Pettet v Readiskill LMT & Anor

[2002] HCATrans 537

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M121 of 2001

B e t w e e n -

IAN EDWARD PETTET

Applicant

and

READISKILL LMT MILDURA THE SUBSIDIARY OF READISKILL PTY LTD

First Respondent

THE MAGISTRATES COURT OF VICTORIA CONSTITUTED BY MAGISTRATE M.F. MALONEY SITTING AT GEELONG

Second Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2002, AT 3.28 PM

Copyright in the High Court of Australia

MR I.E. PETTET appeared in person.

McHUGH J:   Before you commence your argument, I have two certificates.  The Deputy Registrar has certified that she has been informed by the Victorian Government Solicitor, solicitors for the Magistrates Court of Victoria, the second respondent, that the second respondent will submit to any order of the Court save as to costs.  The Deputy Registrar has also certified that she has been informed by Mr David Messenger, the solicitor for the first respondent in the matter, that the first respondent will submit to any order of the Court save as to costs. 

Yes, Mr Pettet, you proceed.

MR PETTET:   Yes, thank you, your Honours.  On the question of public interest that I would submit that there has been a conflict between what was determined in Adami, which I think it might be rightly referred to as obiter by the then Acting Chief Justice Isaacs, as regards the rigid proposition advanced that no matter what question was asked, the only answer is yes, which meant that the then Acting Chief Justice used – the term was the abandonment of “arbitrary unreasonableness” because he rejected the proposition that any employer was to say, “Do any task”, you simply have no alternative but to say yes.

I would string together a link between that obiter, as I might refer to it, to the first decision of the Magistrate’s Court, where in his decisions at page 14 in the application book at line 272 he includes the reference which is again the critical aspect of clause 5 of my contract, whereby it states, from memory, that you will be required to perform all duties and functions as directed by the client.  So there is this critical word “all” as a term of absolutism and which has then – I am saying the link is that the Magistrate at first instance has sheeted home his decisions based on this clause 5.

It was further referred to by her Honour Justice Balmford, which is at point 2 of her decision, which is application book page 24 line 231.  So, again, the links come back in, there is this thread coming together.  There was a second decision of the Magistrate which is referred to at the application book here at page 30 at lines 32 and 35.  Again, we stepped up to the practice court and went before his Honour Justice Beach, where again he has brought the link in place in serial form at point 21 of his decision, which is the application book here at page 56, commencing at line 21.

Again, we are going up to the Court of Appeal through the leading judgment of Justice Ormiston, where, again, at page 66 of the application book here, commencing at line 156, he referred to the use of the clause 5 again, whereby saying under a common law contract it is effectively, whatever you have written, you have agreed to that, and that simply the common law will say, “We will enforce your wish as your private contract”.  Where I say, being a common law contract, it is inherently invested with other common law that is found appropriate and applicable.

So I am saying that runs in conflict with what the Acting Chief Justice Isaacs found.  He could not accept that proposition as part of the common law of Australia.

McHUGH J:   But the parties to a contract can regulate their common law rights.  It is done every day.  You go down to a drycleaner and they give you a ticket and there are terms and conditions on it.  They may well take away your ordinary common law rights.  But all that is said here is that there was a direction that, “You had to perform all duties and functions as directed by our client”, and that was interpreted to mean that they had to be both lawful and reasonable and that was a question of fact.  It hardly seems a case for special leave by this Court, Mr Pettet.

MR PETTET:   I do – I am listening and that further I would speak that in the case of Thomas, which was from 1935, of a South Australian Court of Appeal, the then Chief Justice referred to requests made by employers to employees may well be impaired if the question asked of is not related to their trade qualification and skills, and directly following his comments in his leading judgment they did find that, in the case of Thomas, the apprentice toolmaker, that he was asked to clean the spray booth and that was found upon – in litigation with the court process that it was not a lawful request, because the question did not relate to the trade qualification and skills of the employee.  I am saying here, my connection that I am drawing, is that here the question put was I should use a time clock.

