Finucane, P.E. v New South Wales Egg Corporation

Re: PETER EDWARD FINUCANE
And: NEW SOUTH WALES EGG CORPORATION
No. G24 of 1987
Trade Practices - Contract

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart J.(1)

CATCHWORDS

Trade Practices - misleading and deceptive conduct in contravention of s. 52 of Trade Practices Act - appointment of contract carrier - appointment of prime contractor leading to discharge of carrier - warnings given as to risks in purchase of run - whether conduct at interviews of prospective carriers is conduct "in trade or commerce" - identification of class of persons likely to be affected by misleading or deceptive conduct - measure of damages under s. 82 of Trade Practices Act - recovery of interest on monies borrowed for purchase of run - whether Court has discretion to reduce amount of damages assessed under s. 82.

Contract - Contract arising from documents and conversations, interpreted by reference to surrounding circumstances - relevance of parties' subjective intentions to creation of contract - construction of contract - period for which contract carrier's appointment to subsist - termination of contracts of continuing nature.

Egg Industry Act 1983 (NSW)

Federal Court of Australia Act 1976 (Cth): s. 51A

Supreme Court Act 1970 (NSW): s. 94

Trade Practices Act 1974 (Cth): ss. 52, 53, 82.

HEARING

SYDNEY

#DATE 22:4:1988

Counsel for the Applicant: Mr. C. Birch

Solicitors for the Applicant: Patrick Hargraves & Co.

Counsel for the Respondent: Mr. J.D. Heydon Q.C. with

Solicitors for the Respondent: Westgarth Baldick

ORDER

The applicant bring in Short Minutes of Order to give effect to these reasons for judgment.

The matter is stood over to a date to be fixed for the purpose of making declarations and orders on that date.

NOTE: Settlement and entry of orders is dealt with in Order 36 of

the Federal Court Rules.

JUDGE1

In this case Peter Edward Finucane sues New South Wales Egg Corporation ("the Corporation") for declarations and damages relating to alleged misleading and deceptive conduct of the Corporation in contravention of s. 52 of the Trade Practices Act 1974 ("the Act"). The conduct in question relates to negotiations in 1984 between Mr. Finucane and the Corporation for the sale of an egg run, in the St. George and Southern areas of Sydney, the owner of which was a Mr. Mayoh and the purchaser of which was Mr. Finucane. Mr. Finucane asserts that the Corporation made false representations and false or misleading statements in contravention of ss. 53(c) and (g) respectively of the Act. He also claims damages for alleged breach of contract between himself and the Corporation. All causes of action arise from the same basic facts and circumstances.

The Corporation is a statutory corporation established on 1 July 1983 under the Egg Industry Act 1983 (NSW). Subject to certain immaterial exceptions under that Act, the title to eggs produced in New South Wales vests in the Corporation. The Corporation is responsible for many functions relating to the egg industry in New South Wales, primarily with respect to the marketing of eggs and egg products. The Corporation may, for example, engage in the carriage, storage and distribution, by wholesale or retail, and the delivery of eggs and egg products; may fix prices at which eggs may be sold by wholesale; may itself purchase eggs and egg products for resale or use; and may make arrangements with regard to sales of eggs and egg products for export to countries or other parts of Australia than New South Wales. The Corporation, broadly speaking, took over the functions formerly carried on by its predecessor, The Egg Marketing Board ("the Board") of New South Wales, which was abolished by s. 73 of the Egg Industry Act 1983.
The Board's policy was to appoint various carriers in New South Wales within defined areas in the State to carry eggs and egg products from distribution points or depots operated under the supervision of the Board to wholesale and retail outlets for sale. Carriers used their own vehicles for this purpose. The carriers were described as "contract carriers", and had the exclusive right to deliver the Board's eggs to customers of the Board in certain areas upon terms and conditions set out in a document called the "Contract Carrier's Appointment". That document required the particular carrier to enter into a written undertaking described as a "Contract Carrier's Undertaking" and to enter into a deed whereby the carrier guaranteed that he would perform the terms and conditions of his appointment as a contract carrier and indemnified the Board against loss or damage which might be incurred by him if he defaulted in the performance and observance of his duties ("the Deed of Indemnity").
At times relevant to this case there were 31 contract carriers operating in New South Wales. If a carrier wished to sell his "run" the Board assumed the task of advertising the run for sale, receiving applications and interviewing applicants for the purchase of the run, settling a short list of applicants, and determining the successful candidate who was then permitted to negotiate with the vendor and agree on whatever terms were acceptable as between vendor and purchaser. The goodwill attached to these runs varied from carrier to carrier and from run to run. The Corporation inherited the distribution system established by the Board and continued to operate that system, though it made only three appointments of contract carriers after 1 July 1983: a Mr. Cross, a Mr. Johnson and Mr. Finucane.
Specific Findings of Fact
The Board's role (which, by its conduct, the Corporation adopted after 1 July 1983) in the sale and purchase of egg runs in New South Wales was described by Mr. K.P. Baxter, the managing director of the Corporation, as that of a broker. That description is broadly accurate; but to fully understand the Board's (and therefore the Corporation's) role requires some delving into earlier years of the Board's activities. The Board's (and later the Corporation's) status and the character of its operations derived from its statutory rights and duties under New South Wales legislation relating to the egg industry and from the necessary interaction between the Board (and the Corporation) as State marketing authorities with private enterprise. One aspect of the Board's (and later the Corporation's) activities relevant to this case concerns the relations between it and the Transport Workers Union of Australia (New South Wales Branch) ("the TWU"). The Board entered into an industrial agreement with the TWU on 1 October 1973 which was gazetted on 28 May 1975. The agreement provided, amongst other things, that if a carrier decided to assign his contract he shall notify the Board in writing and the Board shall cause three advertisements to be placed in the press calling for buyers at a maximum price of $25,000 increased by 5% per annum from 1 October 1973. The Board was required to interview applicants and refer any satisfactory persons to the carrier for the purpose of finalising the sale. Certain other provisions were made in the event of the advertisement not attracting a satisfactory applicant: see clause 6 of the industrial agreement. That agreement was treated by the Corporation and the TWU as binding both bodies.
This case is essentially one of fact. Although some of the evidence is uncontentious the basic issues turn on the reliability and credibility of the main witnesses for the parties. Each of the witnesses was alert to the issues in the case. There was an absence of detailed contemporaneous notes or records of the principal conversations, the principal exception being some of Mr. Baxter. I shall state my findings of fact, a process which involves an assessment of the witnesses based on my impression of them in the light of contemporaneous documents (including the few notes of conversations) and the probabilities. I do not accept the whole of the evidence of any witness. Some witnesses were more credible or reliable than others. This is not a case where I believe the whole or almost the whole of the evidence of any particular witness and reject conflicting evidence of other witnesses. The resolution of conflicts turns on shades of grey rather than black and white.
In making finding of fact I shall refer only to the main discussions and events; but I have considered all the evidence, oral and documentary, and have been helped considerably in that task by a carefully prepared chronology made available to me by counsel.
On 4 January 1984 Mr. Baxter, the managing director of the Corporation, wrote a memo to Ms. S. Park, the marketing managing of the Corporation. It is an important document in this case and is in the following terms:

