SUESSENBACH v The Mining and Resources Contractors Safety Training Association Inc - [2000] WASCA 313

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: SUESSENBACH -v- THE MINING AND RESOURCES CONTRACTORS SAFETY TRAINING ASSOCIATION INC [2000] WASCA 313

CORAM: MALCOLM CJ
IPP J
WALLWORK J

HEARD: 21 SEPTEMBER 2000

DELIVERED : 25 OCTOBER 2000

FILE NO/S: FUL 183 of 1999

BETWEEN: HEINZ SUESSENBACH
Appellant
AND
THE MINING AND RESOURCES CONTRACTORS SAFETY TRAINING ASSOCIATION INC
Respondent

Catchwords:

Contracts - Offer and acceptance - Contract to renew licence - Whether a letter offering to renew a licence was an invitation to treat or a contract - Whether implied term that standards governing issue of fresh licence would be reasonable - Whether implied term that licensor would act reasonably in determining whether fresh licence would be issued - Source of duty to act reasonably - Whether licensor acted reasonably - Turns on own facts

Legislation:

Vocational Education and Training Act 1996, cl 2(1)(b) Sch 4

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: Mr J C Hammond
Respondent: Mr P T Arns

Solicitors:

Appellant: Hammond Worthington
Respondent: Arns & Associates

Case(s) referred to in judgment(s):

Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195
Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1

Case(s) also cited:

Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Australian Woollen Mills Pty Ltd v Commonwealth (1955) 93 CLR 546
Australian Woollen Mills v The Commonwealth (1954) 92 CLR 424
Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Carlill v Carbolic Smokeball Co [1892] 22 QB 484
Commonwealth Bank of Australia v TLI Management Pty Ltd [1990] VR 510
Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [1993] 31 NSWLR 91
Pratt Contractors Ltd v Palmerston North City Council [1955] 1 NZLR 469
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86

MALCOLM CJ: In my opinion this appeal should be dismissed for the reasons to be published by Ipp J with which I agree. In particular, I agree with his Honour's criticisms of the pleadings in the statement of claim. I also wish to associate myself with his Honour's criticism of the pleading that the letter dated 6 January 1998 constituted a repudiation of the pleaded 1996 agreement. Assuming that the pleadings did fully plead that the letter dated 6 January 1998 constituted a repudiation of the 1996 agreement, it is patently clear that for the appellant to succeed he had to establish that he had satisfied the respondent's reasonable re‑registration requirements. In this context, the central issue was whether the requirements imposed by Dr Ioannakis regarding the daily training plan were reasonable and, if so, the appellant had complied with them. In my view, the reasons to be published by Ipp J clearly demonstrate that the requirements of Dr Ioannakis concerning the daily training programme were reasonable and that the appellant had failed to satisfy them. In particular, neither in the pleadings nor in the submissions on behalf of the appellant were the specific requirements or aspects of such requirements which were said to be unreasonable pleaded by the appellant. Furthermore, they were not clearly identified in the submissions made on his behalf.
In the result, the appellant was notified by the respondent by letter dated 6 January 1998 that his licence had expired.
Ipp J has set out very clearly the reasons for his conclusion that the requirements of Dr Ioannakis with respect to the daily training programme were reasonable and that the appellant had chosen not to comply with them. In my view, there was ample evidence to support the finding of the learned trial Judge that the appellant:
"… wrongly believed that the [respondent] was somehow discriminating against him."
There was no appeal against that finding.
Subsequently, by letters dated 9 December 1997 and 24 December 1997, the respondent twice extended the deadline for the appellant to provide the information requested by Dr Ioannakis. The final deadline fixed was 5.00 pm on 5 January 1998. In the absence of any response from the appellant, the respondent notified him by letter dated 6 January 1998 that his licence had lapsed by reason of his failure to supply the further information Dr Ioannakis had requested.

In these circumstances, the learned trial Judge found that the respondent did not act unfairly, unreasonably or capriciously. In my opinion, this finding was fully supported by the evidence and I agree with Ipp J that there is no substance whatever in the submission on behalf of the appellant that the respondent acted unfairly or unreasonably in dealing with the appellant's application.
IPP J:

The appellant's causes of action as pleaded

The respondent is a non‑profit incorporated association which licenses persons as mine safety trainers in the mining industry. In 1996 the respondent licensed the appellant as a mine safety trainer for a period terminating on 3 December 1997. In October 1997 the appellant applied to the respondent for a fresh licence with effect from the expiry of his existing licence. The respondent was not satisfied with the appellant's documentation that he submitted in support of his application. The appellant made two further attempts to satisfy the respondent by forwarding amended documents to the respondent. The respondent remained unsatisfied and eventually, by letter dated 9 December 1997, the respondent advised the appellant that he had been granted a further 30 days to provide the information requested by it. By letter dated 6 January 1998, the respondent advised the appellant that his licence had lapsed on 5 January 1998.
The appellant commenced proceedings in the District Court against the respondent claiming damages. The learned trial Judge dismissed the appellant's claim and this gives rise to the appeal.
The grounds of appeal are only three in number but they cannot be understood without explaining the main issues as they arose under the statement of claim, and I shall attempt to set those out. However, I have had considerable difficulty in determining the main issues. The statement of claim is lengthy and confusing. Many allegations are incorporated by reference in different paragraphs in ways which obscure the true nature of the case sought to be pleaded. Allegations are made which appear to lack appropriate connection or relevance to particular causes of action and at times particulars are given that appear to bear no relation to the material facts pleaded. All this hinders the detection of the different elements of the causes of action. Additionally, an important cause of action asserted is the "breach" of an offer (not a contract) and that gives rise to no claim

known at law. Nevertheless, I will do the best I can to set out in summary form the causes of action on which the appellant attempted to rely.

The appellant pleaded two principal sources for his claims. The first was an agreement allegedly entered into between himself and the respondent on 16 October 1996. The second was a letter dated 1 October 1997. I shall deal with each separately.

