Industrial Relations Commission of New South Wales CITATION: Grech t/as Grech and Son Transport v Bing Lee Electrics Pty Ltd [2005] NSWIRComm 228 APPLICANT Christine Grech t/as Grech and Son Transport PARTIES: RESPONDENT Bing Lee Electrics Pty Ltd FILE NUMBER(S): 3124 of 2001 CORAM: Marks J; Macken Dr J; Tinney Mr G Contract of Carriage - termination - compensation claim - constitution of Tribunal and proceedings. Apprehended Bias Application: CATCHWORDS: Allegations of apprehended bias against Tribunal members during course of proceedings - application for Tribunal's disqualification made by respondents - allegations regarding Tribunal's consideration and processing of evidence - allegations accusing Tribunal members of colluding with court reporters to alter transcript - allegations and application rejected - referral of respondent's representatives to Legal Services Commissioner for professional misconduct - referral to Registrar for contempt proceedings against the respondent. Substantive Proceedings: Jurisdiction - whether a contract of carriage existed - details of partnership - whether contract was terminated or varied - held contract did not come within s 346(1)(b) of Industrial Relations Act - held termination not unfair, harsh or unconscionable - claim dismissed - costs reserved. LEGISLATION CITED: Industrial Relations Act 1996 Harkianakis v Skalkos (1997) 42 NSWLR 22 Johnson v Johnson (2000) HCA 48 CASES CITED: Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1956 - 1957) 98 CLR 93 Winnote Pty Ltd v Page (2005) NSWCA 362 HEARING DATES: 06/29/2005; 06/30/2005; 10/26/2005; 10/27/2005 DATE OF JUDGMENT: 12/09/2005 APPLICANT Mr J Fernon SC Solicitor: Mr G Rinaldi Rinaldi Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr H Shore SC Solicitor: Ms M Kha Goldrick Farrell Mullan JUDGMENT: - 43 - CONTRACT OF CARRIAGE TRIBUNAL CORAM: Marks J Dr J Macken Mr G Tinney Friday 9 December 2005 Matter No IRC 3124 of 2001 CHRISTINE GRECH t/as GRECH AND SON TRANSPORT AND BING LEE ELECTRICS PTY LTD Application by Christine Grech t/as Grech and Son Transport of claim for compensation pursuant to section 346 of Industrial Relations Act 1996 DECISION [2005] NSWIRComm 228 1 These proceedings, notified under s 346 of the Industrial Relations Act 1996 ("the Act"), are constituted by an amended notification. The applicant is Christine Grech, who is the surviving partner of a partnership between her and her late husband, Colin Grech, trading as Grech and Son Transport. Mr Grech died on 5 December 2002. The respondent is Bing Lee Electrics Pty Ltd. The amended notification of claim for compensation alleges that a contract of carriage between the partnership and the respondent was terminated by the respondent, as head contractor, on 12 February 2001. There is an allegation that the contract of carriage was acquired by the partnership from another carrier for valuable consideration in or about May 1998. The amended notification of claim alleges that the respondent, as head contractor, "re-affirmed its contract of carriage with the applicant in writing on 1 July 2000". 2 The alleged termination was said to be constituted by changes effected by the respondent to a run which the applicant had habitually operated. It was contended that this change resulted in the loss of considerable income to the partnership. 3 The provisions of s 346 of the Act set out five threshold requirements which must be met by a claimant for compensation. Section 346 is in the following terms: s 346 Claim for compensation (1) A carrier whose head contract of carriage is terminated by a principal contractor may claim compensation from the principal contractor if: (a) the carrier entered into the head contract of carriage by arrangement with a previous carrier whose provision of services to the principal contractor under contracts of carriage was replaced by the carrier, and (b) under the terms of the arrangement between the previous carrier and the carrier, a sum of money was paid by the carrier to the previous carrier as a premium or fee in connection with the entry into the head contract of carriage by the carrier, and (c) it is a custom and practice in the relevant section of the industry or business of the principal contractor that such a premium or fee be paid, and (d) the principal contractor knew or ought reasonably to have known that such a premium or fee had been paid to the previous carrier, and (e) the principal contractor failed to take reasonable steps to advise the carrier that it was not a requirement of the principal contractor that such a payment be made or requested. (2) A carrier is not prohibited from making a claim under this section because the carrier performs minor or incidental work for a person other than the principal contractor under the head contract of carriage. 4 It will be noted that a claim for compensation can only be made where a contract of carriage has been "terminated" by a principal contractor. "Termination" is defined in s 345 of the Act in the following terms: "termination" has its ordinary common law meaning, and includes conduct by a principal contractor, being conduct resulting from factors within the control of the principal contractor, the effect of which is to alter the head contract of carriage in a manner which imposes serious financial disadvantage on the carrier. 