"Re: INTERVIEWS FOR THE CARRIER'S RUN

In any discussions with intending purchasers of a Carrier's run two people should always be present. One of the persons present should keep notes of what was said to the intending purchaser, and in particular the responses to statements by representatives of the Corporation about the purchase of the run.

1. The intending purchaser should be advised that an arrangement exists between the Corporation and the Transport Workers' Union which prescribes a formula for the determination of the price of the run. The price determined under that formula is $45,000. If the interviewee is successful and purchases the run for an amount in excess of the $45,000, he does so entirely at his own risk.

2. The purchase of the run is a commercial risk undertaken by the interviewee, and the Corporation is not responsible for guaranteeing the goodwill in that run.

3. The Corporation is in the process of completely reviewing its transport and distribution arrangements and there is no guarantee that the existing distribution arrangements will necessarily continue over the long term.

No commitment should be given by representatives of the Corporation that imply any guarantees of any kind in terms of security for goodwill or permanency of tenure.

Attention should be drawn to the contract between the old Egg Marketing Board and the Carrier, and in particular the Clause which determines the price of the run."

A Mr. Hughes was the contract carrier for the Corporation for a run mainly in the Eastern Suburbs of Sydney. On 14 January 1984 the Corporation inserted an advertisement in the Sydney Morning Herald newspaper notifying prospective applicants that the run was for sale and that applications in writing should be sent to the Personnel Manager of the Corporation and that applications closed on Friday, 3 February 1984. Mr. Finucane sent a form of application to the Corporation by letter dated 18 January 1984 applying for the purchase of the run. On 21 January 1984 a further advertisement appeared in the Sydney Morning Herald to the same effect as the advertisement of 14 January. The Corporation contacted Mr. Finucane and an interview was arranged for 20 February 1984. This interview was held in the offices of the Corporation and the interviewing officers were Mr. A.J. Russell, then the safety officer of the Corporation and Mr. A. Jones, the distribution manager. Mr. Jones had commenced employment with the Corporation shortly before this interview, some time in January 1984. His task was in essence to rationalise the transport arrangements of the Corporation, though he did not really start this task until March because he spent the first two months familiarising himself with the general scope of his duties. Mr. Finucane completed a form of written application for engagement by the Corporation at the time of this interview and Mr. Russell added some handwritten comments. Mr. Finucane, Mr. Russell and Mr. Jones all gave evidence in the case including evidence about the interview of 20 February. There is no point in my stating my findings as to everything that was said and occurred at that interview or any other interviews. I will deal with the critical points.
Mr. Russell was the principal spokesman at the meeting on behalf of the Corporation, Mr. Jones joining in occasionally. I am satisfied that Mr. Russell had in his possession at that interview a copy of the memorandum of Mr. Baxter to Ms. Park of 4 January 1984 and that he told Mr. Finucane the substance of its contents. In short, he told Mr. Finucane of the arrangement between the TWU and the Corporation which prescribed a formula for the determination of the price of the run of $45,000 as then assessed pursuant to the 5% formula, and told him that if he was successful and purchased the run for more than $45,000 he did so entirely at his own risk. It was made clear to Mr. Finucane that the purchase of the run was a commercial risk undertaken by him and that the Corporation did not guarantee the goodwill in the run. It was also made clear that the Corporation was in the process of completely reviewing its transport and distribution arrangements and that there was no guarantee that the existing distribution arrangements would necessarily continue over the long term (the emphasis is mine). Neither Mr. Russell nor Mr. Jones made any express statements to Mr. Finucane that the Corporation gave any guarantee to him as to the security of the goodwill of the run or as to his permanency of tenure. I am also satisfied that at that meeting Mr. Finucane said that in order to purchase the run he would have to borrow money in the vicinity of $65,000.
At the February interview either Mr. Jones or Mr. Russell showed Mr. Finucane three documents which were in printed form but otherwise blank. The three documents were standard printed forms issued by the Corporation's predecessor, the Board. They bore the name of the Board rather than that of the Corporation. One of these documents was the form of "Contract Carrier's Appointment", which purports to appoint the person concerned as a contract carrier of the Board. The appointment is expressed to be personal to the appointee and it is stated that the appointment may be immediately cancelled at the Board's discretion if the carrier becomes bankrupt or is insolvent or is convicted of an indictable offence or of any offence involving dishonesty or if the Board is wound up (clause 2(a)). The Board may also cancel the appointment if the contract carrier breaches the terms of an undertaking which is to be signed by him, subject to certain provisions as to consultation between officers of the Board, the carrier and delegates of the TWU not reaching successful resolution of the matter, and subject to provisions for arbitration (clause 2(b)). The appointment gives the carrier the exclusive right to deliver the Board's eggs to the customers of the Board nominated on a particular delivery schedule, excepting delivery by Producer Agents of the Board, who are irrelevant for present purposes. The Board undertakes that it will not authorise any other contract carrier to deliver eggs to retailers or customers nominated on the carrier's delivery schedule during the term of the "exclusive" appointment of the contract carrier (clause 3). Under clause 4 the Board reserves the right to alter or amend delivery schedules during the currency of the appointment. Certain recognised minimum weekly delivery quantities are fixed by clause 4 and provision is made for specifying minimum rates for carriage of particular egg products by clauses 5 and 6. If the carrier decides to assign his contract he must notify the Board in writing and the Board shall then cause three advertisements to be placed in the Sydney Morning Herald calling for buyers at a maximum price of $25,000 plus 5 per cent per annum from 1 October 1973 (clause 9). It appears from the evidence that the rate of 5 per cent was fixed in 1973 to take account of the inflation rate. Notwithstanding the fact that it is notorious that the inflation rate has been much higher than 5 per cent since 1973 the adjustment percentage appears to have remained the same in the Board's documents. The Board is required by clause 9 to interview applicants and refer satisfactory persons to the carrier for the purpose of finalising the sale. The word "eggs" in the document of appointment means eggs in shell and such other products as the Board may from time to time determine (clause 10).
The "Contract Carrier's Undertaking", which was one of the three documents shown to Mr. Finucane, is a document which requests the Board to appoint the person concerned as one of its contract carriers for a term commencing from the date of his appointment until a date shown in blank. The contractor undertakes not to carry or buy or sell eggs except in the normal course of carrying out his duties to the Board (clause 1) and undertakes generally that he will comply strictly with the requirements of the Board and do all the sort of things that one would expect of a carrier doing his job properly. Restraints are imposed upon carriers, including a restraint that for three years after the determination of his appointment a carrier will not in any capacity deliver or sell eggs to any retailer or customer with whom he may have dealt during the currency of his appointment (clause 13).
The third document is the form of "Deed of Indemnity" which the Board required carriers to execute and which is expressed to be supplementary to the Contract Carrier's Appointment and Contract Carrier's Undertaking. The carrier promises to perform all the promises on his part as a contract carrier and to indemnify the Board against loss and damage which may be incurred by him by reason of any default in his performing and observing the agreements contained in the Contract Carrier's of Appointment and Contract Carrier's Undertaking (clause 1). The Board is authorised to deduct and retain at its discretion a sum not exceeding $3,000 in partial satisfaction of such claims from the proceeds of the sale by the Board of the run to which the appointment relates (clause 3).
On 23 February 1984 the Corporation informed Mr. Finucane that his application had been unsuccessful.
On 26 June 1984 the Corporation received a letter from Mr. Mayoh requesting it to advertise his egg run for sale. Mr. Mayoh had been appointed by the Board as a carrier on 16 December 1981. The letter said that a reasonable price for the run, including the cost of a three years old truck, would be $95,000. The market rate for runs at that time was something in the order of $90,000 to $95,000. On 12 July 1984 Mr. D. Boesen, the personnel manager of the Corporation, asked Mr. Baxter if there were any changes to the instructions given in the latter's Memorandum of 4 January 1984 with respect to interviews to be conducted for the sale of Mr. Mayoh's run. On 18 July 1984 Mr. Baxter replied in writing to Mr. Boesen that it should be emphasised very strongly that the Corporation was considering changes to the distribution system and that no guarantees or indications should be given that existing runs would be retained.
On 14 July 1984 an advertisement was inserted in the Sydney Morning Herald for the sale of Mr. Mayoh's egg run. The advertisement required applicants to send relevant details to the Corporation and stated that applications closed on 24 July 1984.
Mr. Jones was by then well advanced with his task of considering the rationalisation of the existing distribution system. By mid-July 1984 he had concluded that the number of carriers could be reduced without endangering the efficiency of deliveries, although it appears that this conclusion had not at that date been communicated to senior management of the Corporation.

