Hill v St Anthony's Tennis Club - [2023] FedCFamC2G 29

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hill v St Anthony’s Tennis Club [2023] FedCFamC2G 29

File number(s): SYG 2827 of 2020

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 25 January 2023

Catchwords: INDUSTRIAL LAW – independent contractor claims that principal took adverse action against the independent contractor by terminating the contract between them because an employee of the independent contractor applied to the Fair Work Commission (FWC) with a complaint that the principal had bullied him – whether by applying to the FWC the employee of the independent contractor exercised a workplace right – whether the principal discharged the burden of proving that it did not terminate the contract it had with the independent contractor for the reason or for reasons that included as a substantial and operative factor the independent contractor’s employee having applied to the FWC – burden of proof not discharged – whether the independent contractor proved it suffered loss as a result of the principal’s termination of the contract – loss not proved – declaration made and matter listed for directions on the question of penalty.

Legislation: Fair Work Act 2009 (Cth) ss 12, 340, 341, 342(1), 343, 360, 361(1)

Cases cited:
Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216

Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044

Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157

Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721

Hill v St Anthony’s Tennis Club [2021] FCCA 66

Hill v St Anthony’s Tennis Club (No 2) [2021] FCCA 1745

Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771

Division: Fair Work

Number of paragraphs: 103

Date of hearing: 19, 20, 21, and 22 April 2022

Place: Sydney

The First and Second Applicants: First applicant in person, and on behalf of the second applicant, by video

Solicitor for the Respondent: Mr S Alexander of Alexanders Lawyers
ORDERS

SYG 2827 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
ANDREW JAMES HILL

First Applicant

AJH LEISURE PTY LTD

Second Applicant

AND:
ST ANTHONY'S TENNIS CLUB ABN 69 475 998 584

Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

25 January 2023

THE COURT DECLARES THAT:
1.On 30 August 2020 the respondent, St Anthony’s Tennis Club, contravened s 340(1) of the Fair Work Act 2009 (Cth) by terminating the contract of services it had entered into with the second applicant, AJH Leisure Pty Ltd.

THE COURT ORDERS THAT:
2.The matter is listed for directions at 9:30 am on 15 February 2023 on the question of penalty.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction

The first applicant, Mr Hill, is a tennis coach. Since at least around 1995 Mr Hill has been providing tennis coaching services through his company, the second respondent (AJH); and, at least until September 2020, Mr Hill has been providing those services at a tennis court complex (TC Complex) situated behind St Anthony’s Catholic Church at Marsfield. The TC Complex comprises four artificial grass tennis courts (tennis courts), a clubhouse at the back of the TC Complex, and a toilet block near the entrance.[1]
[1] Affidavit of S Souksavath 15.11.2021, [3]
From around January 1996 the TC Complex has been controlled and managed by the respondent (SATC) under a licence granted to it by the owner of the TC Complex, the Trustees of the Roman Catholic Church for the Archdiocese of Sydney.[2] SATC is an association that was incorporated under the (now repealed) Associations Incorporation Act 1984 (NSW). SATC’s constitution vests the control and management of SATC’s affairs in a committee of management (Committee), which comprises the office bearers of SATC and no less than three ordinary members.[3] SATC’s constitution provides for four executive office bearers – the President, Vice President, Secretary, and Treasurer. Mr Hill has been and continues to be a member of SATC.
[2] The licence has been granted under a deed – see affidavit of S Souksavath 15.11.2021, [8]; annexure “SS-1”
[3] Affidavit of S Souksavath 15.11.2021, annexure “SS-2”
In around October 2012 SATC appointed AJH to the position of “Tennis Court Administrator”. The duties that were attached to that position are set out in a document to which I will refer later (Contract).[4] AJH’s duties included “organising tennis court bookings and collecting, documenting and banking fees for same”. From the time AJH was appointed “Tennis Court Administrator”, therefore, Mr Hill had three different relationships with SATC: Mr Hill was a member of SATC; Mr Hill, through AJH, was a customer of SATC in so far as it hired the tennis courts for the purpose of AJH’s tennis coaching business; and Mr Hill, through AJH, administered the TC Complex, which included AJH hiring out the tennis courts to itself and to others.
[4] A copy of the document is annexure “S” to the affidavit of A J Hill 30.11.2021.
In 2018 Mr Sid Souksavath was appointed treasurer of SATC. Shortly after his appointment, Mr Souksavath formed the view that SATC was running at a loss, and he resolved to take steps to prevent SATC from continuing to make losses. Mr Souksavath also formed the view that there was a lack of transparency in the manner in which Mr Hill hired out the tennis courts and accounted for the money AJH received for such hiring. In around the second half of 2019 Mr Souksavath concluded that the solution to SATC’s continuing losses, and to what he considered to be the lack of transparency in AJH’s handling of money it received from hirers, lay in the implementation of an online booking system. In early 2020 the Committee resolved to implement one of two online booking systems.
On 24 March 2020, in response to the COVID-19 pandemic, Mr Hill informed AJH’s customers that AJH would cease providing coaching services until further notice. On 27 March 2020 two members of the Committee decided that the TC Complex would cease operations. The Committee, however, continued with its intention to introduce an online booking system. Further, by around 26 April 2020 the Committee resolved to investigate whether SATC should continue with the arrangements it had with AJH.
On 9 June 2020 Mr Hill lodged a general protections application not involving dismissal with the Fair Work Commission (FWC), and a separate application with the FWC alleging bullying. On 9 August 2020 the SATC committee resolved “to terminate AJH [sic] services effective 2 weeks from the day he is notified”; and by letter dated 30 August 2020 SATC terminated AJH’s services effective on 28 September 2020.
In these circumstances, AJH and Mr Hill make two claims. First, they claim that SATC terminated AJH’s services because Mr Hill had commenced proceedings with the FWC. AJH and Mr Hill claim that this constituted the exercise of a workplace right within the meaning of s 341 of the Fair Work Act 2009 (Cth) (FW Act) and that, by terminating AJH’s services because Mr Hill commenced proceedings in the FWC, SATC contravened s 340(1) of the FW Act. Second, Mr Hill and AJH claim there arose by implication a contract between AJH and SATC under which AJH had the exclusive right to use the tennis courts for the purpose of providing coaching services, and that SATC breached that contract by introducing a new booking system and other changes to the management of the TC Complex, by altering the prices and other terms on which AJH used the tennis courts, and by harassing Mr Hill and AJH.
the evidence
The applicants’ claims arise out of an extensive history of dealings between Mr Hill and particular members of SATC. The applicants, however, have not adduced relevant documentary evidence and testimony it is reasonable to expect is within their power to produce and give. This has made it difficult to identify with precision the events out of which the applicants’ claims arise, and the circumstances in which those events occurred.
The applicants’ failures may in part be explained by their not being legally represented. That fact, however, must be viewed in the light of the two reasons for judgment I have already delivered in this matter. In my first reasons for judgment (first reasons),[5] I set out what I understood were the alleged facts on which Mr Hill, at that time, relied for his claims based on s 340(1) of the FW Act; and at the directions hearing on 5 February 2021 I ordered that the alleged facts I identified in my first reasons stand as the applicants’ statement of claim. In my second reasons for judgment (second reasons),[6] I considered whether the applicants had a reasonable cause of action based on matters Mr Hill alleged in a document titled “Andrew J Hill Affidavit – Statement of Proposed additional claims”. I concluded that AJH had a reasonable cause of action for breach of a contract under which AJH had the exclusive right to provide tennis coaching services on the TC Complex. In addition to identifying what I held to be an arguable cause of action, I noted in my second reasons that the Court would determine the applicants’ case on the basis of admissible evidence; and I explained what that entailed as follows:[7]
Thus, to the extent a party relies on documents these must be annexed to an affidavit; to the extent a party relies on a transaction in relation to which a document exists to evidence it, the document should be annexed to an affidavit; and to the extent a party wishes to rely on a conversation, the affidavit should set out when and where the conversation occurred and the effect of what was said, preferably using direct speech.
[5] Hill v St Anthony’s Tennis Club [2021] FCCA 66, at [6]-[20]
[6] Hill v St Anthony’s Tennis Club (No 2) [2021] FCCA 1745
[7] Hill v St Anthony’s Tennis Club (No 2) [2021] FCCA 1745, at [31]
It is also the case that SATC does not appear to have put before the Court documents and testimony it is reasonable to expect was within its power to produce and give. SATC’s principal witness is Mr Souksavath. He does not in his affidavit purport to annex relevant documents, such as minutes of meeting of the Committee, and he has not given admissible evidence or, if admissible, evidence on the basis of which findings could be made, about the transactions and decisions of the Committee.
approach
Notwithstanding the deficiencies in the evidence the parties have adduced at the hearing, it is possible to identify from the evidence that has been deduced the essential events out of which the applicants’ claims arise. I propose, therefore, to approach my consideration of the claims Mr Hill and AJH make as follows:
(a)First, I will identify the evidence that is relevant to determining the terms on which SATC permitted AJH to use the tennis courts, and make some findings on the basis of that evidence.
(b)Second, I will set out in narrative form the effect of the evidence that begins with AJH’s appointment as “Tennis Court Administrator” and ends with SATC’s purported termination of AJH’s services. In this section of my reasons any unqualified statement of fact is to be taken to reflect a finding of the fact stated, unless the context indicates otherwise.
(c)Third, I will consider the claims Mr Hill and AJH make in the light of the evidence and findings I will by then have identified and made.
Mr Hill’s use of the tennis courts
There is no document, other than the Contract, that records the terms on which SATC permitted Mr Hill or AJH to conduct their activities on or in relation to the TC Complex. But there is evidence, in addition to the Contract, on the basis of which it may be possible to infer these terms.
First, there is the evidence of Mr Souksavath. He says that AJH hires courts from SATC on weekends and on some weekdays to conduct group and individual coaching. AJH also hires the tennis courts during school holidays.[8] AJH hires the tennis courts on both a term-by-term basis, and during school holidays. AJH pays SATC for the use of the tennis courts. In the case of term-by-term bookings, AJH pays SATC the relevant amount some weeks after each term ends. In the case of the additional bookings, AJH pays SATC at the time it hires the courts.[9]
[8] Affidavit of S Souksavath 15.11.2021, [24]
[9] Affidavit of S Souksavath 15.11.2021, [27]
Second, there are the following entries made in the minutes of meeting of the Committee:
(a)Item 2.07 of the minutes of 31 May 1998:[10]
[10] Affidavit of A J Hill 30.11.2021, annexure “F”
Club Coaching Exclusivity
A letter from Andrew Hill was received and will be circulated with the minutes. At issue is the need to state and codify the current implied exclusivity by Andrew Hill to provide coaching services to the Club.
Action Required: Renato to fax a copy of the letter to Greg Nell who will draft a response that will be tabled in the next meeting.
(Mr Greg Nell is a barrister, and he was SATC’s public officer.)
(b)Item 2.04 of the minutes of 28 June 1998:[11]
[11] Affidavit of A J Hill 30.11.2021, annexure “G”
Club Coaching Exclusivity (Ref #2.07)
A letter from Andrew Hill was received and will be circulated with the minutes. At issue is the need to state and codify the current implied exclusivity by Andrew Hill to provide coaching services to the Club. Renato to fax a copy of the letter to Greg Nell who will draft a response that will be tabled in the next meeting.
Action Required: Issue tabled for the next meeting.
(c)Item 1.01 of the minutes of 20 June 1999:[12]
Club Coach Exclusivity – After long discussion, the Committee agreed to the following statements as suggested by G. Nell:
1.   That the courts should not be hired for the purpose of coaching for a fee and/or reimbursement unless the person hiring the court and the person coaching (if they are not one in [sic] the same) carries suitable liability insurance;
2.   That the above condition shall be subject to any specific direction or resolution of the Management Committee;
3.   That without limiting in anyway, subclause (1), the Management Committee acknowledges that a policy issued by and/or complying with the T.C.A is “suitable liability insurance” for the purpose of subclause (1).
[12] Affidavit of A J Hill 30.11.2021, annexure “H”
Third, there are invoices SATC has issued to AJH.[13] Most of the invoices that had been issued up to and including 16 November 2015 contain three items – hire for 10 weeks; hire for “[o]ther times” or “[e]xtra times”; and hire to conduct “[t]ennis [c]amps”.
[13] Affidavit of A J Hill 30.11.2021, annexure “Z”
Fourth, there is a memorandum dated 31 May 2020 from Mr Tesara, SATC’s President, to Mr Hill in which Mr Tesara stated:[14]
Courts have been pre-booked as per your request to book your 100 hours allocation. Only these courts and times can be used by AJH at the reduced rates as agreed with AJH.
[14] Affidavit of A J Hill 30.11.2021, annexure “Q”
Fifth, in a memorandum dated 2 April 2020 addressed to Mr Souksavath and Mr Tesara (which deals with matters arising from the COVID-19 restrictions), Mr Nell said he understood that Mr Hill “is the only person who hires the Courts for coaching”.[15]
[15] Affidavit of A J Hill 30.11.2021, annexure “D”, at [29]
Sixth, the Contract (the terms of which I set out later) referred to the “on-site tennis professional” being one of SATC’s “sources of court hire”.
Seventh, there is an email Mr Hill sent on 9 August 2020 to “Adrian” being a “SATC Update on Court – for your Meeting 9/8/20”.[16] The email includes the following:
[16] Exhibit B, page 332
SATC Payment Term 2 - 27th April 2020 to 5th July 2020
The last discussion on my Court Hire was Aug 2019? I have been paying 5 weeks after the next term which was discussed at a committee meeting. This was amended to paying earlier. I have received 2 monthly invoices June and July 2020. I have no information from the committee regarding this change. Can you send me the email that suggests the change from term payment to monthly payment. please?
. . . .
My Formula - Court Hire Term 2 suggestion
I have used the same system for my past payments for Court Hire as a guide.
Court hire Hours: Term 2/2020. Period 27th April 2020 to 5th July 2020
Reference: Court Hire - St Anthony’s Tennis Club Inc.
Term time 27/4/2017 [sic] – 5/7/2017 [sic] 10 weeks 100 hours @ 6.50$ per hour
$6500
Other times 20.0 hours @ 6.50$ per hour (9/7Th, 11/7Sa, 12/7Su 16/7Th)
$130
TOTAL PAYABLE $6630
Eighth, there is an email Mr Hill sent to “John” on 11 March 2021.[17] I infer that “John” is a reference to Mr John Grass who was a member of SATC but who had been purportedly expelled as a member of SATC on 1 November 2020.[18] Mr Grass has been assisting Mr Hill in his dispute. In his email to Mr Grass, Mr Hill said (errors and formatting in original):[19]
[17] Exhibit B, page 337
[18] Affidavit J Grass 19.04.2022, annexure “D”
[19] Exhibit B, page 337
Yellow Form is monthly Banking sheet - Court Hire
Court Hire collected cash or bank transfer by coaches, or myself or direct debit.
Report shows wet weather
Month could be 4 or 5 weeks
These are the same as Dennis Baker sheet book.
When I became Court facilitator
Similar system converted to Google Sheets which could be checked daily.
Meeting suggested online system so I looked at Venulocker (member of SATC) and Skedda
Payments could be made online, cash or visa at the court or away
AJH Sports Term payments is For Term and Holiday
EG 10 weeks x 100 hours x $6.50
Payments made mid next term
Varied for 9 and 11 week terms plus special events
This has been operating 30 years since Dennis Baker
Invoice for payment and paid on time.
When the new system started I stated that we have not been updated on any changes.
This is when Sid withheld my pay in Aug 2019
A committee meeting stated not to withhold - minuted
This happened again in July and Aug 2020
Ninth, Mr Souksavath, in paragraph 32 of his affidavit made on 15 November 2021, refers to Mr Hill as the “resident coach” at the tennis courts.
On the basis of this evidence I find that AJH hired the tennis courts on three bases; in blocks of 100 hours per week for each school term; during school holidays; and as the occasion required. I also find that, at least for the year ending 5 July 2020, AJH paid an hourly hiring fee of $6.50, and SATC invoiced AJH for payment of hiring fees 5 weeks after the end of each term, at least in relation to the 100 hours per week block bookings.
events leading to termination
October 2012 – SATC appoints AJH as “Tennis Court Administrator”
In around October 2012 Mr Hill, through AJH, successfully applied to SATC to take over the position of courts manager that had been previously occupied by two part-time employees. AJH issued invoices every month for payment of the services Mr Hill on its behalf provided to SATC. SATC and Mr Hill did not sign a contract; but sometime before 2018 Mr Hill and Mr John Peacock, who was SATC’s treasurer up to 2018, recorded the terms on which SATC engaged AJH (this being the “Contract” I defined earlier in these reasons).[20] The document is as follows:
[20] Affidavit of A J Hill 30.11.2021, annexure “S”
St Anthonys [sic] Tennis Club Inc.
Job Description Form: AJH LEISURE PTY. LIMITED (Andrew Hill, Principal)
LOCATION: St. Anthony’s Tennis Club Courts, MARSFIELD, NSW.
JOB TITLE: Tennis Court Administrator
REPORTS TO:
SATC Committee.
TYPE OF POSITION: WEEKLY PAY RATE:
. . . $424.00 per week . . .
x Contractor
. . . .
GENERAL DESCRIPTION:
•ADMINISTRATION consisting of organising tennis court bookings and collecting, documenting and banking fees for same. SATC’s sources of court hire are from on-site tennis professional as well as court hire. It will be required that the Administrator documents these bookings to allow for the full accountability by the Committee. (Currently, the tennis professionals accounts are invoiced on a quarterly basis while all other casual hire is documented on a monthly basis: These would be the minimum reporting standards.)
•CLUB MAINTENANCE consisting of performing (or contracting others to perform) day-to-day cleaning and custodial duties related to the club house, grounds-keeping and toilets. (As the toilet blocks are used by members of the Parish as well as SATC, these must be inspected and cleaned daily.)
•COURT MAINTENANCE consisting of keeping the SATC Committee informed of any substantial (required) projects such as court resurfacing, landscaping, tree removal/trimming, building improvements, etc.
•Keep SATC Committee informed of any important relational issues (possibly) as raised by the St Anthony Parish.
•Keep the SATC Committee informed of any potential safety issues effecting [sic] the Club, hirers, members, visitors, workers and the St. Anthony’s Parish to those areas being the responsibility of SATC.

