Paddison v Downer EDI Engineering Power Pty Ltd

[2010] NSWDC 131

CITATION:	Paddison v Downer EDI Engineering Power Pty Ltd [2010] NSWDC 131
HEARING DATE(S):	31 May 2010 and 1 - 4 June 2010
JUDGMENT DATE:	7 July 2010
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	1. Verdicit and judgment for defendant against the plaintiff. 2. Plaintiff to pay the defendant's costs of the action on the ordinary basis in an amount as agreed or assessed.
CATCHWORDS:	TRADE PRACTICES - Misleading or deceptive conduct - Employment by contractor at remote mining site - Accommodation provided to employee by mine operator on site - Alleged misbehaviour by employee at accommodation facility - Representation by employer to mine operator resulting in employee's termination of employment on withdrawal of accommodation rights - Representation by silence - Whether representation "in trade or commerce" - Whether representation true - Nature of loss or damage - Damages - Interest - Costs
LEGISLATION CITED:	Civil Procedure Act 2005, s 100 Trade Practices Act 1974 (Cth), ss 51AA, 51AC, 52 and 82 Workplace Relations Act 1996 (Cth), ss 643(1)(a), 643(6) and (7), 672(2) and 672(3)(ii) Uniform Civil Procedure Rules 2005, Sch 5
CASES CITED:	Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164 Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Martin v Tasmania Development and Resources [1999] FCA 593; (1999) 89 IR 98; (1999) 163 ALR 79 McCormick v Riverwood International (Australia) Pty Ltd [1999] FCA 1640; (1999) 167 ALR 689 Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 O’Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188; (2002) 122 FCR 455 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
PARTIES:	Michael Wayne Paddison - Plaintiff Downer EDI Engineering Power Pty Ltd - Defendant
FILE NUMBER(S):	320773 of 2008
COUNSEL:	Mr R de Meyrick for Plaintiff Ms M Painter for Defendant
SOLICITORS:	T D Kelly & Co for Plaintiff Fisher, Cartwright Berriman Pty Ltd for Defendant

JUDGMENT

1 After identification as being present at an incident during the evening of Saturday 9 June 2007 in the accommodation area for a remote mining operation in the Pilbara region in Western Australia, an employee of the electrical contractor working at the mine had his accommodation and site access rights withdrawn by the manager of the site. In the result, the employer summarily terminated his employment for breach of the camp code of conduct; five other employees were also dismissed from their employment for similarly being involved in the conduct. The employee denied he had been involved in the incident so that the representation of his identification, said to be made in trade or commerce, was false and thereby misleading or deceptive contrary to s 52 of the Trade Practices Act 1974 (Cth). This action by the employee sought to recover damages for the loss or damage occasioned by the conduct of the employer in making the misrepresentation pursuant to s 82 of the Trade Practices Act by reason of the loss of employment. Further, it was alleged that the employer, in failing to inform the site manager that the employee was not a participant in the incident, had engaged in misleading or deceptive conduct by silence in breach of the statute. The site manager relied on the misrepresentations in a manner adverse to the employee.

2 The employer’s conduct was pleaded also to be unconscionable conduct within the meaning of ss 51AA and 51AC of the Trade Practices Act but that claim was not relied upon at hearing and, therefore, it may be disregarded for present purposes.

3 It was further claimed that the employer engaged in misleading or deceptive conduct in that it caused or permitted the dissemination of information regarding the identity of the alleged participants in the misbehaviour in the mining industry. Again, however, this claim was not pursued at hearing and any evidence which might otherwise have supported it was but slight. It will not be considered as a basis for relief.

Factual context

4 Approximately 150 kilometres from Newman in Western Australia, BHP Billiton Iron Ore Pty Limited (BHP Billiton) owned a mining site for the extraction of iron ore. In late-2006 BHP Billiton initiated a project, known as the Rapid Growth Project 3 – Mining Area C, to substantially upgrade the mining equipment at the site and improve its associated infrastructure to increase the extraction of ore, its processing and transport by the sizeable amount of 20 million tonnes per year. The project overall was managed for BHP Billiton by Mines and Port Development Joint Venture (the Joint Venture), an enterprise comprising Fluor Australia Pty Limited and Sinclair Knight Herz Pty Limited. Due to the remote nature of the site, employees of contractors working on the project were required to stay in accommodation either at Kurra Village near Newman or, more conveniently at Packsaddle Village which was about 5 kilometres from the mine site where ESS Support Services under contract to the Joint Venture supplied the workforce with accommodation, food, drinks, water cleaning facilities, waste disposal, security, entertainment, communication and transport to and from the mine site each day. Each worker was provided, without cost, a room (commonly referred to as a “donger”); the employee concerned, the plaintiff Michael Wayne Paddison, had such a facility in the Packsaddle Village.

5 Downer EDI Engineering Power Pty Limited, the plaintiff’s employer and the defendant in the present action, was a large employer of about 7,000 persons in the industry of providing engineering and infrastructure services, including as here in the resources sector. In late- 2006 it successfully obtained electrical contracting works at Mining Area C as part of the wider Rapid Growth Project 3 which involved two sites about five kilometres apart being known as Area C and Area E. Accommodation facilities for its employees working on both sites, as for employees of other contractors, was in the Packsaddle Village.

6 The specific works for which the defendant was engaged covered an electrical upgrade of the mining plant and equipment at the Mining Area C site and electrical installation work for a new crushing plant at Area E. The defendant had other projects in Western Australia at the time and William Manlow as the Industrial Manager was responsible to ensure that all projects were performed safely, within time, according to specifications and on budget. Mr Manlow assigned the management of the subject Rapid Growth Project 3 to Stephen Yates as the Project Manager. Otherwise, the defendant engaged Powering-On Consulting Pty Limited to provide day-to-day site manager services through one of its directors, Charles Strong, who worked on the site and was accommodated in a donger in the Packsaddle Village; Mr Strong in that respect supervised the work of about 130 of the defendant’s electricians, including the plaintiff, and was responsible to Mr Yates. To ensure that the overall programme of works set by the Joint Venture was complied with, the defendant appointed its employee Stephen Roskruge as the Construction Manager for the development and ordering of daily/weekly work schedules to ensure the electrical works were co-ordinated with other trades; he reported to Mr Strong. Also reporting to Mr Strong were a number of supervisors responsible for managing the safe and proper performance of the works by teams of trades and specialists pursuant to Mr Roskruge’s work schedules.

7 Although the terms of the defendant’s successful tender for the electrical works and its subsequent contract with BHP Billiton/the Joint Venture were not in evidence, it appeared to be unchallenged that –

• all of the defendant’s employees lived on the site at either the Packsaddle Village or the Kurra Village;
• the defendant issued specifically styled contracts of employment to its employees;
• all prospective employees for the project were to be screened and vetted by BHP Billiton through its subcontractor Electronic Records Management Solutions Pty Limited (ERMS);
• any employee of the defendant working in Area C who was terminated in employment was to be demobilised through the ERMS system using BHP Billiton documentation;
• the Joint Venture could direct the defendant as to the amount of labour to undertake the works; and
• the Joint Venture held the discretionary right to require the defendant to remove or replace, at any time, any of its employees on site, including the site manager Mr Strong.

8 The recruitment of electrical trades employees for the project was handled by Roeland Willeboordse, the defendant’s Human Resources Manager, who attended also to other employment related matters. He was asked by Mr Yates to recruit approximately 100 to 140 electrical trades employees to work on the project commencing from November 2006 onwards, consistent with the decision by BHP Billiton to substantially upgrade the mining equipment on the site; as Mr Yates informed Mr Willeboordse, recruitment was to gradually rise to a peak in April or May 2007 and then to taper off as the project wound down. Mr Yates had an original expectation that the project would be completed by September 2007, but, as it happened, the completion of work at Mining Area C was delayed until April 2008. Significantly, however, it seemed that for operational reasons of excess manning the defendant on 18 June 2007 was required to retrench 24 electricians who left the site that day. Mr Manlow maintained the number of employees retrenched would have been more, up to 30, if the six employees dismissed because of the subject incident had not already been terminated. He said the redundancies on 18 June 2007 did not have any connection with the events of the incident on the evening of 9 June 2007 and employees were selected based on their skill and merit.

