John Labaj T/a J & W L Consulting Services v Contrax (Queensland) Pty Ltd

[2005] QDC 207

[2005] QDC 207

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD172  of 2005

JOHN LABAJ TRADING AS J & W L CONSULTING SERVICES	Plaintiff
and
CONTRAX (QUEENSLAND) PTY LTD ABN 46 105 557 168	Defendant

BRISBANE

..DATE 16/06/2005

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 17, r 292, r 296 - summary judgment refused on plaintiff's application based on defendant's deponent stating he had agreed the defendant would employ the plaintiff for "$70,000 per year" - defendant advertised for a "plumbing foreman" - common ground that a written agreement would be made and that defendant would consider a sub-contracting arrangement - trial necessary to clarify the terms of the parties' agreement (if there was any concluded agreement).

HIS HONOUR:  This is an application by the plaintiff, Mr Labaj, who is an astute man representing himself ably, seeking summary judgment under Rule 292.  To obtain judgment he must satisfy the Court that (a) the defendant has no real prospect of successfully defending his claim, and (b) that there is no need for a trial of the claim.

The application came on before Judge Noud on the 7th of June when it seems to be common ground, his Honour expressed the view that the affidavit of Mr Kaplan used by the defendant tended to support the plaintiff's claim.  An adjournment until today was ordered which I take it from Mr Bullow was somewhat shorter than the defendant would have liked to make the most of the opportunity the Court gave to supplement its material.

Mr Labaj complains that the defendant failed to comply with Rule 296(2) in that he was not served within the time allowed with further affidavits on which the defendant intended to rely.  Those are a new affidavit by Mr Kaplan and affidavits of Mr Tuite and Mr Coughlan.  Some confusion was caused by the going astray of those documents in the Registry but it is clear they were filed on the 14th of June.  Mr Bullow, appearing for the defendant, asserts that they were served by being taken to the plaintiff's address for service which is in the Wynnum area.  No affidavit of service was produced. 
This is all academic in that the plaintiff has some time last month left his address for service and neglected to inform the Court or the plaintiff of his having done so.  Accepting what Mr Bullow says about the process server who is supposed to have left the documents to be served in the letter-box, which one would ordinarily think sufficient when no-one was found in the house, the explanation for Mr Labaj not having the new affidavits is obvious.  It has to be said that it is entirely his fault.  He has a good point about the defendant's lateness in respect of Rule 296.  It must regretfully be observed that sub rules (2) and (3) are almost universally breached by plaintiffs and defendants.

One of the orders that should be made by the Court today is that the plaintiff's claim and statement of claim will be struck out as at the 23rd of June 2005 unless the plaintiff has in the meantime filed in the Court and served on the defendant's solicitors notice of his current address for service as required by Rule 17(5).  It is intolerable to have litigants without a usable address for service.

Mr Labaj's claim is that he, or more correctly his firm identified in the title of the proceeding, was engaged by the defendant to provide consulting services for remuneration of "$70,000 per year".  He says the meaning of that is that an engagement of 12 months duration at the least was offered to and accepted by him.

Mr Kaplan's original affidavit establishes, and there is no reason to doubt it for present purposes, that the parties came into contact pursuant to an advertisement for a plumbing foreman which invited contact with "Dave 0425298971 or fax resume 3371 8796".  The job was at a new science centre being constructed at the Queensland University.

It is unsurprising that Judge Noud took the approach he did, given what Mr Kaplan had deposed to in paragraph 11:

"I say that:

(d)I told the deponent that his application had been successful and that he could start the next day;

(e)The deponent asked if he could work as a contractor rather than an employee;

(f)It was agreed that the deponent would be paid $70,000 per year and that he could start the next day at the site referred to in the deponent's affidavit;

(g)The deponent offered to drop off a draft agreement in regard to his being sub-contracted rather than employed saying that he had a meeting to go to later that day and that he would drop the draft agreement off on his way home; and

(h)I agreed to this."

Mr Labaj's approach is that that indicates the defendant's acceptance, that all the essentials of contract were in existence.  It does not seem to me that things are quite so clear, having regard to what Mr Kaplan swore to.  By way of example only, I would be disinclined without more to find that a certain engagement for a year had been agreed upon.

Although Mr Labaj is essentially proceeding in this application as on an oral agreement and it is quite correct that no writing is required, in the past, including in his pleading, he has, it seems to me, suggested that there is an agreement in terms of the draft document provided by him.  One of the differences between the parties relates to whether any arrangements either concluded or in prospect were with him or with his - with the firm named. 

It is common ground that one person may have multiple firms of each of which he is the proprietor, each of those firms having, as the individual may as well, an ABN number which, as is well-known now, is usually a prerequisite for the payment for any services.

The plaintiff does not establish that the defendant accepted the involvement of his named firm - which may be a matter of considerable significance.  The draft agreement with the firm which he proffered to the defendant and which, on its evidence never commanded acceptance, purported to make it clear that "Mr Labaj would not necessarily provide services personally, but would attend personally at the site if required".
There is plainly room for debate as to whether that means "if required in the plaintiff's opinion", "if required by the exigencies of the job (according to some appropriate test)" or "if required in the defendant's opinion".  Mr Labaj says today that it is the third of them but I suppose that is something he could be expected to say in the circumstances. 