The Contract describes the two sources of revenue SATC earned in relation to the hiring of the tennis courts. The first is the money paid by the “on-site tennis professional” which, I infer, was Mr Hill, in response to the quarterly issue of an invoice. The second source of hiring fees is what the Contract describes as “casual hire”. The Contract states that this is to be “documented on a monthly basis”. There is in evidence monthly emails Mr Hill sent to Mr Peacock and, after Mr Peacock retired as treasurer in 2018, to Mr Souksavath which illustrate that system by which Mr Hill accounted to SATC for hiring fees he collected.[21] Each email contains a table which recorded the extent to which each of the tennis courts had been used; and Mr Hill stated the amounts that had been banked. This included cash payments some hirers made to Mr Hill. Mr Hill banked the cash into his own bank account.
[21] Exhibit A
In evidence Mr Hill gave in answer to a question I raised, Mr Hill referred to the table he attached to each of his emails as a “logbook”:[22]
HIS HONOUR: What’s your understanding of what that word means? Because I don’t know what a “logbook” is. What’s your understanding ‑ ‑ ‑?‑‑‑Well, the logbook ‑ ‑ ‑
‑ ‑ ‑ of “logbook”?‑‑‑ ‑ ‑ ‑ was – all right. There was a yellow sheet with all the courts allocated and all the money collected over a – broken down into the four courts and over three – the days of the month, all listed onto a – what I call a logbook, and then all the moneys collected and tallied below it, and then that money was then – a line underneath was put, “This money was collected and banked on this particular day.” There is an example of one of them in the affidavits….
[22] T120.40
2018-2019 – Mr Hill adopts online booking
In around April 2018 a Mr Carl Luo contacted Mr Hill to trial an online multisport booking platform known as “VenuLocker”.[23] According to promotional material Mr Luo and his apparent partner published,[24] VenuLocker “aims to facilitate the discovery of sports venues and simplify the process of booking it”. The promotional material further stated that using VenuLocker to book a venue required three steps: select the sports venues nearest to the user; select the court the user wants to book; and the user transacts with the court for booking confirmation. Mr Hill met with Mr Luo and his partner on 28 April 2018, and on 29 April 2018 Mr Luo and his partner sent an email in which they said (errors in original):[25]
We’ve now refreshed your accounts so that VenuLocker account now is an admin and you can manage your courts and the bookings associated with it. Here are your new details
email: . . . .
pwd: password (can you change that in the profiles settings).
We’re keen to know your thought of the admin management aspect of the website.
Please make as many bookings and change as you want, the website is currently not live yet, all data is still dummy and the credit card processing is not connected to a merchant yet.
Dany and I are working on finalizing the pricing soon, and we would like your feedback in the coming days as well.
As we are just starting off, we are looking for more customers that are willing to use us on our launch. As a gesture of goodwill, we won’t be charging any additional cost of the booking for the first 6 month. . . .
[23] Affidavit of A J Hill 30.11.2021, annexure “HH”
[24] Affidavit of A J Hill 30.11.2021, annexure “HH”
[25] Exhibit B, page 302
By email sent to Mr Hill on 7 June 2018 Mr Luo set out the “proposed charge model”, and requested Mr Hill’s feedback.[26] There is no evidence in relation to whether Mr Hill did give any feedback. There is, however, an email Mr Hill sent to Mr Luo on 14 September 2018 in which Mr Hill provides “[s]ome thoughts on the website”, these being “[l]essons book in, specials alert, turn on the light option, weather update through the community chat, player grade social matches”.[27]
[26] Exhibit B, page 302
[27] Exhibit B, page 303
On 6 April 2019 Mr Luo and his partner sent an email to Mr Hill which summarises a conversation he had with Mr Hill “on Thursday night” as follows (errors and emphasis in original):[28]
[28] Exhibit B, page 306
Just to summarize the conversation we had on Thursday night.
•We agreed on a date to cut over to VenuLocker as the primary booking system
•15th of April is cut over date
•Work before cutover
•All existing long term customers will be asked to use.
•VenuLocker will provide pamphlets to distribute.
•Andrew Hill will send an email and SMS soon to notify the customer
•Any new customer SMS or call in, will be directed to use VenuLocker booking system.
•Andrew Hill and Tenni will be made ‘Admin’ on the account
•Other coaches will be given ‘Coach’ permissions
•Andrew Hill will link the AJH Sports website to VenuLocker website . . . .
•VenuLocker will provide simple instructions on how to use the backend.
•The reporting bug will be fixed soon.
•The credit card transactions will be transferred to Andrew Hill’s bank account at end of every month.
•We will jointly aim to uplift the court usage
It appears that by 17 May 2019 VenuLocker became operational. On that day Mr Hill sent an email to the Committee in which he reported on a number of matters. One of those related to VenuLocker.[29] Mr Hill specified the website address of VenuLocker and said that it:
is an online booking portal. Tested in the holidays and working well. Very useful when people cancel their permanent so we can get a rebooking.
[29] Exhibit B, page 308
Mr Souksavath requests Mr Hill to provide “logbooks”
According to Mr Souksavath, after he was appointed treasurer in 2018 he investigated SATC’s books, after which it appeared to him that SATC was losing money.[30] He approached Mr Tesara and informed him that SATC was in a bad financial position. Mr Souksavath said “there is no transparency as to the income that [SATC] earns”, there were no receipts, and there was no logbook. Mr Souksavath also told Mr Tesara that:[31]
The yellow sheet that Andrews [sic] sends as to what he has to pay us back from what he has collected doesn’t correspond with the green sheet. The yellow sheet and the green sheet do not reconcile. The other thing I found out is that for the last 5 years the Club has been losing on average around $9,600 every year.
[30] Affidavit of S Souksavath 15.11.2021, [42]
[31] Affidavit of S Souksavath 15.11.2021, [43]
Mr Tesara asked Mr Souksavath to ask Mr Hill to provide Mr Souksavath “a copy of the logbook and receipts so that you can track what’s going on”.[32]
[32] Affidavit of S Souksavath 15.11.2021, [43]
Again according to Mr Souksavath, after a Committee meeting he approached Mr Hill and they had a conversation to the following effect:[33]
Mr Souksavath: Andrew I’ve gone through the books and the Club has been losing money about $9,600 every year, and I’ve spoken to Bennett about it and he’s asked if you could give me the books so I can track where the money is going.
Mr Hill:I’ll look into it.
[33] Affidavit of S Souksavath 15.11.2021, [44]
Mr Souksavath says that he “chased Mr. Hill up to produce the logbooks and he was also asked during the Club’s meetings . . . to produce the logbooks but he did not”.[34] Mr Souksavath says he had another conversation with Mr Hill in which he said to Mr Hill that he “must give me the logbooks” to which Mr Hill responded by saying he “will look into it and get back to you”.[35]
[34] Affidavit of S Souksavath 15.11.2021, [45]
[35] Affidavit of S Souksavath 15.11.2021, [46]
In his affidavit of 30 November 2021 Mr Hill refers to this part of Mr Souksavath’s affidavit, and says as follows:[36]
Respondent Mr Souksavath/Mr Tesara erroneously alleged Applicants refused to provide court hire summary documentation to the Respondent, as justification for the unilateral take-over and subsequent termination of the Applicants SATC Court Administrators contract. Applicants supplied the Respondent all relevant court booking/hire documentation in accordance with the requirements of the Applicants Tennis Court Administrators statement of duties.
In accordance with the Court Administrators Statement of duties the Tennis Professionals accounts were invoiced quarterly, and other casual court hire documented monthly. Refer attached emails from the Applicants to the Respondent containing the regular quarterly and monthly reports and confirmation that Mr Souksavath and Mr Tesara statements had already been refuted by SATC committee members at SATC committee meetings (Annexure S, Z, AA).
[36] Affidavit of A J Hill 30.11.2021, [24]
Annexure S to which Mr Hill refers is a copy of the Contract. Annexure Z is a copy of invoices that SATC had issued to AJH to which I have already referred. Annexure AA consists of two emails. One is an email from a Mr Peter Bach to Mr Hill sent at 4:09 pm on 30 April 2019, the subject being “March 2019 Court Booking Report”. With the email Mr Bach appears to have on forwarded an email with the same subject Mr Souksavath had sent to Mr Tesara at 4:20 pm on 29 April 2019. In his email to Mr Hill, Mr Bach stated (errors in original):
I think you are providing Sid with too much information, and he’s getting lost in it.
No more Green Table.
Don’t record WET in the Yellow Table, just use zeros instead.
Just give simple numbers. Maybe you have the detailed one for yourself, and a simplified one for Sid.
I don’t think that Sid understands that DOC3 is a FORECAST, and not the actual recorded weather over the tennis courts. It doesn’t matter anyway as players can cancel due to weather if it looks threatening to rain. And besides the weather radar is over Terry Hills.
He’ll probably will ask you to take photos of rain falling on the courts soon.
Anyway, sorry you are being targeted, hang in there. The committee hasn’t voted on, or moved on any actions.
The second email is an email from Mr Peacock to “John”. The copy in evidence does not have details when it was sent. It is open to infer, however, that Mr Peacock arranged to send the email to Mr Hill at some point. The email is as follows (errors in original):
Unfortunately I don’t remember the exact dates of the couple of SATC committee meetings involved but I can confirm that there were some excruciatingly long and unnecessary explanations given to Sid as to how Andrew’s green and yellow sheets worked. Every / any day marked as wet seemed to require some sort of proof from the BoM. I remember a particularly low point was reached when, at one stage, Sid even asked why there were four weeks worth of revenue for one month while the next had five! ‘Where is that missing money Andrew??’ (AJH always made his bank deposit on the last Thursday of the month: Sometimes the last day of the month is actually a Wednesday!)
Just no comprehension there. When Andrew got down to these levels to explain his data, you knew that he was always going to struggle. Sometimes you can teach a person but you can’t learn them.
