SUESSENBACH v The Mining and Resources Contractors Safety Training Association Incorporated - [1999] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SUESSENBACH -v- THE MINING AND RESOURCES CONTRACTORS SAFETY TRAINING ASSOCIATION INCORPORATED [1999] WADC 109

CORAM: O'BRIEN DCJ

HEARD: 11-13 OCTOBER 1999

DELIVERED : 11 NOVEMBER 1999

FILE NO/S: CIV 626 of 1998

BETWEEN: HEINZ GERHARD WILHELM SUESSENBACH
Plaintiff
AND
THE MINING AND RESOURCES CONTRACTORS SAFETY TRAINING ASSOCIATION INCORPORATED
Defendant

Catchwords:

Breach of contract - Contract for provision of training licence - Licence granted for one year - Conditions on which licence could be renewed - Whether an implied term that relicensing conditions be "reasonable" - Whether letter reminding plaintiff of relicensing deadline constitutes an offer.

Legislation:

Nil

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff: Mr J C Hammond
Defendant: Mr P T Arns

Solicitors:

Plaintiff: Hammond Worthington
Defendant: Arns & Associates

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

Australian Woollen Mills Pty Ltd v The Commonwealth 92 CLR 424
Banque Brussels Lambert SA v Australian National Industries Limited 21 NSWLR 502
Riverina Gold NL v Associated Resources Pty Ltd, unreported; SCt of WA; Library No 930535; 2 September 1993

Case(s) also cited:

Alcatel Australia Ltd v Scarcella & Ors (1998) 44 NSWLR 349
Carlill v Carbolic Smokeball Company [1893] 1 QB 256
Chaplin v Hicks [1911] 2 KB 786
Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 41 ALR 367
Forsayth NL v Australasian Goldmines NL & Anor (1992) 7 WAR 549
Hawkins v Clayton (1988) 164 CLR 539
Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1
Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor (1993) 31 NSWLR 91
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
Woodside Offshore Petroleum Pty Ltd v Atwood Oceanics Inc [1986] WAR 253
Zusman v Royal Western Australian Bowling Association (Inc) [1999] WASC 86

O'BRIEN DCJ: The defendant, Mining and Resources Contractors Safety Training Association Incorporated ("Marcsta"), is an incorporated association which licenses mine safety trainers to conduct courses in safety in the mining industry. The plaintiff is an occupational safety and health trainer and adviser.
Most major mining companies are members of Marcsta. The objectives of Marcsta include the development and implementation of safety training programmes for the mining industry and the promotion of the improvement of safety in the mining industry.
On 16 October 1996, the plaintiff was licensed by Marcsta to provide training services. He applied to be relicensed in October 1997. However, according to Marcsta the plaintiff did not complete the pre‑requisites for licence renewal as specified by Marcsta and was not relicensed.

The basis of the plaintiff's claim

The plaintiff claims that he had a contract with Marcsta evidenced by a letter to him from Marcsta dated 16 October 1996 which notified him of his successful application to become a registered provider of safety training together with the payment by the plaintiff of a $500 registration fee and the sum of $2000 for 200 Marcsta certificates to be provided to successful trainees.
The plaintiff claims that it was a term of the contract that the Marcsta licence was renewable annually by the payment of the annual $500 fee. The plaintiff also claims that it was an implied term of the contract that Marcsta could impose reasonable relicensing requirements. However, the plaintiff 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 plaintiff claims that Marcsta made an offer to relicense the plaintiff upon the plaintiff providing to Marcsta certain documents. That offer is said to be made in a letter from Marcsta to the plaintiff dated 1 October 1997. It is said that Marcsta's failure to relicense the plaintiff after he had provided the requested documents to Marcsta constituted a wrongful repudiation of the offer.
The plaintiff claims the repudiation by Marcsta of the contract, or alternatively the offer, caused the plaintiff to suffer loss and damage by way of lost earnings for the year of 1998 in that he was not able to deliver Marcsta's course as an improved provider.

The defence case

The defendant admits that the letter dated 16 October 1996 together with payment of the fees outlined constituted a contract between the plaintiff and the defendant. However, the defendant denies that it was an implied term of the contract that relicensing conditions be "reasonable". The defendant claims that the licence was for one year. In other words, the defence case is that at the expiration of one year the contract was at an end and the parties could renegotiate another contract.
As to claim made in the alternative that the letter dated 1 October 1997 is an offer made by the defendant to the plaintiff, the defendant's case is that that did not constitute an offer capable of acceptance. In the alternative, if the letter did constitute an offer, it was an implied term that the materials submitted by the plaintiff in support of the application for relicensing would meet the criteria and standards imposed by the defendant relevant to the form and content of certain documents specified by the defendant. These documents were the assessment instrument and the daily training plan. I shall refer to these documents later in this decision.