9 Mr Willeboordse explained the recruitment process for all tradesmen to be employed by the defendant on the project. Following an initial interview to screen out inappropriate applicants, during which the nature of the site, accommodation and working roster system were advised, applicants were processed through the ERMS system and given a medical examination. On successfully gaining employment, each tradesman was subject to terms and conditions laid down in certified agreements; that involving electricians was the Rapid Growth Project 3 Mining Area C – Downer Engineering Power Pty Limited Electrical Trades Certified Agreement 2006 (the Certified Agreement) made between the defendant and the appropriate trade union. Relevantly for present purposes, the Certified Agreement contained provisions for mobilisation and demobilisation as to the point of hire for distant employees (like the plaintiff) being Perth, economy air travel from Perth to the project site at the commencement of employment and return on termination of employment, deduction of the cost of an economy airfare from Perth to the site from final monies owing for employees of less than three months service and travel time of three hours paid at ordinary pay on mobilisation and demobilisation; rest and recreation leave for distant employees of two days after 28 days of continuous service on the site with an economy airfare to and return from the point of hire; a severance payment of $55.00 per completed week of service on termination of employment after four weeks’ continuous service; obligations on employees to comply with occupational health and safety policies and procedures, a breach of which being regarded as a serious breach of the conditions of employment and possibly resulting in termination of employment; a contract of employment provision permitting the defendant to terminate the employment of an employee with less than 12 months' continuous service by paying the employee in lieu of notice an amount equal to the total of all amounts had the employment continued for one more week; and where an employee be dismissed for serious misconduct payment by the defendant was up to the time of dismissal only.

10 In addition, successful applicants were said by Mr Willeboordse to be required to accept the terms of a standard letter of offer containing general terms and conditions of employment, including as to point of hire, the provision of accommodation on site at the project’s village, rest and recreation travel, travel time, safety and site security. An accommodation registration acknowledgement was required to be accepted by employees residing in Packsaddle Village setting out the terms and conditions on which accommodation was provided at the site, including a code of conduct which provided for the withdrawal of accommodation if the employee engaged in, amongst other things, unreasonable noise after 9:30pm, drunken or excessively noisy behaviour, wilful damage to property, misuse of fire equipment and deliberate refusal to comply with safety, security, environmental and village procedures.

11 Mr Willeboordse understood that the employment arrangements were part of the process by which the defendant tendered for the project and he was not permitted to make any material amendments to the documents concerned.

12 The plaintiff was a qualified electrician who had completed an electrical apprenticeship in New Zealand in 1981 and had since worked in the electrical trade. He spent a few years working in Australia in the early-1990s and returned in 1998 to work full-time as an Australian citizen on various construction projects in Sydney. Then 48 years of age, he answered an advertisement in March/April 2007 for an electrician’s position with the defendant at the mine site in Western Australia and completed the ERMS application on 5 April 2007. After being told by telephone by the defendant his application had been successful, the plaintiff, during a stopover in Perth from a holiday in Asia, underwent the required medical examination and then attended the defendant’s Perth office to receive the offer of employment letter dated 1 May 2007 for commencement at the Mining Area C site on Wednesday 9 May 2007; he accepted the offer on 1 May 2007 by signing the letter together with acknowledgement of the accompanying terms and conditions of employment documents, including as to the accommodation arrangements and code of conduct in the Packsaddle Village, as earlier outlined in what Mr Willeboordse said. On 9 May 2007, the plaintiff flew from Perth to Newman, with a few other new employees, and was met by Mr Strong who took them to the site where dongers were allocated. The plaintiff duly commenced work the following day after a short induction to the site.

13 The plaintiff’s wage entitlements were $1,215.54 per week for the first 36 hours, an hourly rate of $33.76 for hours beyond 36 per week, a site allowance of $4.20 per hour and a project productivity allowance of $165.00 per week. The roster of work hours over a five-week cycle was for 78 hours in weeks one and three of seven days a week, 66 hours in weeks two and four of six days and seven days rest and recreation leave in the fifth week. There were also, as he said, additional payments for penalty rates and overtime depending when and how many hours were worked and as to the particular work performed. In the result, the plaintiff calculated his earnings at about $15,000 gross per 35-day work cycle. He had an expectation to continue employment at the site until the completion of the defendant’s contract.

14 The context in which this case arose as outlined above was not controversial.

Incident on the weekend of 9 and 10 June 2007

15 The Joint Venture organised a comedy night at the “wet mess” in the amenity facilities of Packsaddle Village for the evening of Saturday 9 June 2007 to commence around 7:00pm. The plaintiff worked on that day as the completion of his first four-week cycle with the defendant and was due to commence rostered leave of seven days in Sydney from Sunday 10 June 2007 with a return to work at the site on 17 June 2007. His statement of what he did after work on the Saturday evening was to attend the entertainment in the wet mess where he had a couple of beers and then, at about 8:30pm, went to a nearby building to use the internet to check and send some emails. Probably around 9:00pm, as he said, he returned to his donger where he watched a “double-header” rugby union test France v New Zealand and a second game between South Africa and, he thought, Western Samoa until some time shortly after 1:00am on the Sunday when he went to bed. He said he did not leave the donger until about 9:00am that morning when he saw two other employees of the defendant, one with a black eye, in the company of a security escort and was informed by them they had had an altercation in the wet mess on the Saturday night. Then, after spending about an hour at the gymnasium, the plaintiff said that around 1:00pm he attended a barbecue arranged by the defendant for its employees; he was informed by some of those present there had been a bonfire the night before and a fight broke out. About 4:00pm on the Sunday the plaintiff travelled by bus to the airport to start his leave in Sydney. Up to that point, there was no suggestion to him of any involvement in the events at the bonfire the night before.

16 It is noteworthy that the “running sheet” log kept by security staff (per Kris Bairstow) on duty at the village on 9 and 10 June 2007 relevantly recorded as to events:

“19:15 Patrol of camp. Comedy show on at Wet Mess. Approx 240 persons at wet mess area.
…

20:10 Attend wet mess to observe comedy festival, 240 approx in wet mess loud but no problems.
…

20:45 Attend wet mess for close up. Bar staff closed the doors at 21:00, no one was inside all were outside watching comedy festival. Exited bar at 21:10.

21:10 Received call from gatehouse about a noise complaint. Person from M7C was complaining about the phone constantly ringing in roomM7B and also the TV being on…we entered the room and turned the phone down/TV off and exited…

21:35 Attended wet mess for comedy show close up. 200 approx still in wet mess. Show finished up at 21:40, people started leaving the wet mess just after. We left area at 22:00, about 90 people left in the wet mess.

22:15 Patrol of camp. 5 people in C block asked them to keep the music down, they complied. Approx 20 at H18C two males appeared to be having an argument when we arrived, two other males were in the middle trying to calm the situation down which they did. This group was very loud and rowdy, one person came up to us and said that he knows they were loud and they were moving to the sea container down in the old W & S laydown area. They began to move down to this area.

…

22:50 General patrol of con camp, due to many people walking around from comedy show, no specific groups but just generally noisy at this stage.

…

23:15 …Patrolled through the con camp, a few people still walking throughout the camp but found that most had moved to the sea container. Approx 90 at this location. Stayed at the top of J block and observed for a while, the group was noisy but due to the distance did not affect the accommodation areas.

00:15 H18 block was left in a mess. 6 Approx outside H21C room we issued them with a warning about noise, they complied.

00:20 Observed fire down at the sea container, attended this area, 55 approx people there. We approached the group with the fire lit (general camp fire) and requested they put the fire out straight away. A few people from the group ‘if you want it out you put it out yourself’ and ‘we’re not putting it out’ and ‘we have been told we are allowed to have a fire’. We collected a fire extinguisher from J23 and returned to fire. I asked for them to clear the area so I could put out the fire, some complied and some did not. I extinguished the fire. The group (mainly Downers) was abusive, sarcastic and most appeared very intoxicated. Due to their behaviour I contacted Charles Strong from Downers to attend location.

00:30 Charles Strong attended location and spoke to those present, we observed from J block. Ten minutes later Charles came back and spoke to us, he said that they will be finished shortly. We stayed in the area with Charles for about 15 minutes, some had left but not all. Charles went back down to talk to the group.

01:00 Charles came back and informed us that they have assured him they will be gone in ten minutes.

…

01:35 Con camp, some people moving about, noise levels acceptable. Nil persons at the sea container area.

