Fitzallen v Rosebery-Toorak Football Club

[2003] TASSC 112

[2003] TASSC 112

CITATION:              Fitzallen v Rosebery-Toorak Football Club [2003] TASSC 112

PARTIES:  FITZALLEN, Andrew Stephen
  v
  ROSEBERY-TOORAK FOOTBALL CLUB

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 4/2003
DELIVERED ON:  13 November 2003
DELIVERED AT:  Hobart
HEARING DATES:  1 October 2003
JUDGMENT OF:  Underwood J

CATCHWORDS:

Interpretation – Admissibility of extrinsic evidence in relation to instruments – General rule – Contract wholly in writing – Interpretation is a matter of law – Objective test – Oral evidence inadmissible.

L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235; Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724; Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290, followed.

Aust Dig Interpretation [16]

Workers Compensation – Proceedings to obtain compensation – Determination of claims – Evidence and onus of proof – Evidence generally – Interpretation of contract of employment – Parol evidence rule – Oral evidence irrelevant to construction of written contract

L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235; Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724; Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290, followed.

Third Grange Pty Ltd v Thomas Owen Pty Ltd & Ors [2000] VCAT 37, referred to.

Workers Rehabilitation and Compensation Act1988 (Tas), ss7 and 48.

Aust Dig Workers Compensation [148]

REPRESENTATION:

Counsel:
             Appellant:  B Trafford
             Respondent:  R A Curtis
Solicitors:
             Appellant:  McGrath & Co
             Respondent:  Abetz Curtis & Worsley

Judgment Number:  [2003] TASSC 112
Number of Paragraphs:  16

Serial No 112/2003
File No LCA 4/2003

ANDREW STEPHEN FITZALLEN v ROSEBERY-TOORAK FOOTBALL CLUB

REASONS FOR JUDGMENT  UNDERWOOD J

13 November 2003

1. The appellant was a football player.  He was the "Playing Assistant Senior Coach" for the Rosebery-Toorak Football Club Inc.  While playing in a football match in August 2002, the appellant broke his leg.  He made a claim for compensation pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"). The claim was disputed. The issue was referred to the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"). On 3 March 2003, the appellant's claim was dismissed. This appeal is brought from that order of dismissal.

1. The notice of appeal contains four grounds, but they were all encompassed in the single submission put by Mr Trafford, who appeared for the appellant, that the Tribunal erred in law in that the finding that the appellant "was not a worker within the meaning of the Act, was not one that was reasonably open on the evidence".

1. At the heart of this matter are the provisions of the Act, s7, which provides:

"7 ¾ A person is deemed not to be a worker within the meaning of this Act while he is, pursuant to a contract ¾

(a)participating as a contestant in any sporting or athletic activity;

(b)engaged in training or preparing himself with a view to his so participating; or

(c)travelling in connection with his so participating or being so engaged ¾

if, under that contract, he is not entitled to any remuneration other than remuneration for the doing of those things."

1. There was no doubt that at the relevant time the appellant was "participating as a contestant in [a] sporting activity", but his argument was that under his contract, he was entitled to remuneration for doing things other than the things that are set out in s7(a) – (c) inclusive.

1. One of three agreed facts put before the Tribunal was that a letter dated 13 February 2002 and signed by the respondent and the then president of the respondent was the "contract of engagement between the [respondent] and the [appellant]".  It was not suggested in either the Tribunal or this Court that the contract contained any terms other than those set out in the letter.  That letter provided (formal parts omitted):

"Dear Andrew,

I am pleased to offer you the position of Playing Assistant Senior Coach of the Rosebery-Toorark Football Club for season 2002.  Reporting to the President of the club.  Your official duties will commence on the 8^th of February 2002 and conclude on the 31^st September 2002.

The following conditions apply to this offer.

Duties

As Assistant Senior Coach of the club you will be responsible for the following:

following [sic]

·Assist the senior coach as and when required

·Assist in the organisation and conducting of training

·Assist in team selections

·(If practicable), representing the club when required to do so

·Attend committee meetings as and when required

Remuneration

Your salary will be as follows, payable at a mutually agreeable time between both parties.