The plaintiff's version of events

The plaintiff has been working in the mining industry for approximately 30 years including 14 years in mines safety training. He has a number of tertiary qualifications including a Workplace Category 1 certificate and a Workplace Assessor Category 2 certificate. I mention those because Marcsta specifically required those certificates from its training providers, at least for the 1996-97 year.
It is uncontested that the plaintiff is very experienced in providing mine safety training and had a reputation within the industry to qualify him as a provider.
On 22 January 1996, the plaintiff attended a seminar to hear a presentation on the proposal by a number of major mining contractors to establish a central organisation for surface mine site safety training. The purpose of the central organisation was to standardise surface induction in the Western Australian mining industry.
It is uncontested that the objects of Marcsta are:
1.to develop and implement safety and training programs for workers working within the mining and resource industry;
2.to promote the improvement of safety standards in the mining and resource industry;
3.to monitor the changing needs of the mining and resource industry in accordance with the relevant statutory authorities; and
4.to enhance the common standards of general safety training excellence within the mining and resource industry.
The seminar covered a number of topics. According to the Agenda, they included the "Development of Marcsta and the Induction" and "Becoming a Provider and the Code of Practice". An Information Package was handed to attendees. The plaintiff could not recall being handed the Information Package. The Information Package included the Code of Practice and Guidelines for Achieving Objectives of the Code of Practice. The Code of Practice states the objects of Marcsta and the need to meet specific and minimum standards. Under the heading "Promotion of Training Services", the Guidelines provide:
"MARCSTA licensed members as providers will promote workbased training products and services with integrity, accuracy and professionalism.
MARCSTA licensed members as providers will continue to ensure that its products/services are relevant and responsive to the Association's as well as to industry needs at the enterprise level. To meet this obligation, contractor's licensed under MARCSTA's Registration Arrangements will be required to:
2.1Continue the research of skills analysis and skills audits and workbased competencies required for successful future production and work with the broader industry in the relevant sectors; and
2.2Validate the alignment of the enterprise standards with National Industry Competency Standards where existing as members of MARCSTA."
The plaintiff agreed that at the seminar the applicants were informed that they would be subject to assessment by Marcsta.
Some time in July 1996, Mr Bob Halse approached the plaintiff and encouraged him to register with Marcsta. Mr Halse was then the secretary of Marcsta. Marcsta conducted a number of work shops and information sessions in 1996 to inform those interested in delivering the Marcsta course.
The plaintiff attended another Marcsta seminar on 1 August 1996. Mr Halse testified that an Information Package was distributed to each participant on arrival at the seminar. This was similar in content to the Information Package distributed in January 1996 although by August the materials were in booklet form.
Mr Halse advised the participants that there was an annual registration fee of $500 and Marcsta providers would also have to purchase Marcsta certificates and manuals totalling $2000.
Each applicant, including the plaintiff, was then required to give a five minute presentation on an aspect of safety in the workplace. As well, the plaintiff submitted a written application addressing the selection criteria outlined. A document entitled "Application for Training License" was also included in the material handed out. This listed the criteria which applicant providers had to address in their applications to Marcsta to be licensed providers. The plaintiff completed a written application addressing the criteria and forwarded the relevant certificates to Marcsta in support of his application.
The plaintiff was provided with a copy of the Marcsta short course curriculum in general safety induction and testified that he provided his own references, course studies and case materials. The plaintiff understood that the Marcsta safety induction course which he conducted should comply with the standards and content set by Marcsta in the course curriculum. The plaintiff said that he received the Marcsta Code of Practice from Mr Halse after he was accepted for registration. The plaintiff denied being shown an overhead at one of Marcsta's seminars which read:
"Provider licence requirements
1.On acceptance of a provider's application a licence will be issued for a period of 12 months.
2.Prior to relicensing providers will be advised of the relicensing requirements each time."
Mr Halse was adamant that this overhead was shown at Marcsta seminars. It was one of a series of overheads which he displayed during his presentation at the seminars.
I accept Mr Halse's evidence on this point.
Following his application, the plaintiff received a letter from Mr Halse dated 16 October 1996 advising that his application to become a licensed provider of the course in general safety induction (Mining & Resource Industry) at various sites was accepted. The letter specified the annual registration fee and stated that it was renewable on the anniversary of the initial registration date. The cost of the certificates was mentioned. In the letter the plaintiff was reminded that he was required to maintain his records of training for at least two years and should also have professional indemnity insurance. Mr Halse testified that this was a standard letter sent to all successful applicant providers.
The plaintiff prepared his course materials from a Marcsta safety course which he was to present. He regarded these as his personal instruction materials. The plaintiff then commenced delivering the Marcsta safety course.
Some time in September 1997, the plaintiff received a letter from Marcsta regarding re‑licensing. The letter informed him that Marcsta had appointed an independent training consultant, Ms Irene Ionnakis, to examine the qualifications of Marcsta providers.
By letter dated 1 October 1997, Mr Halse wrote to the plaintiff reminding him that his licence was due for renewal on 3 December 1997. He was requested to submit his "daily training plan and assessment instrument, along with evidence of Workplace Trainer Category 1 and Workplace Assessor's Certificate". The letter continued "On receipt of this material, we can forward to you the licence agreement for your signature". The plaintiff testified that he understood from that letter that if he provided each of the four documents specified to Marcsta he would be re-licensed.
Mr Halse testified that early in 1996, the Marcsta committee determined that it was in the interests of Marcsta to ensure that outside consultants were brought in to the decision making process and in particular the setting of criteria for providers. This was because the Marcsta committee did not believe they had the skills to judge another's training programs and they were concerned that there could be a perception of otherwise there would be a "jobs for the boys".
The committee determined on 2 April 1996 to appoint Dr Irene Ionnakis to oversee provider assessment. Dr Ionnakis' role was to assess the validity of the certificates forwarded by applicants and to assess the adequacy of the materials which were required by Marcsta as part of the licensing process.
There were two aspects to the licensing process. One related to the assessment of the course materials submitted by the providers. The other related to the assessment of the applicant's industry experience. This was assessed by Mr Ross Graham.
If the applicant passed both assessments, submitted the appropriate certificates, paid the $500 fee and the sum of $2000 for the course certificates and signed the Marcsta Licence Agreement, the licence would be granted. If a provider was applying for relicensing, all these requirements had to be complied with the exception of assessment of industry experience.
When the plaintiff was originally licensed, the license was granted on the successful presentation for a five minute presentation, satisfactory compliance with the criteria set out in the Application for Training Licence and payment of the $500 and the $2000.
The plaintiff claimed that he had never heard of the term "daily training plan". He took that to mean a simple daily overview of the Marcsta safety course that he would be presenting. He contrasted this with a session plan which is designed to provide a detailed outline of the course study. The plaintiff said this session plan includes the documents he uses to present the course and contains his own personal course materials including specific life examples which he has collected over 14 years in mine safety training and approximately 30 years of practical mine experience.

