FRANK R WOLSTENHOLME PTY LTD v DAVIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBY ACJ, ROLFE and BAINTON AJJA 18 July 1995, 28 July 1995 [1995] NSWCA 155 WORKERS' COMPENSATION — application of NSW Act — employer with business in Queensland advertises for stockman — worker telephones employer and applies for job — employer's officer says "All right, well I'll give you a two week trial" — worker says "Okay, I'll come up on the weekend" — whether acceptance of job offer occurred in New South Wales or Queensland — whether, within s13(1)(a) of NSW Act the employer employs a "worker" in New South Wales when the acceptance is received by telephone in New South Wales — whether employer made counter-offer of two week trial which was accepted by the worker with acceptance received in Queensland excluding application of NSW Act — Davidson CCJ concludes that employer accepted offer and that the suggested counter-offer incorporated trivial, usual or implied terms which did not prevent the application of s13(1)(a) of the NSW Act — on appeal to the Court of Appeal — held: (by the Court): (1) The word "employs" in s13(1)(a) of the Workers Compensation Act 1987, means "engages for employment". Helmers v Coppins (1961) 106 CLR 156; Starr v Douglas and Ors (1994) 35 NSWLR 133 (CA) applied; Entores Ltd v Miles Far East Corp [1955] 2 QB 327 (CA) applied; New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29; BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (1984) 180 CLR 266 applied; APPEAL - Court of Appeal - procedural fairness - application to raise additional ground - whether by any possibility such an issue, if raised at the trial, might have been resisted or met by evidence - held: (by the Court): It might. Leave refused. Coulton and Ors v Holcomb and Ors (1987) 162 CLR 1 applied. CONTRACT - making of - place of - offer and acceptance by telephone - where contract made - held: Made where acceptance received. Entores Ltd v Miles Far East Corp [1955] 2 QB 327 (CA) applied. WORDS and PHRASES - "there employs a worker". Workers Compensation Act 1987, s13(1). ORDERS 1. Appeal allowed; 2. Set aside the award in favour of the respondent in the Compensation Court of New South Wales; 3. In lieu thereof, order that an award be entered in favour of the respondent in that Court; 4. Order that the respondent pay the appellant's costs of the appeal but have a certificate under the Suitors' Fund Act 1951. Kirby ACJ It is somewhat unfortunate that the substantial entitlements of Mr John Davis (the worker) (the respondent) to compensation under the Workers Compensation Act 1987 (the Act) should depend upon the microscopic examination of words of an alleged conversation deposed to in written interrogatories, recalled and recorded long after they were spoken and completely outside the worker's own recollection because of the cerebral injuries which he has sustained. 2 UNREPORTED JUDGMENTS COMMON GROUND IN THE COMPENSATION COURT But so, it has been accepted, this appeal from the Compensation Court of New South Wales (Davidson CCJ) must be determined. In that court, the worker recovered compensation under the Act by an award entered against Frank R Wolstenholme Pty Ltd (the appellant). That company has appealed to this Court. It was common ground that the appeal, arising out of proceedings commenced by an application for determination filed in 1990, falls to be considered within the terms of the Compensation Court Act 1984, s32 as amended by the Compensation Court (Amendment) Act 1989, Schedule 4 CLS. This Court must therefore consider suggested errors of fact finding and fact evaluation as well as law. The basic facts are stated in the reasons of Rolfe AJA. For the reasons given by his Honour, conformably with the requirements of procedural fairness explained in Coulton and Ors v Holcomb and Ors (1987) 162 CLR 1, 7, I agree that the appeal must be confined to the issues fought at the trial in the Compensation Court. The application to amend the notice of appeal must be refused. This confines the issues for this Court's determination to grounds | to 6 in the notice of appeal. Upon those issues, I have regretfully come to a conclusion different from that reached by the other members of the Court. I must state why. The critical statutory provision, which must be measured against the only evidence of the engagement of the worker, is set out in the reasons of Rolfe AJA. I repeat the relevant terms: "Tf: (a) An employer has a place of employment in New South Wales... and there employs a worker; (b) Any such worker whilst outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act, the injury is an injury to which this Act applies, and compensation is payable accordingly." It was common ground that the worker received his injury on 20 May 1988 in Queensland. There was claimed, and received on his behalf, benefits under the