an assurance which was intended to be, or which was, relied upon by the appellants to their detriment. There are doubtless many cases where the parties proceed to and reach binding agreement orally or by one party forwarding a succinct summary of the principal terms, without there being any intention to conclude with a conveyancing or other formal contract, but this is far from the first case in which I, as with other judges, have suffered the contents of each side's solicitor's files cascading on to the bench together with every letter and every draft of every letter sent by or to the clients. I sincerely doubt that the needs of the commercial community or the objectives of justice are advanced by such time-consuming exercises when in the end the parties have signed leases, mortgages or other well-known conveyancing documents, understood by all to be the final and binding repository of their contractual intentions.”
Counsel for the respondent referred the court to the decision of Fisher J in Pappas & Anor v Soulac Pty Ltd & Anor (1983) 50 ALR 231 where in relation to the quality of statement alleged to have been made by and on behalf of the respondent reliance was placed upon the following passage which appears at pages 234-235:
“It is important to appreciate that many of the statements alleged or admittedly made by Mr. Spencer were wholly or in part statements of opinion, not capable of being objectively proved to be true or false. They were also essentially the type of introductory comments, in the nature of puffery, made at the start of negotiations for the purpose of attracting the interest of a possible purchaser. As such they became irrelevant or of little if any significance when detailed information is subsequently given a fortiori, to a potential purchaser with commercial experience. To the extent that they are essentially puffery, it is proper to be reluctant to elevate them to the status of potentially misleading conduct. The comments of Holmes J. on this aspect, which he denotes as a rule of law, in Denning v Darling 20 N.E. 107 at 108-9, referred to in Donald & Heydon Trade Practices Law vol.2 p.539 are on point. "The rule of law is hardly to be regretted, when it is considered how easily and insensibly words of hope or expectation are converted by an interested memory into statements of quality and value when the expectation has been disappointed."
Although the Pappas decision concerned representations made during negotiations for the sale of a shopping centre, it was argued that the extract from the decision of Fisher J applies to the statements alleged in this application.
In relation to the claim under s. 106 of the Industrial Relations Act 1996 (NSW), reference was made to s.105 of the Act which states:
“The jurisdiction of the Commission under this Part is exercisable only by the Commission in Court session.”

Section 106 of the Act refers to the power of the commission to declare contracts void or varied. Despite the reasonably long history of the section and its predecessor, it was submitted there has been no decision made by the Federal Court pursuant to that section or its predecessor.
Without determining whether the court had jurisdiction to deal with the claim under s.106, it was submitted it is relevant to consider the decision of Lehane J in Bell v Macquarie Bank [1998] FCA 1763 (15 May 1998) where at page 3 his Honour states:
“I was referred to several authorities for the proposition that ordinarily it is vexatious to commence or conduct concurrently two proceedings in different courts in relation to the same issues. The reason why two proceedings have been commenced in the present circumstances is, the applicants say - and there appears to be no particular dispute about this - that the particular relief sought in the Industrial Relations Commission is available only in that forum, whereas the relief sought in this Court cannot be sought in the Commission. In short, there is no court which can entertain both proceedings based on Pt 5 of the Trade Practices Act and s 106 of the Industrial Relations Act. In those circumstances, the question is, simply, which proceedings ought to proceed first.”
It is noted that Lehane J did not determine whether the court had jurisdiction to deal with the claim under s.106. It was submitted by counsel for the respondent that presumably if the court was of the view that it did have jurisdiction it would have stated so in the decision.
Further reference was made to the decision of Goldberg J in Software Engineers Australia Pty Ltd v Bonket Pty Ltd [2002] FCA 1168 (19 September 2002). In that case no submission was made by either party that the s.106 claim was justiciable in the Federal Court and accordingly no decision was made on that issue.
As I understand the submissions for and on behalf of the respondent, this court should, at least by inference in relation to those previous authorities, not entertain any application based upon s.106 of the Industrial Relations Act.
In relation to the issue of an alleged breach of good faith pleaded by the applicant as an implied term in the contract, it was submitted that any implied term of that kind in the present case directly contradicts the express term of the contract, namely, the notice provision. Hence, it is argued that consideration of an alleged implied term of good faith has to be made against the right of the respondent to perform the contract in the manner least advantageous to it (see Withers v General Theatre Corporation Ltd (1933) 2 KB 536 at 549-552; Commonwealth v Ammann Aviation Pty Ltd (1991) 174 CLR 64 at 92 and Grout v Gunnedah Shire Council (No 3) (1995) 59 IR 248 at 251. It was further submitted that in any event in the present case any implied term of good faith had been breached by the applicants in their conduct in threatening the respondent with media exposure and allegations of unethical and possibly illegal behaviour prior to issuing proceedings.