First versions of daily training plan and assessment instrument

The plaintiff prepared his first daily training plan by outlining the key components of the Marcsta safety course, the order in which he would conduct them, some of the activities and resources he would be using and the general time frame of the course. He forwarded the required documents including his first daily training plan and first assessment instrument to Dr Ionnakis on or about 14 October 1997.
By letter dated 22 October 1997 Dr Ionnakis requested that the plaintiff amend the training plan and assessment instrument. Dr Ionnakis said in her letter that the training plan was "too brief and does not list some of the essential components". She set out a suggested format for the training plan emphasising that it was a suggestion only and that there are a number of formats available for a training plan. Dr Ionnakis concluded her letter with an invitation to the plaintiff to contact her if she could be of further assistance.
As to the assessment instrument, Dr Ionnakis claimed that that did not comply with the principles of competency based assessment or the method of assessment as outlined in the information package. Her main concern appeared to be that the assessment instrument only utilised multiple choice questions which is not an adequate measure of competency and the ability to transfer the training (knowledge and skills) into the workplace. She referred the plaintiff to the Information Package which outlined the suggested methods of assessment to include short answer tests, verbal presentation and practical exercises as being the minimum methods that should be reflected in the assessment instrument.

The second versions of the daily training plan and assessment instrument

In early November 1997, the plaintiff met with a colleague, Mr Joe Griffiths, who was also seeking to be relicensed as a Marcsta provider. Mr Griffiths had submitted a daily training plan which he understood had been accepted by Marcsta allowing him to be relicensed. The plaintiff discussed Mr Griffiths' daily training plan with him and used his format as a model for his second daily training plan. The plaintiff also amended his first assessment instrument to include the varied forms of assessment questions requested by Dr Ionnakis. The second daily training plan and second assessment instrument were forwarded to Dr Ionnakis sometime in early November 1997.
By facsimile dated 21 November 1997, Dr Ionnakis requested the plaintiff to make further changes to his documents. In particular, Dr Ionnakis stated that the plaintiff's second daily training plan was too brief and that he needed to outline key points and questions and any additional activities. Dr Ionnakis stated "In essence, another provider should be able to train from your plan". Again, Dr Ionnakis offered to be of further assistance if need be.
The plaintiff testified that he was surprised at Dr Ionnakis' comments as he had based his second daily training plan on the format of Mr Griffiths who had been re‑licensed.
By a letter dated 20 November 1997, Ms Carole Halse, the Marcsta office administrator, reminded the plaintiff that his Marcsta provider licence was to expire on 3 December 1997 and that he would need to finalise his complete reapplication by that date "to the satisfaction of Irene Ionnakis and the Marcsta executives". Amongst other documents requested, Mrs Halse requested a "Daily Work Plan". The plaintiff testified he had not heard of this document before.

The third versions of the daily training plan and assessment instrument

In order to comply with Dr Ionnakis' requests, the plaintiff submitted a third daily training plan and also amended his second assessment instrument to address Dr Ionnakis' queries.
By a facsimile dated 6 December 1997, Dr Ionnakis rejected the third daily plan as being still too brief and as not containing enough information if another provider were asked to deliver from his plan. Further, Dr Ionnakis stated in her facsimile "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 plaintiff testified that he had not been asked for "points for discussion from the videos" before this. Further, he stated that his third daily training plan had a total delivery time of 8.5 hours but had been advised by Dr Ionnakis that the module has a nominal delivery time of 8.5 – 12 hours. Dr Ionnakis returned the third daily training plan with her hand written queries and comments noted thereon.
Dr Ionnakis made no reference to the assessment instrument. However, she again invited the plaintiff to contact her if he wanted clarification of her comments.
At this stage, the plaintiff became completely frustrated with Dr Ionnakis' requests. He believed that nothing short of his personal course materials would satisfy her demands but did not consider that these were requested in the letter from Mr Halse reminding him of licence renewal in his letter dated 1 October 1997. In any event, the plaintiff objected to providing this information because it would enable another Marcsta provider to use his material which would mean that he would be "giving away my years of work, experience and skills I had accumulated which I believe makes me a good mine safety training consultant".

The plaintiff was not prepared to make any further amendments to his third daily training plan as he believed he had more than satisfied the requirements of Dr Ionnakis.
By letter dated 9 December 1997, Mr Halse advised the plaintiff that his licence had lapsed on 3 December 1997. However, Mr Halse advised the plaintiff that because he had made "some effort to meet the new standard required to relicense", he would be granted a further 30 days to enable him to complete the information requested by Dr Ionnakis. The letter continued "This request to improve the standards has already been met by all relicensed providers to date and is not intended to preclude you from relicensing". By letter dated 24 December 1997, the plaintiff was reminded that the grace period would expire at 5.00 pm on Monday, 5 January 1998 and would not be extended beyond that date. He was advised that if he completed his relicense after 5 January 1998 he would have to go onto a wait list until another vacancy for a training provider arose.
By letter dated 6 January 1998, Mr Halse advised the plaintiff that his Marcsta's provider licence had lapsed as of 5.00 pm on 5 January 1998 due to his failure to provide Dr Ionnakis with the further information requested by her.
The plaintiff testified that he could not think of anything else to do to comply with Dr Ionnakis' requests. On 13 January 1998, the plaintiff wrote to Mr Halse advising him that he would be taking action for damages on the basis of Marcsta's refusal to renew his licence as a Marcsta provider. The plaintiff alleges that his daily training plan was based on the format used by Mr Joe Griffiths who was accepted for re-licensing. Further, he testified that two other applicants for re‑registration were not required to submit a daily training plan or assessment instrument to Marcsta in order to be re‑registered.