In evidence given under cross-examination Mr Hill said he recalled Mr Souksavath told Mr Hill that the club was losing around $10,000 every year, and that Mr Souksavath had asked Mr Hill to give to him “the books so he can track where the money is going”.[37] Mr Hill further said that he believes “[he] did do that”.[38] Mr Hill said that he had given Mr Souksavath and Mr Peacock “in their time, the monthly reports for everything here – the logbooks”.[39] When it was put to Mr Hill that he did not provide the “logbooks” to Mr Souksavath, Mr Hill gave the following evidence:[40]
I disagree. I’ve been given – I have done the banking every month. There was a logbook per month given in with the banking and, when that was done, I was issued a payment for that month. So would you like me to go and collect all those actual emails and put together? Is that what you mean by the logbook? But they’ve all been issued each month
[37] T120.10
[38] T120.15
[39] T120.15
[40] T120.20
I accept Mr Hill’s evidence. In the course of the hearing, Mr Hill produced to the court a number of emails Mr Hill sent to members of the Committee, including Mr Souksavath, which contained information including a logbook.[41]
[41] Exhibit A
I accept Mr Souksavath’s evidence that he had requested Mr Hill to provide “the books” to enable Mr Souksavath to see what money Mr Hill was handling and how he was handling it, but that the only information Mr Hill provided to Mr Souksavath in response to that request are what Mr Hill identifies as the “logbooks”, being the “logbooks” Mr Hill described in the evidence I have set out above. Mr Hill did not provide any receipts he gave for money that was paid by persons who hired the tennis courts because, it appears, Mr Hill did not issue receipts; and Mr Hill did not provide any documents that evidenced the amounts he paid into his own bank account. I accept Mr Hill’s evidence, however, that he understood that he had satisfied Mr Souksavath’s request for the books by providing the logbooks.
Committee takes steps to obtain online booking system
It appears that at the last Committee meeting before 30 October 2019 Mr Souksavath proposed that SATC implement an online booking system. That is apparent from at least three emails that are in evidence. The first is the following email Mr Souksavath sent to Mr Hill on 30 October 2019 (errors in original):[42]
[42] Exhibit B, page 311
Thanks for your response. In this case, Bennett and I would like to meet up with you on Saturday 2/11/19 at 2:00 pm in the Club House. Please let us know if it’s convenient to you. At the same time, we would like you to answer these questionnaires below.
The result of these questionnaires will be compared between 3 Suppliers.
1.   Barclays Consultant Services
2.   SportLogic Pty Ltd
3.   Venulocker.com.au (Andrew)
The outcome of the answers, Price, User Friendly and Stability will be considered by Committee Members for final selection.
1.   How long has your company been established for?
2.   How much does it cost per month to use your system?
3.   How much does it cost per transaction? (Credit Card)
4.   How long does it take to complete the system?
5.   Does your system generate Lock-Code automatically? (Can set by Daily, Weekly, Monthly?)
6.   Does the Website included in the monthly cost?
7.   Name two customer who have used your system?
The second is the following email Mr Peacock sent to Mr Souksavath on 29 October 2019 (emphasis in original):[43]
A few questions about your Online Booking System proposal.
Why the big hurry on this?
Has the way by which we have made bookings in the past been a serious impediment to people renting our courts?
Can you put forth a compelling business case that, by changing from our current system to one of your other proposed systems will increase court utilisation / rental revenue?
Given that our current court management software costs us nothing, can you and Bennett assure the SATC Committee that there will be no associated charges from a change such as you are proposing?
How do you intend to use the Lock Code technology? I could understand such a criterion being used for assessment by a court complex such as Pennant Hills, that has already spent the ~$l,000 per gate, but I was unaware that St. Anthony's TC was going down this path.
[43] Exhibit B, page 321
The third email is Mr Souksavath’s email to Mr Peacock sent on 31 October 2019 (errors in original):[44]
[44] Exhibit B, page 320
Thanks for your feedback. In response to your questions, I believe there is a need for us to move into this direction.
1. Income's Transparency? At a moment, what I have received is ONLY Monthly Yellow Sheet Statement from Andrew which was basically the outcome of the Court Hiring Hours used by Permanent and Casual Customers. What about the 100 hours Court used by Andrew and log Book?
2. This system is a Technology that almost every Tennis Club has been utilised. Most Tennis Club are moving toward this direction. Manual system as almost obsolete.
I will assure you that our Club's finance is my first priority. That’s why I recommend this system to our Club. The system will secure our income’s clarity as well as cash flow issues. We don’t have to wait until end of month to get pay. Money flows in daily. We can cash in anytime whenever we need to.
In terms of cost and other features as you mentioned, Bennett and I will put together for Committee Members to decide and discuss in the upcoming meeting whether it’s worthwhile or affordable to proceed?
The optional features will be: Build-in Lock Code system Security Camera, Automated Lighting ect . . .
Each supplier might include different option into their system with no extra cost. It depends on what we need.
The System Features will be discussed an decide during our next Special Meeting which will be announced once our documentation is ready for presentation.
At 2:00 pm on Saturday 3 November 2019 Mr Hill met with Mr Souksavath and Mr Tesara to discuss the VenuLocker booking system. At 6:06 pm on 3 November 2019 Mr Hill sent to Mr Souksavath and Mr Tesara minutes of what was discussed at the meeting. The email is as follows (errors in original):[45]
[45] Exhibit B, page 312
I needed time for a response from designers of Venulocker being overseas on business. Answers are in
•How long has your company been established for? 2 years
•How much does it cost per month to use your system? 1% booking fee
•How much does it cost per transaction? (Bankcard) 1.75% on transaction + 30c
•How long does it take to complete the system? 1 hour
•Does your system generate Lock-Code automatically? (Can set by Daily, Weekly, Monthly?) No
•Does the Website include in the monthly cost? No
•Name two customer who have used your system? . . . .
Venulocker system - FREE use due to Andrew Hill due to assistance in design of the app.
The hirers and coaches who use the site gave it a top rating on ease of use.
Probably good to add in Book a Court from Tennis NSW on the analysis list.
Sid - Money issue receiving cash
Sid said “he wants online only” Andrew responded – “We have older payers who like paying cash plus turn-ups to the courts. Also, teenagers don’t have credit cards.
. . . .
I noted no members have used the $10 discount in the day. Great initiative to increase court use and income of the club.
Court usage was low on Weekday mornings plus Thursday, Saturday and Sunday Nights.
I have set up Meetup on Thursday and Sundays which are filling all courts.
Point mentioned
The Lock and Load system will create infrastructure with locks on gates. Not sure this is viable with 2 year lease response from Church.
Mr Souksavath responded with the following email he sent to Mr Hill on 4 November 2019 (errors in original):[46]
[46] Affidavit of S Souksavath 15.11.2021, [50]; annexure “SS-4” (The emphasised portion is in red in the original).
Thanks Andrew for your report of our meeting on Sat 2/11/19, in regards to VenueLocker system. I have some concerns and issues after receiving informations from your demonstration.
Starts with your feedback:
Venulocker system - FREE use due to Andrew Hill due to assistance in design of the app. The hirers and coaches who use the site gave it a top rating on ease of use. We are NOT The Hirers either Coaches. It’s completely different Target Audience. We are an Organisation who is looking PURELY for an Online Booking System. Our purpose is to upgrade to new Technology, improve and increase revenue for our Club.
Andrew mentioned, he is an assistant in designing of the the App. This is my main concern. It’s about the security of our system. How do we know for sure that an unauthorised individual won’t get access to our sensitive information such as our account and back-end security system. During the meeting, I have asked Andrew when the Hirers paid by Credit Card where the money are going to?
His answers was: Going to the Developer's Bank Account or my own. Who is this Developer? Why should we trust and let him get access to our account? This is unacceptable. Andrew also said that they are in a process of testing this feature at a moment. To me, it means that this system still hasn't been fully developed yet for our purpose?
Using the System for FREE as Andrew mentioned above. There is no such a thing that is FREE. An Apps, Software or any Online application for FREE distribution has its purpose.
1. Testing Applications for ERROR or Flaws in the system.
2 Feedback from customers for error so they can fix the system.
3Once errors are fixed after a few years time, the full version will be launched. New price will be introduced.
During the meeting, I have asked Andrew if he can provide us with the Director or Owner of VenueLocker's contact details?
His response was I can find it from their website. I went to VenueLoker website. There was no contact details. The only thing I can find is contact info button. I filled-in my details and reasons why I need to contact them, then submit. The system came up with an error. It said PLEASE ENTER ONLY ALPHABETICAL LETTERS. That's what I did. (See attached snaps shot). The website is not working and uncontactable!!!
I needed time for a response from designers of Venulocker being overseas on business. Answers are in.
How can Andrew answer the Questionnaire on behalf of VenueLocker? Is he in Partnership with the Company or is he one of the Directors? This is also a concern?
For us to proceed further with VenueLocker, Andrew must providing us with their contact details.
1.Director or Developer's full name
2.Email address
3.Mobile or office phone number.
We will then contact the owner or developer directly, followed by a meeting. The same process as we had with other Suppliers.
NOTE: Security is our main concern. We don't want any unauthorised individual to get access to our sensitive information such Booking system, Credit Card payment which will be linked to our Account Reports. Specially Back-end information.