The causes of action based on the 1996 agreement

The grounds of appeal make no challenge to her Honour's findings in regard to the causes of action based on the 1996 agreement. I have nevertheless thought it necessary to analyse the pleading in regard to this agreement as the statement of claim incorporates many of the allegations made in connection with it when attempting to set up alternative causes of action based on the letter of 1 October 1997. Accordingly, the comments I make in connection with the causes of action based on the 1996 agreement have some bearing upon the causes of action based on the letter, with which I deal later. I shall refer only to those aspects of the pleaded case in regard to the 1996 agreement that so become relevant to this appeal.
In terms of the 1996 agreement the respondent agreed to register the appellant as an approved licence provider of the training course in mine safety. Marcsta is an acronym for the respondent. The appellant pleaded that in terms of the agreement he had the right to renew his registration annually by paying an annual registration fee of $500 to the respondent (it is to be noted that, on appeal, this term was not relied upon).
It was alleged in the statement of claim that the agreement was subject to two implied terms. Firstly, the appellant's right to renew his registration was subject to him complying with the respondent's reasonable "[r]e‑[r]egistration [r]equirements" that were notified to him "within a reasonable time prior to re‑registration". Secondly, the "[r]e‑[r]egistration [r]equirements" would be consistent for all persons seeking renewal of their licences. I pause to observe that the statement of claim did not allege that the latter implied term was breached; it was an allegation in the statement of claim that appeared to have no connection with any cause of action. On appeal, however, counsel for the appellant submitted that the respondent had treated the appellant differently to others, particularly to one Mr J Griffiths. I have not been able to understand how that submission arises from the pleadings. One thing, at least, is clear, it can have no connection with the 1996 agreement as, apart from the omission to allege a breach of the term to which the allegation relates, the grounds of appeal are not directed to any cause of action based on that agreement. I shall, nevertheless, at a later stage, deal with the merits of the submission.
The appellant went on to plead that the respondent committed a breach of the 1996 agreement by imposing, as a condition of being "re‑registered", the requirement that his application be to the satisfaction of one Dr Ioannakis (a consultant to the respondent) and by informing the appellant that to be re‑licensed he had to meet "anything asked" of him by Dr Ioannakis. This condition was described in the statement of claim as "the Further Condition". To explain how the appellant's claims are set out in the statement of claim, I am compelled to adopt the same egregious terminology. The appellant alleged that the Further Condition was unreasonable and hence constituted a breach of the implied term of the 1996 agreement that the respondent would impose only reasonable "re‑registration requirements".
The statement of claim then pleaded that by letter dated 6 January 1998 the respondent informed the appellant that it was terminating the appellant's licence on the ground that he had not satisfied another condition imposed by the respondent, described by the pleader as "the Condition". I interpose to point out that in fact the appellant's licence had expired by effluxion of time, and the letter of 6 January 1998 merely advised the appellant that this had occurred.
The Condition required the appellant to supply the respondent with certain "information as to the structure and content of the courses provided by him". The material requested included documents described as a "daily training plan" and an "assessment instrument". According to the statement of claim, it was "an implied term" of the Condition that the daily training plan and assessment instrument "would be of a reasonable standard". It is to be appreciated that the Condition was not said to be a contractual condition, but a condition unilaterally imposed on the appellant by the respondent with which he had to comply before he would receive a fresh licence.
According to the statement of claim, the letter of 6 January 1998 constituted a repudiation of the 1996 agreement as the appellant had in fact satisfied the Condition. The allegation of repudiation is difficult to comprehend. The letter of 6 January 1998 is alleged to have informed the appellant that the respondent was terminating the appellant's licence on the ground that the respondent had not satisfied the Condition (although, in fact, the letter merely informed the appellant that his licence had expired). Even if the letter was in the terms alleged by the appellant, the Condition was not a term of the 1996 agreement and, further, it related to the renewal of the licence. One may then ask: How does a wrong assertion by the respondent that the Condition was not satisfied amount to a repudiation of the 1996 agreement? And how does a refusal to renew the licence amount to a repudiation of an agreement to provide the initial licence? It may be that the conduct of the respondent relied on by the appellant could constitute a repudiation of the 1996 agreement, but other allegations would have to be pleaded to explain how a repudiation could so arise, and these were missing from the statement of claim.
For the appellant to succeed in regard to the pleaded breach of the 1996 agreement, it was necessary for him to establish, firstly, that it was an implied term of the agreement that he had the right to have his registration as licensee renewed, subject to him complying with the respondent's reasonable re‑registration requirements, and, secondly, that the Further Condition (namely, that the appellant's application be to the satisfaction of Dr Ioannakis and that he meet "anything asked" of him by Dr Ioannakis) was unreasonable. These arguments were rejected by the trial Judge.
As regards the alleged repudiation, leaving aside the difficulties to which I have referred, the allegation that the respondent repudiated the 1996 agreement depended, amongst other things, on the appellant establishing that he had satisfied the Condition (remembering that the Condition is different to the Further Condition). At the time the letter of 6 January 1998 was written, the only document to which the Condition applied, in regard to which Dr Ioannakis was not satisfied, was the daily training plan. It was common cause that by then the appellant had met her requirements concerning the assessment instrument. At trial the appellant submitted that, in substance, he had met Dr Ioannakis' reasonable requirements concerning the daily training plan, and that was all that he had to do. Therefore, in regard to this aspect of the alleged repudiation, the appellant had to establish, firstly, that he was only required to satisfy Dr Ioannakis' reasonable requirements concerning the daily training plan and, secondly, that he had done so. In this regard it is to be noted that the specific requirements of Dr Ioannakis concerning the daily training plan that were alleged to be unreasonable (and those that were admittedly reasonable) were not identified in the pleadings, nor were they identified with any precision during the course of argument.