…

02:10 Inspected the area at the sea container, was very messy with bottles and cans littered everywhere, also many bottles.

…

03:00 Camp patrol. West and East perm all quiet, con camp all quiet.

…”

17 Mr Yates was not at the site that weekend but was in Perth; Mr Strong was present. He acknowledged his attendance at the comedy function, drank a couple of beers and went to his donger about 10:00pm to sleep. Shortly thereafter, it must have been about 00:25 hours according to the security log, he said Mr Bairstow and another security guard woke him and requested his attendance in the area of the sea containers where a fire had been lit to disperse the persons present. He then went to the area with the security guards, where he noticed small groups around the fire, and directed them to “put out the fire, break up and go back to your rooms”. His evidence of events was consistent with the notations in the security log. However, on noticing some of the men throwing rocks on the roof of nearby dongers, Mr Strong approached the fire and said he saw the plaintiff within one to two metres walk past him. Mr Strong deposed:

“He was walking at normal pace, was not wearing a hat and his face was illuminated by the glare of the fire. I recognised Mr Paddison immediately. I am absolutely certain it was him. I had seen him many times before at onsite toolbox meetings, where he had been inclined to raise issues which had always seemed a bit trivial to me.…I had been able to see everyone clearly but did not recognise many of the men from working on the Project, because they did not do work for Downer. Out of the entire crowd, I recognised about 8 men other than Paddison.”

18 By reference to the security log, the asserted recognition by Mr Strong of the plaintiff while walking away from the fire was at about 00:45 hours. Mr Strong was closely tested in cross-examination about his ability to properly identify anyone in the dark of the night but said “there was light from the bonfire and light from the closest accommodation blocks that all have external lights.” He maintained recognition of the plaintiff at the bonfire. On returning to his donger after the fire was extinguished and the men had dispersed, Mr Strong considered that that was the end of the problem and no repercussions would follow.

19 Louie Katsouranis, then employed by the defendant as a leading hand electrician and union delegate at the Mining Area C site, was the only other witness to give direct evidence as to whether the plaintiff was present at the bonfire in the sea containers area. Mr Katsouranis admitted he was at the bonfire until the security guards first attended, at which time he said there were about 20 employees of the defendant present; he then left on being asked to disperse by the guards and returned to his donger to sleep. By reference to the security log that would have been about 00:20 hours before Mr Strong attended at 00:30 hours and then recognised the plaintiff at about 00:45 hours. Even so, Mr Katsouranis deposed that he did not see the plaintiff at the location of the bonfire while he was present.

20 Although he was in his donger, at the gymnasium and present at the defendant’s barbecue lunch on Sunday 10 June 2007, it seems clear that the plaintiff was not confronted by Mr Strong or anyone else about his possible attendance at the bonfire in the early hours of that day before he left Packsaddle Village to go on leave to Sydney at 4:00pm. And that was so notwithstanding two other employees of the defendant already had their accommodation withdrawn for involvement in the incident, such as for fighting, and were flown away from the site on the Sunday.

Consequences of the incident for the plaintiff

21 No doubt as a result of the comments by the security guard Mr Bairstow in the log as to the incident, Esther Schneider of the Joint Venture reported to Simon Thomas, Deputy Construction Manager of the Joint Venture, by an email at 10:06 am on Sunday 10 June 2007 of her view of the resultant scene. Ms Schneider said she found “at least 5 fire extinguishers missing, several fire extinguishers discharged, empty bottles of bourbon, vodka and tequila, rubbish littered everywhere such as bins tipped over and used as ice buckets.” By an email to Mr Strong sent at 10:46am on the Sunday, with copies to Mr Yates and Ray Toomey as the Joint Venture's Project Manager on the site, Mr Thomas advised “a preliminary list of concerning behaviours that have occurred last night so that you may action immediately.” He referred to the items mentioned by Ms Schneider and added “fire in the southern laydown area, destruction and vandalism of the H Block Laundry… abusive language towards security personnel.” Mr Thomas explained the need to identify and discipline the persons involved in the incident, which was said to be breaches of the camp code of conduct, including that “the lighting of fires and/or congregation around such fires is totally unacceptable and will result in the removal of accommodation for anyone found guilty of this activity.” He added:

“The majority of the workforce have an expectation that the camp that has been provided to them free of charge by the Company is a place that enables them to rest and recuperate in order to return fit for work the next day. It is our collective responsibility that all measures are taken to ensure this environment is provided.”

22 Also on June 10 2007, Mr Thomas sent a note to all contractors at Mining Area C as to camp behaviour and the code of conduct following the events on the evening of 9 June 2007. After summarising the identified misbehaviour, in a manner similar to that advised in the email to Mr Strong, Mr Thomas relevantly stated:

"Finally, the Village Facilities are an integral and critical part of the mining operation at Area C. The Project Site Rules and Camp Code of Conduct have been issued to ensure they are protected. The behaviour of any person who puts this facility and its occupants at risk shall not be tolerated and will be immediately removed from site.”

23 On the morning of Sunday 10 June 2007, Mr Yates said he was advised for the first time by Mr Thomas in a telephone conversation about the subject incident the night before and that “a lot of your boys were drinking and lit a bonfire… also a fight… Some of the laundries have been vandalised and some fire extinguishers are missing. I want any of the people involved in this removed from site.” Mr Yates then telephoned this advice to Mr Strong with the instruction to inform Mr Thomas who the employees involved were but as to which he needed to be “120% certain.” Mr Strong later that morning attended Mr Thomas at the site and in a response to a request to “identify the people you saw at the fire” said “I can remember 2 or 3, I know that Michael Paddison was there” (He mentioned also two other names). Eventually, after discussions with the security guards on duty at the time of the incident, Mr Strong was able to identify only seven persons he was prepared to name as Mr Thomas had plainly told him that accommodation would be withdrawn for those involved. Mr Strong provided Mr Yates with the names concerned, including the plaintiff, and was instructed to have them removed from the site that day. Mr Strong said that he was aware BHP Billiton/the Joint Venture would not allow a person back on the site once accommodation had been withdrawn and, as the defendant did not have any electrical trades vacancies elsewhere to redeploy the six employees in question, he decided to terminate their employment. The termination of the plaintiff’s employment was confirmed with Mr Willeboordse to so advise the plaintiff.

24 Mr Strong on 12 June 2007 completed documentation for the plaintiff’s employment termination and demobilisation by way of dismissal by the employer defendant on 10 June 2007 for “breach of camp code of conduct.” Mr Strong noted his assessment of the plaintiff as “average” (on a four-point scale from poor to average to good to excellent) for each of work safety approach, skill level, teamwork and attitude; a preference for re-employment was stated as at the first of three levels.

25 Mr Willeboordse attempted unsuccessfully to telephone the plaintiff to advise the termination of his employment. On 13 June 2007 he wrote to the plaintiff in terms:

“…as a result of the events during the past weekend in the camp accommodation at the Mining Area C Project the client withdrawn your accommodation and site access.

Due to the withdrawal of your accommodation and site access by the client, the company has no other alternative but to notify you that your services with DEP has been terminated with effect 9 ^th June 07.”

26 On 15 June 2007, the plaintiff telephoned Mr Willeboordse at about 4:30pm due to a missed call from him on his mobile telephone, but allegedly not having received the termination letter of 13 June 2007, in which the following conversation was said by Mr Willeboordse to have occurred:

Me: ‘Yes, I wanted to let you know that due to your having been identified as being at the bonfire on site last Saturday hight, that BHP have withdrawn your accommodation from the site. As you can’t work on the site, unfortunately your employment with Downer EDI is terminated.’

Mr Paddison: ‘I can’t understand this. Who identified me as being at the bonfire?’

Me: ‘You were seen at the fire by Charles Strong after midnight when he went to disperse the crowd.’

Mr Paddison: ‘Charles? I was only at the fire earlier in the night. I then went to watch football. I wasn’t there when Charles says he was there.’

Me: ‘Unfortunately you were identified. I have arranged for your belongings to be sent back here.’”

27 The plaintiff denied the terms of the conversation as stated by Mr Willeboordse but said he did say that “I had nothing to do with any fire or other incident at the camp site. I was in my donger at the time. Who identified me? …I had nothing to do with the incident. I was in my room that night.” He was advised to contact Mr Strong.