Mr. Finucane applied for the purchase of Mr. Mayoh's egg run by application dated 17 July 1984 which was received by the Corporation on 20 July.
A Mr. Bob Gadge, who was an existing contract carrier of the Corporation and who knew Mr. Finucane, suggested to Mr. Boesen on 23 July 1984 that Mr. Finucane was a suitable purchaser for Mr. Mayoh's run and on same date the Corporation received a letter from Mr. Mayoh recommending Mr. Finucane as purchaser of the run.
Before the interview on 31 July 1984 Mr. Finucane went to the State Bank of Maroubra Junction, where he banked, saw a loans officer and made it clear to the officer that if he was successful he would seek a loan of $80,000 from the bank.
On 31 July 1984 Mr. Finucane was interviewed at the offices of the Corporation by Mr. Russell, Mr. Jones and Mr. Boesen. Mr. Finucane completed an Application for Employment at or immediately before the commencement of the interview. Printed forms of the same three documents which had been shown to Mr. Finucane at the February interview were also shown to him at the July interview. I am satisfied that one or other of the officers of the Corporation brought to Mr. Finucane's attention the substance of the contents of the Memorandum of Mr. Baxter to Ms. Park of 4 January 1984 which was in the possession of at least one of the officers conducting the interview.
Mr. Finucane was told by one of the Corporation's officers at the 31 July meeting that the Corporation was intending to alter the egg distribution system by a greater use of trolleys in the delivery areas. Mr. Finucane was asked if he would be prepared to put a hydraulic lift on the back of Mr. Mayoh's truck suitable for the reception of trolleys, at a cost of about $6,000 to $7,000. Mr. Finucane replied that he would be prepared to do that.
Other things were said to Mr. Finucane by one or more of the Corporation's officers on 31 July about rationalisation of the Corporation's distribution system. It was suggested that carriers in runs where deliveries fell below a mean of 1,200 cartons per week would be allowed to do additional deliveries in growth areas in the western suburbs of Sydney so as to top up deficiencies in their own runs to 1,200 cartons per week. In other words the system would be rationalised by sharing the excess burden in the areas of greatest growth.
I am satisfied that the Corporation's review of the distribution arrangements and any risks to carriers that might emerge therefrom were not otherwise brought to Mr. Finucane's attention at the July meeting or indeed at the earlier February meeting. In particular, I do not accept the evidence of Mr. Jones that he told Mr. Finucane at the 31 July interview:

"The reason I am telling you this is because you said you were interested in forking out 90 grand for a run that may not exist in a few weeks time and I and Alan Russell wanted to sleep at night, and by wanting to sleep at night what I was trying to say and what I did say because I explained it was that I wanted to go to bed with a clear conscience, that if he walked out of that room with the intention of spending $90,000 on a run, that I would have a clear conscience a fortnight later when I told him - can I use the vernacular or not?

Yes, you use the words that you used. --- I said in a fortnight's time I would have no conscience about going up to him and saying, 'Piss off, we don't need you anymore' because I know I had made it as clear as I possibly could at the interview that that was a probable outcome of what would happen when I had finished my distribution audit.

What did you next say to Mr. Finucane? -- I said, 'Now tell me you are still interested."

What did he say? -- He said, 'Yes I am.'"