The letter of 1 October 1997

I preface everything I say in regard to the causes of action based on the letter, by the observation that the statement of claim does not allege that the letter formed part of or recorded or in any way constituted a contract. Nevertheless, the relief sought that is based on the letter can only be justified if the letter is regarded as constituting a contract. It is regrettable that application was not made at an early stage to strike out the allegations relating to the letter as their presence in the statement of claim significantly exacerbated the confused state of the pleadings.
The statement of claim pleads that by the letter of 1 October 1997 the respondent offered to renew the appellant's registration (and, hence, implicitly, his licence) provided the appellant satisfied the Condition. The appellant asserts that he did so and that he accomplished this merely by sending the documents required by the letter to Dr Ioannakis.
The statement of claim goes on to plead that the respondent "breached" the offer contained in the letter by imposing the Further Condition (in the same way as it is alleged the 1996 agreement was thereby breached). That is, by requiring that the appellant's application be to the satisfaction of Dr Ioannakis and informing him that to be re‑licensed he had to meet "anything asked" of him by her. There is no allegation, however, that the offer contained a term to the effect that the appellant's right to renew his registration was subject to him complying with the respondent's reasonable "re‑registration requirements". Therefore, even if the letter is regarded as a contract, it is not alleged to contain the term which has been breached as alleged.
The statement of claim goes on to plead that the offer (contained in the letter) was repudiated in the same way as the 1996 agreement (that is, by sending the appellant the letter of 6 January 1998 terminating his registration). The comments I have previously made in regard to the repudiation of the 1996 agreement apply (even if it is assumed that the letter is to be construed as a contract).
The statement of claim then asserts that, by reason of the breach, alternatively the repudiation of the offer, the appellant has suffered damage.

The appellant's case at trial

The basis on which the appellant put his case at trial was described by the learned trial Judge as follows:
"The [appellant] claims that it was a term of the contract [the 1996 Agreement] that the Marcsta licence was renewable annually by the payment of the annual $500 fee. The [appellant] also claims that it was an implied term of the contract that Marcsta could impose reasonable relicensing requirements. However, the [appellant] claims that these requirements would have to be notified to him at a reasonable time prior to relicensing and would have to be consistently applied to all persons seeking relicensing. It is said this implied term is necessary to give business efficacy to the contract.
Alternatively, the [appellant] claims that Marcsta made an offer to relicense the [appellant] upon the [appellant] providing to Marcsta certain documents. That offer is said to be made in a letter from Marcsta to the [appellant] dated 1 October 1997. It is said that Marcsta's failure to relicense the [appellant] after he had provided the requested documents to Marcsta constituted a wrongful repudiation of the offer.
The [appellant] claims the repudiation by Marcsta of the contract, or alternatively the offer, caused the [appellant] to suffer loss and damage … ."
At the trial, the appellant admitted that the respondent "had the right to impose standards and conditions as pre‑requisites to relicensing". He asserted, however, that "it was an implied term of the contract that the re‑licensing requirements be 'reasonable' ". I shall assume that the case at trial was conducted on the basis that the appellant contended that the letter of 1 October 1997 was an offer that contained such an implied term.
The appellant argued at trial that the requirements imposed by the respondent for the re‑licensing of the appellant were unreasonable, and hence breached the "letter". Additionally, it seems that at the trial the parties accepted that it was part of the appellant's cause of action that the respondent was obliged to act fairly and reasonably in determining whether or not a new licence should be issued to the appellant, and had not so acted. No particulars of unfair or unreasonable conduct have ever been provided.
The learned trial Judge accepted that there was a contract between the appellant and the respondent as evidenced by the letter written by the respondent to the appellant dated 16 October 1996 (that is, the 1996 agreement). Her Honour found, however, that it was not a term of that contract that the re‑registration requirements imposed by the respondent were required to be reasonable. That disposed of the cause of action based on a breach of such a term.

As regards the allegation of repudiation, her Honour held that the respondent: "[F]ar from acting unreasonably, acted with complete propriety and professionalism and gave the [appellant] every opportunity to comply with the conditions for relicensing." Therefore, she dismissed the claim based on repudiation.
As regards the letter of 1 October 1997, the learned Judge found that it did not constitute an offer capable of acceptance as it was simply an invitation to treat. On that basis, her Honour held that the letter could not give rise to a contract and therefore no sustainable cause of action could be grounded thereon.
The learned Judge also rejected the contention that the respondent had breached its (unpleaded) duty to act fairly and reasonably in determining whether or not a new licence should be issued to the appellant.
Her Honour therefore dismissed the appellant's claim.