Workers' Compensation Act 1916 (Qld). Those benefits are, apparently, significantly less than ie benefits payable under the New South Wales Act. The proceedings in the Compensation Court were aimed to attract to the worker and his dependants the larger benefits payable under the New South Wales legislation. For the worker it was conceded that there could be no double payment and that sums paid under the Queensland Act would have to be refunded or credited to the appellant. The attraction of transborder compensation legislation to rural workers (especially shearers and drovers) for whom, in many country districts of Australia, State boundaries have less importance than to lawyers, is neither a new nor an uncommon phenomenon. It arose in Dykes v Dunn [1958] VR 504 (VFC) applying Mynott and Ors v Barnard (1939) 62 CLR 68. It also arose in O'Connor v Healey (1967) 69 SR (NSW) 111 (CA). Most recently it arose in this Court in WorkCover Authority of New South Wales v Billpat Holdings Pty Ltd and Ors, Court of Appeal (NSW), unreported, 14 July 1995 [1995]. If the worker could bring himself within the term of the New South Wales Act, he and his dependants were fully entitled to its larger benefits. Certain matters were not in dispute concerning the approach to be taken for the resolution of the worker's entitlements: URJ FRANK R WOLSTENHOLME PTY LTD v DAVIS (Kirby ACJ) 3 1. The word "employs" in s13(1)(a) of the Act has been held by long-standing authority to mean "engages". See Helmers v Coppins (1961) 106 CLR 156, 164; Starr v Douglas and Ors (1994) 35 NSWLR 133 (CA); 2. The search, in the case, was therefore, by the analysis of the uncontested evidence, as to where the worker had been engaged. Was it in Queensland, where the representative of the appellant was during the critical telephone conversation? Or was it in New South Wales where the worker was at the time of the conversation? 3. It is also accepted law in Australia that where a dispute arises as to the place where a contract was made, that dispute is to be resolved, legislation and express terms apart, at the place where the relevant acceptance was received. See Entores Ltd v Miles Far East Corp [1955] 2 QB 327 (CA). This is so even where the exchanges take place by the instantaneous medium of telecommunications, eg where both parties are linked by telephone or like connections. See ibid, 337. This rule has been accepted by the House of Lords in Brikinbon Ltd v Stahag Stahl GmbH [1983] 2 AC 34 (HL). It has been accepted in many cases as representing part of the Australian common law. Those cases are collected, with apparent endorsement, by DW Greig and JLR Davis The Law of Contract, Law Book Co, Sydney, 1987, 316. The rule in the United States of America is different. The contract is taken to be made at the place where the acceptance is uttered. See eg Linn v Employers Reinsurance Corp 139 A 2d 638 (1958), 640. Greig and Davis, 316. No party to the proceedings before this Court argued for the operation of the United States rule. Each contended that the application of the Anglo-Australian rule, as properly understood, would carry the day for their interests; and 4. In the way described by Rolfe AJA (and in the reasoning of the primary judge) the case thus narrowed to where the employer had "employed", in the sense of engaged, the worker. At what point in the telephone conversation, properly analysed, did the contract for service become concluded? In short, whose words constituted the acceptance of the relevant offer such that that person's words, being heard by telephone in the other jurisdiction, would determine the applicability, or non-applicability, of the New South Wales Act? THE PRIMARY JUDGE'S CONCLUSION Davidson CCJ, after dealing with the advertisement lodged by the appellant in Queensland Country Life, and analysing this as a mere invitation to treat (and not an offer to employ) - a proposition not contested in this appeal - went on: "My interpretation of the conversation in exhibit A is that the applicant was the offerer and that the respondent, through Mr Wilson, was the acceptor, in the final analysis the acceptance of the applicant's offer was conveyed through the telephone and received by the applicant in New South Wales. At first flush (sic) I was attracted to the contrary proposition.... Guided by [a] statement in Halsbury, 3rd edition, vol 8, 75, paral29, my first impression of the conversation was that even though the applicant was the original offerer, and that the advertisement was merely an invitation to treat, that there had been a counter-offer made by the employer which the applicant had then accepted... [The] advertisement I consider was seeking applications by persons who were willing to offer their services for consideration by the respondent, as to whether or not they would accept them as employees. Upon that basis I conclude initially