Mr Souksavath deposed that Mr Hill did not respond to this email.
According to an email Mr Tesara sent on 16 December 2019 to what I infer were members of the Committee, the next Committee meeting was scheduled for 12 January 2020, and Mr Tesara noted the following:[47]
Proposed agenda Items:
1. Online booking system
*During the holidays, I encourage the committee members to visit websites like Lane Cove West Tennis Club, Kim Warwick Tennis Academy and Venulocker. Also check Eastwood-Thornleigh District Tennis Association and Vince Barclay Tennis Academy
**Awaiting input from a potential supplier of the online system
2. Tennis promotion (refer to Andrew, Sid and Greg emails)
[47] Exhibit B, page 313
It is not apparent on the evidence whether the scheduled meeting of the Committee occurred on 12 January 2020. It appears, however, that on 19 January 2020 the Committee voted in favour of adopting an online booking system. The minutes of that meeting are not in evidence. There are, however, two emails that refer to that meeting. The first is the following email Mr Tesara sent on 17 January 2020 to a number of people, who I assume were the members of the Committee:[48]
Dear All,
We have 2 agenda items this Sunday’s meeting. One is about the advertisement (AJH/SATC) and the other is about the online booking system.
Attached is the information about the online booking system suppliers
Apologies from Greg and Nhu.
Kind regards,
Bennett
[48] Exhibit B, page 326
The attachment is a table which repeats, with some changes, the questions set out in the email Mr Souksavath sent to Mr Hill on 29 October 2019, and records the responses from each of two suppliers that are identified as “Supplier 1” and “Supplier 2”.[49]
[49] Exhibit B, page 327
Second, there is the email Mr Tesara sent to Mr Hill on 20 February 2020, where Mr Tesara said, among other things (errors in original):[50]
Please find my response below:
. . . .
2. Venulocker
Venulocker is still its infancy (see attached 1) as admitted in its website. SATC’s choice is one which is a proven product. Barclay or Sports Logic satisfied the requirements and were voted unanimously by the Committee on the meeting on the Sunday, 19^th January 2020.
Venulocker missed out on the shortlist. It failed to comply the selection process. It cannot be contacted. Please find attachment from Sid (see attachment 2).
[50] Exhibit B, page 321
It is apparent that Mr Tesara sent this email in response to a communication from Mr Hill. The communication from Mr Hill is not in evidence, although it may be inferred that the communication related to the decision the Committee made on 19 January 2020.[51]
[51] There is also an email Mr Peacock sent to “John/Andrew” on 29 November 2021 (Exhibit B, page 341) which gives an account of what occurred in relation to the Committee’s consideration of an online booking system.
Impact of COVID-19 restrictions
On 22 March 2020 Mr Hill sent the following email to “Coaches, Players, and Parents” (emphasis and errors in original):[52]
We will be pausing AJH Sports Coaching operations until further notice after the Premier's announcement (22/3/20) on the closure of non-essential services. . . .
I will keep everyone updated via email.
We will work on a skeleton crew for essential services. maintenance and cleaning of Courts and toilets during this period.
The courts will remain open for social Tennis and Table Tennis. Court Hire on
Please call Andrew Hill on . . . . or Andrew Tenni on . . . . – updates on AJHsports.com
[52] Exhibit B, page 317
On 24 March 2020 Mr Hill sent the following email to Mr Tesara (copied to members of the Committee) (emphasis and errors in the original):[53]
I wish to draw the following matters to the attention of the management committee of the St Anthony's Tennis Club as a result of the current COVID-19 crisis:
As a Court Hirer:
1.I have paused all my Tennis Coaching for the remainder of the term, effective from 20/3/20 as a consequence of the Premier’s announcements on COVID19 last weekend and Monday. AJHsports enforces Stay Home Stay Safe
2.As a consequence, I shall no longer be hiring the Courts until further notice.
3.In those circumstances I assume that I will not be required to pay court hire for those occasions that I would have otherwise been hiring courts / coaching, but am now no longer.
[53] Exhibit B, page 318
As the caretake and administrator of the Tennis Courts:
4.I have set a few protocols in place as a means of addressing COVID-19 concerns and in light of the current advice of government:
•I have upgraded Toilet cleaning to Hospital Strength detergents / disinfectants;
•I have placed Hand Sanitizers are in both Toilets,
•I suggest before and after cleansing for any court hire or Club use;
•Otherwise Courts and Toilets will continue to be cleaned in the morning as per normal.
If the Club thinks that I should be doing anything different or further, please let me know and I shall make the appropriate arrangements.
5.I assume that the Courts continue to remain open for hire to both our permanent and casual bookings. But if that is not the case, or if that position changes some time in the future and no further hiring is to take place, please let me know so that I can make appropriate arrangements and provide appropriate notice (for instance to our permanents).
6.Otherwise the management of the operations of the Court is continuing as normal. The next banking will be done on Thursday 26/3/20.
I trust that these measures are to the satisfaction of the Tennis Club and its management committee.
Mr Tesara responded to Mr Hill’s email with the following email sent at 8:07 am on 25 March 2020:[54]
The courts will continue to remain open for hire to both our permanent and casual bookings. As this is the case, could you please make appropriate arrangements and provide appropriate notice (for instance to our permanents).
[54] Exhibit B, page 318
Mr Hill sent an email to Mr Tesara at 8:22 am on 25 March 2020 in which he said that “[a]ll permanents, casuals and club can book online on venulocker.com”.[55] This prompted Mr Tesara to send to Mr Hill at 5:05 pm the following email (errors in original):[56]
I would like to raise your attention on your email below advising me that “all permanents, casuals and club can book online on venulocker.com”.
The SATC Committee had decided that SATC invest on an online booking system. This is not venulocker. By having two online booking systems (Barclay System and Venulocker) will create confusion to current and future customers.
The SATC Committee decision should be respected.
Could you please stop using venulocker for the SATC booking immediately.
[55] Exhibit B, page 318
[56] Exhibit B, page 318
On 27 March 2020 Mr Souksavath and Mr Tesara, with the endorsement of Mr Hill “(as the Club’s manager)”, decided to cease all activities at the tennis courts.[57] At 1:05 pm on 31 March 2020 Mr Peacock sent an email to Mr Souksavath (copied to Mr Tesara and others) in which he proposed that, “[g]iven our current non-existent revenue stream” SATC “should not be proceeding with any unnecessary costs (such as the Barclay online booking system) at this time”, and that “[p]erhaps we can look at the costs/benefits when . . . [we] discuss a budget at our next committee meeting (whenever that might be)”.[58] At 2:13 pm on 31 March 2020 Mr Tesara sent an email to a number of people, including Mr Hill in which he stated, among other things (errors in original):[59]
Another major cost to SATC is the fee to AJH Leisure Pty Ltd. This should be reviewed as there is no management required while tennis courts are closed.
With regards to online booking system project, the launch will not happen on 5^th of April 2020. This project is now suspended (no monthly fee while tennis courts are closed). This project resumes once tennis courts are opened.
[57] Affidavit of A J Hill 30.11.2021, annexure “D”, [3]
[58] Exhibit B, page 333
[59] Exhibit B, page 333
On 2 April 2020 Mr Nell prepared a memorandum on the subject of “Response to COVID-19”.[60] Mr Nell began his memorandum by noting that he had prepared it “in response to the emails recently exchanged amongst the members of the committee agitating principally whether the tennis courts should be reopened as well as whether or not a decision can now be made in this regard” (emphasis in original). Mr Nell concluded, among other things, that the decision made on 27 March 2020 to suspend all operations of the tennis courts was valid, and it was open to the Committee to overturn that decision by simple majority. Mr Nell also concluded that:
[I]f a majority of the committee decide that the courts should be reopened for hiring, or wish to push for that outcome, then they should also consider whether to impose restrictions on the use to which the courts may be put/hired out? and if so what those restrictions will be? or whether they should be left to the court manager? or determined in some other basis? and what protective measures should be adopted as part of any reopening?
26 April 2020 – Committee resolves to investigate the future roles and responsibilities of Mr Hill as courts manager
[60] Affidavit of A J Hill 30.11.2021, annexure “D”, [1]
It appears that a meeting of the Committee was scheduled to occur by Zoom at 5:00 pm on 26 April 2020. That is apparent from an email Mr Hill sent at 12:23 pm on 26 April 2020 to the “SATC Committee” which referred to the “[k]ey points for the Zoom Meeting at 5 pm” to “address the “Resolution to terminate the service of AJH Leisure Pty Ltd effective 01 May 2020” – 5 Minute allotted”.[61] From this I infer that an agenda for the proposed meeting at 5:00 pm on 26 April 2020 had been circulated which included as an agenda item the termination of AJH’s services. In his email Mr Hill repeated his job description as follows:
•Administration - Monthly and Term Reports since 2013. Online Court Hire through a Google live feed (Green Sheet) with instant contact via mobile phone. Also an upgrade with a FREE Online management and payment system (venulocker.com)
•Club and Court Maintenance - Club and Court cleaning, Toilets and Lawn Mowing. Attending new installations, and plumbers. Nets and Balls.
•Communication – attend meetings, Parish updates. Monthly and Term Reports since 2013. Grants and Subsidies to improve income of the Club, the transparency with the committee/members.
[61] Exhibit B, page 323
After setting out other information Mr Hill concludes as follows:
Summary - I recommend Opening the Courts, create income from Court Hire, AJH sports has been supporting SATC over 30 years and will continue with the Court hire at the highest standard. Once the restrictions are lifted, AJHsports would be happy to continue as per the paused agreement 20/3/20.
At present, I have not received any agenda items for this meeting or acceptance of my support person during the Zoom invitation [sic].