The grounds of appeal

The three grounds on which the appellant appealed are as follows. Firstly, it was said that the learned Judge erred in finding that the letter of 1 October 1997 was an invitation to treat. According to the appellant the letter was an offer from the respondent capable of acceptance by him. This ground was asserted despite the fact that nowhere was it alleged or pleaded at trial that the respondent had accepted that offer.
It is to be noted that, were the appellant to succeed on this ground and were it to be assumed that somehow the appellant was entitled to assert that the offer was accepted by him, the next question would be whether the contract so formed was breached by the respondent by imposing the Further Condition. That is, by requiring that the appellant's application be to the satisfaction of Dr Ioannakis and by informing him that to be re‑licensed he had to meet "anything asked" of him by her. The problem then, as I have mentioned, is that there is no pleading that alleges that the "contract", constituted by the letter (or, indeed, the letter alone), contained a term to the effect that the appellant's right to renew his registration was subject to him complying with the respondent's reasonable requirements (as is the case with the 1996 agreement). There is simply no allegation that the letter contains a term which has been breached as alleged.
According to the second ground of appeal, the learned Judge erred in holding that the appellant did not accept the offer constituted by the letter of 1 October 1997. This ground is put on the basis that the appellant had satisfied all of the conditions stipulated in the letter. The ground assumes that it was part of the appellant's case that the alleged offer was accepted by the appellant, even though this was not pleaded.
The third ground alleges that the trial Judge erred in not finding that the letter of 1 October 1997 was subject to an implied condition of reasonableness. Two particulars are given in support of this third ground. The first is the unhelpful assertion that, "[T]he trial Judge should have implied into the [l]etter a term of reasonableness". The second is equally unhelpful, being an assertion that went to the breach of the implied term rather than its existence, namely that, "the [r]espondent acted unreasonably in determining that the [a]ppellant did not comply with the condition in the letter to provide a daily training plan".
The third ground also has other curiosities. In particular, the statement of claim did not plead that the letter of 1 October 1997 was "subject to an implied condition of reasonableness", nor was it pleaded that the respondent acted unreasonably in determining that the appellant did not comply with the requirement concerning the daily training plan. The absence of pleaded allegations to the foregoing effect, and the others to which I have referred, makes it difficult, if not unfair, to submit that the trial Judge erred in not finding for the appellant in regard thereto.
I reiterate that each one of the grounds of appeal is based on the letter of 1 October 1997. This means that, for the purposes of the appeal, the appellant accepts that he has no cause of action grounded on the 1996 agreement. The problems for the appellant that arise if he is held strictly to the grounds of appeal and the way the case was pleaded in regard to the letter of 1 October 1997 should be obvious. I shall, however, deal with this part of the appeal on the basis that the letter is alleged by the appellant to be an offer that he alleges was accepted by him (by submitting to the respondent the documents and information requested therein) and which thereby gave rise to a contract between the appellant and the respondent.

The first two grounds of appeal

The letter dated 1 October 1997 was in the following terms:
"You are reminded that your licence is due for renewal on 3rd December 1997. Please submit to MARCSTA, your daily training plan and assessment instrument, along with evidence of the Workplace Trainer Category 1 and Workplace Assessor's Certificate.
On receipt of this material, we can forward to you the Licence Agreement for your signature. If you do not wish to renew your licence, please notify me in writing."
The first paragraph reminded the appellant of the renewal date for his licence and invited him to submit to the respondent the documentation and evidence that the respondent required to consider and assess before issuing a fresh licence. In this regard, the appellant accepted that he knew that the respondent would assess applications for licences and renewal of licences. Indeed, the respondent had issued guidelines to the appellant and others making this plain in express terms. On receipt of the letter, the appellant submitted the documents sought, knowing and accepting that they would be subject to assessment by the respondent.
The second paragraph of the letter informed the appellant that, on receipt of the documentation and evidence, the respondent could forward to the appellant the licence agreement for his signature. In the context in which the letter was written it was patently obvious that the respondent was saying that it would forward the licence agreement to the appellant for signature if it was satisfied with the documentation and evidence sent to it. As I have pointed out, this was well known to and accepted by the appellant at the time he received the letter.
In my view the intention revealed by the letter is that the parties would only be contractually bound to each other when the licence agreement to be forwarded to the appellant was signed. It would, for example, be absurd to suggest that, upon the appellant forwarding the documentation and evidence to the respondent, he would not be free to change to his mind and refuse to become a licensee liable for the licence fee. It would be equally absurd to construe the letter as having the effect that merely upon submission of the documents and evidence requested, the appellant would be entitled to a licence. That would fly in the face of the mutual understanding that the documentation and evidence would have to be assessed by the respondent before it would be agreeable to issuing a licence. It would also be contrary to the statement in the letter that upon receipt of the documentation and evidence the respondent would forward the licence agreement to the appellant. The intention was that the licence agreement (which the appellant had not yet seen), and not the letter, was to govern the contractual relationship between the parties.
In my opinion the learned Judge rightly held that the letter was an invitation to treat. This conclusion disposes of the first two grounds of appeal.

The third ground of appeal

By the third ground of appeal the appellant contends that the learned Judge should have found that the October 1997 letter "was subject to an implied condition of reasonableness". No explanation is given as to precisely how this "implied condition" was to apply. In the course of argument it was submitted by counsel for the appellant that the element of reasonableness should apply in two respects. Firstly, the respondent's re‑licensing requirements were to be reasonable. Secondly, the respondent was to act fairly and reasonably in determining whether or not those requirements were met.
I shall deal with these two limbs of the third ground of appeal on the basis that, contrary to my finding, the 1 October 1997 letter was an offer which was accepted by the appellant and thereby gave rise to a contract.

The implied term that the respondent's re‑licensing requirements were to be reasonable