Coaching / Playing Fee  $2000
Less taxation on coaching/playing fee    (700)

Total  $1300 (cheque)

Superannuation Payment of                   $160

Subject to the clause listed over page as 'Tenure'

Travel

All travel expenses will be your responsibility, other than those approved by the President for reasons relating directly to club matters.

Tenure

This contract may be terminated by either party in writing by no less than two weeks notice.

·Should you at any time fail to meet your required duties or misrepresent the club in an untoward manner, the club shall have the power to terminate this contract.

·In the event that the club terminates the contract you will be entitled to all payments owing to you up until the termination date, based on a salary of $166 (less tax) per senior NWFA games played by played [sic] the club in 2002.

·If you wish to terminate the contract you will be required to refund the club, within fourteen days from the date of resignation any coaching and playing fees that exceed that of $166 per games played in 2002.

Acceptance

…".

1. The issue for the Tribunal was whether or not it was a term of that contract that the appellant was entitled to remuneration for anything other than:

·     participating as a contestant in a football match;

·     engaging in training or otherwise preparing himself with a view to so participating; or

·     travelling in connection with participating or being so engaged.

1. This issue required the Tribunal to construe the written words.  Construction of a contract involves a determination of the meaning of the words used by the parties in the document and the legal effects of those words.  In the case of a written contract, its construction is a question of law.  See Moore v Garwood (1849) 4 Exch 681; Francis v Lyon (1907) 4 CLR 1023 at 1040. In Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724, Lord Diplock ascribed the origin of the rule to the illiteracy of juries and said, at 736:

"Nevertheless, despite the disappearance of juries, literate or illiterate in civil cases in England, it is far too late to change the technical classification of the ascertainment of the meaning of a written contract between private parties as being 'a question of law' for the purposes of judicial review of awards of arbitrators or decisions of administrative tribunals from which an appeal to a court of justice is restricted by statute to an appeal upon a question of law."

See also White Constructions (NT) Pty Ltd v Ronald Mutton & Flavious Pty Ltd [1988] NTSC 53.

1. The question of law is what was the intention of the parties at the time of entry into the written contract?  It is to be answered by reference to the words in the contract.  See River Wear Commissioners v Adamson (1877) 2 App Cas 743 at 763. Lord Wilberforce said in L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 261:

"… the parties' intention must be ascertained on legal principles of construction from the words that they have used."

1. This is an objective inquiry.  The question is, what would a reasonable person in the position of each of the parties to the contract have regarded the other party's intention from the words used?  See Reardon Smith Line v Hansen-Tangen [1976] 1 WLR 989 at 996; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 62.

1. Once the whole of the contract is in writing, the parol evidence rule applies to the issue of its construction, namely, to ascertain the parties' intention, and except with respect to the matrix of facts in which the contract is set, parol evidence is not admissible.  See Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352. There are exceptions to this rule of law, the most common of which is the admission of parol evidence to resolve an ambiguity arising out of the written words used by the parties. No ambiguity arises in this case. Absent an exception to the parol evidence rule, oral evidence is not relevant to the legal issue of ascertaining the parties' intention. See Johnson Matthey Ltd v A C Rochester Overseas Corp (1990) 23 NSWLR 190 at 194.

1. The intention of the parties is to be ascertained by the application of an objective test.  As Professor McLauchlan wrote in The Parol Evidence Rule at 45, "the basic question is not what the parties inwardly intended, but what intention they indicated".  It is what the reasonable person considers the parties ought to have intended from the use of the written words in the matrix of facts which gave rise to the making of the contract.  Santow J put it this way in Spunwill Pty Ltd v Bab Pty Ltd (1994) 36 NSWLR 290 at 299:

"In construing a written document, the object is to discover and give effect to the contractual obligations that reasonable persons in the position of the parties would objectively have intended the document's language to create.  The emphasis is thus on giving effect to the apparent intention of the parties, and direct evidence of the parties' actual subjective intentions and expectations is inadmissible for purposes of construction: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (supra) at 349 and 352; Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 at 840."