Reasoning

On a proper assessment of the Consulting Agreement I am satisfied that in this case it constitutes the full terms and conditions of the agreement between the parties. I can see no reason as a matter of law based on the facts presented to this Court to embark upon an analysis of the surrounding circumstances to determine whether there were any other conditions added to that Consulting Agreement. I otherwise accept the submissions made for and on behalf of the Respondent that as a matter of law it is unnecessary for the Court to determine other terms and conditions which may have been asserted by the Applicants though not agreed by the Respondent or its representatives.
I am otherwise satisfied that any representation made in the advertisement specifically referred to a salary of “up to 150KPA” which means what is says and I apply the reasoning of this Court to that phrase in the matter of Allan referred to earlier in this judgment.
Perhaps the great tragedy in this case is that the Applicants through the firstnamed Applicant only performed the role of sales consultant for an extremely short period of time. I am satisfied on the material before me that the parties were able to terminate this agreement in accordance with its terms which specifically provided in clause 13 that termination without any reason upon the giving of written notice to other party upon two weeks notice in accordance with Item 7 of Schedule 1.
In my view the termination of this arrangement between the parties arose primarily out of the wrong perception of the first Applicant that non allocation of work during one week of the roster had meant that the Respondent intended or had evinced an intention to terminate the first Applicant’s services. I accept the evidence of the Respondent’s witnesses that no such intention had been formed. It is clear from the chronology of correspondence that it was the first Applicant in fact who terminated his services by correspondence dated 26 June 2002,which I characterise as a letter of demand, having wrongly concluded that the failure to allocate work for one week was evidence of termination. The amount owed in that letter could only be owed upon the conclusion of the agreement. If the arrangement had been going, it is clear to me that the terms of the written agreement would apply and payment should not be made immediately but rather occur as the money was received by the Respondent from the clients.
The fact that the Respondent had not terminated the services of the Applicant though it could have done so for no reason upon the appropriate notice was further evidenced in its letter to the first Applicant dated 17 October 2002 where it is clearly stated, “We had not discontinued your services and therefore no payment in lieu of notice is applicable.”
It seems clear to me that the conclusion drawn by the Respondent in its letter to the first Applicant dated 17 October 2002 is apposite to the facts in this case where it was stated that, “It appears that you jumped to a conclusion based on one week where you weren’t rostered on any clinics”. In my view the proper way to characterise the first Applicant’s behaviour was at the very least to be one where the letter of demand constitutes itself a form of written notice terminating and/or evinced an intention to repudiate the contract prematurely in a manner which might be described as a “pre-emptive strike”. The basis of the pre-emptive strike is the perception held by the first Applicant that his services had been terminated. As indicated earlier in this judgment he stated in his evidence that he felt “that I was terminated at that stage when I received that letter”. When asked to look at the letter he was compelled to concede that there was nothing in the letter which would suggest that he was being terminated and in fact it was quite the opposite. It would have been easy then for the first Applicant to rely upon the contents of that letter seek further rostering and continue the arrangement in accordance with the written contract. His failure to do so is not a failure that could be visited upon the Respondent.
In considering whether or not representation has been made of a kind which may constitute a breach of either s.51A or 52 of the TPA it is necessary to look at the issues as pleaded compared with the evidence. I have already considered and rejected the suggestion that the advertisement constituted misleading and deceptive conduct. I am otherwise satisfied that the Respondent did not represent to the first Applicant that he would be employed or could work for the Respondent until he reached retirement age or that he could easily be retained for over ten years or that he would be rostered for at least four days per week. Whilst there may have been general discussion about the demands for sales consultants due to the success of the Respondent’s business requiring employment on an ongoing basis of sales consultants, I do not regard that as constituting a sufficient basis upon which it could be claimed that there has been a representation of a kind to constitute false, misleading and deceptive conduct which would attract the operation of s.51A or 52 of the TPA.