The respondent was formed by a group of major mining companies in Western Australia who were members of the Chamber of Minerals and Energy. These companies were concerned with what was perceived to be an inadequate standard of mine safety training. They resolved to form a body that would be responsible for educating trainers in mine safety, achieving uniformity in teaching methods and raising the standards involved. The respondent was thereupon constituted having as its objects the development and implementation of safety and training programmes for workers in the mining and resource industry, the promotion of improvement in safety standards in that industry, the monitoring of the changing needs of that industry and the enhancement of common standards of general safety training.
By 1995 the respondent had received some form of statutory recognition. This aspect of the matter was not investigated at all during the trial but it seems from documents tendered in the course of evidence that the respondent was accredited as a training provider under the State Employment and Skills Development Authority Act 1990 and thereafter, when that Act was repealed by the Vocational Education and Training Act 1996, the respondent was taken to be accredited under the latter Act by cl 2(1)(b) of Schedule 4. Further, according to the documentation in question, the respondent is certified under the Vocational Education and Training Act to provide courses in general safety induction in the mining and resource industry and has the authority to licence persons to conduct its courses. If that be the case, there is a statutory source for the respondent's power to licence persons to conduct safety courses.
Once the respondent's authority to issue licences is conferred by statute, it is likely that the statute concerned would impose duties (expressly or impliedly) on the respondent in relation to the way in which it determined whether or not to issue licences. This aspect of the matter was not investigated at all during the trial and although this Court raised the application of the Vocational Education and Training Act with counsel, neither made submissions in connection therewith. Therefore, I will not take this issue further.
It is, however, relevant to note that the respondent, being certified to provide courses in safety induction in the mining industry and in licensing other persons to conduct such courses, carries out a public function. This is further manifest from its own objects. There can be no doubt as to the importance of those objects. The need for proper safety standards in the mining industry is self‑evident. As the accredited licensing authority in the industry, the power to license persons involved in safety training in that industry reposes in the respondent.
When the respondent commenced issuing licences, it bore in mind that licensed training providers should have "a sufficient market which would enable a decent income to be earned". It therefore deliberately limited the number of licences that it issued. Since then it has become apparent that to be the holder of a licence issued by the respondent is of considerable commercial benefit to training providers in the industry. The respondent, as I understand the evidence, believes it to be in the public interest to ensure that the level of income presently earned by training providers not be significantly reduced by allowing large numbers of new training providers to be licensed. This factor has also influenced the standards it has set.
The question whether or not a person is sufficiently skilled and an appropriate person to be licensed as a training provider in the mining industry involves, potentially, many different issues.
In this regard, the general standards that apply must be determined. Techniques and conditions in the mining industry change constantly and it is to be expected that the criteria applicable to safety requirements also change. From time to time the respondent has perceived the need to raise and has raised the standards required of training providers.
Additionally, there must be an inquiry as to whether a particular applicant has the requisite knowledge, understanding and experience of the industry. The methods of training which an applicant proposes to adopt must comply with the standards that are to be maintained and conform with the need for consistency in the industry. The applicant should be of appropriate character and personality to be a licensed training provider. There are matters of policy involved in determining the number of persons who should be licensed as training providers.
The need to bear all these factors in mind in a highly specialised and technical industry, where conditions and safety criteria frequently change, lead to the inference that the respondent should be the sole arbiter of the requirements that applicants for licences as training providers have to meet. It would be undesirable for the respondent to be fettered by objective criteria of reasonableness in laying down those requirements. It is, in any event, questionable whether, in the circumstances I have described, the issue of "reasonableness" could readily and reliably be determined. The exigencies of the industry and the respondent's functions as the licensing authority are such that it is desirable for the respondent to lay down standards and requirements within its sole discretion.
The learned trial Judge came to the same conclusion stating:
"It would be absurd if anyone other than Marcsta as the licensing authority decided whether or not a person fulfilled the perquisites to be licensed. Even if a term could be implied that the relicensing requirements be reasonable, by whose standards is reasonableness to be assessed? It would have to be by Marcsta's standards as a matter of common sense – it is the licence provider."
I agree with these observations.
Counsel for the appellant put his case in regard to the implied term contended for on the usual basis set out in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337. For the reasons I have expressed, I do not think that the term contended for is necessary to give business efficacy to the contract.
Finally on this aspect, the learned Judge pointed out:
"The [appellant] did not advance any evidence to establish what would be [a ‑ sic] reasonable condition for relicensing nor any submissions nor any submissions as to whose standards reasonableness is to be assessed, the focus on the issue of reasonableness related to the manner in which Marcsta assessed the daily training plan. In my view, that is a different issue altogether."
I agree with these comments.

The implied term that the respondent act fairly and reasonably in determining whether or not the appellant be re‑licensed

At the outset I should express my misgivings as to the proposition that any contractual term is to be implied from the 1 October 1997 letter to the effect that the respondent was required to act fairly or reasonably in determining whether or not to issue a fresh licence to the appellant.
In my view it is entirely artificial to attempt to imply such a term from the letter which is so plainly an invitation to treat and not a contractual offer at all. In the course of argument counsel for the appellant adopted a tentative suggestion from the court that a contract between the appellant and the respondent may have arisen akin to that which at times arises when a particular body seeking tenders is held to be contractually obliged to give due consideration to complying tenders: see Blackpool & Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195; Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1. I do not propose to decide whether or not such an implied contract exists. I point out, however, that there are serious difficulties that militate against the proposition advanced. Firstly, the duty to act fairly or reasonably when considering applications for licences should be owed by the respondent to all applicants and not only those who have been invited by it to apply. In my opinion the source of the duty to act fairly or reasonably is far more likely to be the statute from which the respondent derives its authority. But, as I have pointed out, this issue was simply not investigated at the trial and counsel made no submissions in regard thereto. Secondly, factors that have been held to have been relevant in some of the tender cases, such as the significant cost to a tenderer in preparing and submitting a tender, are not present to the same extent in this case.
Nevertheless, it would be startling if the respondent was not obliged to act fairly (and, in this context, there appears to be little difference between "fairly" and "reasonably") in determining whether or not to grant a licence. Counsel for the respondent did not resist this proposition with any enthusiasm. I have suggested that it is likely that the duty derives from statute. In any event, I shall assume that a duty to act fairly is imposed on the respondent.
The next question, therefore, is whether the respondent breached that duty. The appellant contends that it did so by failing to accept the daily training plan submitted by him. In determining this issue it is necessary to examine the background facts.
In early 1996 the respondent decided to employ an outside consultant to assist it in the setting of criteria for licensing training providers. The respondent felt that its members did not have the necessary expertise to make those decisions. Additionally, it was thought that the appointment of an outside consultant would ensure that there would be no suggestion of favouritism being shown by members of the respondent to other persons involved in the mining industry. For these laudable reasons, in April 1996 the respondent appointed Dr Ioannakis to oversee, generally, the assessment of licence applications. Dr Ioannakis is a consultant engaged in training and education and has vast experience in advising large companies and government. She was described in evidence as being "highly credentialled".
Following Dr Ioannakis' appointment, she assessed large numbers of applications. Generally, an assessment was an ongoing process and involved ongoing communications between Dr Ioannakis and the applicant concerned. Her task, principally, was to assess the more formal requirements of each application. Once she was satisfied that an applicant had met the requisite standard she would inform the respondent who would forward the application to another person, one Ross Graham, who would assess the technical content of the materials.
Amongst the documentation the respondent required an applicant for a licence to submit were "a daily training plan" and "an instrument for final assessment". There was considerable dispute between the witnesses as to what a daily training plan and an assessment instrument should comprise. The appellant's witnesses also referred to a "session plan" and stated that Dr Ioannakis' definition of a daily training plan was more suited to a session plan. It is obvious from the evidence that no standard meaning could be attributed to these terms (and the learned Judge so held). The witnesses ascribed different meanings to a daily training plan and an assessment instrument. Mr Woodacre, an expert witness called on behalf of the appellant, said that the training industry was rife with jargon and there was a deal of confusion in the use of some terms. Her Honour dealt with the issue as follows:
"In my view, it matters not whether Mr Woodacre or any other expert in the field considered the various daily training plans submitted by the [appellant] to Marcsta to be adequate or otherwise. Nor does it matter what others might consider constitutes either a daily training plan or a session plan. This is especially so given Mr Woodacre's evidence that there is no such thing as a daily training plan in the training industry.
Marcsta is the licence provider. … It is clear from Mr Woodacre's evidence and what other witnesses have said about daily training and session plans, that there is confusion with the terminology and, it seems, differing views as to what are the essential components of those plans. In the context of this case, it is Dr Ionnakis' (sic) view which must prevail. All existing licence holders knew that she was employed to assess their training competency when they sought relicensing. In this regard, Dr Ionnakis (sic) was the ultimate arbiter."