There is not in the evidence before me any minutes of a meeting of the Committee on 26 April 2020. It is reasonably open to infer, and I find, that the scheduled Committee meeting occurred, that Mr Hill also attended that meeting, and that the Committee resolved to investigate the future roles and responsibilities of Mr Hill as courts manager. The basis of that finding is the first paragraph of an email Mr Nell sent on 5 May 2020 to Mr Souksavath and other Committee members.[62] In that paragraph Mr Nell said:
I am conscious that AJH attended our last committee meeting and was still at that meeting when the committee resolved to investigate further the future roles and responsibilities of the Court Manager and is therefore aware that such an investigation is to be undertaken.
[62] Affidavit of A J Hill 30.11.2021, annexure “X”
It appears that on or before 9 June 2020 Mr Tesara provided to Mr Hill a draft of the minutes of meeting of 26 April 2020. That is apparent from the following email Mr Hill sent to Mr Tesara on 9 June 2020:[63]
[63] Exhibit B, page 340
Thanks for sending the 4 documents of Minutes through.
I attended the meetings as Tennis Court Facilitator and a guest.
Could you discuss with the committee the following adjustments, please? Highlighted detail for your minutes.
The minutes should be a true and accurate account of the meeting.
Could I get confirmation of this email please?
. . . .
19/1/20 – Court Booking systems – 3 quotes were arranged with 2 quotes allowed for the committee. Sid and Bennett vetoed the Venulocker option in an email. No discussion allowed in the meeting.
I would like to challenge the information that was (incorrectly) blocked. Sid’s Email 4/11/19 Correspondence Out.
The committee was not offered this as an option.
. . . .
5 May 2020 - Mr Nell gives advice about how Committee should proceed to investigate future role of Mr Hill
On 5 May 2020 Mr Nell sent an email in response to an email Mr Souksavath sent to Mr Nell.[64] Mr Souksavath’s email is not in evidence. In his email Mr Nell viewed Mr Souksavath’s email as meriting Mr Nell to provide advice about how the Committee should carry out investigations in relation to the future role of Mr Hill, and what it should do once it had formed a view about Mr Hill’s future role. Mr Nell offered the following observations.
[64] Affidavit of A J Hill 30.11.2021, annexure “X”
(a)Mr Nell did not consider it appropriate to copy Mr Hill in his email “or more importantly any responses that may be provided to this email by committee members”. That, however, was not to say that the Committee:
can make a decision about the role and responsibilities of AJH Leisure or what is to be paid in the future for its performance of that role and/or discharge of those responsibilities unilaterally and without first consulting AJH or giving him an opportunity to respond or be heard. Nor indeed should the committee take such a course.
If the committee forms a view that the current role/responsibility/terms of engagement of AJH Leisure require reconsideration/adjustment, then that can only be done in consultation with AJH. That is because it amounts to a modification of the Club’s existing contract with AJH Leisure.
But once the committee has had the opportunity to carry out its investigation and consider its own thoughts and has formed a view as to the way in which it would like to go forward and there is a consensus amongst committee members about that course/proposal, it is at that point that AJH becomes involved in the process directly . . . . [sic] it is that point that we have to invite his response, consider his comments and the committee then has to determine whether (in light of what he says) the position earlier taken by the committee should be reconsidered and if so in what way.
(b)Discussions concerning the future role and responsibilities of the court manager, which have been made difficult because of COVID-19, should be discussed face to face or on Zoom.
(c)If emails were to be exchanged, they should be polite, measured, and should only address issues relevant to the investigation.
(d)Any decision SATC may make “cannot be unilaterally imposed on AJH or AJH Leisure”. If, after SATC completes its investigations and takes a position, and “this involves any proposed changes to the current arrangements, then there will need to be at that time negotiation with AJH”.
In particular, neither the Club nor committee can unilaterally determine the amount which it will henceforth pay AJH Leisure for its services and expect AJH Leisure to be bound by that. Nor in my opinion should that approach to be [sic] taken to any negotiations with AJH. It ought not be a take it or leave it proposition. Any discussion with AJH should be constructive and conciliatory. This is especially given AJH’s long association with the Club, long record in providing services and also bearing in mind the income that the Club derives from him hiring the courts to tennis coaching. For instance, I do not think that it can be assumed that if AJH Leisure was not employed to manage the courts, AJH would still run the tennis coaching at SATC (the provision of which coaching being one of the objectives of the Club) or hire courts at SATC for that purpose.
(e)The earnings for April 2020 are hardly indicative of what SATC is likely to earn from court hiring per month, given that the courts were closed for most of April 2020.
(f)It is not possible to “renegotiate AJH’s fees “from April onwards”” as Mr Souksavath’s email seemed to suggest:
The Club is bound by its existing agreement with AJH Leisure to pay it the full amount due under the terms of that existing agreement for the month that has past.
(g)There is no clause in SATC’s contract with AJH that allows SATC to unilaterally reduce the amount payable to AJH because the courts have closed, or because AJH ends up doing fewer hours than normal because of some external event for which AJH is not responsible.
(h)Any consideration of the amount SATC should pay AJH “must be going forward”.
(i)It is not clear whether SATC’s proposed reassessment of what should be paid to AJH is limited to the COVID-19 period “or to apply even once business as usual returns”.
(j)Any review should not be based just on any change in SATC’s income. SATC should also consider the duties AJH is performing during the COVID-19 period.
(k)If agreement cannot be reached with AJH “in relation to any position that the committee may prefer or wish to adopt and the alternative is terminating the agreement with AJH Leisure after adequate notice has been given”, SATC should be confident it can readily put in place alternative means of providing services AJH had been providing “for less than the amount we are no[w] contractually obliged to pay AJH Leisure before taking such a decision” (emphasis in original).
(l)It is open to SATC to suggest to AJH that it cannot afford the level of current payments and propose reduced payments commensurate with the reduction of work, but “this cannot be done unilaterally and would need to be the subject of negotiation”.
(m)Mr Nell was conscious that the amount paid to AJH “has not increased for many years”.
Mr Nell concluded as follows:
Finally, so far as a review of AJH Leisure’s role and responsibilities post Covid (if that is what your email was directed to) I am also conscious of the decision to introduce a new automated booking system. To the extent that that may result in a reduction of AJH Leisure’s work, then that may justify a reduction in fees payable, assuming any such reduction in role and time was more than just minimal. Although from the discussion at the last meeting, it still appears that AJH would have . . . a role to play (processing wet weather cancellations of [sic] casual bookings/refunds and presumably also still fielding telephone inquiries). It is not evident to me at the moment that there is any appreciable reduction in that role. But if it is to be asserted that there is, it should be discussed and quantified before any decision is made.
Mr Hill annexes to his affidavit of 30 November 2021 a document headed “Annexure E – Changes to Job. AJH” (31 May 2020 memo).[65] It is as follows:
[65] Affidavit of A J Hill 30.11.2021, at [12]; annexure “Q”
As discussed, please find below a summary of the changes to the role that you are fulfilling for SATC. Please note that all the arrangements including your current agreed payment per month holds. The changes are as follows:
•All casual booking will be done online using Barclay’s online booking system by the hirer themselves.
•All inquiries you receive on how casual hirers can hire the court will be directed to this link: . . . . There will be no cash transactions. Only bookings made through Barclay’s online booking system are entitled to use the courts.
•All inquiries you receive on how permanent bookers can hire the court will be directed to send an email to . . . indicating the number of courts, day, time and duration on which they wish to make a permanent booking. The online booking transition team will reply to their email.
•Member bookings will be done by members via the online system.
•As per your current role, you will ensure that only paid bookings should be using the courts. You will be using the online booking system to confirm which courts have legitimate bookings.
•If a conflict should arise on the court booking, the first course of action by you is to ask the hirers to produce their online receipt to confirm the details of which court they have booked, and the booking’s date and time. You will ensure that the hirers will adhere to the details of their online booking receipt. If the conflict cannot be resolved by checking the receipt:
1.Uphold the booking of the hirer who booked earlier and allocate a free court to the other hirer.
2.Please take a photo of both receipts and email to: …. and indicate the court allocated to the other hirer.
•Courts have been pre-booked as per your request to book your 100 hours allocation. Only these courts and times can be used by AJH at the reduced rates as agreed with AJH.
•Wet weather cancellations of casual bookings / refunds will be handled by the online booking transition team and must be directed to: . . . . Refund request must be forward a copy of the online booking receipt and reason for refund entitlement.
•Please remove any references or links to the current online booking that AJH runs on its website or publications where booking a court at St Anthony’s Tennis Club is concerned. If you wish to provide information on the AJH website on how to book the St Anthony’s tennis courts, the link that should appear is: . . . . .
Please also confirm the permanent bookings as you previously advised are correct as at Tuesday, 9^th June 2020. These times will be blocked for the permanent bookers and will not be made available to casual bookers. Please advise all changes so that we can make more courts available to casual bookers if the permanent bookers no longer wish to continue with their booking.