that the applicant was the offerer when he rang. [The question is whether] the addition of the words - 'well I'll give you a two week trial' was a qualification and amounted to a counter-offer. If that were the case, then the construction that 4 UNREPORTED JUDGMENTS one would put upon the conversation is that by his reply - "Okay, P'll come up on the weekend' the applicant had become the acceptor of the counter-offer contained in that second- last sentence, which was of a two week trial employment. As I say, that was my first impression... " But his Honour concluded, with Halsbury's Laws of England, that: "To amount to a counter-offer, a declaration must be legally operative as an offer, and it will usually put an end to the previous offer.... The question of whether there has been an unconditional acceptance is a matter of interpretation... An acceptance may have legal effect notwithstanding it may appear to be conditional by reason of a number of following factors. [Including] where the new terms apparently introduced by the acceptance are trivial or are only such as would in any event be implied in fact or in law." These considerations led Davidson CCJ to his ultimate findings: "\.. At all times the applicant remained the offerer, and that Mr Wilson on behalf of the respondent remained the acceptor. I do not as a matter of interpretation of that conversation conclude that the roles were reversed by the last two sentences.... Rather in my view those two further sentences cannot be said to have introduced a materially different term, that is the two week trial, from the terms which were spelt out up to that point to the very limited circumstances of the invitation to treat in the form of the advertisement, the offer of the applicant of his services, and what I conclude was the acceptance, prior to the reference to the two week trial, by Mr Wilson on behalf of the respondent. The construction that I place upon the conversation is that at that point when Mr Wilson, after the applicant, told him he was experienced said 'All right, well I'll give you a two week trial' there was acceptance by the employer, which was received in New South Wales and allows the application of s13.... I do not consider that the introduction of the two week trial, even if it were to be considered as a likely counter-offer, differed materially from the terms of the contract between the parties up to that point. Alternatively, if that was regarded as a new term, that is the fact of a two week trial, I would regard it as trivial, or such as would in any event be implied in fact or in law." It is this analysis of the critical conversation which the appellant challenges by its appeal to this Court. THE ENGAGEMENT WAS IN NEW SOUTH WALES The response to the conversation and its legal effect is largely a matter of impression. Although it is true that no assessment of credibility forbids this Court from giving effect to a conclusion different from that reached by the primary judge, the process before the Court is an appeal. It is necessary for the appellant to show that Davidson CCJ was wrong. In judging that matter, it is proper for this Court to pay appropriate respect to the specialised jurisdiction of the Compensation Court and to his Honour's wide experience in, and knowledge of, the terms of employment (engagement) of workers generally and of rural workers in particular. Thus, I would hesitate before I gave effect to a contrary view to that expressed by Davidson CCJ: "Tt is my conclusion that [the additional words are] trivial and certainly not such as could be regarded as differing material from the earlier terms of the contract, either expressed or implied, upon the basis that it would be usual in an employment of this nature, that both parties would consider that the new employee would be under trial in any event. It seems to me that the applicant would understand in the circumstances in which this engagement or employment took place, that if he did not measure up, he would be likely to be put off after URJ FRANK R WOLSTENHOLME PTY LTD v DAVIS (Kirby ACJ) 5 a period. I would consider also that the employer would regard itself as being at liberty to take that step. In the circumstances under which this employment contract was made, if it was not satisfied with the service of the applicant, it would be able to dismiss him and conclude the contract. That almost goes without saying, in my view, as an understood term of this type of employment contract. Therefore, I do not consider that it should be construed as amounting to a counter-offer and reversing the roles." This practical approach to the conversation between the parties, rather than an over-nice analysis of the disembodied language of the interrogatories, is the proper way to view and apply the beneficial provisions of the Act, and specifically the extra-territorial provisions of