Cross‑examination of the plaintiff

The Code of Practice provided that "assessment methods will be appropriate to the achievement of the outcomes of the course and participants will be provided with accurate and fair assessment, and will be involved in the assessment of their own learning or current competencies held."
Further, training personnel "will be required to meet all relevant competency standards for trainers. The minimum requirement is that they will have the necessary skills and experience to facilitate achievement of the specified outcomes of the course". The plaintiff testified that this did not cause him any concerns. He agreed that in order to achieve appropriate standards, assessment was needed. The plaintiff denied that he was advised at the outset that Marcsta was concerned to upgrade necessary licensing criteria to meet the standards required in the industry but said that he did agree with that as an objective. The plaintiff agreed that Marcsta could impose conditions for relicensing but maintained that they had to be reasonable. He also agreed that Marcsta could change the criteria for licensing from time to time.
The plaintiff was referred to the meeting of Marcsta providers which he attended on 1 August 1996 and to the overhead which outlined provider licence requirements. The plaintiff denied seeing the overhead but said that he understood those requirements to be the position. The plaintiff was referred to a circular letter sent to all Marcsta providers on 24 March 1997 wherein the following paragraph appears.
"Licence and reapplications
Applications by providers to relicense as a Marcsta provider for the following year shall be lodged with the Association's secretary 60 days prior to the applicant's licence renewal date.
The application shall be accompanied by (a) a copy of the provider's course presentation plan, and (b) a copy of the provider's course assessment instrument."
The plaintiff denied reading this document but testified that he knew about these requirements in about October 1996.
The plaintiff denied that an early stage one of Marcsta's objectives was to change licensing criteria to meet the standards required of the industry but agreed with that as an objective.
The plaintiff was also referred to a circular letter to providers from Mr Halse dated 15 April 1997 which referred to the changes to the application requirements for licensing/relicensing effective as of 15 April 1997. The plaintiff said there was a possibility he read that letter. However, when he was referred to paragraph 3 of the letter he said he definitely had not seen the letter. Paragraph 3 referred to the requirement for all providers to sign a contract between Marcsta and the provider to maintain quality and consistency of training services whilst delivering any Marcsta training course. Under further cross‑examination the plaintiff testified that he could not be sure whether he saw the letter or not. The plaintiff was referred to the Marcsta Licence Agreement which was required to be signed by all Marcsta providers and stated that he had not seen that agreement before the court proceedings. However, he testified that if he were presented with the Licence Agreement he would have no problems signing it.
The plaintiff was cross‑examined about the first daily training plan and was referred to Dr Ionnakis' response and critique dated 22 October 1997.
The plaintiff testified that the requests outlined in that letter were reasonable. However, he said he was not surprised that Dr Ionnakis requested further information because he did not know what a daily training plan was. When asked about Dr Ionnakis' critique of the second daily training plan he had submitted, the plaintiff testified that he had some problems understanding what Dr Ionnakis meant. He said that he amended the daily training plan to suit Dr Ionnakis' requirements twice but it was still not good enough for her. When he submitted the third daily training plan, the plaintiff testified he tried to comply with Dr Ionnakis' request but on receipt of her comments in relation to that stated that he didn't think she knew what she wanted.
The plaintiff sought to draw a distinction between a daily training plan and the session plan. He testified that the session plan contains more information namely the whole course material which he maintained belonged to him.
When asked about the offers of assistance at the conclusion of Dr Ionnakis' response to his application, to contact her if he required further assistance, the plaintiff stated that he did not need any clarification and therefore did not take up the invitation. This is at odds with his evidence that he did not understand what was meant by a daily training plan. On receipt of Dr Ionnakis' comments concerning the third daily training plan the plaintiff stated that he had no intention of addressing those enquiries. He testified that in hindsight he believes Dr Ionnakis was being set up, that is, instructed to contrive a situation whereby he would never be able to comply with her requests. The plaintiff alleged that Mr Greg Harris (a Marcsta committee member) and Mr Bob Halse were responsible for that, describing them as "crooks" and "not men of their word". Notwithstanding being offered 30 days grace within which to complete his application, the plaintiff testified that he thought it was a waste of time.
The plaintiff testified that he was convinced that his daily training plan was adequate but on being rejected the third time considered "enough is enough".
The plaintiff agreed that he had had no contact with Marcsta between 6 December 1997 and January 1998. After being advised that his licence had lapsed, he decided within a week or so to take action against Marcsta.
The plaintiff did not regard Marcsta's requests as being unwarranted interference but described them as "just puerile".
The plaintiff testified that the only way to judge a provider's worth is by the feedback or assessment provided by the trainees. He testified that it was not possible to judge a provider by an outline.
As to the letter dated 1 October 1997 from Mr Halse to the plaintiff, which referred to the lodgment of required documents and the signing of a Licence Agreement on receipt of the documents, the plaintiff implied that that did not apply to him because he was already licensed.
The plaintiff testified that he understood the assessment process to include Dr Ionnakis bringing her experience and knowledge to bear and deciding whether the application met the grade as she determined it to be.
As to Dr Ionnakis' comments about the first daily training plan, the plaintiff testified that he did not think her comments were unreasonable.
The plaintiff said that he made a genuine attempt to comply with Dr Ionnakis' requests.