1. Once this proposition is understood, it is clear that the evidence is inadmissible because it is irrelevant to the question of law that the tribunal or court has to determine.  In this case, the Tribunal heard a lot of irrelevant evidence.  Virtually all the oral evidence was about what the witnesses understood the terms of the contract to mean.  Some of the evidence was about what the appellant actually did as Playing Assistant Senior Coach.  The last question in the cross-examination of the appellant asked what he was "really being paid for with respect to his contract".  It was allowed over objection upon the basis that the appellant would "have in his own mind what he was being paid for with respect to his contract".  It was all irrelevant.  The Tribunal's decision was based upon the oral evidence that it accepted.  It determined that the contract did not provide the appellant with remuneration for anything other than participating as a contestant in a football match, engaging in training or otherwise preparing himself with a view to so participating, or travelling in connection with participating or being so engaged.  The Tribunal thereby fell into error.  It appears that the same error attended the trial process in R v Hanson and R v Ettridge [2003] QCA 488. In that case, De Jersey CJ said at par21:

"It is objective, rather than subjective, considerations to which regard must be had in the resolution of such an issue. See Taylor v Johnson (1982-1983) 151 CLR 422, 429. The matter was extensively examined by the High Court in the earlier case of Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337, where, in the context of the implication of terms, Mason J (as he then was) disavowed (p 352) referring to 'the actual intentions, aspirations or expectations of the parties'. Evidence of those matters was 'not receivable'. The court looks rather to 'the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting'. The court thereby focuses (p 353) 'upon the presumed, rather than the actual, intention of the parties'. Reference might usefully also be made to the statement by Thomas J, as he then was, in Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216, 238:

'When evidence of subsequent conduct contains a party’s view of the meaning of the contract, it is not generally permissible to use it to persuade the court what the parties really intended'.''

1. I have not overlooked the fact that the Tribunal is not bound by the rules of evidence (the Act, s48). In Third Grange Pty Ltd v Thomas Owen Pty Ltd & Ors [2000] VCAT 37, at pars8 – 9, Davey J referred to the parol evidence rule and the construction of contracts, and observed that as the rule is traditionally treated as a rule of the law of evidence, it may be arguable that as the law of evidence does not apply to proceedings in the Tribunal, evidence of the parties' subjective intentions may be admissible. I respectfully disagree with this suggestion because it seems to me that once the words used by the parties have been ascertained, the construction of those words is a pure question of law in respect of which evidence is irrelevant unless it is required to resolve an ambiguity.

1. The contract between the parties to this litigation spelled out the duties of the appellant as follows:

·     assist the senior coach as and when required;

·     assist in the organisation and conducting of training;

·     assist in team selections;

·     (if practicable), representing the club when required to do so; and

·     attend committee meetings as and when required.

1. The first issue raised by the Act, s7, is not whether the appellant performed any one or more of those duties, nor whether he was required to perform any one or more of those duties, but whether he was "entitled to any remuneration" for doing those duties. The letter provides for a single sum as remuneration for performing all of the prescribed duties. Although that sum is described as "Playing/Coaching fee", it does not mean that the payment is only for playing and coaching. The position is described in the letter as "Playing Assistant Senior Coach", the duties of that position are clearly spelled out and the remuneration clearly applies to all those duties. The contract entitles the appellant to remuneration for (inter alia) representing the club (if practicable) when required to do so, and for attending committee meetings as and when required. The second issue is whether the appellant is entitled to remuneration for anything other than the matters set out in pars(a) – (c) of s7. In my view, representing the club (if practicable) when required to do so and attending committee meetings as and when required, do not fall within the scope of any of those paragraphs and, accordingly, the deeming provision enacted by the Act, s7, does not apply to the appellant.

1. The appellant's claim in the Tribunal was for the commencement of weekly payments and payment of medical expenses and related treatment. The issue raised by the Act, s7, was treated as a threshold issue, and thus it seems to me that the appropriate orders are to quash the order of the Tribunal and remit the reference to it for determination in accordance with law.