The document that is in evidence appears to be a draft of a communication that was intended to be sent to Mr Hill. SATC, in paragraph 7 of its response,[66] however, admits that SATC notified Mr Hill of the matters stated in the 31 May 2020 memo. I will proceed on the basis that SATC provided to Mr Hill a document that contained the same text as the 31 May 2020 memo.
[66] Which responds to Hill v St Anthony’s Tennis Club [2021] FCCA 66, at [12]
9 June 2020 - Mr Hill or AJH lodge application with the Fair Work Commission
On 9 June 2020 Mr Hill or AJH or both (the evidence does not reveal who) lodged with the FWC a general protections application not involving dismissal and an application alleging bullying.[67]
[67] Exhibit B, page 228
On 28 July 2020 the Deputy President of the FWC gave SATC leave to commence mediation process. There is a dispute whether the mediation occurred;[68] but there is no evidence before me on the basis of which I could resolve that issue. In paragraph 15 of his affidavit made on 30 November 2021 Mr Hill refers to that part of the minutes of meeting of the Committee held on 9 August 2020 which states: “Fair Work Commission (FWC) order should be addressed in CJC [that is, Community Justice Centre] lodgement. Only matters relevant to FWC order should be put forward to CJC”.[69] This, however, does not shed any light on whether the mediation occurred.
[68] SATC response, [9]
[69] Affidavit of A J Hill 30.11.2021, [15]; annexure “Y”
12 June 2020 – Committee meeting
The minutes of the Committee’s meeting held on 9 August 2020[70] (to which I refer below) adopt minutes of a meeting held on 12 June 2020. Those minutes are not in evidence.
[70] Affidavit of A J Hill 30.11.2021, [15]; annexure “Y”
1 July 2020 SATC begins invoicing AJH on a monthly basis
On about 1 July 2020 SATC issued to AJH an invoice dated 1 July 2020 claiming hiring fees for “Coach Hours 1 to 30 June 2020”. [71] The invoice recorded 318 hour at the rate of $6.50 an hour, and claimed the amount of $2,067 which it stated was due on 30 July 2020. On about 2 July 2020 SATC issued to AJH an invoice dated 2 July 2020 claiming 214 “Coach Hours 9 to 30 June 2020” at the rate of $6.50 an hour, and claimed the amount of $1,391 which it stated was due on 30 July 2020.[72] On about 3 August 2020 SATC issued to AJH an invoice dated 3 August 2020 claiming 293.5 “Coach Hours 1 to 31 July 2020” at the rate of $6.50 per hour, and claimed the amount of $1,907.75 which it stated was due on 17 September 2020.[73]
[71] Affidavit of A J Hill 30.11.2021, annexure “Z”
[72] Affidavit of A J Hill 30.11.2021, annexure “Z”
[73] Affidavit of A J Hill 30.11.2021, annexure “Z”
It is apparent from Mr Hill’s email of 9 August 2020, to which I have already referred,[74] that Mr Hill considered the issuing of these invoices to constitute a change of the basis on which SATC had previously issued invoices to AJH. Mr Hill said there was “no information from the committee regarding this change”, and he requested “the email that suggests the change from term payment to monthly payment”.
[74] Exhibit B, page 332
9 August 2020 – Committee resolves to terminate AJH’s services
On 9 August 2020 the Committee met and resolved “to terminate AJH services effective 2 weeks from the day he is notified”. That decision, and the discussion that occurred in relation to it, is recorded in the following minutes of the meeting.[75]
[75] Affidavit of A J Hill 30.11.2021, [15]; annexure “Y”
2.        Review of AJH’s role
AJH is currently paid $424 per week.
AJH’s role read by SS (list of duties written by John Peacock (JP), unsigned)
1^st duty to take and oversee bookings – no longer performed by AJH
No cash system in place for the online booking system
Teething problems with the online booking system – expected in any new system
Options:
1.AJH to do maintenance and resolving booking conflicts, therefore reduce salary to $224 (3 votes)
2.Terminate AJH Leisure Pty Ltd as court hiring manager (5 votes)
3.AJH to resume his duties with admin access to Online Booking System (1 vote)
AJH is not transparent about the actual bookings made to the club.
SATC does not benefit from the old arrangement with AJH as court hiring manager
Move to terminate AJH services effective 2 weeks from the day he is notified
Moved:          SO
Seconded:       LZ
Approved by the majority vote from Committee (subject to opinion from a person with legal background)
Action: LZ to seek advice if this is wise to carry out this motion
The Committee also resolved to increase the rate at which AJH would be permitted to hire the tennis courts:
3.        Proposed AJH new rate
Move to change the rates charged to AJH from $6.50 per hour flat rate to:
$9 per hour before 5 pm
$11 per hour from 5 pm
Effective start date of NSW School term 4. All bookings will be made on a pay before you play basis, up to the end of the current NSW school term when the booking was made.
Rates apply to coaches. Same terms – up to end of NSW school term on a pay before your [sic] play basis. No refund on wet weather. No cancellations.
Moved:          VB
Seconded:       SO
Approved by the Committee
Move to authorise SS as Treasurer to offset the receivable from and payable to AJH when settling monies due.
Moved:          SS
Seconded:       VB
Approved by Committee
Mr Souksavath, in his affidavit, does not refer to the Committee’s meeting of 9 August 2020, and its decision to terminate AJH’s services; and Mr Hill did not cross-examine Mr Souksavath about these matters. Nor does Mr Souksavath say anything about whether the Committee obtained legal advice about the decision the Committee had made to terminate AJH’s services.
30 August 2020 – SATC terminates AJH’s services
According to Mr Grass, whose evidence on this point I accept, on or before 30 August 2020 Mr Hill requested Mr Grass act as a support person at a meeting the Committee had requested Mr Hill attend on 30 August 2020.[76] On 30 August 2020 Mr Hill, with Mr Grass, attended a meeting with one or more members of the Committee where he was handed a copy of the following letter:[77]
The St. Anthony’s Tennis Club Inc. regretfully inform you that the Committee on 9/8/2020 meeting had voted to terminate the services of AJH Leisure P/L effective on 28/9/2020 (4 weeks from 30/8/2020).
We appreciate the services AJH had [sic] provided the club over the years. With the introduction of the BCS Online Booking System and generous club members’ volunteer time and effort, AJH courts booking service is no longer required. Furthermore, due to the club [sic] unfortunate financial hardships, we have decided to seek other alternatives to service our customers that will further reduce our operating cost.
Wishing you all the best in the future.
[76] Affidavit of J Grass 19.10.2021, [4]
[77] Hill v St Anthony’s Tennis Club [2021] FCCA 66, at [17]; Response, [12]
Events after 30 August 2020
By invoice dated 21 September 2020 issued to AJH, SATC charged AJH hiring fees at the rate of $8.10 per hour during the day, and $9.90 for the evening.[78] In the invoices issued in and after October 2020 SATC charged AJH at the rate the Committee resolved would be charged to all hirers of the tennis courts, these being charged $9 and $11 per hour.
case under s 340(1) of the fw act
[78] Affidavit of A J Hill 30.11.2021, [15]; annexure “Z”
Relevant provisions and principles
Subsection 340(1) of the FW Act provides:
A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person.
Three matters must be established before a person will be held to have contravened s 340(1) of the FW Act. First, the person has taken “adverse action against another person”. That expression is defined in a table contained in s 342(1) of the FW Act (342 table) which identifies in one column the persons by whom and against whom adverse action must be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. Relevant to this proceeding is item 3 of the 342 table, which provides as follows:

Adverse action is taken by if . . .

. . . .
a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor . . . .
. . . .the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor’s prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor

The expression “independent contractor” is not defined in the FW Act, although s 12 provides that “independent contractor” is “not confined to an individual”.
The second matter that must be established is that the independent contractor against whom the principal had taken adverse action took such action because, among other things, the independent contractor or a person employed or engaged by the independent contractor has exercised a “workplace right”. That expression is defined in s 341(1) of the FW Act. Relevant to the case before me is s 341(1)(b) which provides that a person has a workplace right if the person “is able to initiate, or participate in, a process or proceedings under a workplace law”. The expression “workplace law” is defined in s 12(1) of the FW Act to mean, among other things, “this Act”, that is, the FW Act.
The third matter that must be established is that the principal took the adverse action for a particular reason, or for reasons that included a particular reason.[79] That requirement arises from the presence of the word “because”;[80] s 340(1) of the FW Act prohibits a person from taking adverse action “because” a person has a “workplace right”, or “because” the person has exercised, or has not exercised, or proposes to exercise, or proposes not to exercise, such a right. Further, where the particular reason is one of a number of reasons for which the adverse action is taken, the particular reason must be “a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons”,[81] or must be an “operative or immediate reason for the action”.[82]
[79] FW Act, s 360
[80] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721, at [20] relying on Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251, at 258 ([26]) (Tracey J)
[81] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044, at 1066 ([127]) (Gummow and Hayne JJ)
[82] Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044, at 1068 ([140]) (Heydon J)
Relevant to determining whether in any given case a person has taken adverse action “because” of one or more of the matters specified in s 340(1) of the FW Act is s 361(1) of that Act. That subsection provides:
If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
In Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd, Jessup J (with whose reasons Rangiah J agreed), made the following observations about the effect and operation of s 361(1) of the FW Act:[83]
In the context of a provision such as ss 340 and 352, the effect of s 361 is to reverse the legal onus in relation to the reason or reasons for which the adverse action was taken. That is to say, at the end of the trial of fact, the question will be whether the respondent has established, on the civil standard, that the action taken was not taken for a reason, or for reasons which included a reason, proscribed by the legislation. That question is to be answered by reference to all of the evidence which bears upon it. Section 361 does not impose upon the respondent concerned the onus of calling any and every piece of evidence that might arguably influence the answer to the question of reasons or intent. The section is not, in other words, concerned to impose upon the respondent a continuing, unchanging, evidentiary onus with respect to that question.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, 516 [41], French CJ and Crennan J said that “the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the [FW] Act.” Their Honours continued (248 CLR at 517 [45]):
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. [See, eg, General Motors-Holden’s Pty Ltd v Bowling (1976) 136 CLR 676 (note) …] Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker [See, eg, Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J; at 211 per Higgins J.] or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. [See, eg, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33].]
In other words, whether the onus arising under s 361 has been discharged in a particular case will depend upon the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision‑maker acting on behalf of the employer.
[83] Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, at [27], [28]
Parties’ submissions
Perhaps understandably, Mr Hill did not make any submissions by reference to the elements of s 340(1) of the FW Act. Instead he submitted that he brought to the Committee’s attention the idea that the minutes of their meeting were not true and accurate; the bullying increased; and then he went to the FWC to “try and get a fair chance” and while he was before the FWC Mr Hill “was terminated”.[84] SATC, on the other hand, through their legal representative, Mr Alexander, submitted Mr Hill was not an employee of SATC; Mr Hill was not an independent contractor; and AJH had no standing to bring a claim for relief under s 340(1) of the FW Act. SATC further submitted that Mr Hill had not been bullied by SATC and (as I understand Mr Alexander’s submission), SATC was justified in terminating AJH’s services because Mr Hill had refused to provide the financial information that Mr Souksavath requested be provided.
[84] T279.40
Determination
Mr Hill does not claim that he ever was an employee of SATC. He and AJH claim that SATC had engaged AJH as “Tennis Court Administrator”. That is made clear by the Contract. The following questions, therefore, arise:
(a)Was SATC “a principal”?
(b)Was AJH “an independent contractor”?
(c)Assuming (a) and (b) are answered in the affirmative:
(i)Did SATC take any one or more of the actions identified in the second column of item 3 of the 342 table?
(ii)If so, did SATC take such action because AJH or Mr Hill exercised a workplace right?
I make the following findings:
(a)SATC had engaged AJH to perform the duties identified in the Contract and, pursuant to that engagement, AJH performed those duties in consideration of SATC paying to it $424 per week.
(b)In relation to the Contract, SATC was a “principal”, and AJH was an “independent contractor”, within the meaning of item 3 of the 342 table.
(c)Mr Hill was an employee of AJH. The basis of that finding is Mr Hill’s tax returns which identify AJH as his employer,[85] and evidence that no one but Mr Hill performed the duties SATC had engaged AJH to perform.
(d)On 9 June 2020 Mr Hill exercised a workplace right within the meaning of s 341(b) of the FW Act by making two applications to the FWC. Each application constituted proceedings under the FW Act and, therefore, “proceedings under a workplace law”.
(e)By terminating the Contract by its letter dated 30 August 2020 SATC took adverse action against AJH within the meaning of paragraph (a) of column 2 of item 3 of the 342 table.
[85] Exhibit B, pages 71, 87
That leaves the question whether SATC terminated the Contract – that is, took adverse action against AJH – because Mr Hill exercised a workplace right by having taken proceedings in the FWC. SATC bears the onus of providing that it terminated the Contract for the reason, or for reasons that did not include as a substantial and operative factor, Mr Hill’s having taken proceedings in the FWC.
In its response, SATC stated as follows:
The Respondent denies that the Second Applicant’s contract was terminated as a result of the First Applicant lodging a complaint with the Fair Work Commission. In response the Respondent says that the Second Applicant’s services was terminated as a result of the Committee discharging its duties to act in the best interests of the club by addressing the consistent decline in the club’s cash position, which was averaging approximately $10,000 a year over the past 7 years.
PARTICULARS
A The Respondent was losing money;
B The Respondent via its treasurer Mr. Sid Souksavath sought reports from Mr. Andrew Hill the authorised officer of the Second Applicant.
C The Second applicant refused to provide any report.
D On 09 June 2020 the Respondent put a system in place to obtain the information.
E When 4 weeks of data was collected it became apparent that the arrangement, in place with the Second Applicant was unsustainable and to the financial detriment of the Respondent and the Committee of the Respondent decided to terminate the services of the Second Applicant.
There is evidence that Mr Souksavath had formed the view that SATC had been losing money, and that he believed there was a lack of transparency in the manner in which Mr Hill accounted for the money that AJH and other persons paid for the hiring of the tennis courts. The following, however, may be noted:
(a)The Committee’s minutes of its meeting of 9 August 2020 record that “SO”, namely, Mr Simon Ong, moved that SATC terminate AJH’s services, and “LZ”, namely Mr Leo Zhao, seconded the motion, but neither Mr Ong nor Mr Zhao have given evidence of the reasons for which they supported the motion, or of the discussions that occurred at the Committee meeting in relation to the termination of AJH’s services.
(b)Mr Souksavath, who has given an affidavit, does not depose in his affidavit to whether he supported the motion to terminate AJH’s services and, if he did, the reason or reasons for which he supported the motion to terminate AJH’s services. Nor does Mr Souksavath depose to what was discussed at the Committee’s meeting of 9 August 2020 in relation to the Committee’s decision to terminate AJH’s services.
(c)Mr Souksavath does not depose to whether, to the extent he voted in favour of the resolution to terminate AJH’s services, he did not do so because Mr Hill had applied to the FWC or he did not do so for reasons that included as a substantial and operative factor Mr Hill’s having applied to the FWC.
(d)SATC relied on an affidavit made by Mr Tesara. The minutes of the Committee’s meeting on 9 August 2020 record he was present at the meeting; yet Mr Tesara does not in his affidavit depose to whether he voted in favour of the resolution to terminate AJH’s services or, if he did, the reasons for which he supported the resolution. Mr Tesara also gave no evidence about what was discussed at the meeting in relation to the Committee’s decision to terminate AJH’s services.
(e)SATC did not call any other member of the Committee who attended the meeting of 9 August 2020 to give evidence about whether the member voted in favour of the resolution to terminate AJH’s services or, if the member did, the reasons for which the member supported the resolution, or about what was discussed at the meeting in relation the Committee’s decision to terminate AJH’s services
(f)The minutes of meeting record that “LZ”, namely, Mr Zhao, was “to seek advice if this is wise to carry out this motion”. There is no evidence whether SATC sought or obtained any advice.
(g)Although the minutes record that “AJH is not transparent about the actual bookings made to the club”, and “SATC does not benefit from the old arrangement with AJH as court hiring manager” these statements, even if genuinely held by the Committee members who voted in favour of terminating AJH’s services, do not, on the balance of probabilities, eliminate as a substantial and operative factor in the minds of those members who voted in favour of termination Mr Hill’s having commenced proceedings in the FWC. The minutes record discussion about three options, only one of which required the termination of AJH’s services. The two options that did not require the termination of AJH’s services would not have entailed AJH continuing with the method for hiring courts which it had used before SATC had implemented the online booking system which, the minutes record, was up and running.
(h)In any event, in the absence of evidence from members of the Committee who voted in favour of the resolution to terminate AJH’s services about the reasons for which they supported the resolution, I am not prepared to find that the members who supported the resolution to terminate AJH’s services genuinely held the view that Mr Hill was not transparent about the actual bookings made to SATC, or that SATC did not benefit from the old arrangement SATC had with AJH as court hiring manager, and it was for these reasons that they supported the motion to terminate AJH’s services.