Joseph William Griffiths

Mr Griffiths has had 28 years experience in industrial training in Australia and overseas. He holds higher degrees in industrial training and human resources development training.
Mr Griffiths was a Marcsta provider from October 1996 to November 1998. Mr Griffiths has known the plaintiff since 1994. He in fact issued certificates of competency in recognition of prior learning to the plaintiff. Mr Griffiths went through the same initial licensing process as the plaintiff. He stated that he was not made aware of any criteria for relicensing as a Marcsta provider except for the payment of an annual fee of $500 and the fee for purchasing the Marcsta certificates and manuals. He assumed that having fulfilled the initial conditions, it would be a mere formality to be relicensed.
On or about 27 March 1997, Mr Griffiths received a facsimile from Marcsta informing him that the rules and conditions for relicensing with Marcsta as a provider had been changed. He stated that this was his first notification of the changed requirements. Later he received the circular letter from Marcsta dated 15 April 1997 which advised of the changes to the application for relicensing. He regarded it as a relaxation of the requirements that Workplace Trainer/Training Category 2 did not have to be completed but was replaced with Workplace Trainer/Training Category 1 Certificate and a Workplace Assessor's Certificate.
Mr Griffiths also recalled a general mention of the change in the rules and conditions for re-registration/relicensing at a Marcsta review (seminar) which he attended on 3 May 1997. He was unable to elaborate on the changes mentioned at that Marcsta review.
On or about 9 September 1997, Mr Griffiths received a letter from Marcsta informing him that in order to renew his licence he should submit a daily training plan, course assessment instrument, certification for Workplace Training Certificate 1 and certification for Workplace Assessment. He testified that he usually called the daily training plan a schedule or timetable. This document is used so that a training provider can see what aids to use for trainees. It is a document which is not supplied to trainees. Mr Griffiths testified that all four documents were supplied to Marcsta as requested. When he received the request for a daily training plan he assumed it was simply a general outline of the work he would go through in the day. At no time did he believe that Marcsta was referring to a session plan which is the document from which a training provider actually works in the course presentation. The session plan is designed to achieve the learning outcomes and what they are supposed to do on a job so there is much more emphasis now on session plans because of competency based training. The session plan contains detailed notes and can vary between different trainers.
Before being relicensed, Mr Griffiths asked Carole Halse what was meant by a daily training plan. Mrs Halse advised Mr Griffiths that it was a general outline and that he would not have any trouble "getting through this".
On or about 15 October 1997, Mr Griffiths received a letter from Dr Ionnakis in which she stated that she had reviewed his application and supporting evidence and made a suggestion in connection with his assessment instrument. No comment was made in relation to Mr Griffiths' daily training plan. Mr Griffiths amended his assessment instrument. On or about 29 October 1997 he received a letter concerning renewal of his licence as a Marcsta provider. The letter enclosed a formal agreement with Marcsta (the Licence Agreement)which he signed and returned with his annual fee of $500.
In early November, the plaintiff contacted Mr Griffiths to discuss his application for relicensing. The plaintiff explained that his daily training plan had been rejected by Marcsta. Mr Griffiths then suggested that the plaintiff use his daily training plan as a model as he believed it had been accepted by Marcsta.
Mr Griffiths was referred to the three versions of the plaintiff's daily training plan and testified that the second was better than his and that the third version contains more detail than the second version and more detail than what was contained in his own daily training plan. He stated that the plaintiff's daily training plan (version 3) exceeded his idea of what a daily training plan is.
By a facsimile dated 21 November 1997, Dr Ionnakis confirmed acceptance of the Mr Griffiths' amended assessment instrument and requested a copy of his daily training plan which she said she was unable to find.
In late November, Mr Griffiths had been advised by the plaintiff that his amended daily training plan which had been modelled on his had been rejected by Dr Ionnakis.
Thereafter followed an exchange of correspondence between Marcsta and Mr Griffiths concerning provision/revision of his daily training plan. Mr Griffiths believed that he had submitted his daily training plan and given the treatment the plaintiff had received from Marcsta in connection with his daily training plan, he believed that he was in for the same treatment. Eventually, Marcsta received Mr Griffiths' daily training plan in late January 1998.
In any event, Mr Griffiths forwarded a copy of his daily training plan and was advised by Mrs Halse that he could not have "passed" the relicensing requirements on the basis of the daily training plan he had submitted.
Mr Griffiths was concerned that the advice received from Mrs Halse that the daily training plan should be such that another provider could conduct a class on it. Mr Griffiths' concern was that the course material was his for his own use and was not supplied by Marcsta. Further, in the licence agreement he had signed, an obligation was imposed on him to conduct courses personally and not to delegate the responsibility to another person.
Mr Griffiths did not receive any further comments from Marcsta concerning his daily training plan and remained a Marcsta provider for the year of 1998.
Under cross‑examination, Mr Griffiths agreed that if a person wanted to be licensed by Marcsta that person had to comply with Marcsta's requirements. He agreed that in the General Induction Workshop held on 3 May 1997 that the high and shifting standards of Marcsta and the industry were emphasised.
He stated that he did not know what a daily training plan was but said that he needed to be responsive to the needs of his clients. He agreed that it would not be an unusual request for a client to want to have a clear understanding of what was going to be delivered on any particular day in terms of the content of the course, how it was to be delivered, the time for each particular module and how the module was going to be presented.
In response to questions posed by me, Mr Griffiths testified that in his view, a session plan is far more important for the trainer than a daily training plan. If Marcsta was interested in ensuring that standards were kept to a particular level amongst their providers, he agreed he would see it as important for Marcsta to have access to a provider's session plan. He personally would not have any difficulty in providing his session plan to Marcsta for that purpose.

Evidence of John Woodacre

Mr Woodacre was a witness called on behalf of the plaintiff as an expert to give his view of the definition of a daily training plan and session plan. Mr Woodacre held certain diplomas and certificates in relation to training but of more importance he has had 19 years of continuing engagement in senior management roles in the area of training and development, of which 12 years were spent in the mining industry.
Mr Woodacre stated that within the training industry there is really no such thing as a daily training plan or at least there is no recognised document or format by that description. The phrase "training plan" is generally understood within the training industry to mean the same as a course overview. Where the course in question is a one day course then one may understand the reference to "daily training plan" to mean a training plan or course overview for a one day training course. There is no definition in any of the texts of what a daily training plan comprises.
Mr Woodacre stated that a daily training plan would normally be understood to mean an overview, that is, a timetable of what will happen on a particular training day. He stated that that is something he would clarify with the client who required a training plan or course overview. If no guidelines were provided he would simply provide a timetable for the course. Mr Woodacre would not include any details on the training materials he intended to use in a daily training plan. That sort of detail according to Mr Woodacre is only appropriate in a session plan.
Mr Woodacre stated that a session plan is an essential part of all professional training. It is standard course preparation material which each training provider must have to fully particularise the conduct of the training course. A normal session plan will take each training module and break it down into its component parts. The session plan will detail adjacent to those component parts of each training module the materials or training resources (overhead projections, group discussion, question and answer sessions) that are to be utilised in order to achieve the desired training outcome.
Mr Woodacre commented on the versions of daily training plan submitted by the plaintiff to Marcsta. In his view, the first version of the plaintiff's daily training plan was adequate albeit it rather poorly presented. In his view, the plaintiff had covered all of the essential components in terms of detailing the training modules required to be covered in the one day course in accordance with the Marcsta short course curriculum. He believed that the extent of the details sought by Dr Ionnakis constituted a session plan which is entirely separate from and far more complex than a daily training plan.
Mr Woodacre stated that he did not know what is meant by the term "daily work plan" referred to in the letter from Carole Halse dated 20 November 1997. According to Mr Woodacre that phrase is nebulous and bears no particular meaning in the industry.
As to the second daily training plan submitted by the plaintiff, Mr Woodacre was of the view that although the plaintiff had not employed the box format suggested by Dr Ionnakis, he had complied with all other requests. His view that it was certainly adequate as a training plan or course overview and the second version was presented in a far more professional format than the first.
In Mr Woodacre's view, the response of Dr Ionnakis dated 21 November 1997 goes way beyond a training plan or course overview or even a session plan. In his view, Dr Ionnakis appeared to be requiring the extent of detail which he would describe as trainer's notes, especially where Dr Ionnakis required that "another provider should be able to train from your plan".
Mr Woodacre was of the view that where a particular training provider owned his or her own training materials and study resources then to provide to any third party those notes would certainly put at risk the confidentiality of the intellectual property or trade secrets associated with the particular provider's course presentation materials.