28 Shortly thereafter, the plaintiff telephoned Mr Strong and said the following conversation took place:

“MP: ‘Who identified me?’

CS: ‘I can’t say.’

CS: ‘It wasn’t me.’…Security pulled guys from the crowd at the bonfire and I identified them.’

MP: ‘You just told me it wasn’t you that identified me or anybody else.’ …Well, can you identify me? Tell me what I look like?’

MP: ‘The only way I could believe that anyone could be identified was by a picture ID, I left the wet mess around 8:30pm, went to the internet for half an hour then went to watch the rugby match on TV at 9pm. First I heard of the incident was when I left my donger at about 9am next morning and saw a work mate called Bryce walking past with security with a black eye. He told me he had an altercation with a guy at the wet mess. At 12 o’clock I went to the gym then around 1pm went to an organised BBQ, saw Mike Emms there. He told me about the bonfire. That was the first I knew about it.’”

29 In response to that evidence, Mr Strong deposed as follows:

“Paddison: ‘Hi Charles its Michael Paddison. I just got a message from Roeland (Willeboordse). I don’t have a flight back and I hear it has to do with the fire after the barbecue night. Did you say I was involved in the stuff that happened? I’ve spoken to some other guys about it – I left before you were there! I can give you the names of the guys who saw me leave if you like.’

Me: ‘That’s part of the problem, that you were there.’

Paddison: ‘No, no! I left just after the fight.’

Me: ‘Well, whether or not I saw you there, the Construction Manager’s words were that anyone positively identified as being at the fire had to have their accommodation revoked and you’re admitting to having been there. Anyway, I saw you walking away. Look, you can contact Downers and try to get another job elsewhere. Downers don’t believe the fire should stop you working for them, so maybe they can get you in a job at another site. You should speak again with Roeland.’”

Events following the employment termination

30 On 28 June 2007, the plaintiff caused to be filed by his solicitor an application for relief from the Australian Industrial Relations Commission (the AIRC) under s 643(1)(a) of the Workplace Relations Act 1996 (Cth) on the ground that his employment termination by the defendant was harsh, unjust or unreasonable and sought reinstatement and payment for lost remuneration in that he was not present and had no involvement with the alleged events on the weekend of 9 and 10 June 2007. Further, the plaintiff claimed unfairness as he was not given any opportunity to respond to the allegations of misbehaviour before his employment was terminated and he did not receive any or any adequate notice of the termination.

31 In the meantime, on 2 July 2007 the plaintiff flew to Perth to collect his tools and other belongings and “to sort things out …and hopefully clear my name.” He met Mr Yates and Mr Willeboordse on 3 July 2007 at which meeting he said he informed them of the application filed with the AIRC but “all I want is my job back and my name cleared.” Mr Yates was said to have promised the plaintiff to “get you a job” whereupon he replied “OK, when you ring me with a start I will discontinue proceeding at Court.” A job application was then made by the plaintiff for a position with the defendant at a site being the Train 5 Expansion at Karratha in Western Australia. On 10 July 2007, the plaintiff again attended the defendant’s Perth office and collected his tools and other belongings.

32 As no word from the defendant of employment was received, on 25 July 2007 he commenced work with a former employer in Sydney, Macaya Electrical Pty Limited on an average wage of $1,816 per week.

33 The AIRC proceedings were held in Sydney on 31 July 2007 at which the defendant’s General Manager Human Resources, David Gittus, proposed a resolution of the dispute by a payment of one week’s pay and a review of job vacancies in Western Australia suitable for the plaintiff. In mid-August 2007, Mr Willeboordse telephoned the plaintiff and offered him a position as an electrical tradesman on maintenance work for Pilbara Iron at the East Intercourse Island facility near Parker Point, Dampier. The remuneration was $32.89 per hour for 50 hours a week ($1,594.50) plus allowances. The plaintiff accepted the employment offer and commenced work at the site on 11 September 2007 after leaving the employ of Macaya Electrical on 9 September 2007. He discontinued the AIRC proceedings on 4 September 2007. However, the present proceedings for damages under s 52 of the Trade Practices Act were initiated by a claim filed in this Court on 17 December 2008.

34 There was some suggestion during argument that the plaintiff had compromised his damages claim by the resolution of the AIRC proceeding but it was ultimately accepted that the defendant had made no pleading in that respect and an estoppel was not claimed. I think that that approach was correct. There was certainly some real doubt as to the ability of the plaintiff to have made the application to the AIRC relating to the alleged unfair dismissal having in mind the provisions of s 643(6) and (7) of the Workplace Relations Act which required for such an application a qualifying period of employment, which he did not have, of 6 months. In any event, my view is that s 672(2) of the Workplace Relations Act recognised the availability of a claim under the Trade Practices Act for a remedy in respect of the termination being, as s 672(3)(ii) stated, a remedy under another law of the Commonwealth where the AIRC unfair dismissal application had, as here was the case, been discontinued. Thus, I accept there was no impediment to the plaintiff bringing the present damages claim by reason of the resolved AIRC proceedings.

35 The plaintiff maintained he worked at the Dampier project “until 8 February 2008, when the project finished. This job also involved me having to pay for my own travel to and from Perth every 4 weeks at a cost of about $500 return per trip. I did not have to pay for travel when I was at Mining Area C as this was covered by the defendant.” Against that, Robert Edward Thatcher, the defendant’s Senior Project Supervisor at Dampier, and Anthony Marsh, the defendant’s electrical maintenance foreman at Dampier, gave evidence. Both of them said that the Dampier project did not finish in February 2008 but continued until September 2008; on their evidence, the plaintiff resigned from the employment on 8 February 2008 as shown by him writing the word “resigning” on a leave application form dated 31 January 2008 that his last day at work would be 8 February 2008. Otherwise, it was said the plaintiff would have continued to be employed until September 2008. Further, as to the cost of travel, Mr Thatcher denied that the plaintiff was required to bear the cost for flights from Perth to Karratha (the nearest airport to the contract site at Dampier) which were paid by the defendant. This conflict in the evidence was answered by the plaintiff in this way:

“7. …I believed that the defendant had ceased work on the project in February 2008 or shortly thereafter. I did in fact resign, but I resigned because I believed there would be no more work and that as far as the defendant was concerned, work on the project was effectively finished.

…

10. …there has been a misunderstanding. The reference… to flights to and from Perth every 4 weeks at a cost of about $500 return is a reference to flights between Perth and my home in Sydney, not between Perth an Karratha. When I flew between Sydney and Perth at Christmas time it cost me around $1,000 return. The defendant on the Mining Area C project had paid for flights between the project site and Sydney (via Perth).”

36 It is clear that the plaintiff changed his earlier affidavit evidence about ceasing at the Dampier site because the contract had finished and accepted he had resigned. Of course, the benefit in advancing his damages claim if the contract had finished rather than he himself resigning is obvious. Also, his initial evidence as to airfares was somewhat dissembling and, on one view of it, suggestive of a loss in the Dampier employment compared to that of Mining Area C. For instance, the plaintiff spoke of travel “to and from Perth… at a cost of about $500 return” thus indicating travel to Perth from Karratha and return from Perth to Karratha rather than, as he endeavoured to later explain, between Perth and Sydney but at a return cost of $1,000. The objective evidence from the Certified Agreement showed the plaintiff had an entitlement to an airfare provided by the defendant for rest and recreation leave from the site to Perth as the point of hire and return but not to and from Sydney as his residence; the defendant adopted a similar policy in relation to the Dampier project. Again, I think, the plaintiff’s evidence had the appearance of, but contrary to the facts, unduly advancing his damages claim.

Subsequent employment and future prospects

37 On leaving the defendant’s employment at Dampier on 8 February 2008, the plaintiff complained about difficulties in obtaining employment which, in the concern he formed, was due to being “on some kind of blacklist created or spread by the defendant and that my blackened name was now haunting me.” Even so, there was a suggestion, but not confirmed, that the plaintiff at this time returned to New Zealand for a holiday.However, beyond that there was no evidence of any such blacklist and in argument the claim for damages in that respect was not addressed.

38 Eventually, on 3 April 2008, the plaintiff obtained a job as an electrician with Kamrac Labour Group Pty Limited (under contract to the defendant) at the Fortesque Mine near Newman in Western Australia. That employment continued until 4 May 2008 during which his earnings were $17,765 (average of $4,230 per week). Thereafter, the work obtained was –

• Momentum Consulting Group Pty Limited in Sydney for a couple of weeks from 26 May 2008 earning $1,755.
• Positron at the Prominent Hill mine site in South Australia from August to October 2008 earning approximately $20,000 net of tax.

