AUSTRALIAN POSTAL CORPORATION (T/as AUSTRALIA POST) v A J DOWSE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER and BEAZLEY JJA and FITZGERALD AJA 24 September 1998, 24 September 1998 [1998] NSWCA 24 CONTRACT — acceptance — party found to have bound itself by its words and conduct. Fitzgerald AJA This is an appeal from a judgment pronounced in the District Court on 19 June 1997 awarding the respondents $57,877 damages for breach of contract against the appellant and ordering the appellant to pay the respondents' costs. The single issue raised by the appeal is whether the trial judge correctly concluded that the parties had made contract contended for by the respondents. On 21 October 1994 the appellant advertised for tenders "under fixed term conditions for the conveyance of mails" over a specified route for a period commencing on 16 November 1994. The advertisement stated that tender forms and full details of the service were available from the Bathurst post office. The respondents lodged a tender on 28 October 1994. By their tender they undertook: "\.. to faithfully perform all the requirements of the contract in accordance with the terms and conditions contained in: ¢ this Tender, ¢ the General Conditions of Contract attached, « the Tenderer's Tender Cost Statement (if lodged), and ¢ The Letter of Acceptance of the Tender and enclosures with the letter." I should say immediately that I do not accept that, as submitted by the appellant, it could impose any additional terms which it chose by its letter of acceptance, including terms which were inconsistent with the tender. The respondents were subsequently informed by Mr Brett Corby, the delivery manager at the Bathurst post office, that their tender was unacceptable, and they were invited to submit a revised tender. They did so on 10 November 1994. As required by the tender documents, the respondents nominated a person who would act as their surety if they were awarded the tender. On 15 November 1994, after returning to the post office following completion of other work which he had for the appellant, the male respondent had a conversation with Mr Corby. In his evidence, the male respondent said "\... had finished doing my deliveries for the day and come back to the post office." Q. "What did he say to you?"(he being Mr Corby and you being the male respondent). A. "Yeah, he said well you're still at the top of the list, he repeated that." Q. "Were you satisfied with that?" A. "No, I said well what's going on then", the reason for this was the contract was meant to start the following day. 2 UNREPORTED JUDGMENTS Q. "And what did he say to that?" A. "He then replied "yes, I want you to start tomorrow. Further evidence given later by the male respondent was to the following effect. After reference to Mr Corby's request that the respondents start the next morning, he, the male respondent, was asked Q. "Did you speak to him (Mr Corby) with reference to documents?" A. "T did." Q. "Could you relate verbatim as you remember it what you said on the subject matter?" A. "T said to Brett Corby, '"What about the paperwork?" Brett Corby then said to me "I haven't got it done yet, we'll fix it up later". I said okay." Q. "Why did you say okay?" A. "It was nothing out of the ordinary, Brett Corby not having the paperwork ready when I previously worked as a postal sorting officer that was also on a short term contract basis and Brett Corby's paperwork was always behind at that time, because I thought nothing of it." The respondents had from those conversations clearly been asked to start on 16 November 1994, the date nominated by the advertisement which had led to their tender as the commencement date of the proposed contract. The trial judge made a finding that the effect of the conversations was that the respondents had been advised that their revised tender was successful. That finding was based on his Honour's preference for the evidence of Mr Dowse over that of Mr Corby wherever there was a conflict. Mr Dowse also gave evidence, which was also accepted by the trial judge, that the respondents "started work" as requested by Mr Corby on 16 November 1994, were "terminated" on 25 November 1994 and later paid an amount calculated by reference to the price which they had tendered but restricted to the period worked before they were "terminated". C120 of the general conditions of the tender documents provided: "20 Further assurances Each of the parties will do all such things and sign and execute all such documents as may be necessary or desirable to give full effect to this agreement". On the basis of the matters which he referred to, the trial judge decided that the respondents' tender had been orally accepted by Mr Corby on behalf of the appellant on 15 November 1994. In his Honour's opinion, there was no necessity that the contract be accepted in writing. However, if it was important to decide whether or not Mr Corby had given Mr Dowse a written letter of acceptance, his Honour accepted evidence from both respondents that, shortly after 16 November 1994, Mr Corby gave the male respondent a document which included both an acceptance of the respondents' tender and provision for signature by their proposed surety. That document, which was to be returned to Mr Corby, was returned at his request prior to signature by the proposed surety because it contained a mistake. The respondents did not plead that their tender had been accepted in writing and the case was not decided on that basis. The trial judge pointed out that there was no evidence that the part of the document handed by Mr Corby to the male respondent containing an acceptance of the respondents' tender had been signed when it was handed by Mr Corby to the male respondent. In its submissions in outline, the appellants asserted that Mr Corby was not authorised to accept the respondents' tender. That point was not pleaded, made the subject of a ground of appeal, or adverted to in oral argument. Indeed, the appellant's pleaded defence asserted that Mr Corby did enter into an agreement eo UWRIBTRALIAN POSTAL CORPORATION (T/as AUSTRALIA POST) v AJ DOWSE (Beazle$ JA) with the respondents on its behalf but a different agreement from that contended for by the respondents and found by the trial judge. The appellant's pleading leaves no room for a contention that Mr Corby lacked authority to contract if the point would otherwise be open to it. It is somewhat surprising to find the appellant taking such a point, but it is also surprising that the appellant has appealed on the basis that an acceptance in writing was required, notwithstanding the trial judge's conclusions that the appellant orally accepted the respondents' tender and that, on that basis, the respondents commenced to perform the contract which had apparently been entered into. In my opinion there is no merit in the appeal. While a letter of acceptance might have been contemplated, the appellant had bound itself to provide such a letter by its words and conduct. The appeal should be dismissed with costs. Meagher JA I agree. I only wish to add that in my opinion the behaviour of the appellant, both in the creation and performance of the contract in dispute and in the conduct of the present litigation, is quite unworthy of a great department of state. Beazley JA I agree with Justice Fitzgerald and I agree with the comments of the presiding judge. The appeal is dismissed with costs. Counsel for the appellant: D E Grieve QC/D Brogan Solicitors for the appellant: Brian Muir & Co Counsel for the respondent: R Lovas Solicitors for the respondent: King Cain