I agree with these remarks. I have held that it was within the respondent's discretion to impose whatever standards and criteria it deemed appropriate. The respondent had authorised Dr Ioannakis on its behalf to deal with the documents and information to be provided by any applicant for a licence. Dr Ioannakis required applicants to submit a daily training plan and an assessment instrument. There was no common understanding in the industry as to what was meant by these terms. In the circumstances, it was Dr Ioannakis' view as to these terms that prevailed.
Dr Ioannakis testified that an assessment instrument was intended to assist the training provider in assessing whether a candidate has met the necessary standard of competency. She explained that a daily training plan must contain all the key points for discussion that arise during the course given in a day, sufficiently so as to describe the particular content. She said:
"There needs to be sufficient reference to the content in the training plan so that somebody can gauge where the whole day may end up."
And:
"There must be sufficient information in the plan to cover the content of the course, whether its in the form of key questions, key points."
And further:
"It was an important feature of the training plan that there was enough detail so that the outcomes of the course were evident and it could easily be utilised by another provider. The training plan accordingly had to include not only the sequence and timing of the content, but also key questions, examples, materials or resources, handouts and so on. It had to comprise of (sic) a comprehensive overview and structure of the full day of training for those attending the course."
Mr Woodacre disputed this meaning of a daily training plan. He said that he would regard a daily training plan simply as a course overview. It could contain simply a timetable for the course. He suggested, in effect, that what Dr Ioannakis termed a daily training plan was a session plan, and this he said was not required by her. In my view, for the reasons I have expressed, Mr Woodacre's opinion was irrelevant. The appellant argued that his daily training plan complied with Mr Woodacre's definition of a daily training plan and hence the respondent acted unfairly in asking that it be clarified and supplemented. In my view, there is no substance in this argument. The appellant's daily training plan fell to be assessed by what Dr Ioannakis required, not by Mr Woodacre's understanding of a daily training plan.
By the 1 October 1997 letter, the respondent requested the appellant to submit his daily training plan and an assessment instrument together with other documents. By letter dated 22 October 1997, Dr Ioannakis wrote to the appellant stating:
"The training plan is too brief and does not list some of the essential components. In particular, please note the times for each of the sessions, elaborate on the content to be delivered in the sessions, including key questions and training points, and specify resources that will be utilised."
Dr Ioannakis then set out a suggested format for the training plan. She also pointed out that the appellant's assessment instrument did not comply with the respondent's requirements. Dr Ioannakis' letter concluded: "If I can be of any further assistance, please do not hesitate to contact me."
Mr Woodacre accepted that the format of the appellant's initial daily training plan was "confusing" and said that the document was "poorly presented". The appellant himself said that Dr Ioannakis' comments on his first daily training plan and assessment instrument were reasonable. There can be no criticism of Dr Ioannakis' requirements set out in her letter of 22 October 1997.
In mid‑November 1997 the appellant supplied an amended daily training plan and assessment instrument to Dr Ioannakis. She formed the view that the daily training plan was still too brief and there were still deficiencies in the assessment instrument. She wrote to the appellant accordingly by facsimile dated 21 November 1997 as follows:
"Training Plan
The plan is too brief in its current form. The suggested format in my letter dated October 22, 1997 outlined the need for elaboration of the content or activity. That is, this section of the training plan should not only state the topic, but also outline key points, key questions and any additional activities. In essence, another provider should be able to train from your plan. Hence, the need for sufficient detail to ensure all points are covered and there is consistency in the content delivered. Please state the duration of the videos.
The summary (4 to 5pm) states that 40 questions will be given at the end of the day, however, the assessment instrument contains a great deal more than 40 questions. Will you choose 40 questions or will the participants complete the assessment instrument as it stands? If participants will complete the total instrument you sent through this week, I think the final hour will disappear very quickly. How and when will the final assessment be marked? Also, there should be instructions to the participants on the cover page of the instrument.
The MARCSTA information package clearly outlines formative assessment as the assessment strategy ie assessment throughout the day. Do you have provision for formative assessment or is assessment only conducted at the end of the day.
Also, the nominal duration of the course is 8.5 to 12 hours of delivery plus assessment."
Dr Ioannakis, in this facsimile, also set out her further requirements in regard to the assessment instrument. She again concluded by stating: "If I can be of any further assistance, please do not hesitate to contact me."
According to the appellant, he was surprised at Dr Ioannakis' comments. The reason for his surprise needs some explanation. After the appellant had received Dr Ioannakis' letter of 22 October 1997, he met with Mr J Griffiths, who was also seeking to be registered again as a training provider. Mr Griffiths told the appellant that Dr Ioannakis had accepted his daily training plan. Mr Griffiths gave the appellant a copy of his daily training plan which had been accepted and the appellant used that as a model for the plan he submitted in November. Nevertheless, it was apparent from Dr Ioannakis' comments in her facsimile of 21 November 1997 that the model did not satisfy her requirements. This caused the appellant's surprise.