In his view, the plaintiff had complied with Dr Ionnakis' request to the extent reasonably possible by inserting detailed time formatting the duration of his videos and overheads and was more than adequate.
Mr Woodacre has attended training courses conducted by the plaintiff and considered him to be the finest up front trainer he has witnessed within the plaintiff's field of experience.
Under cross‑examination, Mr Woodacre was referred to the specimen daily training plan sent to Mr Griffiths by Carole Halse. Mr Woodacre described that document as training notes or a training session plan and said it would be a misnomer to describe it as a training plan.
He said that the training industry is rife with jargon and there is a deal of confusion in the use of some terms. He would expect Marcsta to send out a glossary of terms. However, he said that communication is a two-way process.
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 plaintiff 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. No-one is relicensed until the daily training plan is assessed as adequate by Dr Ionnakis. 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' 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 was the ultimate arbiter.
Given that the plaintiff was unsure of what was required initially and after Dr Ionnakis rejected his three version of the daily training plan, it would have been an easy and sensible thing to take up one of the offers or Dr Ionnakis to be of assistance.

The dispute between Marcsta and the plaintiff in March 1996

The plaintiff alleges that Marcsta prevented him from becoming relicensed through improper motives, bad faith and/or incompetence. The plaintiff contends that he was not liked because in March 1997 he had a dispute with Marcsta which was settled out of court on the basis that Marcsta pay the plaintiff $10,000 damages and his legal fees of $3000.
I intend to make findings of fact about this matter, although given my other reasons for decision particularly as to the nature of the contract between the parties, it is not strictly necessary.
Mr Halse testified that early in 1997 it came to his attention that the plaintiff was conducting a Marcsta course which was supposed to run for eight hours in less than half the time. It also came to his attention that the plaintiff was distributing "identification" cards referring to the Marcsta course which were not the official Marcsta identity card.
The information about the length of the courses came to light when another Marcsta provider questioned why he had to conduct courses which ran for eight hours and then someone else (ie the plaintiff) was running them in half the time.
Mr Halse sent a facsimile to the plaintiff on 6 February 1997 stating that he was suspended from conducting further courses until the complaints were investigated and resolved.
The plaintiff contacted Western Mining Corporation ("WMC"), for whom he was then conducting Marcsta courses, and was told that there were no complaints made by WMC about him. He had earlier attempted to obtain some information from Mr Halse and claimed that he declined to supply any.
The plaintiff engaged solicitors and there were negotiations between the parties. The result was that pursuant to a handwritten agreement, Marcsta agreed to pay the "damages" mentioned and publish an apology in the newspaper. This was duly done. The plaintiff was reinstated as a Marcsta provider on 19 March 1997.
There was another term of the agreement of resolution which related to Marcsta reimbursing the plaintiff for lost fees in certain circumstances. According to the plaintiff this was not done. In the end result he claimed that he shook hands with Mr Halse and Mr Harris and forgot about the whole thing. This was not put to Mr Halse.
Following the resolution of the dispute, Marcsta considered that the dispute highlighted a shortcoming in the licensing procedure. As part of the ongoing consideration of ways to improve consistency and uniformity, certain changes which I have mentioned elsewhere in this judgment were put into place.
It seems that the plaintiff regarded Mr Harris and Mr Halse as men who were not true to their word. When the relicensing process began in October 1997, the plaintiff believed that Mr Halse and Mr Harris could not be trusted and that they held some sort of grudge against him. He believed that somehow, they were influencing Dr Ionnakis to prevent him from being relicensed.
Mr Halse stated that the agreement was reached in the March dispute on legal advice. He claimed that he did not believe that Marcsta had anything to apologise for and that Marcsta was forced into the agreement.
There is no other incident between March and October 1997 which the plaintiff points to as supporting his view that Mr Halse and Mr Harris tried to prevent him from being relicensed. The plaintiff attended information seminars and continued to conduct Marcsta courses.
In my view, the March dispute played no part whatsoever in Dr Ionnakis rejecting the various daily training plans which were submitted by the plaintiff. Mr Halse did not discuss the matter with Dr Ionnakis. Dr Ionnakis stated that she knew about the March dispute but that is all.
In my view, the plaintiff believed that because there were changes to the licensing criteria which seemed to him to be a result of the March dispute and because his daily training plan which was modelled on that of Mr Griffiths was rejected, that there was some sort of agenda to prevent him from being relicensed. The plaintiff wrongly believed that Mr Griffiths' daily training plan had been "passed" by Marcsta. As it turned out, Mr Griffiths' daily training plan was not seen by Marcsta until late January 1998. This was after the plaintiff had submitted his third version of his daily training plan.
I might add that the plaintiff's concerns about the motives of Mr Harris and Mr Halse appear to have been fuelled by Mr Griffiths' concerns that he was in for the same treatment as the plaintiff because Marcsta requested a copy of his daily training plan when it came to light that it had not been received.
Mr Halse testified that Mr Griffiths was relicensed without having daily training plan assessed through an administrative error. As Mr Griffiths was relicensed before the absence of his daily training plan was noticed, Mr Halse decided to let the matter rest there. This is completely understandable and I totally accept Mr Halse's evidence as to this.
I also believe that the plaintiff did not follow up Dr Ionnakis' offer of assistance because of his suspicions about the motives of Mr Halse and Mr Harris.