s13(1). I would resist an approach to that section which narrowed its operation and application. In the reality of the industrial relationship between a country stockman responding to an employer's advertisement, and that employer, two practical features stand out and would ordinarily be implied into their employment arrangements: 1. That the employer has the last say as to whether to hire or not to hire and that its officer expresses its acceptance on its behalf; and 2. That, if an employee is accepted as a stockman, there is no guarantee of indefinite engagement having regard to the variability of stockmen and the particular needs of employers. In such a context, liability to dismissal after a very short period during which the stockman would show his skills would be ordinary, if not universal. This is especially so where an interview or pre-employment trial was not possible because of the great distances of the Australian inland. Keeping these considerations in mind, if the employer's acceptance were voiced in Queensland, it was received in New South Wales. The engagement would then take place in New South Wales. If any such engagement would initially be for a period, to judge the skills of the stockman who could not easily come for an interview, this would readily be implied into the circumstances of the offer made for the appellant to the worker here. I would certainly draw that inference. But more importantly, the primary judge, with his greater knowledge of these matters, had no difficulty in doing so. I do not consider that this Court is justified by anything in the evidence or the argument, to decide that his Honour was wrong. Properly construed, the conversation demonstrated an acceptance of the worker's offer with the words "All right". That was the employer's affirmation. It was stated in Queensland. It was received in New South Wales. It was at that point that the contract was made. Can it seriously be suggested that the result would have been different if the sentence in answer to the interrogatories had read "Tl give you a two week trial. All right"? The result reached by Davidson CCJ was scarcely surprising in the facts of this case revealed by the evidence. The appellant had many connections with New South Wales. Two of its directors, its full-time accountant and its secretary resided in this State. It had substantial rural holdings in the State. Its registered office was in New South Wales. In the nature of such a company in such an industry, engaging such a stockman in New South Wales would not have been exceptional. That is what Davidson CCJ held to have occurred. No error has been shown in that conclusion. On the contrary, on the evidence, I would have come to the same conclusion. Alternatively, even if the foregoing refined analysis be incorrect, the ultimate duty of the Court is to apply the Act to the facts. It must therefore ask where the worker was employed, in the sense of engaged. To the end of the telephone 6 UNREPORTED JUDGMENTS conversation between the worker and the representative of the appellant, it was for the appellant to decide whether to employ (engage) the worker or not. The discussion of the terms, or any special terms, might ensue and be elaborated. But the privilege of engagement remained to the end that of the employer which was undoubtedly in Queensland. The worker was certainly in New South Wales when he was engaged. The proper construction of the conversation was that the final signal of engagement, upon terms acceptable to the employer, necessarily came from Queensland and was received in New South Wales. To conclude otherwise is to ignore the reality of the employer's power of engagement and to resort instead to excessive and artificial refinement of the words of an unverifiable answer to interrogatories. ORDERS The appeal should be dismissed with costs. Rolfe AJA INTRODUCTION The appellant/employer, ("the employer'), which is incorporated in New South Wales and which owns rural properties in New South Wales and Queensland, advertised in a rural weekly newspaper, Queensland Country Life, on 21 April 1988, for a "Station Hand-Stockman". The advertisement required an "experienced person" "for large Merino sheep and cattle station near St George" in Queensland, and that the applicant have "good dogs". It was stated that a two bedroom house with all amenities was available. Applicants were requested to apply to the employer by telephoning John Wilson, "Weeallah", St George and the telephone number was given. The respondent/worker, ("the worker"), was, at the time, residing near Bonshaw in northern New South Wales. He telephoned Mr Wilson, who was the overseer of the property named in the advertisement, in late April or early May, and it is not in issue that the conversation, to which I shall refer in a moment, took place. The terms of the conversation appear in answers