As mentioned earlier, Mr. Jones had come to the conclusion by mid-July 1984 that the number of carriers should be reduced. He had not discussed his conclusion with management at that stage. He was directly responsible to Ms. Park, the Marketing Manager, but she had informed him that on the matter of recommendations about distribution arrangements he should deal direct with Mr. Baxter. Mr. Jones first spoke to Mr. Baxter about his conclusions with respect to the distribution changes in August 1984. He informed Mr. Baxter of the various alternatives and of Mr. Jones' views so that Mr. Baxter could present his (Mr. Baxter's) recommendations to the Board. What emerged with the approval of the Board of the Corporation in November 1984 was, in Mr. Jones' view, substantially the system that he (Mr. Jones) had recommended except in relation to the appointment of a prime contractor.
This reference to "prime contractor" is to the system whereby the Corporation retained one contractor for distribution of eggs and egg products in the metropolitan area of Sydney, leaving it to the contractor to determine whether it sub-contracted runs to other persons. By early August 1984 Mr. Baxter held the view that the preferred course for the future was to introduce a prime contractor system. Such was the recommendation which Mr. Baxter made to the Board. It was Mr. Baxter's aim to get the new system into place as quickly as he could; but the matter was very sensitive because of the necessity for negotiations with the TWU over the implementation of the scheme.
Mr. Baxter knew on 3 August 1984 (with respect to the total distribution system and not only the Sydney metropolitan distribution system) that the Corporation was considering changes to the system of transporting eggs from the branches to the metropolitan area; that at that stage the Corporation was having discussions with three prime contractors; and that it had been indicated by the Corporation to the TWU on a number of occasions that, unless the TWU came up with a system for reducing the number of carriers and rationalising the distribution system, a prime contractor would be appointed. Mr. Baxter had at that time said to carriers who were concerned about their future that carriers who worked well and hard had nothing to fear. Mr. Baxter said this to a carrier, Mr. Attard, on 3 August 1984 and also said to Mr. Attard that he believed that, when the prime contractor eventually made a decision about how to organise the runs, the carriers who had worked well and done the job well would probably be retained.
In August 1984 Mr. Baxter addressed a meeting of employees of the Corporation at the Auburn RSL Club. Among the persons present were delegates from the carriers, and representatives of relevant unions and farmers. Mr. Baxter said that there would be some changes in the method of distributing eggs, but the basic principle would be reward for effort. That was the only specific reference that was made in that address to changes to the distribution system. Nothing was said about the consideration of any particular options.
Originally there were 14 applicants for the purchase of Mr. Mayoh's run, but 11 of those withdrew following interviews in July 1984 with Messrs. Russell and Jones leaving only three: Messrs. Finn, O'Keefe and Finucane. Arrangements were made for those three applicants to be interviewed by Mr. Baxter. The interview of Mr. Finucane took place on 9 August 1984. It was held in Mr. Baxter's office. Mr. Baxter, Mr. Boesen and Mr. Finucane were present.
At the interview of 9 August Mr. Baxter asked Mr. Finucane if he knew that the price of egg runs was governed by a clause in the agreement with the TWU which provided a formula valuing runs at about $45,000 to $46,000 on then figures and that the Corporation could not guarantee any goodwill in the run. Mr. Finucane said that he was aware of that. Mr. Baxter told Mr. Finucane that the Corporation was likely to make significant and radical changes to its distribution system, but that no decision had yet been made about such changes. Mr. Baxter said that no guarantees could be given to Mr. Finucane or any other carriers that present transport arrangements would continue in the long term. Mr. Baxter said that among the possible changes being considered by the Corporation was one whereby it would buy out some of the older carriers. Mr. Baxter also said something to the effect that the Corporation might improve distribution by having carriers make greater use of trolleys in certain delivery areas.
Mr. Baxter told Mr. Finucane more than once that if he bought Mr. Mayoh's run he was buying a high risk business; that the Corporation accepted no liability in the event of changes to the distribution system; and that the Corporation gave no guarantees to Mr. Finucane as to security for the goodwill of the run or permanency of tenure. Mr. Baxter told Mr. Finucane that carriers were operating pursuant to old forms of agreement signed by the Board and that the Corporation had not executed any new form of agreement with carriers engaged before 1 July 1983 by the Board or engaged thereafter by the Corporation. Mr. Baxter said that if Mr. Finucane purchased the run he must regard it as he would any other commercial venture; and that he should make whatever enquiries he considered necessary from his bank manager, solicitor or accountant or the NRMA to fully evaluate the proposition.
Mr. Finucane was informed by letter dated 24 August 1984 from the Corporation to him that he had been unsuccessful. The Mayoh run was offered by the Corporation to Mr. Finn. On 27 August 1984 Mr. Finn informed the Board that he did not wish to proceed with the purchase. Mr. O'Keefe, who was apparently next in line as purchaser of the run, informed the Board on 29 August 1984 that he also did not wish to proceed with the purchase. Mr. Boesen informed Mr. Finucane on 30 August 1984 by telephone that his application to purchase Mr. Mayoh's egg run had been successful and that a letter was being forwarded from Mr. Baxter to him confirming the approval of Mr. Finucane as a person who might negotiate with the vendor toward the purchase of the run.
There was tendered in evidence a letter of 30 August 1984 from Mr. Baxter to Mr. Finucane. Mr. Finucane denied receiving the letter. He said the first time he saw it was when his solicitor showed it to him, presumably in connection with this case. I admitted the letter on a limited basis and reserved the question whether I admitted it against Mr. Finucane as a document received by him. I am satisfied that the letter was received by Mr. Finucane and that he understood its contents at all material times. I therefore admit it for all purposes. It reads as follows:

"Dear Mr. Finucane,

This letter will confirm our telephone advice that your application to negotiate the purchase of Mr. R. Mayoh's run has been approved by the Corporation.

As advised, you should now approach Mr. Mayoh to complete negotiations for the purchase of the run. However, as discussed with you on several occasions, you are advised that:-

1. an arrangement exists between the Corporation and the Transport Workers' Union which prescribes a formula for the determination of the price of the run. The price determined under that formula is approximately $45,000. If you purchase the run for an amount in excess of the $45,000, you do so entirely at your own risk;

2. the purchase of the run is a commercial risk undertaken by you and the Corporation is not responsible for guaranteeing any goodwill in the run; and

3. the Corporation is in the process of completely reviewing its transport and distribution arrangements and there is no guarantee that the existing distribution arrangements will necessarily continue over the long term.

May we take this opportunity to congratulate you on the success of your application and look forward to a mutually beneficial association.