Unfortunately for the appellant, Mr Griffiths' daily training plan was not an appropriate plan at all. In fact it had not been accepted by Dr Ioannakis, although it had been accepted by the respondent. This had occurred as a result of an administrative error on the part of Mr Robert Halse, an officer of the respondent. Mr Halse explained that he had the responsibility of processing the documents sent to the respondent by Mr Griffiths. He assumed, wrongly, that Dr Ioannakis had seen Mr Griffiths' daily training plan and had approved it. He therefore set in process the mechanism necessary for the issuing of a fresh licence to Mr Griffiths. He only discovered his mistake on 21 November 1997. By then the appellant had submitted his daily training plan. As a matter of policy, the respondent decided that in view of Mr Halse's error it would not reverse the decision that had been made to grant Mr Griffiths a licence. Nevertheless, unbeknown to the appellant, Mr Griffiths' daily training plan was an entirely unsuitable model for him to copy.
By letter dated 25 November 1997 the applicant submitted his daily training plan as further amended, and other material, to Dr Ioannakis. Dr Ioannakis replied by facsimile dated 6 December 1997. After thanking the appellant for the additional information she stated:
"The training plan is still too brief - that is, the plan does not include enough information if another provider was asked to deliver from this plan. Each section needs further elaboration including key questions, key points for discussion, points for discussion from the videos, and any activities, case studies etc."
The facsimile concluded: "Please not (sic) hesitate to contact me if you wish to clarify the above comments with me." Dr Ioannakis returned to the appellant the daily training plan that had been submitted to her with comments written on them. Those comments identified with precision the further queries she had. She was satisfied with the assessment instrument that had been provided and did not require the appellant to do anything further about that.
I have previously observed that the appellant did not give particulars of the respects in which he said that Dr Ioannakis further requirements of him were unfair. I have therefore gone through the evidence in an attempt to ascertain all the complaints made by or on behalf of the appellant concerning Dr Ioannakis' facsimile of 6 December 1997 and the comments she made on the plan that he submitted.
In his evidence‑in‑chief the appellant only made two complaints about Dr Ioannakis' comments concerning his daily training plan submitted in December 1997. These concerned the length of the course and Dr Ioannakis' requirement that another trainer should be able to conduct a course off the same plan. I shall comment on these complaints more fully.
Dr Ioannakis required the appellant to check the timing of his course. She pointed out in this regard that: "The module has a nominal delivery time of 8.5 to 12 hours." The appellant said that this was unjustified as his daily training plan had a total delivery time of 8.5 hours, as did Mr Griffiths' daily training plan. In cross‑examination Dr Ioannakis accepted this but pointed out that the timing of 8.5 hours on the appellant's plan contains "no breaks" and includes "a significant amount of assessment that would take time away from the delivery of the content". This explained her request to "check timing". In my view, there was nothing unfair about that request.
In his evidence‑in‑chief, the appellant complained about a requirement contained in Dr Ioannakis' facsimile of 21 November 1997 that: "In essence another provider should be able to train from your plan." The appellant objected to this saying that that would involve "giving away my years of work experience and skills I had accumulated". It is to be noted that the appellant made no such complaint when responding to that facsimile and this was raised only after litigation had commenced.
According to Dr Ioannakis it was not unusual for trainers to use the material of others. She said: "Individuals are licensed in their own right but when they work for other providers they use the other providers' material." It is apparent from Dr Ioannakis' evidence as a whole that she was not requiring the appellant to provide information that was confidential. She merely wished the plan to contain sufficient information to enable some other trainer, who might be part of the appellant's organisation and working with him, to appreciate from the detail of the plan what was involved in the appellant's course so that that person could conduct a course utilising the same document. This would have been made known to the appellant had he taken up Dr Ioannakis' invitation to ask her if he required any clarification or assistance concerning her requirements. He did not accept that offer.
It is significant that daily training plans submitted by other training providers were canvassed in the course of evidence and it was not suggested on the appellant's behalf that any of those other plans (save for that of Mr Griffiths) did not meet this requirement. In all the circumstances I am not persuaded that this requirement was unfair.
Mr Griffiths testified that his daily training plan, which was similar to that of the appellant's, had been accepted by the respondent. I have explained how this arose and the fact that Mr Griffiths' plan was accepted by administrative error on the part of the respondent cannot assist the appellant.
Mr Woodacre testified that the appellant's training plan submitted in December 1997 was "more than adequate to fulfil the original request from Marcsta". Dr Ioannakis was of a different view and, when informing the appellant of her further requirements, explained in detail what additional information she required. She was cross-examined about certain aspects of her requests and justified each in a satisfactory manner. I am not persuaded that she was unfair in making the requests that she did.
Mr Woodacre also asserted that Dr Ioannakis was in reality requesting a session plan and not a daily training plan. For the reasons I have expressed that assertion is no answer to the request for information made by Dr Ioannakis. It was entirely up to her to determine the information she required.
The appellant complained about the statement in a letter dated 24 December 1997 written to him by the respondent in which he was required to meet "anything asked of you" by Dr Ioannakis. This requirement must be seen against the background that (as the appellant well knew) the respondent had delegated to Dr Ioannakis the authority to assess the documentation submitted by applicants for licences. In this context (and subject to the implicit duty to act fairly), I do not think that there is anything unfair in the appellant being told that in order to obtain a licence he had to comply with any requirement that Dr Ioannakis imposed.
During the cross‑examination of Dr Ioannakis, it was put to her that she had changed some of her requirements of the appellant from the time she had received the first version of his daily training plan until she commented on the third version. She accepted that she had done so but, in effect, explained that as more information was put to her she thought it necessary to seek further clarification of other aspects. In my view, there was nothing unfair about this.