• Kamrac at the Bonnington Gold Mine south of Perth from October 2008 to 29 March 2009 earning $102,573 (average of $3,945 per week).

• Murray Instrumentation and Electrical from May 2009 for about five or six weeks earning about $2,800 net per week.

39 For comparison purposes, and as to which there was no dispute on the mathematics, the plaintiff’s average gross weekly earnings at the Mining Area C site were $3,090.60. They were based on an ordinary rate of pay of $1,215.54 gross per week for 36 hours work so that the balance of $1,875.06 referred to penalty rates, overtime and allowances.

40 Finally as to financial matters the subject of the claim, the accommodation costs incurred by the plaintiff for four nights from 2 to 5 July 2007, when he was in Perth to collect his tools and other belongings, were $148.00. Airfares claimed by him over the period from 2 July 2007 to 12 February 2008 between Sydney and Perth were $1,894.36.

Issues for determination

41 Having in mind the pleadings and the manner in which the respective cases were argued by counsel, the following issues emerged for determination –

(1) Terms of the representation.

(2) Whether representation so framed was within that as pleaded.

(3) Whether representation was made “in trade or commerce.”

(4) Silence as misleading or deceptive conduct.

(5) Whether the representation so made was true.

(6) Damages, including causation/reliance and quantum.

Terms of the representation

42 It was common ground between the parties that the subject representation was made by Mr Strong to Mr Thomas at the site on the morning of Sunday 10 June 2007 following the instruction to him by Mr Yates to inform Mr Thomas of those persons involved in the incident the night before. In response to Mr Thomas’ request “to identify the people that you saw at the fire”, Mr Strong said “I know that Michael Paddison was there.” That identification of the plaintiff, of which Mr Strong was “absolutely certain”, was consistent with Mr Strong’s evidence that at about 12:45am on the Sunday morning as he approached the fire at the sea containers area he saw the plaintiff walk within one or two metres past him away from the fire.

43 The identification of the plaintiff by the representation made was said to be misleading or deceptive because the plaintiff maintained he did not go to the fire but was in his donger from about 9:00pm watching football on television and then was asleep until 9:00am when he went to the gymnasium.

44 Apart from saying he saw the plaintiff at the fire, Mr Strong did not represent to Mr Thomas that the plaintiff was not otherwise a participant in any misbehaviour which was said to have occurred in the sea containers area. Thus, the operative representation was of the plaintiff’s presence at the scene and not his particular conduct. Of course, Mr Thomas asked Mr Strong only to identify those persons at the fire.

Whether representation made within that pleaded

45 Counsel for the defendant, Ms M Painter, put a primary submission against the claim that the representation as pleaded was not, on any view of the evidence and as argued for the plaintiff, the representation actually made. In the result, the plaintiff had not made out the case the defendant came to meet and, so, it had to fail in its entirety. Ms painter explained that the pleaded representation was that the defendant through its agent Mr Strong had represented to BHP Billiton/the Joint Venture that the plaintiff was “a participant in the Misbehaviour at the Mining Site on the evening of 9 June 2007” and where the misbehaviour was defined in the pleading in terms “that a bonfire was started by some staff members and a fight broke out.” However, as counsel emphasised on this point, the evidence demonstrated that the only alleged representation by Mr Strong was that the plaintiff was present at the bonfire not that he participated in the misbehaviour as pleaded.

46 The plaintiff’s solicitor, Mr G Watson, who appeared in place of his counsel Mr R de Meyrick during counsel’s unavailable temporary absence, answered this point by putting that the pleaded representation was to the effect that the plaintiff was a participant in the misbehaviour in the sense that he was present. Indeed, Mr Watson said, the context of the various discussions between Mr Thomas, Mr Yates and Mr Strong, including the emails, showed that mere presence at the scene was taken to be involvement in the misbehaviour for which accommodation rights would be withdrawn.

47 I agree with Mr Watson’s analysis. The approach by Ms Painter, in my view, was a distinction without a relevant difference. The pleading in specifying the “misbehaviour” did so by reference to “some staff members” and was not restricted to the plaintiff. Certainly, Mr Thomas regarded sufficient conduct to warrant withdrawal of access to accommodation at the site as “congregation around such fires” which, I think, was reasonably within the misbehaviour as pleaded. In any event, to the extent it may be necessary to cure what if at all was a very minor pleading defect, I would have been prepared to allow the plaintiff to amend the pleading so as to deal with the real issues between the parties and about which on the affidavit evidence served there could be no misunderstanding by the defendant of the terms of the representation it had to meet. Ms Painter’s submission on this aspect must fail.

Whether representation made “in trade or commerce”

48 Section 52 of the Trade Practices Act relevantly states:

(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

(2) …”

49 The principal focus of this case was on the issue whether Mr Strong’s representation to Mr Thomas that the plaintiff was present at the bonfire, as I earlier formulated it, was, and as s 52 required, conduct “in trade or commerce”. If not, as the defendant submitted, then the section did not operate to proscribe the conduct against being misleading or deceptive so that there was nothing on which the consequences of damages under s 82 could be based. It was stressed for the defendant that, and even though it may be the position here, it was insufficient for the impugned conduct to be “in respect of”, “in connection with” or “in relation to” trade or commerce because the section required the conduct to be “in” trade or commerce.

50 Nevertheless, it was acknowledged by both Ms Painter and Mr de Meyrick that, perhaps somewhat unusually for s 52 cases, this case did not involve a representation made by the defendant corporation to the aggrieved plaintiff on which he relied and by which he may have been misled or deceived but rather to a third party corporation which relied on it to the alleged detriment of the plaintiff. That interaction was accepted, correctly in my view, as still being within the intended scope of s 52. For instance, in Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 it was held that a representation can be made in trade or commerce even though it is not in the trade of the person making the representation so long as it is in the trade of the person to whom the representation is made – what matters, and this is where the parties have differed, is that the representation is made “in” the trade or commerce of a corporation. As Lockhart J commented in Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 at 530:

“Whilst the applicant's loss or damage must be caused by the respondent's misleading or deceptive conduct, I see nothing in the language of the Act or its purpose to warrant the suggestion that the right of an applicant for damages under s 82 is confined to the case where he has relied upon or personally been influenced by the conduct of the respondent which contravenes the relevant provision of Part IV or Part V of the Act.…”

51 Ms Painter conceded that some of the interaction between the defendant and BHP Billiton/the Joint Venture can be categorised as occurring in trade or commerce – examples were cited of pre-contractual dealings, the sending of invoices and payment of amounts owing and the agreement to supply labour and materials. But, counsel put, that did not mean every aspect of the relationship between the defendant and BHP Billiton/the Joint Venture occurred in trade or commerce. And so it was here where the interaction between the defendant and the plaintiff occurred within the employment relationship and the mere fact the plaintiff was employed to meet the defendant’s contractual obligations did not alter the essential character of that relationship. Specifically, Ms Painter advanced the point, by reference to Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, with the proposition that the identification of the plaintiff as a participant in the misbehaviour cannot be characterised as conduct in the course of activities bearing a trading or commercial character but rather an industrial or employment character. That is, as counsel submitted, “the identification of an employee in breach of employment obligations for the purpose of discipline permitted within the employment contract must bear that (industrial or employment) character.”

52 In supporting the subject representation as being in trade or commerce, Mr de Meyrick emphasised that Concrete Constructions was not authority for the proposition that s 52 had no application to any employment situation as the key test was whether the conduct concerned bore a trading or commercial character. Concrete Constructions, on Mr de Meyrick’s submission, was distinguishable on its facts from the present case as there the conduct complained about was as internal communication by one employee of the employer to another employee. Although it was accepted Concrete Constructions, had been applied and followed in terms of principle in many subsequent cases, it was also the position that there were numerous examples of cases where employees had succeeded in s 52 claims against employers. McCormick v Riverwood International (Australia) Pty Ltd [1999] FCA 1640; (1999) 167 ALR 689 was one such instance and where the approach in Concrete Constructions was applied.