to interrogatories furnished by Mr Wilson and were: "The applicant said - 'Hullo my name is John Davis I'm ringing about the job as a stockman'. I said - 'Can you come for an interview'. He said - 'I'm a long way away at Bonshaw, but I'm experienced'. I said - 'All right, well P'll give you a two week trial'. He said - 'OK, Pll come up on the week-end'." This was the only communication between the employer and the worker before the worker commenced work on or about 8 or 9 May 1988. It was not in issue that Mr Wilson had the employer's authority to contract with the worker. On 20 May 1988 the worker was mustering cattle in the course of his employment. The horse he was riding fell and he sustained severe personal injuries. He received workers compensation benefits in Queensland and, on 10 October 1990, he instituted proceedings in the Compensation Court of New South Wales. The matter came before Davidson CCJ on 26 February 1992 and his Honour recorded AB46: "The parties have agreed that at this stage of the proceedings, I should confine myself to that ground which is para2, sub-para B. That is the question of whether or not a contract of service between the applicant and the respondent was entered into outside the State of New South Wales." The determination of that question, which was the only question presented at that time for decision, depended upon whether the engagement for employment of the worker took place by the acceptance by the worker of an offer made by Mr URJ FRANK R WOLSTENHOLME PTY LTD v DAVIS (Rolfe AJA) 7 Wilson on behalf of the employer, or by the acceptance by Mr Wilson on behalf of the employer of an offer made by the worker. It was not in issue that during the telephone conversation, the terms of which I have quoted, Mr Wilson was in Queensland and the worker was in New South Wales and it is from the terms of that conversation that the Court must decide by whom the offer was made and by whom it was accepted. At AB47 his Honour recorded: "The parties agree that the place where an enforceable contract is made is determined by the place at which the acceptance of the offer involved is received." It was not suggested this is not the correct approach. Therefore, if there was an acceptance by the worker it was made in Queensland, and if there was an acceptance by Mr Wilson it was made in New South Wales. Accordingly the worker contended Mr Wilson accepted an offer made by the worker, such acceptance being received by the worker in New South Wales. The employer contended the worker accepted an offer made by Mr Wilson, such acceptance being received in Queensland. $13(1) of the Workers Compensation Act 1987, ("the Act"), provides: "Tf: (a) an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker; and (b) any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act, the injury is an injury to which this Act applies, and compensation is payable accordingly." It was not in issue that the word "employs" in sub-para(a) means engages for employment": Helmers v Coppins (1961) 106 CLR 156 and Starr v Douglas and Ors (1994) 35 NSWLR 133. The worker could only maintain his proceedings in New South Wales if he could establish the contract was made in this State by the acceptance by Mr Wilson of his offer. AN APPLICATION FOR LEAVE TO AMEND THE NOTICE OF APPEAL The employer gave notice that it would be seeking leave to amend the Notice of Appeal by adding the following further ground: "1A. That his Honour erred in finding that the requirements of S13 of the Workers Compensation Act 1987 were satisfied because there was no relevant connection between the employer having a place of employment in New South Wales, or the employer being for the time being in New South Wales, and the further requirement of the section that the employer THERE employs (in the sense of engages) the worker." (Draftperson's emphasis.) Mr JE Maconachie of Queen's Counsel, with whom Mr A Baker of Counsel appeared for the employer, submitted the employer should be granted leave to amend in the terms to which Ihave referred, because the amendment only gave rise to an issue of law. Mr LM Morris of Queen's Counsel, with whom Mr Alkadarnani of Counsel appeared for the worker, opposed the application on the ground that factual issues were relevant to a consideration of the ground. As I have said the employer owns rural properties in New South Wales and Queensland. Its registered office is at 122 Darling Street, Dubbo. The evidence established, or it was not in issue, that the administration of the employer was carried on from an office at Narromine, at which office the employer's accountant worked. In an answer to Interrogatory 27, AB43, asking by whom the advertisement was lodged Mr Herbert Ronald Wolstenholme, a director of the employer, stated he could only assume it was placed by the 8 UNREPORTED JUDGMENTS Narromine office of Frank