5 It will be seen therefore that the applicant was required to prove in the context of these proceedings that there was conduct on the part of the respondent, the effect of which was to alter the contract of carriage with the applicant in a manner "which imposes serious financial disadvantage on the carrier". 6 By s 349(1), the applicant is only entitled to a determination that compensation is payable if the Tribunal "is satisfied that the termination of the head contract of carriage concerned, was unfair, harsh or unconscionable". The Course of the Proceedings 7 During the course of the proceedings the parties adopted differing views about the existence of certain matters, about whether certain evidence should be received and about the conduct of the proceedings. The Tribunal ruled on those matters. In the course of so ruling, the Tribunal made observations from time to time concerning the practices and procedures of the Tribunal, and about the course of action taken by the representatives of the parties. After the proceedings had concluded, and before written submissions had been received from the respondent, the respondent's solicitor filed a notice of motion seeking inter alia that the members of the Tribunal disqualify themselves on the ground of apprehended bias, and that the proceedings be stayed while the supervisory jurisdiction of the New South Wales Court of Appeal was invoked. We rejected the application for a stay. There remains outstanding the application for disqualification for bias which we shall shortly consider prior to considering the substantive proceedings. Before doing so, however, it will be necessary to make some general observations about the functions of this Tribunal and the manner in which it is intended to operate. These observations will assist in considering the various matters raised by the respondent in aid of its disqualification application. 8 The Tribunal is established by s 347 of the Industrial Relations Act 1996 ("the Act"). Relevantly, s 347 subsections (1) to (3) are in the following terms: s 347 Contract of Carriage Tribunal (1) There is established by this Part a Contract of Carriage Tribunal. (2) Except as provided by subsection (3), the Tribunal is constituted by a Presidential Member sitting alone. (3) In the case of arbitration proceedings under this Part, the Tribunal is, for the purposes of the proceedings, constituted by a Presidential Member and 2 part-time members nominated by the Presidential Member, one from each of the arbitration panels. 9 Sections 350 to 353 of the Act are in the following terms: s 350 Appeal from Tribunal to Full Bench of Commission Part 7 of Chapter 4 (Appeals and references to Commission) applies to a decision, order or direction of a Tribunal under this Part in the same way as it applies to a decision, order or direction of the Commission constituted by a single member. s 351 General procedure and powers of Tribunal (1) Part 5 of Chapter 4 (Procedure and powers of Commission) applies to proceedings before the Tribunal in the same way as it applies to proceedings before the Commission other than in Court Session, subject to this Part and to such exceptions and modifications as are prescribed by the regulations. (2) In particular, sections 179 (Finality of decisions) and 182 (Recovery of amounts ordered to be paid other than penalties) apply to decisions of the Tribunal. (3) Rules of the Commission may be made relating to the practice and procedure of (and other matters relating to) the Tribunal. s 352 Voting by members of Tribunal (1) Each part-time member of a Tribunal has one vote. (2) If the part-time members both vote for or against a motion, the decision is the decision of the Tribunal. (3) If the part-time members do not both vote for or against a motion, the Presidential Member is to decide the question and the decision of the Presidential Member is the decision of the Tribunal. s 353 Costs (1) The Tribunal may make an order for the payment of costs only if the Tribunal dismisses a claim on the ground that it is frivolous or vexatious, or was commenced without reasonable cause, or the Tribunal considers a party to have unreasonably refused to accept an offer of settlement of the claim. (2) An order of the Tribunal for the payment of costs may only be made with the approval of the Presidential Member. 