FINDINGS

The letter dated 16 October 1996

The parties agree that the letter dated 16 October 1996 constitutes a contract between Marcsta and the plaintiff.
The plaintiff agreed that Marcsta was entitled to impose conditions for relicensing and could from time to time change its criteria for relicensing. In other words, he agreed that when and if he wished to be relicensed for 1997, there would be certain conditions imposed by Marcsta with which he would have to comply before being relicensed. One of the conditions which he considered appropriate was that he sign a Licence Agreement.
In my view, this case depends upon the construction of the contract. It seems to be the plaintiff's contention that the letter constituted a contract, which could be extended on a yearly basis by compliance with certain conditions imposed by Marcsta. From year to year these conditions could change. However, it seems to me that a decision should be made as to whether –
•the contract is an annual contract the terms of which are that conditions for relicensing change from year to year according to Marcsta's determination or
•whether a new contract is entered into at the expiration of a year upon the same or other conditions imposed by Marcsta.
The first limb of the plaintiff's claim is that the contract is an annual contract or one which is extended from year to year subject to compliance with Marcsta's conditions.
It is clear from the plaintiff's own testimony that from year to year he and other licensed providers would not know what Marcsta's requirements or conditions would be until advised by Marcsta.
The plaintiff contends that pursuant to the contract, the plaintiff will be relicensed from year to year, pursuant to the express terms of the contract upon:–
•upon payment of the annual registration fee;
•purchase of the Marcsta certificates;
and, pursuant to an implied term of the contract upon: –
•compliance with other "reasonable re‑registration requirements" of Marcsta.
The defendant admits that the letter of 16 October 1997 constituted a contract but pleaded "that the term of the licence was for one year from the date of issue expiring on the 4th December 1997". In effect, I take this plea to mean that the defendant alleges that the contract came to an end on 4 December 1997. The defendant's case being that at the expiration of each annual period, upon compliance with certain conditions, the parties could enter into a new contract.
In my view, as a matter of construction, the latter interpretation of the contract is to be preferred. If that were not the case, then a situation can be envisaged where from year to year, the providers may not know what Marcsta's conditions will be for the successive years. The registration fee and the cost of the Marcsta certificates might increase from year to year. The qualifications and experience required of providers may change (as they did from 1996 to 1997). The selection process may change (as it did in 1997). That would mean from the plaintiff's position, that in October 1996 he entered into a contract the terms of which were uncertain and even if certainty be achieved from year to year given publication of the relicensing requirements by Marcsta, they could change dramatically in following years. This makes a nonsense of the contract. It matters not whether the relicensing requirements were reasonable or otherwise. It would mean that when the contract was initially entered into, in October 1996, the plaintiff would not know with any certainty what were the terms of the contract, especially when it came to relicensing conditions. As to those, all the plaintiff would know, on his case, was that they had to be "reasonable".
Marcsta was set up to licence trainers in mine safety so that certain minimum standards in training could be offered to mining companies. If mining companies secured the services of a Marcsta provider, they knew that those minimum standards would be observed. This is because the providers were licensed by Marcsta, which would impose certain consistent standards and qualifications on its licensed providers.
It is admitted by the plaintiff that Marcsta had the right to impose standards and conditions as prerequisites to relicensing. The bottom line is that to ensure that standards are maintained according to the prevailing requirements of the mining industry, unless the applicant providers complied with what Marcsta required, they would not be licensed or relicensed.
The plaintiff considered that Marcsta was entitled to require providers to enter into a Licence Agreement as a condition to be relicensed. He had not seen the Licence Agreement which was required to be signed as a condition of him being relicensed in 1997, until the court proceedings. However, he thought it was reasonable and said that he would not have any objection to signing it.
An examination of that Licence Agreement reveals it to be a contract between (relevantly) Marcsta and a provider whereby Marcsta grants a licence to the provider subject to the terms of the agreement and in consideration of the provider paying the Marcsta licensee fee. The licence is granted for the term specified in the schedule as extended from time to time or until terminated in accordance with the agreement. The licence can be terminated by the provider upon delivery of course materials and the Marcsta stamp to Marcsta. Marcsta may terminate the licence at any time upon giving to the provider one month's written notice and Marcsta shall not be liable to the provider in respect of any loss or damage which it may suffer as a result of termination of the licence by Marcsta.
In my view, that Licence Agreement constitutes a contract which gives the absolute right to Marcsta to terminate the licence upon one month's written notice. It cannot have been contemplated by the plaintiff that when he paid his fee and the cost of the certificates in October 1996 that he in effect agreed to enter into another contract (the Licence Agreement), the terms of which he was then unaware.
It defies common sense in my view to construe the original contract as anything other than one which endured for the term of the licence, namely one year. Thereafter the parties could negotiate another contract for a licence for another term, whether for a year or some other period.
Given my findings as to the nature of the contract, it is not strictly necessary to consider the plaintiff's claim about the implied term. For the sake of completeness, I make the following observations.
The plaintiff claims that it was an implied term of the contract that the relicensing requirements be "reasonable". It seems that on the plaintiff's own evidence it would not be unreasonable for Marcsta to require providers to sign a Licence Agreement which allowed for termination in one month's written notice by Marcsta. However, the plaintiff takes issue with Marcsta requiring compliance with the provision of documents by which the provider's suitability for obtaining a licence is judged. 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.
The plaintiff did not advance any evidence to establish what would be reasonable condition for relicensing 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. Indeed, the plaintiff's own evidence seems to the effect that all conditions imposed by Marcsta were reasonable save for the requirement that Dr Ionnakis approve the daily training plan.