Dr Ioannakis was questioned about comments she had made concerning "points for discussion" from the use of videos. She explained that she had asked the questions because it was not obvious from the plan how the videos were to be used by the appellant. This is a typical example of what she meant by clarification. Again, there was nothing unfair in the comments she so made.
Generally, Dr Ioannakis explained that from the appellant's daily training plan "there were very few indications of key questions or topics or the relevant content". She said that she asked: "[F]or a training plan outlining the content of what was in the information package and that wasn't forthcoming." In this regard the appellant had been provided with an information package setting out the general requirements of the respondent. As a general approach, there was nothing unfair in Dr Ioannakis' requirements.
It was put Dr Ioannakis that in substance the appellant had complied with an appropriate daily training plan, but she disputed that. She had made her requirements perfectly clear. She sought clarification in regard to some issues and additional information in regard to others. The appellant had not responded. Therefore, he had not complied with her requirements. Further, in my view, there was nothing unfair in those requirements.
I now turn to the way in which negotiations between the appellant and the respondent terminated. This is relevant as the appellant asserted, in effect, that the respondent had acted unfairly in this respect.
When the appellant received Dr Ioannakis' comments on the third version of his daily training plan, he decided that he would not provide the information requested. It is not that he did not understand what Dr Ioannakis wanted. He stated that he was clear in his own mind in this respect. He had, however, come to the conclusion that Dr Ioannakis had been instructed by the respondent to "contrive a situation" to ensure that no matter what the appellant provided he would not receive a licence.
The appellant named two officers of the respondent, who he said were "bent" and not "men of their word". He was of the opinion that they had decided deliberately to prevent him from getting a licence because of a dispute that had occurred between the appellant and the respondent in March 1996. That dispute was settled on the basis that the respondent paid the appellant $10,000 damages, legal fees of $3,000 and made a public apology.
The appellant believed that the requests from Dr Ioannakis were "nonsense" and "puerile" and that Dr Ioannakis had been "tainted" by the two "bent" officers of the respondent. Thus, the appellant was of the view that nothing he could do would satisfy the respondent.
The learned trial Judge, however, rejected the proposition that any person on behalf of the respondent had behaved improperly towards the appellant. Her Honour found that the appellant had "wrongly believed that the March dispute between him and Marcsta in some way prejudiced the [respondent] against his application for relicensing". She stated that: "The [appellant] wrongly believed that the [respondent] was somehow discriminating against him." There is no appeal against these findings. It is in this context that the subsequent correspondence between the parties has to be seen.
By letter dated 9 December 1997, the respondent wrote to the appellant in the following terms:
"As your licence lapsed on the 3rd December 97 and you have made some effort to meet the new standard required to re‑licence, you will be granted a further 30 days for you to complete the information requested by our consultant Irene Ioannakis.
This request to improve the standards has already been met by all re‑licenced providers to date and is not intended to preclude from relicencing (sic)."
The appellant did not respond and on 24 December 1997 the respondent wrote again:
"I have had contact with Irene Ionnakis (sic) today and she informed me that she has still not received anything further from you. This worried me, so I felt you should be made fully aware of the situation you are in.
For your MARCSTA licence to continue you must have fully met anything asked of you by Irene, and also have been passed by the Executive by 5 p.m. on Monday 5th January 1998. In fairness to you we have it the 5th as the 3rd falls on the Saturday. The 30 days grace you were granted will definitely not be extended past this date. This is standard practice. If you do not meet this deadline your licence will be deemed to have lapsed and your position (not your number) will be allocated to a person on the wait list.
If you complete your re‑licence after the 5th January 98 you will then go on to the wait list until another vacancy arises. This is also standard practice."
Again, the appellant did not respond and, on 6 January 1998, the respondent wrote to the appellant informing him that his provider's licence had lapsed on 5 January 1998 by reason of his failure to supply Dr Ioannakis with the further information she had requested.
In my view, the opinion that the appellant had erroneously formed (that the respondent was acting in bad faith) caused him to terminate his discussions with Dr Ioannakis and not to supply any information to her in response to her requests. On the evidence there was nothing unusual in Dr Ioannakis making requests of this kind to applicants. The same procedure had occurred with several applicants and there had been ongoing communications between them and Dr Ioannakis over several months during which she sought clarification from them and they attempted to comply with her requirements.
As the learned Judge found, the respondent did not act unfairly, unreasonably or capriciously. It extended the deadline for re‑licensing by 30 days to give the appellant to comply with re‑licensing conditions and,

as her Honour pointed out, gave the appellant "every opportunity to amend the daily training plan to comply with what Dr Ionnakis (sic) considered to be acceptable. The [appellant] did not take up any [sic - of] Dr Ionnakis' (sic) invitations to discuss requirements".

Conclusion

In my view, there is no substance whatever in the submission that the respondent acted unfairly or unreasonably in dealing with the appellant's application for a fresh licence. I would dismiss the appeal.
WALLWORK J: I agree with Justice Ipp that on the facts presented to the learned trial Judge, it was not established that the respondent acted unfairly or unreasonably in dealing with the appellant's application for a fresh licence.
I also agree that it has not been shown that for any other reason the appeal should succeed.
I would dismiss the appeal.