10 It will be observed that s 352(2) refers to a vote for or against "a motion". It would seem that a motion includes a motion in favour of or against the granting of a claim. This would appear to comply with the purposive nature of the provision to enable it to operate in a practical fashion (see, for example, the analogous approach of the New South Wales Court of Appeal in Winnote Pty Ltd v Page (2005) NSWCA 362, especially per Mason P at paragraph [16] to [19]). There can be no certainty, however, that the reference to a motion in s 352(2) includes a decision taken by the Tribunal in dealing with matters such as a disqualification application. Because of this, and because of the bases advanced by the respondent for the disqualification application, we have all determined to join in the reasons for decision in this regard. We observe that it is not a motion for determination of the substantive claim and we observe also that the allegations made by the respondent arguably impact upon the integrity of each and every one of us. 11 The application of the provisions of Part 5 of Chapter 4 of the Act incorporate, in particular, ss 162 and 163 of the Act. These provisions are in the following terms: s 162 Procedure generally (1) The Commission may, subject to this Act, determine its own procedure. (2) The Commission: (a) is to act as quickly as is practicable, and (b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and (c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (e) may sit at any place, and (f) may require a document to be served outside the State, and (g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and (i) may exercise, on its own initiative, any function exercisable by it on application (except when it is in Court Session), and (j) may, on its own initiative, inquire into any industrial matter. s 163 Rules of evidence and legal formality (1) The Commission: (a) is not bound to act in a formal manner, and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (2) However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. 12 In particular, we refer to the provisions of s 162(2)(a) and (c). We refer also in particular to s 163(1). 13 As will be observed from the provisions of ss 162 and 163, this Tribunal does not operate in the same way as a Court. In simplistic terms, a Court is required to determine a matter on the basis only of such evidence as is properly receivable according to the laws of evidence. There is no attempt to search for or consider what is the truth of any particular situation other than can be gleaned from the evidence properly before the Court. A Tribunal bound by s 163 operates under different conditions. This is especially so by reason of the compulsion created by s 163(1)(c). There is a positive requirement to act in the manner described. We understand the provisions of s 163(1)(c) as dictating an attempt to search for the truth of a particular matter and imposing a requirement to eschew technicalities and legal forms in order to assist this process. There is a positive obligation to apply concepts of equity and good conscience by reference to the substantial merits of a case. Of course, the rules of natural justice pervade everything that is done by the Tribunal. Allegations of Apprehended Bias 14 As will be seen shortly, the respondent through its counsel, Mr H Shore SC, and on what we understand to be the specific instructions of its solicitor, Ms Margaret Kha, an associate with the law firm Goldrick Farrell and Mullan, attacked the partiality of the members of this Tribunal and the integrity of the proceedings by filing an application for the Tribunal to disqualify itself on the grounds of apprehended bias on the part of its constituent members. The specifics of these allegations against the Presiding Member amount to allegations of judicial misconduct. Dr Macken has practiced as a barrister for over 40 years, save for a period of 15 years as a Judge of the Industrial Commission of New South Wales. Justice Marks has practiced as a solicitor for over 40 years, save for a period of almost 13 years during which he has been a Judge of the Industrial Relations Commission of New South Wales and its predecessor. Neither Dr Macken nor Justice Marks has experienced conduct of this kind on the part of any legal practitioner, let alone senior counsel. It is an allegation which strikes at the heart of the administration of justice in New South Wales. 15 Where a party makes allegations of this kind, the confidence of the parties in the appropriateness and propriety of the ultimate determination of the proceedings is compromised. If the applicant were to succeed in her claim, the respondent might feel that this resulted from hostility and bias against it generated by the ferocity of the personal attack against members of the Tribunal mounted by Mr Shore. If the applicant lost, she might feel that the Tribunal members had been cowed into submission for fear of the respondent continuing to pursue these allegations further, thus leading to a fear that the Tribunal members might be biased in favour of the respondent. For these reasons, it is necessary to refer to and deal in some detail with the allegations made by the respondent in aid of the disqualification application. 16 The thrust of the allegations are contained in affidavits sworn by Ms Kha. In an affidavit sworn 22 July 2005, Ms Kha stated that there were two reasons why she had apprehensions concerning the impartiality of the Presiding Member, Justice Marks. These related firstly to her inability to locate certain documents marked for identification (MFI) during the proceedings and, secondly, her concerns about the inaccuracy of the transcript of the hearing. 