R. Wolstenholme". It also appeared from the answers to interrogatories, AB44, that wage and employment records relating to station hands and other workers, including the worker, were kept and could be inspected at the Narromine office of the employer. It therefore appears that the administration of the various companies was carried on from the Narromine office. Mr Maconachie submitted that the contract with which the Court was concerned was one whereby, on any view, the worker was required to work in Queensland and, accordingly, it would have been irrelevant, in considering any matter in issue, to have regard to any connection between the rural pursuits of the employer in New South Wales, for the purpose of deciding any possible "relevant connection" of the type referred to in the proposed further ground of appeal. Mr Maconachie also submitted that it would be quite irrelevant, having regard to the contract in issue, to explore whether, at some time in the future, the worker may have been transferred from a property owned by the employer in Queensland to one in New South Wales, or to explore any possible staff changes or transfers. Mr Morris submitted that leave to amend should be refused as there was no issue at first instance raised by the pleadings, the evidence or the submissions of any relevant connection and, had there been, the worker, or those representing him, would have wished to examine the structure of the employer and the possible connections, including connections of the type to which I have referred. I have referred to the precise issue the parties requested Davidson CCJ to decide. The headnote in Coulton and Ors v Holcombe and Ors (1986-1987) 162 CLR 1 states: "Parties to litigation are bound by the conduct of their case at the trial. Hence it would be unfair on an appeal to an intermediate appellate court to allow, by discretionary amendment, the allegation by one party of new matter whereby the other party would be subjected virtually to a new trial on an issue different from that already litigated. Any other course would deny expedition, finality and justice, especially where no substantial public interest or the need for statutory interpretation was involved." In the joint judgment of Gibbs CJ, Wilson, Brennan and Dawson JJ their Honours said, at 7: "Tt is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given WHICH BY ANY POSSIBILITY could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd; Bloemen v The Commonwealth." (My emphasis.) Their Honours considered that the same principles applied in an ultimate Court of Appeal and, at 8, cited from the decision in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483. Coulton was applied by the majority of the High Court in Tyson v Brisbane Market Freight Brokers Pty Ltd (1994) 68 ALJR 304. URJ FRANK R WOLSTENHOLME PTY LTD v DAVIS (Rolfe AJA) 9 I am not satisfied that had the issue now propounded by the proposed amendment been raised at the trial evidence could not have been given "which by any possibility" could have prevented the point from succeeding. It is not, in my opinion, a question of law or construction which, without more, one can discern as not requiring any further evidence. In my opinion the application for leave to amend to add the further ground of appeal should, accordingly, be refused. HIS HONOUR'S REASONS His Honour, who gave an ex tempore judgment in view of the exigencies of the list and the requirement for matters to be dealt with expeditiously, stated, ABS1: Tt seems to me that the first question that has to be determined is which of the two parties was the offeror and which was the acceptor. I have demonstrated this by reference to the submissions. The respondent submits that the employer is the offeror and that the applicant was the acceptor, and the acceptance was received in Queensland. I have come to the view that this is not correct. My interpretation of the conversation in Exhibit A is that the applicant was the offeror and that the respondent, through Mr Wilson was the acceptor, and that in the final analysis the acceptance of the applicant's offer was conveyed through the telephone and received by the applicant in New South Wales." His Honour observed that, initially, he was attracted to the contrary proposition on the basis that the advertisement was merely an invitation to treat and there had been a counter offer by the employer which the worker had accepted. He remained of the view that the advertisement should be so characterised and, correctly in my respectful opinion, that it did not constitute an offer by the employer. He said he considered it was an invitation to prospective employees to make an offer of their services for consideration by the employer as to whether or not of such offers, they might choose one or other'. He continued, ABS2: "That advertisement I consider was seeking applications by people