Yours sincerely,

K.P. BAXTER

MANAGING DIRECTOR"

On 12 September 1984 the Board of the Corporation met. Mr. Baxter reported that further discussions had taken place with Alltrans Bulk Division ("Alltrans Bulk") about appointment of a prime contractor to undertake distribution. He informed the Board of certain discussions between himself and representatives of the TWU relating to the Contract Carriers' Agreement. He expressed the opinion that there might not be industrial trouble if a prime contractor was appointed as the carriers would be offered employment with that contractor when the changes were introduced. He observed that the offer of continuing employment fulfilled the commitments given by the then Government that no jobs would be lost as a result of changes in relevant legislation concerning the Corporation. Mr. Baxter further advised the Board that if the present carriers did not agree to work with the prime contractor there should not be any major problems with making alternative arrangements. It was noted that there would be a minimum saving of $200,000 in distribution costs if a prime contractor was appointed. The Board agreed that the proposed distribution arrangements would be discussed with the Customer Services Manager later in the meeting.
Mr. Jones, then Customer Services Manager, attended the meeting in the afternoon for discussions with the members of the Board as to the proposed distribution arrangements. Mr. Baxter stated that Rapid Transport Industries was requesting a contract over a four year period but that it was felt that a three year period could be agreed. It was suggested that, should the Corporation agree to the appointment of a prime contractor, discussions should be held first with the TWU and then the Union's carrier delegates at the Corporation about the changeover. The Board resolved:

"the Corporation approves the appointment of a prime contractor to undertake distribution on behalf of the Corporation of eggs and egg products in the Sydney metropolitan area subject to a report by the Managing Director at the next meeting following discussions with the TWU and TWU carrier delegates."

On 12 September or thereabouts, Mr. Baxter advised Mr. Perry, the Secretary to the Corporation, that the Corporation should not in appointing Mr. Finucane sign either the Contract Carrier's Appointment or the Deed of Indemnity, as the Corporation had not done so in the cases of Mr. Johnson and Mr. Cross.
By agreement dated 15 September 1984 between Mr. Mayoh and Mr. Finucane, Mr. Mayoh agreed to sell to Mr. Finucane his interest in his egg run and in his 1980 Mitsubishi 4.5 tonne diesel truck. The purchase price was $82,000 for the run and $8,000 for the truck, a total of $90,000. This amount was to be paid by Mr. Finucane to Mr. Mayoh or his company, Nayara Pty. Limited. Mr. Finucane declined to pay the money until the Corporation approved him as purchaser. On 17 September 1984 Mr. Finucane attended the offices of the Corporation with Mr. Mayoh. Mr. Finucane was handed by Mr. Perry three documents, being the three printed forms which he had been shown by the Corporation's officers in February and July 1984. They were the Contract Carrier's Undertaking, the Deed of Indemnity and the Contract Carrier's Appointment. Mr. Finucane signed the Undertaking and the Deed of Indemnity in each of which relevant details had been typed. He then handed all three documents back to Mr. Perry, and was given plain printed forms of the documents in their stead. Mr. Perry told Mr. Finucane that "the Corporation did not sign the appointment because there was no security in the run". Mr. Finucane and Mr. Mayoh then went outside the Corporation's offices, and the purchase moneys were paid by Mr. Finucane to Mr. Mayoh.
On the following Tuesday Mr. Finucane asked Mr. Perry for copies of the forms he had signed in Mr. Perry's office on 17 September. Mr. Perry said that Mr. Finucane should come back the following day and Mr. Perry would have the copies prepared for him. Mr. Finucane went back the next day, the Wednesday, but Mr. Perry said that he had been busy and had not had time to prepare the forms or have them copied, and asked Mr. Finucane to come back on the Thursday. Mr. Finucane did so and was then handed three forms being photocopies of the two he had signed and of the Contract Carrier's Appointment. Mr. Finucane did not look at the forms until that evening. When he did so he telephoned Mr. Perry because he did not understand why the Contract Carrier's Appointment was blank. He then operated the run for the next seven or eight weeks, calling daily at the depots to collect eggs and then distributing them to outlets.
Mr. Jones started work three weeks before 12 November - the date on which the appointment of a prime contractor was ultimately announced to the carriers - on amalgamating the existing 31 runs down to 23 runs. He was not seeking to divest any particular carrier of his run, but to divide the total number of "delivery drops" by the number 23 so that in that sense each run was new. The main factor which Mr. Jones applied in rating carriers to allow the prime contractor to determine which carriers should be retained was the fact that the carriers were all members of the TWU and Mr. Jones anticipated that the TWU would insist on a "last on first off" principle. The ultimate decision was, however, left to Alltrans Bulk. Mr. Jones prepared a list of 31 names with his mark endorsed thereon rating them as "good, fair, indifferent or whatever". Alltrans Bulk then came back with a list of 23 carriers to be retained which had only two differences to the list prepared by Mr. Jones. Mr. Finucane did not have a high rating on Mr. Jones' list, both because he fell into the "last on first off" category, and because Mr. Finucane had not been a carrier to the Corporation for long enough for Mr. Jones to form a judgment as to whether Mr. Finucane was a good or poor driver. Mr. Jones dealt only with Alltrans Bulk and not with the TWU. Mr. Jones did not canvass the opinion of drivers at all "because it would not have been possible to let them know what was in the offing without bringing down upon the head of the Egg Corporation considerable trouble".
On 8 November or 9 November 1984 Mr. Baxter reached an agreement with Alltrans Bulk verbally appointing it as prime contractor which was followed by a written agreement. Carriers were told late in the afternoon of 9 November by the Corporation to attend a meeting on 12 November at 6 a.m.. This procedure was adopted because the Corporation had received advice from the TWU that, in the light of experience which the TWU had had in other industries with this sort of changeover, unless the changeover was made "relatively short and sharp there would be very considerable logistic problems associated with it and in order to make it as clean as possible we (the Corporation) should do it as quickly as possible; in addition to which if we (the Corporation) left it for a longer period of time the news would inevitably leak out and it could prejudice the interests of the existing carriers and in fact create quite serious industrial problems for us." The TWU's function in offering such advice to the Corporation was not explored in evidence.
Mr. Baxter announced at the meeting of carriers on 12 November that the cartage of eggs would in the future be undertaken by Alltrans Bulk, that 21 carriers would be retained by the Corporation and the remainder would not be retained. He said that a number of carriers would be employed as company drivers and that the Corporation would buy their trucks from them and they would be paid compensation, but he did not say how much compensation would be paid. Mr. Doig, the general manager of Alltrans Bulk, then read out the names of those who would be retained as carriers working for Alltrans Bulk. The names of eight carriers were not read out, and those carriers were led outside. Mr. Parnell, the union delegate from the head office of the TWU, then spoke outside to the eight people including Mr. Finucane and Mr. Cross, another carrier for the Corporation. Mr. Finucane and other carriers present at this outside meeting were surprised and shocked by what they had been told.