In the light of these observations, I find that SATC has not proved, on the balance of probabilities, that on 9 August 2020 SATC decided to terminate AJH’s services for the reason, or for reasons that did not include as a substantial and operative factor, that Mr Hill exercised a workplace right by applying on 9 June 2020 to the FWC. I am therefore satisfied that, by terminating AJH’s services on 30 August 2020, SATC contravened s 340(1) of the FW Act.
claim in contract
Although I set out in my second reasons my understanding of AJH’s claims in contract,[86] it would be convenient to substantially repeat here what I set out in my second reasons.
[86] Hill v St Anthony’s Tennis Club (No 2) [2021] FCCA 1745, at [4]
(a)The applicants held a “tennis court administrators contract” with SATC. That is a reference to the Contract.
(b)The applicants have “an exclusive tennis coaching and court hire contract” with SATC, and they have had this contract for 30 years (Alleged Coaching and Hiring Contract). Under that contract “A Hill/AJH” were guaranteed to hire 1,000 hours of tennis court time every school term at the hourly rate of $6.50 in return for exclusive coaching rights at SATC. The Alleged Coaching and Hiring Contract permitted “A Hill/AJH” to use all SATC’s facilities for the clients participating in “A Hill/AJH” coaching and recreation programs.
(c)In May 2020, while “A Hill/AJH” were undertaking voluntarily “significant additional Covid duties”, Mr Souksavath approached Mr Nell with a proposal to make changes to the Contract.
(d)On 5 May 2020 Mr Nell sent an email to the Committee that they could not unilaterally modify any term of the Contract.
(e)On 31 May 2020 Mr Tesara, along with the Committee, unilaterally assumed the duties of “A Hill/AJH” under the Contract, including administering the online booking system; and they obstructed “A Hill/AJH” from accessing the online booking system. This was done in contravention of s 340 of the FW Act.
(f)SATC has refused “numerous requests” from SATC’s members for over a year to provide details of the online booking system, and a comparison of the setup and operating costs of that system with the previous online booking system.
(g)The minutes of meeting of the Committee held on 19 January 2020 reveal that “SATC committee members associated with the take over [sic] of A Hill/AJH administration of the booking system have not declared conflicts of interest”.
(h)On 9 June 2020 “A Hill/AJH” filed a general protections application with the FWC, and a bullying application in which “A Hill/AJH” complained of interference, SATC’s takeover of the Contract, and SATC breaching the Contract.
(i)According to the minutes of meeting of the Committee, on 9 August 2020 the Committee resolved that “A Hill/AJH” no longer oversees bookings of courts; and it confirmed putting an option on the table to offer “A Hill/AJH” $224 per week, down from $424 provided for in the Contract.
(j)The FWC directed SATC to commence mediation with “A Hill/AJH”, but SATC ignored this direction, and instead terminated the Contract, in breach of the Contract and s 340 of the FW Act.
(k)“A Hill/AJH” reapplied for the position of tennis court administrator at the rate SATC offered, but SATC did not offer “A Hill/AJH” an interview. SATC engaged another contractor for $335 per week.
(l)Also at the meeting on 9 August 2020, the Committee “added draconian conditions to” the Alleged Coaching and Hiring Contract. These consisted of: increasing the hourly court hire rate from $6.50 per hour to $9 per hour during the day, and $11 per hour during the night; “A Hill/AJH” being required to pay court hiring fees in advance of the school term; and refusing to provide refunds for wet weather. These actions were also done in contravention of s 340 and s 343 of the FW Act.
(m)“A Hill/AJH” are subjected to ongoing bullying and harassment by SATC. This consists of SATC entering the worksite of “A Hill/AJH” without their consent, coercing subcontractors of “A Hill/AJH” not to deal with them, but instead deal with SATC; and damaging the equipment of “A Hill/AJH”.
Parties’ submissions
Mr Hill submitted that AJH and SATC had an arrangement under which AJH would guarantee to hire the tennis courts for 100 hours a week, and pay hire at the rate of $6.50, in return for which AJH would have the right to conduct tennis coaching to the exclusion of other coaches not associated with AJH; the exclusivity was a “quality control”; on SATC terminating AJH’s services SATC raised the hourly hiring rate to $9 for the day, and $11 at night; AJH had no option but to pay the additional amounts; further, AJH was required to pay for hire even if it rained in circumstances where SATC denied AJH access to the club house where its customers could play table tennis. SATC, on the other hand, simply submits that the evidence does not support any contract to the effect of the Alleged Coaching and Hiring Contract.
Determination
AJH does not contend that the Alleged Coaching and Hiring Contract is in writing. AJH relies on the long course of dealing between AJH and SATC in relation to AJH’s hiring of the tennis courts. As Thomas J noted in Australian Energy Limited v Lennard Oil NL,[87] “the formation of a contract . . . the existence of a contract and its basic terms . . . or an additional or varied term . . . may be inferred from the conduct of the parties, notwithstanding the absence of the usual evidence of formation and content”. His Honour also noted, however, that “it is only in cases where the evidence is clear that such inferences will be drawn”.[88]
[87] Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216, at page 237 (Andre CJ concurring)
[88] Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216, at page 237 (Andre CJ concurring)
I have already found that AJH hired the tennis courts on three bases; in blocks of 100 hours per week for each school term; during school holidays; and as the occasion required. I also find that, at least for the year ending 5 July 2020, AJH paid an hourly hiring fee of $6.50, and SATC invoiced AJH for payment of hiring fees 5 weeks after the conclusion of each term, at least in relation to the 100 hours per week block bookings. Even if it is assumed that AJH had used the tennis courts on this basis since the middle of 1995, that would not be sufficient to find that SATC and AJH had entered into a contract to the effect of the Alleged Coaching and Hiring Contract.
(a)The minutes of the meetings the Committee held on 31 May 1998, 28 June 1998, and 20 June 1999 do not support AJH’s claim. Those minutes show that Mr Hill had submitted a letter in relation to what the minutes refer to as the “current implied exclusivity by Andrew Hill to provide coaching services”. The Committee noted that “[a]t issue is the need to state and codify the current implied exclusivity by Andrew Hill to provide coaching services to the Club”. The Committee referred Mr Hill’s letter to Mr Nell. The outcome was not the codification of any arrangement between SATC and the AJH. The outcome was the Committee making statements to the effect Mr Nell recommended. These included that “the courts should not be hired for the purpose of coaching for a fee and/or reimbursement unless the person hiring the court and the person coaching (if they are not one in [sic] the same) carries suitable liability insurance”. If in truth SATC and Mr Hill had agreed to Mr Hill having an exclusive right to use the tennis courts to coach, it is reasonable to expect that the Committee would have formalised such agreement, just as Mr Hill in his letter had apparently requested it do so. Instead, the statements the Committee resolved be made are directed to insurance of any person who uses the tennis courts for the purpose of coaching; it is not directed or restricted to Mr Hill or AJH.
(b)The apparent purpose of the Contract was to document the respective obligations of SATC and AJH in relation to the tennis courts, including the hiring of the tennis courts. The Contract, however, does not refer to Mr Hill or AJH having the exclusive right to use the tennis courts to coach, something it is reasonable to expect would have been included in the Contract if, in truth, Mr Hill and SATC had agreed AJH or Mr Hill would have the exclusive right to use the tennis courts to coach.
(c)In his oral submissions Mr Hill submitted AJH was not required to pay for hire on wet days.[89] Further, the invoices in evidence show that hours for which AJH was charged in each of the 10 week periods differed. That suggests that, although AJH did hire tennis courts every term, AJH did not guarantee the payment of 100 hours’ worth of hire per week during the school term.
(d)The absence of evidence of the letting of the tennis courts to other coaches by itself is not a sufficient basis for inferring an agreement that AJH would have exclusive use of the tennis courts. It ignores the countervailing absence of evidence that SATC refused any person other than AJH or Mr Hill to use the tennis courts to provide coaching services for any reason, including the reason that AJH had the exclusive rights to use the tennis courts to provide coaching services.
[89] T296.20: “We never paid for wet weather”.
It is the case that specific contracts for the hire of the tennis courts between AJH and SATC would have arisen in the course of AJH’s use of the tennis courts; and these specific contracts which would have included terms as to the rate of hire and the time by which payments were to be made; and it may be that SATC’s decision in July 2020 to issue monthly invoices, and its decision in September 2020 to raise the rate of hire, may have been done in breach of particular contracts of hire that were on foot at the time SATC made these decisions. AJH has not, however, articulated a case of breach of particular contracts of hire, and it would be beyond my proper function to determine whether any such claim would be open on the evidence before me.
For these reasons, I do not accept that SATC and AJH entered into a contract to the effect of the Alleged Coaching and Hiring Contract; and the applicants’ claims based on breach of such alleged contract fails.
other claims
The applicants have made a number of other claims which it would be appropriate to note.
(a)First, the applicants claim that the Committee, which on 9 August 2020 resolved to terminate AJH’s services, had been elected by SATC’s general meeting on the basis of invalid proxies and, for that reason, the Committee was not validly constituted. There was no evidence to support this claim; and, in any event, the claim is irrelevant because I have found that SATC terminated AJH’s services in contravention of s 340(1) of the FW Act.
(b)Second, the applicants claimed Mr Hill had been bullied. This Court does not have jurisdiction to determine whether SATC bullied Mr Hill. The claims of bullying, therefore, are irrelevant. I note, however, that it may be accepted there was discord between, on the one hand, Mr Hill, Mr Grass and Mr Peacock, and, on the other, Mr Souksavath, Mr Tesara, and other members of SATC; and the discord may have risen to the acrimonious. But that would fall far short of conduct that could reasonably be characterised as bullying.
(c)Third, there was some evidence which the applicants claim manifested an intention by members of SATC to harass Mr Hill and undermine the Alleged Coaching and Hiring Contract. The applicants’ claim is now irrelevant because I have concluded that AJH and SATC were not parties to any contract to the effect of the Alleged Coaching and Hiring Contract. Even if, however, I had concluded there was such a contract, I would not have been satisfied on the evidence that any member of SATC engaged in conduct that was intended to harass or otherwise undermine AJH’s performance of any contract it may have had with SATC.
remedies
Mr Hill submits AJH is entitled to compensation equal to the $424 per week AJH would have received under the terms identified in the Contract had SATC not terminated AJH’s services up to the date of judgment. Mr Hill also claims he should be awarded $30,000 because of the impact SATC’s bullying and defamatory imputation of Mr Hill’s character has had on Mr Hill’s health.
Principles
To determine whether an applicant has suffered economic loss because of a contravention of a civil remedy provision of the FW Act, two sets of circumstances must be compared.[90] Where it is not alleged that an applicant failed to mitigate his or her loss, one set of circumstances is actual, and the other is hypothetical. The actual circumstances are those in which the applicant finds himself or herself at the date compensation is fixed or at some earlier appropriate date. The second, and hypothetical, circumstances are the financial position in which the applicant would have found himself or herself at the relevant time had the employer not contravened a civil remedy position. If, after these two positions are identified, the applicant’s actual financial position is less favourable than the hypothetical financial position, compensation will be fixed in an amount that reflects the difference between the two positions. That is, compensation will be fixed in such amount as will put the employee in, or substantially in, the position he or she would have been, had the employer not contravened a civil remedy provision.
[90] I substantially repeat here what I said in Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771, at [87] and [88]
There will usually be little difficulty in determining an applicant’s actual financial position. That will be a matter of history, most of the traces of which will be captured in documents. It is another matter to determine the hypothetical position. Here, judgments must be made, often on the basis of incomplete evidence. That will usually give rise to a range of plausible hypothetical financial positions against which to compare the applicant’s actual financial position and, hence, a range of amounts that it may be reasonable to assess as compensation. Nevertheless, an applicant bears the onus of adducing evidence from which the court can rationally infer a relevant hypothetical position.
Application
I find it is likely SATC would have decided to terminate AJH’s services shortly after 30 August 2020, even if Mr Hill had not applied to the FWC on 9 June 2020, and even if, as I have found, the Committee had not terminated the Contract in contravention of s 340(1) of the FW Act. The basis of that finding is my finding that the termination of AJH’s services was an agenda item for the Committee’s meeting of 26 April 2020; and the fact that the Committee had resolved at that meeting to investigate the future roles and responsibilities of Mr Hill as courts manager. I find it would be reasonable to assess compensation on the basis that SATC would have decided by no later than 30 September 2020 to terminate AJH’s services effective on 28 October 2020.
The applicants, however, have not adduced evidence of what, if any, income-earning activities AJH had undertaken after 28 September 2020, being the date on which SATC’s termination of the Contract came into effect. Mr Hill was cross-examined about tennis coaching activities AJH conducted at a tennis complex in Denistone known as “King’s Park Tennis Complex”. A notice to produce was served on AJH which called for the production of, among other things, any “contracts, copy contracts in relation to the renting, leasing of Tennis Courts, by [AJH] at King’s Park Tennis Centre Denistone”. AJH did not produce any contracts. Mr Hill, however, gave evidence that he entered into an arrangement with the King’s Park Tennis Centre “when COVID hit, 26 March 2021 [sic]”. Mr Hill later confirmed that this was in April 2020.[91] Mr Hill said AJH had started up a whole new business.[92] There is also in evidence AJH’s profit and loss statement for the year ended 30 June 2021 which shows that for the year ended 30 June 2021 AJH had sales of $157,938 and a net profit of $21,431; but for the year ended 30 June 2020 AJH had sales of $71,828 and a loss of $38,001.[93]
[91] T100.05, T100.30
[92] T100.30
[93] Exhibit B, pages 23, 14
It is not possible on the basis of the evidence to determine whether any of the income AJH earned after 28 September 2020 included income that replaced the income AJH would have earned had SATC not terminated AJH’s services effective on 28 September 2020. For these reasons, it is not possible to determine whether AJH suffered any loss due to SATC’s terminating AJH’s services effective on 28 September 2020.
disposition
The only relief I propose to grant at this stage is to grant a declaration to the effect that, by terminating the Contract SATC contravened s 340(1) of the FW Act.
The applicants claim that SATC pay a pecuniary penalty. I will list the matter for a directions hearing at 9:30 am on 15 February 2023 for the purpose of making directions on the question of penalty.

I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 25 January 2023

File number(s):	SYG 2827 of 2020
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	25 January 2023
Catchwords:	INDUSTRIAL LAW – independent contractor claims that principal took adverse action against the independent contractor by terminating the contract between them because an employee of the independent contractor applied to the Fair Work Commission (FWC) with a complaint that the principal had bullied him – whether by applying to the FWC the employee of the independent contractor exercised a workplace right – whether the principal discharged the burden of proving that it did not terminate the contract it had with the independent contractor for the reason or for reasons that included as a substantial and operative factor the independent contractor’s employee having applied to the FWC – burden of proof not discharged – whether the independent contractor proved it suffered loss as a result of the principal’s termination of the contract – loss not proved – declaration made and matter listed for directions on the question of penalty.
Legislation:	Fair Work Act 2009 (Cth) ss 12, 340, 341, 342(1), 343, 360, 361(1)
Cases cited:	Australian Energy Limited v Lennard Oil NL [1986] 2 Qd R 216 Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 251 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157 Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 Hill v St Anthony’s Tennis Club [2021] FCCA 66 Hill v St Anthony’s Tennis Club (No 2) [2021] FCCA 1745 Turnbull v Symantec (Australia) Pty Ltd [2013] FCCA 1771
Division:	Fair Work
Number of paragraphs:	103
Date of hearing:	19, 20, 21, and 22 April 2022
Place:	Sydney
The First and Second Applicants:	First applicant in person, and on behalf of the second applicant, by video
Solicitor for the Respondent:	Mr S Alexander of Alexanders Lawyers

SYG 2827 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	ANDREW JAMES HILL First Applicant AJH LEISURE PTY LTD Second Applicant
AND:	ST ANTHONY'S TENNIS CLUB ABN 69 475 998 584 Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	25 January 2023