who were willing to offer their services for consideration by the respondent as to whether or not they would accept them as employees. Upon that basis I conclude initially that the applicant was the offeror when he rang." However, I think with respect, that at that point his Honour ran together two considerations. The advertisement certainly called for those who may be interested in taking up the employment to communicate with Mr Wilson. In these circumstances it may be correct to say the applicants were offering their services, but it seems to me that that was in the context of offering their services for consideration by Mr Wilson. After that it would be open to Mr Wilson to make an offer if an applicant was, in his opinion, suitable. His Honour then considered the statement by Mr Wilson: "All right, well I'll give you a two week trial", as he was "troubled" whether that constituted the introduction of a fresh term. Whilst he thought the words "all right" may amount to an acceptance of the offer he found had been made by the worker, he was concerned that the words concerning a two week trial may have amounted to a counter offer. He continued: "Tf that were the case, then the construction that one would put upon the conversation, is that by his reply - "OK Ill come up on the week-end', the applicant had become the acceptor of the counter-offer contained in that last sentence, which was of a two weeks trial employment." 10 UNREPORTED JUDGMENTS That was his Honour's first impression of the matter, but after considering a passage in Volume 9 of the 4th Edition of Halsbury at 136, para258, and certain other matters to which he referred, his Honour said: "My consideration of these matters in Halsbury, leads me to the view that at all times the applicant remained the offeror, and that Mr Wilson on behalf of the respondent, remained the acceptor. I do not, as a matter of interpretation of that conversation, conclude that the roles were reversed by the last two sentences commencing when Mr Wilson said - 'All right'. Rather in my view those two sentences cannot be said to have introduced a materially different term, that is the two week trial, from the terms which were spelt out up to that point in the very limited circumstances of the invitation to treat in the form of the advertisement, the offer by the applicant of his services, and what I conclude was the acceptance, prior to the reference to the two week trial, by Mr Wilson on behalf of the respondent. The construction that I place upon that conversation is that at the point when Mr Wilson, after the applicant told him he was experienced, said 'All right, well I'll give you a two week trial', there was an acceptance by the employer, which was received in New South Wales, and allows the application of s13." His Honour took the view that the introduction of the concept of a two week trial did not differ materially from the terms of the contract between the parties to that point or, alternatively, should be regarded as trivial and such as would, in any event, be implied into the contract. It is against this decision the appeal is brought. WAS HIS HONOUR CORRECT? It is necessary to consider now whether his Honour's analysis was correct. As there was no issue that the conversation took place in the terms stated the sole question is whether his Honour drew the correct conclusions from uncontested evidence. He did not, in these circumstances, enjoy any position of advantage, in performing this task, over this Court. Before doing so I would observe that, at least prima facie, when a prospective employer advertises a position, the prospective employer is seeking applications from people, who may be either interested in or willing to take up the employment. The normal contemplation would be that prior to a person being employed there would be an interview and the parties would satisfy themselves about the employment and the contract of employment. The prospective employer would conclude that the applicant to whom the position was offered was suitable. There may be circumstances in which little discussion would be required, particularly if the applicant was already known to the prospective employer, or if there could be little room for discussion about the nature of the employment or its terms. None-the-less the applicant, having evinced an interest in the position, it remains with the prospective employer, generally speaking, to offer the person the work and, in the event of that being done, for the applicant to accept. None-the-less there may be cases where this sequence will not be followed. The question, of course, is whether it was followed in the present case. The conversation proceeded on the basis that, firstly, the worker identified himself and his reason for telephoning. Mr Wilson asked whether he could attend for an interview to which the worker said, in effect, either