53 Mr de Meyrick submitted that the misleading and deceptive conduct in the present case fell within the ambit of trade and commerce in that it occurred in the context of companies, the defendant and BHP Billiton /the Joint Venture, “performing their contractual and commercial obligations to each other, and providing the services they are paid to provide.”

54 Concrete Constructions is the seminal case on the scope of s 52 as to the meaning of “in trade or commerce.” In the majority decision (Mason CJ, Deane, Dawson and Gaudron JJ) it appeared that a construction worker was instructed by a foreman to remove the grates from the entry points of certain air conditioning shafts and was told the grates were secured by bolts. The advice was said to be untrue in that while the worker was removing one of the grates it gave way and caused him to fall to the bottom of the shaft and thereby suffer serious injuries. Damages were claimed by the worker against the employer for a breach of s 52 as the misrepresentation was misleading or deceptive. The action failed, with the High Court holding (at 604-605) that the conduct of the employer’s foreman consisted of “an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building…not…conduct ‘in trade or commerce’.”

55 Their Honours reasoned the issue in this way by reference to the language of s 52 (at 602-604):

“The phrase ‘in trade or commerce’ in s 52 has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct ‘in trade or commerce’ can be construed as encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business… Alternatively, the reference to conduct ‘in trade or commerce’ in s 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed… the words ‘in trade or commerce’ refer to ‘the central conception’ of trade or commerce and not to the ‘immense field of activities’ in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.

… when the section is read in the context provided by other features of the Act… the narrower (ie the second) of the alternative constructions of the requirement ‘in trade or commerce’ is the preferable one…. it is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business. Put differently, the section was not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities.”

56 Attending the directly to what s 52 covered, their Honours said (at 604):

“What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential customers, be they identified persons or merely an unidentifiable section of the public."

57 What s 52 was thus so concerned with was illustrated by their Honours by reference to the driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract as no doubt being trade or commerce. The distinction was then made as follows (at 604):

“…to drive a truck with a competitor's name upon it in order to mislead the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct 'in trade or commerce' for the purposes of s 52. On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct 'in trade or commerce' for the purposes of that section. That being so, the giving of a misleading hand signal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation 'in trade or commerce'. Nor, without more, is a misleading statement by one of a building company's own employees to another employee in the course of their ordinary activities.”

58 However, their Honours relevantly concluded (at 604):

“The position might well be different if the misleading statement was made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee.”

59 The case of McCormick, relied upon by Mr de Meyrick, seems to me to have followed that conclusion in Concrete Constructions. There, Weinberg J made a finding of misleading and deceptive conduct contrary to s 52 where a manager at a meeting made statements, or otherwise remained silent, about the redundancy entitlements of an employee who declined an offer of employment with the new employer on the sale of a business but was not paid any redundancy pay. His Honour, notwithstanding that the misleading statement was made, or not made, by one employee to another as an internal communication, reasoned coverage by s 52 because the circumstances surrounding the sale of the business, and in particular which of the employees would be engaged by the new employer, were matters closely related to and in the course of a trading or commercial dealing. In that respect, Weinberg J expressly distinguished the decisions of Heerey J in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170 and Martin v Tasmania Development and Resources [1999] FCA 593; (1999) 89 IR 98; (1999) 163 ALR 79, relied on here by Ms Painter, in which his Honour found the conduct not to be in trade or commerce because there were no trade or commercial dealings between the parties. In Mulcahy, employment terminated as a result of retirement or retrenchment and the wrongful conduct concerned the loss of the opportunity to obtain retirement benefits due to misleading statements to the employees concerned about their status. In Martin, a termination of employment occurred on the basis of alleged “operational requirements” which were said to be false and so misleading and deceptive.

60 In Barto v GPR Management Services Pty Ltd (1991) 33 FCR 389, Wilcox J refused to strike-out an application under s 52 by finding that conduct of a corporate employer in the course of negotiations with an employee as to the employment contract was capable of falling within the section. His Honour, in finding that the circumstances were between the two alternative positions referred to in Concrete Constructions, applied the qualification in that case to hold (at 394) that “the only question is whether the conduct is part of the corporation’s total activities in trade or commerce... and it includes activities by virtue of which the corporation equips itself to earn income.” However, in Martin (at [77]) Heerey J expressly disagreed with Wilcox J in Barto, specifically that the conduct was within the wider construction of “in trade or commerce” and so unavailable under s 52.

61 In the present case, it may be undoubted from the context in which the alleged misrepresentation arose that BHP Billiton owned an iron ore mine and engaged the Joint Venture to manage the mining project, including the upgrade of equipment at the site. As part of its commercial responsibilities in that respect, BHP Billiton/the Joint Venture engaged the defendant as an electrical contractor to perform the upgrade of mining plant and equipment. The mine was located at a remote site in Western Australia, 150 kilometres from Newman, and there was a requirement for contractors’ employees, such as those of the defendant, to reside in accommodation at Packsaddle Village which was about 5 kilometres from the mine. ESS Support Services under contract to the Joint Venture supplied the workforce staying at the village with the actual facilities and amenities. It is plain, in my view, that the respective relationships between the corporations concerned were of a commercial venture.

62 As to the selection of employees to work at the mine, and thus to be accommodated at the village, a screening and vetting system by ERMS on behalf of BHP Billiton was used. The Joint venture had the discretionary right to direct contractors, such as the defendant, as to the amount of labour to undertake the works and it retained the right to require any particular employee to be removed from or replaced at the site. Successful applicants, such as the plaintiff, were required to accept terms and conditions of employment in a standard form which were laid down as part of the process by which the defendant tendered for the work to BHP Billiton/the Joint Venture. Those employment arrangements included a camp code of conduct as to residence at Packsaddle Village the breach of which may result in the withdrawal of accommodation in the village. The significance of the code of conduct was explained by Mr Thomas of the Joint Venture as ensuring “a place that enables [the workforce] to rest and recuperate in order to return fit for work the next day.” Mr Thomas added as to the importance of behaviour in observing the code of conduct that the village facilities were “an integral and critical part of the mining operation at Area C …behaviour of any person who puts this facility and its occupants at risk shall not be tolerated and will be immediately removed from site.” In my view, the camp code of conduct, in its terms and in ensuring compliance by employees, was within the commercial responsibilities of the Joint Venture to BHP Billiton.

63 Due to the apparent misbehaviour in the village in the area of the sea containers during the evening of 9/10 June 2007, Mr Thomas required the defendant [through Mr Strong] to “identify the people you saw at the fire” and those involved were to be removed from the site. Mr Strong identified the plaintiff who subsequently had his accommodation withdrawn and employment terminated. I should interpose that, arguably, it may be said mere presence at the bonfire rather than actual participation in the misconduct did not justify the withdrawal of accommodation and consequent termination of employment – indeed, it seemed the defendant, as Mr Strong said, considered the plaintiff’s role did not warrant employment termination but as no positions were available elsewhere there was no alternative – but Mr Thomas regarded “congregation around such fires” as sufficient. It is of no present relevance whether the treatment of the plaintiff was in some way thereby unfair as that, if at all, was only appropriate for consideration in the since discontinued AIRC proceedings.

64 The essential question here for determination is whether the identification by the defendant (through Mr Strong) to the Joint Venture (through Mr Thomas) of the plaintiff being present at the bonfire for the purpose of being dealt with for a breach of the code of conduct by the Joint Venture was itself, as Concrete Constructions requires, of a trading or commercial character.

65 It is very often in deciding an issue that reference to earlier cases eventually reaches a point of little utility because each case turns on its own particular facts with varying degrees of emphasis on the circumstances. What matters, it seems to me, is the proper application of principle to the case at hand although, of course, the reasoning in other cases is of assistance. Thus, it is the approach in Concrete Constructions that attention is to be directed. The cases of Mulcahy and Martin are in apparent conflict with the reasoning in Barto even though all of them referred to and applied Concrete Constructions. For myself, and with respect, I have found in deciding the present issue the decision in McCormick to be instructive.