Mr. Finucane and Mr. Cross were asked by Mr. Parnell to attend a meeting with Mr. Baxter in Mr. Baxter's office, and attended that meeting in the presence of Mr. Parnell. Mr. Cross asked Mr. Baxter: "How come you cancelled our contracts when there are numerous carriers over the age of 60 years of age or more, some with old trucks in excess of 10 or 15 years old? Why did you cancel our contracts?" Mr. Baxter replied that it was not his decision to cancel the contracts, but was a Board decision. Mr. Baxter said that Mr. Cross and Mr. Finucane were in a difficult position and that they should consider taking legal action against their respective vendors. He said that the Corporation might consider helping them with legal expenses to do this. Mr. Baxter mentioned a compensation figure: in the case of Mr. Cross $850. In the circumstances this figure appears to have been treated as an offer also to Mr. Finucane in the same amount. Mr. Finucane and Mr. Cross said that this offer was not satisfactory. Mr. Parnell said that he had looked at the "paperwork" and had concluded that there was nothing the TWU could do to help Mr. Cross or Mr. Finucane and that the Corporation had no legal obligation to pay anything to them.
On 12 November 1984 the Corporation terminated Mr. Finucane's engagement and sent him two cheques, one for $1,625.53 and the other for $40.54. The cheques were sent under cover of a letter of 12 November 1984 which referred to the Corporation's estimate of Mr. Finucane's week's earnings for the week commencing 12 November 1984 and certain other items.
On 13 November 1984 Mr. Baxter met Mr. Finucane. In my view nothing critical turns on what was said there, so I shall not deal with the matter further.
The Board of the Corporation met on 14 November 1984. The minutes of that meeting record the following:

"The Managing Director reported two carriers who had purchased runs during the last few months were not offered alternative employment. He pointed out they had received letters explicitly warning them of possible changes to the distribution system and that there were no obligations on the Corporation in connection with the purchase of the runs.

The Carriers had also been informed the Agreement with the Contract Carriers had not been registered and purchase of the runs was entirely at their own risk. Payment of a week's salary would be offered to the two carriers in lieu of notice.

It was commented that the 21 lorry owner drivers who had transferred to Alltrans are now operating their delivery runs and the situation appeared to be settling down apart from a few minor problems.

Mr. Baxter said he wished to formally record his appreciation of the assistance given by Mr. Alan Jones, the Distribution manager in implementing the new arrangements. He commented Mr. Jones had worked long hours well beyond the call of duty in assisting with the changes.

It was noted each member of the Corporation had been consulted about the changeover to the prime contractor arrangement prior to Alltrans being notified and the changes implemented.

The commencing rate Alltrans is providing the Corporation is a cartage rate of 66.5 cents per outer. The contract would apply for a period of five years with a right of first refusal to extend for a further five years subject to satisfactory performance.

Resolved

'the corporation formally ratifies the appointment of Alltrans Bulk Division as the prime contractor to undertake distribution of eggs and egg products on behalf of the Corporation.'

'the Managing Director and other Senior Executive be authorised to enter into negotiations with the New South Wales Branch of the Transport Workers' Union for payment of redundancy to any carrier proposed by the Union whose employment may be terminated within two months of the date of appointment of the prime contractor to undertake the distribution work.'

The Managing Director pointed out that Mr. W. Cross and Mr. P. Finucane, the two carriers who would not be transferring to the prime contractor had been formally warned about purchasing the runs and the risks involved.

It was advised that in interviews they had been informed of discussions with the prime contractor and that there were no guarantees covering carriers' runs or a formal agreement existing between the carriers and the Corporation.

Mr. Baxter said he had indicated to Messrs. Cross and Finucane he would put a proposal to the Board at their request that the Corporation consider an ex gratia payment to them.

It was noted Mr. Cross had apparently paid $100,000 for his run although at the time of transfer a figure of $90,000 had been advised. Mr. P. Finucane, as understood had paid $82,000. Both had borrowed substantial amounts to finance the purchase of the runs.

Mr. Baxter pointed out that legal advice indicated the Corporation is not obligated in this matter as the carriers had acted against its advice.

Mr. Baxter said he understood Mr. Cross borrowed funds from his brother-in-law who is a solicitor and should have been aware of the risks involved.

It was advised that during discussions with the two carriers it had been indicated a possible action could lie against the sellers of the runs for mis-representation (sic).

Resolved

'the Corporation indicates to the Transport Workers' Union that carriers W. Cross and P. Finucane be assisted, if possible, to examine the availability of legal action against the vendors of carrier runs purchased by them, but until the position is clarified the Corporation makes no commitment to payment of monies to the purchasers beyond any payment in lieu of notice.'"