that he could not or he would prefer not to do so because of the distance to be travelled, but he explained he was experienced. Those statements by the worker may be interpreted either as his putting forward reasons for not attending for an interview and _ his qualifications for the job, or as his making an offer. In my opinion they URJ FRANK R WOLSTENHOLME PTY LTD v DAVIS (Rolfe AJA) 11 constituted an offer by the worker to undertake the employment and it is clear, from what Mr Wilson said next, that he so understood them. Mr Wilson was minded to accept that offer, but, in impliedly waiving the requirement of an interview, he added another term, namely the two weeks' trial. This had not been referred to in the advertisement nor in the conversation with Mr Wilson. Accordingly it cannot be said that the offer made by the worker incorporated an offer to be employed initially for a two weeks' trial period. Therefore when Mr Wilson raised that requirement he made a counter offer. The worker had to decide whether he would accept employment on this basis. In my opinion the term could not be said to be unimportant. During the trial period, I would infer, Mr Wilson reserved the right to terminate the employment without notice and, perhaps, without cause. The worker was obligated during that period to establish to Mr Wilson's satisfaction that he could perform the job and, if the conclusion was reached that he could not, the employment could have been terminated summarily. This must have been a significant matter from the worker's point of view. He did not wish to travel for an interview but, if he accepted this term, he could travel, with his dogs, to undertake employment, which may last for no longer than two weeks. In the result I consider that the term constituted a counter offer and that it was accepted by the worker by his final statement. Accordingly the acceptance was received in Queensland by Mr Wilson and the contract was concluded there. In so far as the learned trial Judge was of the view that the term was trivial I disagree, essentially for the reasons I have just given. For the trial period the worker's position was markedly different from what it would have been had he been employed without a trial period. I do not consider his Honour was correct in concluding that the trial period would, in any event, be implied into the contract of employment. Perhaps he confused the implication of a term and the high probability that any employment would only have been offered on the basis of a trial period. In that event, of course, the term would have been express. The test for the implication of a term is well understood: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 and BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1984) 180 CLR 266. Each of the conditions stated by Mason J at 347 of Codelfa must be fulfilled. In my opinion at least three of those conditions are not met in this case. Firstly, a trial period is not a term necessary to give business efficacy to the contract. Secondly, a trial period is not a term which goes "without saying". In my opinion it would be necessary to have an express term if an employer wished to impose such a condition. Thirdly, a term for a trial period, in so far as it gives a right to terminate the employment summarily, albeit only for a short period, does contradict the usual employment conditions of termination on notice or for cause. There is another reason, which I think is significant. There was no suggestion that two weeks was an accepted period for a trial. Prima facie it seems short but, in any event, one would anticipate that if a trial period was to be imposed there would be some negotiation about it. CONCLUSIONS In the result I have come to the view that Mr Wilson's requirement that there should be a two weeks' trial was a counter offer, which was accepted by the worker, such that the contract was entered into in Queensland. I therefore propose 12 UNREPORTED JUDGMENTS that the appeal be allowed and the respondent pay the appellant's costs. The respondent is to have a certificate under the Suitors Fund Act if he is otherwise entitled to it. Bainton AJA I have had the advantage of reading in its draft form the judgment of Rolfe AJA. I am in complete agreement with the orders he proposes and with his reasons for so proposing. 1. Appeal allowed; 2. Set aside the award in favour of the respondent in the Compensation Court of New South Wales; 3. In lieu thereof, order that an award be entered in favour of the respondent in that Court; 4. Order that the respondent pay the appellant's costs of the appeal but have a certificate under the Suitors' Fund Act 1951. Counsel for the Appellant: JE Maconachie QC Counsel for the Respondent: LM Morris QC with FD Curran Solicitors for the Appellant: Leigh Virtue and Collins Solicitors for the Respondent: Stane and Partners