McHUGH J:   Yes, well that is the question, is it not?  The question was, within the terms of the contract, was it a lawful and reasonable direction that you should clock off in accordance with the time clock.  Now, why would that be unlawful?

MR PETTET:   Unlawful in this respect, that I would advance, that it did not relate to my qualifications and trade skills.  My basis in support of that comment is ODCO, which is the unreported case, going back to 1989, where it was discussed that the – the question of control that the unions sought to put to the court, that certain activities were regarded as controlling activities by the client builders of the trouble‑shooters’ company and the then, I believe, it is Justice Woodward, determined that they do not simply go to the question of lawful control; it was just simply an administrative arrangement, which again I am equating the so-called request to do a time‑clocking function was simply an administrative arrangement which, by our contract, for me to be paid the contract said I am to fill out a time book sheet.  Nowhere in my contract or the contract for services of Readiskill and their client mentions time clocking.  It falls silent.  It is not on the menu.

McHUGH J:   Well, naturally.  That is the whole purpose of a provision such as clause 5, that you can be given directions about matters that are not covered in your contract, so long as they can be related in some way to it, that they are incidental to the execution of the contract.  For example, telling you what time you have to start or what time you can have a meal break.

MR PETTET:   No, that was already done before this so-called request.

McHUGH J:   Well, it may have been, but it is not in the contract.  The contract itself – the terms of the contract do not specify the times of your meal break or when you start or the nature of the work that you were supposed to do.

MR PETTET:    Yes.  I would refer to Drake Personnel, which is in the table of authorities, again it was a Court of Appeal decision, Victorian Supreme Court, where there was reference by Justice Ormiston regarding the decision, the accountability of the client of a labour hire arrangement, the third party end user, he has accepted and clearly, on the last page of that reference – if you just go back to point 5 and at the very bottom of page 4 of the case cited, there is a sentence that begins:

The problem in the present case is that the clients did not engage them directly, nor did they pay them or have true right of control.

So I am saying with the third party end user, in a very technical sense, had no right of control, therefore, in another technical sense that may not well be accepted very readily, that they could not issue that instruction.  They could issue to me, which they did all along, and up to the point of conference on the day of dismissal I was working at my trade doing wiring work.  So they were entitled at all times, and it is thoroughly agreed, that they could issue me directions to do with my work qualifications and skills.

I know it falls as a moot point that why am I even standing here talking about a simple time clock non-usage – for me, I lost my livelihood on that job.  I entered the contract for a guaranteed six‑month period, which was through the case of Browne v Commissioner of Railways, again a 1935 case of the New South Wales Supreme Court, that where there is a private contract between parties for a fixed term, it simply cannot be brought to an end unless there was legal justification.  So obviously that is the big qualification, the discretion to find where there was a legal justification in terminating my fixed-term contract.

I say there was no legal justification, even on the paltry excuse of me having been asked to use a time clock and in the letter that I received that said – it is a letter that is not in the application book – it then says to me, well, like the client’s employees, you should use their time clock, and to me I never – and at law I am not regarded as an employee of them, the third party end user.  There, I say, my point of contention is that it was not a consensual variation, an attempt of consensual variation, to my contract, that says from that letter, “If you do not agree with this, we must look to your employment.”

McHUGH J:   Well, the point that was put against you was that by your actions you showed – you evinced an intention not to carry out the terms of the contract, that you were not going to perform the duties and functions as directed by your employer’s client and, if that was so, that would be a justification.  One breach of the duty may not have been sufficient, but it appears that the courts found that you made it plain you just were not going to do this.