The letter dated 1 October 1997

The plaintiff claims that a letter from the defendant to the plaintiff dated 1 October 1997 constituted an offer by the defendant to the plaintiff to relicense the plaintiff upon the plaintiff complying with the terms of that offer.
A letter in similar terms as that sent to the plaintiff was sent to all other licensed Marcsta providers.
The letter dated 1 October 1997 is as follows:
"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."
Counsel for the plaintiff submitted in written submissions that in respect of commercial transactions, there is a prima facie presumption that there is an intention to create legal relations and the onus of proving the absence of such intentions rests with the party who asserts that no legal effect is intended (Banque Brussels Lambert SA v Australian National Industries Limited 21 NSWLR 502 at 521).
The plaintiff submitted that the overriding test is that of the intention of the parties as deduced from the document as a whole and seen against the background of the practices of the particular trade or industry.
The plaintiff submitted that Mr Halse testified to the effect that upon satisfaction of the criteria imposed by the defendant the providers "were entitled to be relicensed". Therefore, the defendant clearly contemplated that it was making a contractual commitment to the providers by advising them of the "criteria". The plaintiff further submitted that where a contract is constituted by a statement containing a promise on one part and an act in response to that statement, it is necessary that the statement was offered as consideration for the doing of the act, and that the act was done in consideration of a potential promise inherent in the statement or announcement (Australian Woollen Mills Pty Ltd v The Commonwealth 92 CLR 424).
The plaintiff submitted that earlier steps taken by the defendant in communicating to the providers changes to licensing criteria as outlined in its letter dated 15 April 1997 illustrates an intention on behalf of the defendant to bind itself with respect to the new criteria to be applied. The plaintiff submitted that the criteria imposed by the alleged offer of 1 October 1997 was subject to the same considerations of "reasonableness" as is claimed applied in relation to the contract dated 16 October 1996. The plaintiff's case is, that the letter of 1 October 1997 was an offer to relicense once there was compliance with the criteria outlined therein. In effect, the plaintiff claims that he accepted the offer by providing the information and documents requested. He claims that the defendant acted "unreasonably and capriciously" in refusing to relicense the plaintiff because of the alleged "deficiency" in the plaintiff's daily training plan and that this was unreasonable. In subjecting the plaintiff's daily training plan to detailed criticism, the plaintiff claims that the defendant thereby breached the contract between the plaintiff and the defendant for which the plaintiff is entitled to damages.
On the other hand, the defendant submitted that the letter dated 1 October 1997 could not possibly be construed as an offer capable of acceptance because it was acknowledged even by the plaintiff that the documents submitted would undergo a process of assessment. Counsel for the defendant submitted that the plaintiff's complaint, more accurately put, is that the assessment process by Dr Ionnakis was unfair or unreasonable. The defendant submitted that the letter dated 1 October 1997 was simply an invitation to treat. I agree with that submission. The relevant principles are usefully set out in Riverina Gold NL v Associated Resources Pty Ltd, unreported; SCt of WA; Library No 930535; 2 September 1993.
If the letter dated 1 October 1997 could be construed as an offer, the contract was not completed until the plaintiff had accepted the offer by submitting the relevant documents and in particular the daily training plan which would, even on the plaintiff's own evidence, have to be assessed as satisfactory by Dr Ionnakis. Dr Ionnakis did not consider the daily training plan as submitted to be in accordance with Marcsta's requirements. Even if the letter dated 1 October 1997 could be construed as an offer, it was simply not accepted by Marcsta.

It cannot possibly have been the case given Marcsta's objectives and the employment of Dr Ionnakis to assess the training aspects of licensing and relicensing, that the mere submission of the document entitled "Daily Training Plan" would in all circumstances be accepted by the defendant resulting in the automatic granting of a licence to the applicant.
It is also arguable that even if the letter dated 1 October 1997 does constitute an offer, acceptance would not be complete until the licence agreement was signed.
Further, if more be needed, I do not accept the claim by the plaintiff that Marcsta acted unreasonably and capriciously. The deadline for relicensing was extended by 30 days to give the plaintiff the opportunity to comply with relicensing conditions. Marcsta, through Dr Ionnakis, gave the plaintiff every opportunity to amend the daily training plan to comply with what Dr Ionnakis considered to be acceptable. The plaintiff did not take up any Dr Ionnakis' invitations to discuss requirements. On being requisitioned by Dr Ionnakis, the plaintiff decided to take legal action. In my view, this was a "knee-jerk reaction" similar to the action which the plaintiff took in the context of the March dispute.
In summary, my findings are these.
1.It is agreed the contract between the plaintiff and the defendant as evidenced by the letter dated 16 October 1996 and the associated conduct on the part of the plaintiff constituted a contract which expired on 3 December 1997;
2.thereafter, the plaintiff and the defendant could enter into a fresh contract subject to conditions imposed by the defendant. Those conditions included submitting a daily training plan which was acceptable to Dr Ionnakis and the signing of a Licence Agreement which specified the term of the licence and other factors impacting on the licence;
3.the letter dated 1 October 1997 did not constitute an offer capable of acceptance. It was simply an invitation to treat;
4.even if the letter dated 1 October 1997 constituted an offer by the defendant to relicense the plaintiff once there was compliance with certain conditions as outlined therein, the plaintiff did not comply with those conditions. In particular, the plaintiff did not forward a daily training plan which passed the assessment process conducted by Dr Ionnakis. The defendant therefore did not accept an offer if, indeed, the letter dated 1 October 1997 could be construed as an offer;
5.in all of the circumstances, the defendant, far from acting unreasonably, acted with complete propriety and professionalism and gave the plaintiff every opportunity to comply with the conditions for relicensing. In my view, the plaintiff acted imprudently in not taking up Dr Ionnakis' invitations to discuss requisitions. Further, the plaintiff wrongly believed that the March dispute between him and Marcsta in some way prejudiced the defendant against his application for relicensing. The plaintiff wrongly believed that the defendant was somehow discriminating against him in rejecting his daily training plan because he erroneously believed that it was based on a training plan prepared by Mr Griffiths which had been passed by the defendant. In fact, Mr Griffiths' daily training plan had not even been seen by Dr Ionnakis until well after the time period in which the plaintiff had to comply with relicensing condition had expired.
The plaintiff's claim is dismissed.