The effect of the document, to which I repeat the defendant never assented, is uncertain in this important respect.  The notion of a "plumbing foreman" seems to me ought to describe a person who is going to be physically on the site rather than attending to the tasks by proxy or in some way from a remote location. 

The High Court in Masters v. Cameron, (1954) CLR 353 at 360, gave a classic description of the considerations that arise in circumstances like those facing the Court:

"Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of the negotiation shall be dealt with by a formal contract, the case may belong to any of three classes.  It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time proposes to have the terms restated in a form which will be fuller or more precise but not different in effect.  Or, secondly, it may be a case in which the parties have completely agree upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but ;nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document.  Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract."

It is at the least an open question whether the third is not the appropriate category here.  In the circumstances, in my opinion, that cannot possibly be resolved without a trial at which the deponents, including the plaintiff and perhaps others can give their evidence and be cross-examined.

It is clear that for a week from the 10th of March 2005 Mr Labaj attended at the site and worked.  His presence on the site did not survive into the next week.  He may well be entitled to payment (on a quantum meruit) for services actually provided in anticipation of the written agreement that never eventuated. 

Mr Kaplan's new affidavit reads in paragraphs 7 and 8 as follows:

"7.I also refer to paragraph 11 of my previous affidavit and say that:

(a)when I told Mr Labaj that his application had been successful I said that his application for plumbing foreman had been successful and that it was intended to employ him on the basis of the three (3) month probationary period;

(b)Mr Labaj then asked if he could be sub-contracted;

(c)I agreed to this provided that he be paid $70,000 per year including GST, the probationary period would still apply, he would be paid monthly in arrears after receipt by us (the Defendant) of a tax invoice for that month and he may have to work at the other locations;

(d)Mr Labaj agreed to this and I asked if he could start the next day;

(e)Mr Labaj said that he could start the next day and offered to drop off a draft of a contract which I took to mean document and which would have the standard terms for a contract such as where it was made, what law would apply and the addresses of the parties;

(f)I agreed to this saying that our (meaning the Defendant's) Contract Administrator would review the draft and comment in due course;

(g)the reason Mr Labaj was told to cease work was that the contract document he had delivered to me did not record what was agreed and Mr Labaj was refusing to meet to discuss this and how the document would need to be changed to properly record what had been verbally agreed; and

(h)that the Defendant has not terminated any agreement and as far as I am concerned Mr Labaj can work with the Defendant on the terms he and I verbally agreed.

1. I further refer to paragraph 15 of my previous affidavit and say that when Mr Labaj left the draft contract document with me I told him that our contract Administrator would be in the office next Wednesday and I would have him review it and Mr Labaj said that this was acceptable and that it was only a draft.  Mr Coughlan and others were present when these things were said."

There are issues as to when Mr Labaj made available to Mr Kaplan, or any representative of the defendant, the 28 page brochure "Management A to Z" of J & W L Consulting Services outlining the services offered by the firm and exhibited to his affidavit.  The contention on the defence side is that this did not appear nor was there any identification of the firm by mention of its name, for example, until Mr Labaj had been admitted to the site and commenced work and then supplied the draft agreement along with the brochure. 

Paragraph 7(h) of the affidavit passage last quoted is replicated in the affidavits of other deponents.  Mr Labaj has asserted from the Bar Table that he is willing to perform services of any kind for the defendant including cleaning the toilets if asked to.  If what has been said on both sides is correct, one wonders why these people are battling in Court as opposed to cooperating more usefully.

One of the difficulties I have mentioned in the way of granting a judgment under Rule 292 today is that if Mr Labaj gets his wish and obtains a judgment for $70,000 for a year's work he will be free, possibly, to obtain a second income by finding some new employer or contracting party to utilise his apparent talents.

He has protested eloquently that an agreement is established and it is true that Mr Kaplan uses the language of agreement. Ordinarily, commercial people may be taken to know whether they have reached an agreement and it may well be determined ultimately that these parties have.  One or more of the important terms of that agreement and indeed even the precise description of the contracting parties is, it seems to me, uncertain for the moment, something which has to be clarified at a trial.

It follows that the Court is not satisfied the requirements to find jurisdiction under Rule 292 exist.  Therefore the plaintiff's application filed on the 27th of May 2005 is dismissed, both parties costs to be costs in the cause. 

The reason why the defendant is not awarded costs immediately is that its approach to the matter has occasioned some of the difficulties.  It seems plain in retrospect that insufficient thought was given as to what Mr Kaplan's affidavit should contain and, as Mr Labaj says, the defendant might perhaps consider itself fortunate that Judge Noud allowed that further time.  As well as that short order, the Court makes the one which I read into these reasons above relating to the plaintiff's regularising matters to do with his address of service.
...

NOTE: The additional order under r 17 will not be made after all, in light of Mr Labaj making it clear that he will not be providing any changed address for service, also that he accepts that he is not entitled to service by post (which may lead to Australia Post redirecting items) and that depositing documents in the letter-box by couriers, process servers, staff of the defendant's solicitors and so on would be sufficient service, whether or not he gets the documents.

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