I do not accept that the Respondent wrongfully terminated the agreement in breach of the agreement as I have already found that the termination of the agreement and arrangement between the parties arose solely out of the perception, wrongly held by the first Applicant, that the agreement had been terminated simply because in the very early stages of the relationship he was not allocated work for one particular week.
It is really not necessary for me to consider whether or not the first Applicant had performed adequately as the simple fact remains that he did not give the position enough time or allow for sufficient additional training to correct any perceived difficulties with performance. Those difficulties with performance I am satisfied did not reach a stage where the Respondent had made a decision to terminate the services of the first Applicant or his company.
I prefer the evidence of the Respondent in relation to the attitude of the first Applicant upon being told that he was not to be rostered and in the context of discussions about his performance, I am satisfied that he did react in general terms in an aggressive and threatening manner and at the very least indicated that he was referring the matter to his lawyers. That conduct is consistent with his wrong perception that at time rather than simply not being allocated work during a particular week and/or having his performance reviewed, he took the view that the Respondent had terminated the agreement. That somewhat petulant response against the background of what might be described as misgivings by the first Applicant in relation to the practice and procedure of the Respondent combined to cause him to effectively forward a letter of demand which of itself I am satisfied indicated his attitude that the agreement at that point had been terminated. The fact that he maintained that perception even when confronted with written confirmation that his services had not been terminated confirms my view that he had established in his own mind that the Respondent had indeed terminated the agreement when in fact that was not the case.
In my view the first Applicant as an experienced businessman with many years of commercial experience dealing with contracts was clearly able to consider and understand the relevant contract. I am satisfied that he contemplated whether to use a service company or not and otherwise properly considered the contents of the agreement. I do not accept that he was induced to enter into the agreement by any representations of the kind alleged. He had expressed a desire to work during four week days (excluding Wednesday) and was made well aware that there may be limited opportunity to work beyond that. Obviously the income earning potential having regard to the limitation of not being able to work Wednesdays would have been reduced on a proportionate basis so that even if the advertisement had referred to the earnings being “$150,000” rather than “up to $150,000”, it is clear that that objective could not be achieved on a part time basis. I am otherwise satisfied that it could be achieved and has been achieved by those working on a full time basis and with perhaps greater experience and ability than the first Applicant.
I accept that there is no evidence given in the present case which the Court could rely upon to suggest that the written agreement was varied in any event.
I accept the Respondent’s submissions that this is not a case where a representation has been made to induce the Applicant to enter into the contract based upon a promise of secure employment. The facts and circumstances of this case therefore are clearly distinguishable from the decision of this Court in O’Neill v MBF [2001] FMCA 16 the principles of which were upheld on appeal by the Full Court of Federal Court (see (2002) 122 FCR 455).
To the extent that I am required to do so I am otherwise satisfied that this Court does not have jurisdiction pursuant to the Industrial Relations Act 1996 (NSW). That jurisdiction I am satisfied is accessible only by the Commission in Court and although reference was made by both parties to various authorities, to the extent that I am required to do so I am satisfied that in any event s.106 does not apply to the present application. The proceedings having been commenced in this Court involves relief which would not be sought in the Industrial Relations Commission and I am satisfied that if a claim is to be brought pursuant to s.106 then that should occur before the Commission rather than this Court which I do not believe should entertain both proceedings under the TPA and s.106 of the Industrial Relations Act (See Bell v Macquarie Bank).
I prefer the evidence of the Respondent’s witnesses in relation to discussions that occurred between its representatives and the first Applicant that any assurance about future earnings or employment could properly be characterised as general discussion and could not be elevated to the status of potential misleading conduct.
Having regard to my findings as to the termination of the agreement and the failure of the part of the Applicants to establish any causes of action including misleading and deceptive conduct, it remains only to consider other outstanding claims which have been relied upon including estoppel, restitution and unconscionable conduct. I am satisfied that on the material before me having regard to my findings that those potential causes of action cannot be sustained. Any claims which may arise regarding payment under the contract of outstanding fees can be dealt with separately based upon proper material establishing whether or not the clients have paid the amount due and then whether those amounts are payable to the Applicants. Likewise, any outstanding dispute as to inadequate notice cannot properly form the basis of a claim in this Court in circumstances where as I have indicated the first Applicant by his own conduct has effectively terminated the agreement and I am not satisfied that the agreement would apply to provide him with pay in lieu of notice.
It follows for these reasons that the application should be dismissed and the Applicants should pay the costs of the Respondent.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 8 October 2004