On or about 14 November 1984 Mr. Russell prepared a file note which purported to set out his recollection of the interviews with Mr. Finucane on 16 February 1984 and 31 July 1984 together with certain other matters. Reliance was placed upon this document as supporting the case for the Corporation. It was a document prepared by Mr. Russell and agreed in by Mr. Jones. I have reached the view that the file note is of minimal evidentiary weight. It was prepared with knowledge of the fact that a dispute had arisen between the Corporation and Mr. Finucane of the kind which became the subject of this litigation. It was plainly in contemplation of litigation and related to events months before. In particular it purported to set out the recollection of Mr. Russell (and also Mr. Jones, although the latter simply agreed with the document without alteration) about interviews with Mr. Finucane at times when many applicants for runs were interviewed by those two gentlemen: some 31 applicants in or about February 1984 and 14 in late July 1984. Even if the document were to be taken into account by me it would not alter my findings as to the evidence which I have otherwise accepted.
It is unnecessary to relate subsequent meetings that occurred between the parties except to say that an increasingly acrimonious relationship developed between Mr. Finucane and the Corporation. Indeed, the Corporation insisted that, unless Mr. Finucane "withdrew" a letter of demand from his solicitors of 13 November 1984, the Corporation would not allow him to be present at discussions between the Corporation and other carriers following the appointment of the prime contractor which took place on 14 November and 20 November. The proffered explanation of the attitude of the Corporation was that it was adopted as an expression of the TWU's policy as to the union acting on a member's behalf. The curious attitude adopted by the Corporation in reaction to the threat of a carrier seeking to resort to the courts is not the less curious because the Corporation claims to have followed the TWU's policies in adopting it. Thereafter correspondence was exchanged between solicitors for Mr. Finucane and the Corporation and in due course these proceedings were instituted on 23 January 1987.
After the termination of his engagement by the Corporation on 12 November 1984, Mr. Finucane did not work until 1 March 1985 when he was employed on a casual basis as a truck driver until December 1985. Mr. Finucane subsequently took up employment as a bus driver employed by the Urban Transit Authority. After November 1984 Mr. Finucane took steps to sell his truck, which was sold for $12,750. After the termination of Mr. Finucane's engagement by the Corporation Mr. Finucane continued for about twelve months to pay about $700 a month to the State Bank in repayment of his loan: this was only half of the amount he was obliged to pay. Mr. Finucane's position became so desperate that his father paid the loan out for him on 28 October 1985. Mr. Finucane's parents took a mortgage in their favour over Mr. Finucane's house to secure an advance of $83,194.06. The amount paid by Mr. Finucane's father to the State Bank, Maroubra Junction branch, was $71,000 plus flexible deposit proceeds of $12,194.06, a total of $83,194.06. This was the same amount as secured by the mortgage to Mr. Finucane's parents.
General Findings of Fact
Most of my findings of fact thus far have been with respect to particular occasions. I shall now make some findings of fact of a more general character.
The Corporation came into existence on 1 July 1983. Not long after this it became apparent to the Corporation that there were deficiencies in the distribution system of eggs in New South Wales including in distribution in the metropolitan area of Sydney. The Corporation was in a dilemma. On the one hand it recognised that it owed duties to the carriers who had been engaged by its predecessor, the Board. The Corporation did not wish to disturb its relations with the carriers whom it had taken over or antagonise them or the TWU of which the carriers were members; otherwise industrial relations would sour and tensions would arise.
On the other hand the Corporation wished to improve the distribution system which it had inherited from the Board. The dissatisfaction of the Government of New South Wales with the performance of the Board had led to the incorporation of the Corporation to improve the egg industry. The Board had lost $24m in the 1983 financial year and the Corporation had the task before it of running at a profit. In the perception of the Corporation, to achieve a profit it would be necessary to make changes in the egg industry including improvements to the distribution system. The Corporation, like the Board before it, had been involved in a public display of enforcing provisions of the relevant legislation relating to unlicensed producers of eggs. Such enforcement proceedings had attracted criticism from the Government, producers and others. The egg industry was in the political limelight and the Corporation was aware of the sensitive task which it had before it and of the fact that if it failed to improve the egg industry including the distribution system for eggs and egg products there was a real possibility that the Corporation would be abolished and the egg industry left to the interplay of free market forces. Hence, the Corporation was under significant pressure to achieve better performance.
The Corporation's dilemma was particularly acute with respect to the sale of egg runs. Most carriers had been appointed by the Board: only three were appointed by the Corporation. When any of the carriers wished to sell his run it was necessary for the Board to advertise the run for sale, interview applicants, select a successful applicant and put him in touch with the seller, after cautioning the successful applicant that, if he paid a higher price for the run than the price arrived at by the application of the formula in the industrial agreement with the TWU, he did so at his own risk. These were the duties of the Corporation to the established carriers. The Corporation was acutely aware of these duties because of events associated with the sale of a run by Mr. Hughes, who was a carrier appointed by the Board. Mr. Hughes had wished to sell his run which was first offered for sale by the Board about February-March 1983. Mr. Hughes complained to various authorities, including the Ombudsman of New South Wales, about delays by the Board and the Corporation in finding a purchaser. The Corporation received a first draft of the Ombudsman's Report in late April or early May 1984. That draft report criticised the Board and the Corporation in relation to the delays and other matters.
What was the Corporation to do when a carrier wished to sell his run? If it did not fulfil its duties of advertising the run for sale, interviewing applicants, selecting an applicant and introducing him to the vendor, the vendor would complain to the Corporation and others including the political authorities. Yet the Corporation was investigating substantial changes to the distribution system and considering various possible options including a reduction in the number of runs and amalgamation of the remaining runs or appointment of one "prime carrier" in place of the existing 31 carriers, with arrangements of one kind or another being made to accommodate the existing carriers or some of them whether as sub-contractors, employees of the "prime carrier" or otherwise.
In my opinion the Corporation's officers did inform Mr. Finucane on one or more than one of the occasions mentioned earlier that:-