66 It was held by Weinberg J in McCormick, as earlier outlined, that the circumstances surrounding the sale of a business and the question of which employees would be taken on by the new employer were in the course of trading or commercial dealing as being matters closely related. Therefore, his Honour found, it followed that any misleading statements in connection with the employment was conduct amenable to s 52. Weinberg J reasoned in this way (at 695-696):

“[28] The conduct of which the applicant presently complains took place in circumstances very different from the ‘internal communications’ which were in issue in Concrete Constructions . The conduct occurred in the context of a commercial transaction — the sale of a business to a purchaser with a right to a ‘second option’ on recruitment of [the seller’s] employees, and with an obligation to afford any such transferring employees no less favourable terms and conditions than they had previously enjoyed. …

…

[30] The conduct of [officers of the seller] which is complained of by the applicant is within the class of negotiations concerning terms and conditions of employment recognised as being ‘in trade or commerce’ in Barto . The fact that this conduct occurred during discussions concerning the termination of the applicant's employment with [the selling employer], whether by transfer to [the purchasing employer] or by outright termination, and if the latter, on what terms, suggests that consistently with Concrete Constructions , it is, relevantly, conduct amenable to s 52 of the Trade Practices Act. The contrast between this conduct and that found by Heerey J in Martin and Mulcahy not to be ‘in trade or commerce’ is, in reality, quite striking.”

67 An important point, I think, in viewing the decision in McCormick is that the alleged misleading conduct occurred in the course of a commercial transaction and during the discussions concerning the termination of employment in giving effect to the completed sale of the business, that sale being what gave effect to the commercial character of what occurred. In the instant case, however, the commercial dealings as to the accommodation arrangements were settled as between the Joint Venture and the defendant on the defendant successfully tendering for the project in or about mid-2006. In other words, at the time the alleged misrepresentation was made on 10 June 2007 it was in relation to the operation of the dealings so settled and, at most, in accordance with the defendant’s contractual obligations to supply workers for the mine who were required to comply with the camp code of conduct in their accommodation in Packsaddle Village. That factual position, in my view, puts the present circumstances more towards the reasoning in Mulcahy and Martin which were concerned also with settled commercial dealings and entitlements under those dealings. As the High Court observed in Concrete Constructions (at 603-604) in adopting the alternative and narrow view of amenable conduct under s 52:

“… the reference to conduct ‘in trade or commerce’ in s 52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial nature …

… it is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business …”

68 It cannot be said, I do not think, that the plaintiff’s position is saved by the apparent qualification suggested in Concrete Constructions (at 604) that s 52 might well be attracted if the misrepresentation was made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee. No such dealing as between the defendant and the plaintiff was ever suggested and I see none on the evidence.

69 It is true, as Mr Thomas said, that the village facilities were an integral and critical part of the mining operation. But that cannot, in the view I take, make the identification of the plaintiff as being at the bonfire conduct in itself of a trading or commercial character. If that were not so then, in a conceptual sense, identification of an employee sabotaging an industrial installation would be conduct of a commercial nature. That cannot be correct.

70 In the result, I conclude that the representation by the defendant as to the identification of the plaintiff at the bonfire was not itself of a trading or commercial character. Therefore, s 52 of the Trade Practices Act is not engaged and the plaintiff’s claim must fail.

Silence as misleading or deceptive conduct

71 Like a positive representation, a representation by silence needs to exist in trade or commerce. In view of the finding made already, any conduct by silence that the plaintiff was involved in the misbehaviour, by a failure to state otherwise, must fail also.

72 In any event, I am not satisfied that here any silence by the defendant as to the plaintiff not being a participant in the misbehaviour was within the scope of s 52. Although it may be said there is no general duty of disclosure, the question is simply whether in all the relevant circumstances there has been conduct which is misleading or deceptive or likely to be so: General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164 and Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31. On the facts, Mr Strong only saw the plaintiff at the bonfire and then had no knowledge of the extent of the misbehaviour which later emerged. He advised Mr Thomas what he saw in response to a question to identify the persons present at the fire. I do not consider it makes sense to say Mr Thomas was misled or deceived by not being told what Mr Strong did not know and was not asked. Thus, s 52 is not attracted.

Whether representation was true

73 Of course, if a representation be true it is incapable of being conduct which offends s 52 by being misleading or deceptive. In view of the finding that the subject representation was not made in trade or commerce it is strictly unnecessary to deal with this issue but, as it was fully argued and for completeness, I will do so as shortly as possible.

74 The evidence on this issue was in sharp conflict. The plaintiff said he remained in his donger from about 9:00pm on the evening of Saturday 9 June 2007 watching rugby on television and sleeping until 9:00am the following morning; he was not at the bonfire in the sea containers area. Mr Strong said he was absolutely certain he saw the plaintiff at about 12:45am on Sunday 10 June 2007 walking away from the bonfire; Mr Strong knew the plaintiff from attendance at the toolbox meetings where the plaintiff was a vocal participant. The respective versions cannot stand together. It is true that Mr Katsouranis, who admitted being at the bonfire, said he did not see the plaintiff at that location. However, Mr Katsouranis, as I have earlier reasoned, left the bonfire at about 12:20am to return to his donger before Mr Strong arrived at about 12:30am and saw the plaintiff at 12:45am.

75 Mr de Meyrick submitted that the plaintiffs’ evidence would be accepted over that of Mr Strong. As counsel emphasised, Mr Strong deposed in his affidavit sworn on 19 November 2009 that he was with the security guards about 50 to 100 metres from the fire and alone walked to the fire where he stayed for about 20 minutes speaking to the groups of men congregated there to get them to disperse. He then returned to the security guards but, on noticing some of the men staying put and throwing rocks, he started to walk back towards the fire and while 10 metres away from it saw the plaintiff within one to two metres walking away. Mr Strong said the plaintiff’s face was illuminated by the glare of the fire. Counsel contrasted that version with what Mr Strong said in an email to Mr Yates sent on 27 July 2007, which was a far more contemporaneous record, to the effect that the security guards were 50 metres away from the groups of men and, after speaking to the men, he said “I returned to Security and informed them that everybody would be gone in 10 minutes it was at this time that Michel (the plaintiff) walked past me.” Mr de Meyrick maintained that the affidavit contradicted in an important respect what was stated in the email, that is, he saw the plaintiff when he was standing with the security guards 50 metres from the fire rather than within 10 metres from the fire as he was approaching the fire. The evidence of Mr Katsouranis was relied upon also.

76 For myself, I have to say I found no relevant inconsistency in what Mr Strong said in the email and in his affidavit.. It would be surprising that the recounting of events would be identical in terms; indeed, one may be suspicious if it were. The essential thrust of Mr Strong’s evidence was clear and consistent – he saw the plaintiff walk past him from the bonfire. The grammatical construction of what the email recorded as to that seemingly being at a time when Mr Strong was with the security guards 50 metres from the fire rather than within 10 metres as he was walking back to it seems to me to place too much reliance on fine detail.

77 Ms Painter, in supporting acceptance of Mr Strong’s evidence, went so far as to submit that the evidence led for the defendant showed the plaintiff to be a “practised liar;” certainly, added counsel, caution would be used in approaching his evidence where he was shown to be “careless with the truth”. I think Ms Painter’s description of the plaintiff and what he had to say was somewhat extreme and I would not adopt counsel’s description. Even so, I think an overall view of the evidence shows due caution to be appropriate to his evidence to the point where I would prefer the evidence of Mr Strong. It follows that the plaintiff has not established, as he must, that on the probabilities he was not present at the bonfire.

78 The plaintiff was single-mindedly intent on maintaining his non-attendance at the bonfire but in doing so was forced to deny later conversations with Mr Strong and Mr Willeboordse in which they said he admitted being at the fire earlier in the night but left after the fight before Mr Strong went there. I have to say I found both Mr Strong and Mr Willeboordse to be most satisfactory witnesses whose evidence, given in an objective and dispassionate way, I accept.

79 The disquiet I have formed about the plaintiff’s evidence was heightened as to what he said were the circumstances of his leaving the defendant’s Dampier project in February 2008 on it coming to an end as a result of which he was unemployed for two months and incurred a loss in relation to airfares between Perth and Sydney . That evidence was, as I have earlier indicated, dissembling and was directly contradicted by the evidence of Mr Thatcher and Mr Marsh who said the project in fact continued until September 2008. Also, the Certified Agreement was objective evidence the plaintiff had no entitlement for the airfares to his residence in Sydney. His explanation of misunderstanding and of a belief the project had ended was disingenuous. Importantly, it showed a preparedness by the plaintiff to state facts in a manner to best suit his case.