MR PETTET:   And simply me, by my standing on what I would consider admittedly, at the time, was my principle of objection, that says I am simply not an employer of this company and I have actually engaged in contract labour hire for over 10 years and in that time there was never ever a question that I should be required to use a time clock.  I know that stands aside, and then we say now we have this very specific question and that is what we are here today for, because we are arguing about that very specific question, that in that 10 year time one person put that question to me and I am out on my ear, loss of job.  I do not see that that is, in itself, justification and then we go to talk and reference on the question of repudiation, where through Adami, the then Acting Chief Justice Isaacs has said look to the question of repudiation and what did it do to the business activity of that employer in that instant case.  Yes, they found in favour of the employer, because it did seriously interrupt the business activity of that dance hall company.

McHUGH J:   Yes, but here, you see, what is put against you is that your refusal to punch the time clock meant that Angus Park could not verify and confirm the times set out on the timesheets.

MR PETTET:   Yes, I take your reply on board and I say to that, that Angus Park, through the common law, cannot have that protection offered to it, because, for me, we do not have a contract, there is no consideration passing between the parties.

McHUGH J:   Well, that is true.

MR PETTET:   I know these are very fine moot technical points but ‑ ‑ ‑

McHUGH J:   No, there is nothing technical about that.  They had no power over you.  You were not their employee.  You had no relationship with them.  So they had no power over you, but your employer did and your employer had extracted a term from you that you would obey whatever directions Angus Park gave you, and that is the problem.

MR PETTET:   Yes, and I see that the employer has not a power of delegation from them that they are in a contract for services.  We are at arm’s length to each other, that is Readiskill, the employer, and their client.  Then there is privity.  I do not know what their contracts are all about.  It has only been discovered through the litigation process.  But I am saying that here Readiskill, as the employer, has no common law power to delegate any kind of authority other than through common law acceptance through Justice Woodward, that is saying they do not have a power of control to direct, it means – and that is what he found at point ‑ ‑ ‑

McHUGH J:   But they get a contractual power which the common law supports and the contractual power they get is the power that was contained in that relevant clause.

MR PETTET:   Yes, but with the common law that has been modified and looked at through the ODCO Case, the 1979 case, that says that they have a mere ability to allocate tasks, but then jumping back up to my employer, simply, again, linking back to Thomas, from 1935, the South Australian Supreme Court case, they are saying if the question that was asked did not relate to the person’s trade qualification and skill, then it is a mere pretext that they are saying, in their Chief Justice’s address in his final determination – that says mere pretext should not be given consideration by courts of law.

I am equating this very simple request as being a mere pretext, because it interrupted in no one’s business activity.  I was paid up to the time of our conference that we had to try and so-call resolve this tête-à-tête over a time clock issue, that for me my contract said if the only way I needed to get paid at law, in the contract, is I must have a time book sheet signed.  It does not necessarily extend to, say, and all the other little things that we can think of along the way.  I have not been put on notice.  In the question of – if I may refer the Court to, very briefly – I believe it is your Honour Justice McHugh ‑ ‑ ‑

McHUGH J:   Yes.

MR PETTET:   ‑ ‑ ‑and I have reprinted an extract of transcripts from Jones v Bartlett No P59 of 1999 and simply your Honour has said, which is at line, I think it is 60.  It says:

But the common law has always set its face against affirmative duties unless there is a duty to take affirmative action or one is put on notice requiring one to take steps, and the reason for it, I think, is that the common law has always been concerned to protect the autonomy of the individual and will, therefore, not impose affirmative duty, generally.

I am saying from the time when that contract was signed, on the very day that I started – it was signed in Mildura – I drove down to Robinvale.  It is my mind that if I want to get paid, I must use their time book that they gave me, their procedure, their practice, and they are saying as well, “Give us a time book sheet”.  Nothing to do with time clocks.

McHUGH J:   Thank you, Mr Pettet.  Your 20 minutes is up.  Thank you very much.

In our view there is no reason to doubt the correctness of the judgment of the Court of Appeal.  Accordingly, the application must be dismissed.

Adjourn the Court.

AT 3.50 PM THE MATTER WAS CONCLUDED