* an arrangement existed between the Corporation and the TWU which prescribed a formula for the determination of the price of the run and that the price determined pursuant to that formula was $45,000. If Mr. Finucane was successful in his application and purchased the run for an amount in excess of $45,000 he did so entirely at his own risk;
* the purchase of the run by Mr. Finucane from Mr. Mayoh was a commercial risk undertaken by Mr. Finucane and the Corporation was not responsible for guaranteeing the goodwill in that run;
* the Corporation was in the process of completely reviewing its transport and distribution arrangements and it offered no guarantee that the existing distribution arrangements would necessarily continue over the long term;
* the Corporation offered Mr. Finucane no fixed term of tenure of his run or any permanency of tenure thereof.
In my opinion the Corporation's officers did not inform Mr. Finucane that his occupation was a weekly tenancy or some other tenure terminable on a week's notice.
Activities in trade or commerce
It was submitted on behalf of the Corporation that the conduct occurring at interviews between the Corporation's officers and persons like Mr. Finucane who may in due course become engaged by the Corporation as independent contractors for the purpose of delivering eggs on a run is not in trade or commerce but antecedent to it and constituted the exercise by the Corporation of functions of an administrative character.
There is some authority that a statement by a prospective employer to a prospective employee in negotiations leading towards employment is capable of being conduct within trade or commerce within s. 52 of the Act: Patrick v. Steel Mains Pty. Ltd. (1987) ATPR 40-794 per Wilcox J. at 48,665. His Honour there referred to the cases establishing that the words "trade or commerce" are of the widest import, to which I shall also refer shortly. Counsel for the respondents rightly pointed out that his Honour's observations were obiter in that case. His Honour did not say, of course, that conduct at the stage of negotiation towards employment will in every case constitute conduct "in trade or commerce" within s. 52 of the Act. Whether that result would follow in a particular case, and whether it would follow where the negotiations are toward the appointment of an independent contractor rather than the appointment of an employee, will depend upon characterising the corporation's activities in and about the negotiations. It may be that the critical issue in a particular case is whether the degree of connection between the negotiations and subsequent appointment on the one hand and the course of the corporation's business on the other is such as to bring the negotiations within the ambit of conduct in trade and commerce, however widely such ambit be defined.
It was emphasised by counsel that there is a distinction between a law "with respect to" trade and commerce and laws about conduct "in" trade and commerce. That distinction is illustrated by the difference between ss. 51(i) and 92 of the Constitution. Section 51(i) grants parliament power "with respect to" trade and commerce whereas s. 92 provides that trade and commerce between the States shall be absolutely free. Section 92 applies so that matters which are in, and not merely with respect to, trade and commerce between the States shall be free. Section 52 of the Act uses the word "in", not the phrase "with respect to". It was submitted that the phrase "in trade or commerce" in s. 52 means "within" trade or commerce.
The submission needs to be considered in the context of the facts surrounding the activities of the Corporation in relation to the sale of eggs and egg runs. The Corporation was required by the terms of the industrial award to advertise runs for sale, interview prospective purchasers, select a suitable purchaser and put him in touch with the vendor of the run. The terms of sale were a matter to be negotiated between the successful applicant and the seller of the runs. However, runs could not be sold without the Corporation's approval of the purchaser and without the appointment by it of the purchaser as a licensee. The interviews between officers of the Corporation and Mr. Finucane were all directly concerned with these matters.
When officers of the Corporation interviewed Mr. Finucane they were performing various functions. The interview process was conducted for the purpose of determining whether Mr. Finucane was a person who in the opinion of the Corporation was a fit and proper person to be entitled to negotiate with Mr. Mayoh with a view to purchasing Mr. Mayoh's run. The second purpose of the interview was to ensure that Mr. Finucane was a fit and proper person to be appointed by the Corporation as one of its contract carriers for the carriage of its eggs. Third, the information provided by the Corporation to Mr. Finucane as a prospective purchaser of an egg run was provided with a view to promoting the sale of the run between the vendor and the person found by the Corporation's officers to be a suitable purchaser.
The Corporation's activities in relation to the interview process were part of its statutory functions of ensuring an orderly system of marketing and distribution of the Corporation's eggs. They formed part of the process whereby the Corporation provided an effective transportation system for its trade in eggs. The Corporation's activities ensured effective control over the suitability of its carriers and secured control over the transportation system used by the Corporation for the delivery of its eggs.
An examination of the provisions of the Contract Carrier's Undertaking and Contract Carrier's Appointment and Deed of Indemnity, the first and third of which were signed by Mr. Finucane and the second of which was handed to him and provided some of the terms of the contract between the Corporation and Mr. Finucane, is relevant. I will briefly summarise only the more significant provisions here, since it will be necessary to consider these documents in some detail later in this judgment.

In my opinion the Corporation breached the terms of Mr. Finucane's engagement by terminating his appointment as it did on 12 November 1984 and is liable in damages to him for breach of contract.
The term and condition of the contract pleaded in paragraph 23A of the statement of claim is a different term from the one which I have found to have been established. I am satisfied that the term as pleaded was not in truth a term or condition of the contract for reasons which I have already given when dealing with the case alleged by Mr. Finucane under s. 52 of the Act. However, the question whether the term of appointment could be determined before it had subsisted until at least the commencement of the long term was the subject of evidence and argument and is involved in certain of the allegations in para. 20 of the statement of claim with respect to s. 52. As I do not propose to make any orders upon delivery of judgment but to stand the matter over for a short time so that the parties may bring in Short Minutes of Orders, I will give Mr. Finucane an opportunity to seek leave to further amend the statement of claim with respect to para. 23A to put this matter in order. What view I will then take of the matter will depend upon the circumstances that then exist.
So far as damages for breach of contract are concerned, the measure of contractual damages is to award damages which are such as to put Mr. Finucane in the position which he would have been in if the contract had been performed by the Corporation according to its terms. The damages to which Mr. Finucane is entitled in consequence of the breach of contract are considerably less than the damages to which he is entitled for contravention of s. 52 of the Act, since the Corporation would have been entitled to terminate his appointment after the short and middle term of the appointment had passed. Little argument was addressed as to the question of the number of weeks or months or years that would have had to expire before the Corporation would have been entitled to terminate Mr. Finucane's appointment and there was little argument as to the quantum of damages under the contractual head.
As I have found contravention of s. 52 to have been established and as damages assessed for that contravention would be higher, I do not propose at this stage to assess the damages under the breach of contract count. If when the parties have considered my reasons for judgment either of them wishes to reactivate this matter they may make application to me to do so.
Costs
Mr. Finucane succeeded in establishing only a limited number of alleged contraventions of s. 52. He also succeeded in establishing breach of contract on a point not specifically pleaded in the Statement of Claim but nevertheless treated as if it were part of the case by the conduct of the parties. He is entitled to an order that his costs be paid by the Corporation with one exception. On the fourth day of the hearing when the evidence had concluded and addresses were well advanced counsel for Mr. Finucane sought leave to amend the statement of claim with respect to the alleged misleading and deceptive conduct under s. 52 and to add what became para. 23A of the statement of claim with respect to the alleged breach of contract. I granted leave to amend the statement of claim on terms that the further hearing of the matter be adjourned to a date to be fixed and on terms that Mr. Finucane must agree to such order for costs of and occasioned by the amendment and thrown away in consequence of the amendment as the Court made in due course. Those conditions were not opposed by counsel for Mr. Finucane. The leave to amend was given and the terms as to costs were imposed on 10 March 1988. The hearing resumed on the afternoon of 21 March and continued on 22 March. Mr. Finucane must pay the costs of the Corporation of both 21 and 22 March in any event. Accordingly the order for costs shall in due course be that the Corporation pay Mr. Finucane's costs of the proceeding except the costs of 21 and 22 March. Mr. Finucane shall pay the Corporation's costs of those days.
I shall stand the matter over to a date to be fixed for the purpose of then making declarations and orders. I direct Mr. Finucane to bring in Short Minutes of Orders on that date.

[1988] FCA 136

22 APRIL 1988