80 I find that the plaintiff was present at the bonfire in the sea containers area of Packsaddle Village in the early morning hours of Sunday 10 June 2007. The representation by the defendant through Mr Strong to that effect was true so that there was no conduct which misled or deceived Mr Thomas of the Joint Venture.

Damages

81 Even though the defendant has been found to have no liability to the plaintiff, it is appropriate to deal with damages which would arise if liability had been made out.

82 The plaintiff’s damages claim under s 82 of the Trade Practices Act as formulated by Mr de Meyrick was based on the approach of the Full Court of the Federal Court in O’Neill v Medical Benefits Fund of Australia Ltd [2002] FCAFC 188; (2002) 122 FCR 455. There, the Full Court considered, where the applicant had been caused by misleading conduct to leave secure employment for a position which proved to be not secure, damages could be assessed in this way (at [29]):

“One way that loss could be quantified would be to ascertain the difference [if any] between the salary he would have been earning in employment with [the former employer] and the income he then received in the position with [the new employer] and in the employment he entered or might enter after being made redundant by [the new employer]. The damages would be the difference over the period it was likely [the employee] would have stayed in employment with [the former employer].”

83 It is well settled that to recover damages under s 82 it must be shown that loss or damage was suffered “by” conduct in breach of the statute, such as breach of s 52: see Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 per Mason CJ at 525. It is settled also that an entitlement to recover loss or damage is not confined to the person who relied on the representation in contravention of s 52 (here the Joint Venture) but extends to a person (here said to be the plaintiff) who suffers a loss caused by conduct of another person (here the defendant) making the misleading or deceptive representation: see Janssen-Cilag v Pfizer.

84 Ms Painter resisted the damages claim on the basis that causation of the loss so formulated by Mr de Meyrick was remote in that it depended upon the consequence of the termination of the plaintiff’s employment rather than, on the facts, the withdrawal of accommodation on the site from reliance on the representation. I disagree. By reference to March v E & MH Stramare Pty Ltd(1991) 171 CLR 506 at 524 the question whether conduct is a “cause” of injury is to be determined by a value judgment involving ordinary notions of language and common sense. According to the defendant’s evidence, such as that in its letter of employment termination to the plaintiff, once accommodation rights had been withdrawn it had no option other than to terminate his services. Thus, my view is that there was a direct and immediate cause, neither remote nor indirect, of a loss in employment remuneration on site access ceasing after the representation was made.

85 The mathematics of the plaintiff’s claim for damages were not put in issue, only the various components comprised in it. It is necessary to deal with each in turn.

86 The plaintiff’s evidence, not really answered in the defendant’s evidence or challenged in cross-examination, was to the effect that he would have continued in the defendant’s employment at Mining Area C for the duration of the project to 2 April 2008 were it not for his site access having been withdrawn. The evidence also showed the termination occurred on 9 June 2007, with the payment following the AIRC proceedings of one week’s wages ($1,215.54) in lieu of notice according to the Certified Agreement. However, for operational reasons, the defendant reduced its manning levels on the project on 18 June 2007 when it terminated 24 employees (it would have been 30 employees were it not for the six employees dismissed as a result of the incidents of misbehaviour on 9 and 10 June 2007), but there was no direct evidence whether the plaintiff would have been so included in that employment reduction. Over the period of the plaintiff’s employment at the project of nearly five weeks from 9 May 2007 to 9 June 2007 his average weekly gross earnings were $3,090.60. He was unemployed until 25 July 2007 when employment was obtained with Macaya Electrical until 9 September 2007 with gross earnings of $12,713.00. Employment was then obtained with the defendant at Dampier from 10 September 2007 until 8 February 2008 when he resigned with gross earnings in the period being $48,912.00. On 3 April 2008, about the time the Mining Area C project ended, the plaintiff obtained employment at Newman with Kamrac until 4 May 2008 with gross earnings in the period of $17,765.00. From 26 May 2008 for two weeks he earned $1,755.00 and from August to October 2008 (about when the Dampier project ended) he earned approximately $20,000.

87 The plaintiff’s claim according to the basis on which Mr de Meyrick calculated it using the gross weekly earnings figures resulted in a claim for wages loss of $103,625.20 up to 31 July 2008, alternatively $68,180.20 up to 2 April 2008 and $45,309.76 up to 8 February 2008.

88 Ms Painter took the point that under the Certified Agreement the defendant could terminate the plaintiff’s employment at any time without cause on the payment of one week’s wages in lieu of notice. It had effectively done that so no loss accrued to the plaintiff and no damages should be awarded. In any case, counsel submitted that any damages should be calculated on the ordinary base rate of pay at Mining Area C, $1,215.54 per week but not including penalty rates, overtime and allowances because the circumstances warranting them did not arise on the termination of employment. Further, counsel put that any damages should be calculated to only 18 June 2007 when the 24 retrenchments occurred; as the plaintiff had effectively been paid to that date with the one week’s wages in lieu of notice from 9 June 2007 to 16 June 2007 then no further amount should be allowed. At the most, Ms Painter said, damages should not be allowed beyond 8 February 2008 when the plaintiff resigned from the Dampier project.

89 Applying the approach in O’Neill, I consider the proper course in assessing quantum is to allow the difference between the total wages the plaintiff would have been earning at Mining Area C and the income received in employment after he was terminated on 8 June 2007 less the one week’s wages in lieu of notice received later from the AIRC proceedings. The question arises, however, to what date should the period of loss be calculated.

90 On balance, I consider the relevant period to be from 9 June 2007 to 8 February 2008 as being directly related to the events at Mining Area C and the loss of the plaintiff’s employment. There was no real evidence the plaintiff would have been retrenched from that project on 18 June 2007 and, importantly, the selection of employees for termination was based on skill and merit – Mr Strong’s assessment of the plaintiff in those respects was “average’ so that of the approximate 130 employees of the defendant on site the plaintiff would unlikely be in the lower thirty of them. Even so, I do not consider loss could be calculated beyond 8 February 2008 because it was on that date he resigned from the defendant’s employment at Dampier and so, in my view, broke the causal chain of loss. There was some evidence he then went on a holiday to New Zealand and then from 3 April 2008, when the Mining Area C project ended, obtained employment with Kamrac at the Fortesque Mine near Newman.

91 Therefore, I would allow damages referable to the wages loss as $45,309.76 less $1,215.54 in the net amount of $44,094.22.

92 Mr de Meyrick did not pursue the original claims as to airfares between Sydney and Perth in the sum of $1,894.36 or $148.00 for accommodation in Perth over four nights. He accepted such costs were not related to the plaintiff’s loss. A claim of $50,000.00 for future economic loss as a result of damage the defendant allegedly did to the plaintiff’s reputation in the mining industry in Western Australia was not pressed. I need only add that I think Mr de Meyrick’s approach in those respects was quite proper and consistent with the evidence, or lack thereof, in the case.

Conclusion

93 I conclude that the plaintiff, in the early morning hours about 12:45am on Sunday 10 June 2007, was present at the bonfire in the sea containers area of Packsaddle Village. The representation by the defendant to the Joint Venture to that effect was not in trade or commerce and so was not within the scope of s 52 of the Trade Practices Act. In any event, as the representation was true it could not have been conduct which misled or deceived the Joint Venture and so was not a breach of the section. If those findings not be correct and the defendant be shown otherwise liable to the plaintiff then the plaintiff has suffered loss or damage pursuant to s 82 of the statute by way of wages loss for the period from 9 June 2007 to 8 February 2008 in the amount of $44,094.22.

94 Interest was sought from a point halfway through the eligible period of loss to the date of judgment. Interest was not resisted and I see no reason not to allow it. Although s 82 does not provide for interest, it is open to award it pursuant to s 100 of the Civil Procedure Act 2005 at rates under Sch 5 to the Uniform Civil Procedure Rules 2005. I would have done so but only from the date of filing the statement of claim on 17 December 2008 as before that date the defendant may reasonably have assumed any claim by the plaintiff was resolved with his discontinuance of the AIRC proceedings on 4 September 2007.

Order

95 The defendant is entitled to a verdict against the plaintiff. The parties wished to address on costs and I will hear them before final orders are made.

COUNSEL ADDRESSED ON COSTS

96 In the determination of this matter I make the following order –

(1) Verdicit and judgment for defendant against the plaintiff.

(2) Plaintiff to pay the defendant's costs of the action on the ordinary basis in an amount as agreed or assessed.