17 Further bases, including an elaboration of the ones referred to, are contained in Ms Kha's affidavit sworn 24 August 2005. These include the following matters: 1. The rejection of an attempt by the respondent to tender certain records contained in two volumes which became MFI5; 2. The acceptance by the Tribunal of certain documents tendered on behalf of the applicant; 3 Comments made by Justice Marks concerning the conduct of Mr Shore in and about the proceedings; 4. Comments made by Justice Marks concerning the length of practice of Mr Shore at the bar; 5. Directions made by Justice Marks that the parties would be confined in what evidence would be given and the manner in which it would be given, and directing that the proceedings be completed by no later than 4:00pm on the second day of the hearing; and 6. The refusal to allow certain documents to be tendered on the basis that they had already been tendered into evidence. 18 In addition to the aforementioned allegations, in an affidavit sworn 25 October 2005 for the purpose of proceedings commenced by the respondent in the New South Wales Court of Appeal, Ms Kha complained of an initial refusal of the Associate to Justice Marks to allow her to inspect certain documents produced in response to a summons for production. However, she omitted to mention that she had not disclosed to the Associate at the time of the original request that an order for access had been granted. In the same affidavit, Ms Kha also referred to difficulties in conferring with Court reporters and in viewing the notes of Court reporters, with a view to testing the accuracy of the transcript of the proceedings. 19 We should state that in general terms Ms Kha said, whilst giving evidence, that she found these matters in the aggregate as being "off-putting" to her as the solicitor for the respondent, and that it was this which created an apprehension of bias in her mind. 20 It is now necessary to deal with each of the allegations in some little detail. The MFI Documents 21 By facsimile dated 5 July 2005, Ms Kha wrote to the Associate to Justice Marks seeking to ascertain the whereabouts of the MFI documents which were not in her possession and indicating that she was in possession of a document, MFI 2, which had become Exhibit A in the proceedings. She indicated that she wished to retrieve the MFI documents and to return the Exhibit. She asked that she be telephoned on a nominated telephone number to arrange for this to occur. The Tipstaff to Justice Marks telephoned that number. Ms Kha was not available and a message was left with a male person to the effect that the documents were available to be uplifted and that the Exhibit should be returned. The Tipstaff was advised that someone would come from the office on Thursday 7 July 2005 at 4:00pm. No-one attended at that time. The documents remained in the chambers of Justice Marks, including during the period from 22 July when he and his staff were on leave. During that time a notice of motion was filed by the respondent seeking a multitude of orders including orders relating to the MFI documents and Exhibits, and seeking an oral hearing of the notice of motion. It was during the course of the hearing of the notice of motion that Mr Shore was advised by Justice Marks of the telephone message and of the whereabouts of the MFI documents. Mr Shore said that the problems associated with the MFIs increased his concern that the Tribunal was "perhaps playing some game that could affect the outcome of the case and of the appeal". 22 Complaint was also made by the respondent that the tribunal had not permitted some of the MFI documents to be tendered into evidence. The reason for this was that those documents had already been tendered into evidence as annexures to affidavits. The Tribunal had expressed the opinion that there was no need to duplicate the exhibits. Mr Shore had submitted that they should be tendered as exhibits to aid their identification in some way. 23 The rejection of certain documents by the Tribunal as evidence was brought into question. MFI 5 consisted of two volumes of records consisting of many hundreds of pages. They were said by Mr Shore to constitute business records, save for pages of summaries which he submitted could be received by way of aide memoire. The Tribunal rejected the tender of the documents because some of them, on their face, were not self-explanatory and it would therefore be dangerous to accept them. 24 In her evidence, Ms Kha said that the rejection of the tender by the Tribunal was against the interests of her client, and that this together with other matters increased her anxiety about the conduct of the proceedings which she found "off-putting". Transcript Inaccuracies 25 Annexed to Ms Kha's affidavit of 22 July 2005 is a copy of a letter which she wrote to the applicant's solicitors on 15 July 2005. That letter addressed, in part, a number of inaccuracies said to have been noted by her and by Mr Shore which appeared in the transcript. In part, that letter said: "It appears to us that the situation that has been encountered differs from normal transcript corrections that are required where what appears makes little sense in the context of the case. The transcript differences which we have noted completely change the nature of the transcript yet at the same time do not bear the normal indicia of some error of understanding by the shorthand writer. What we have noted, therefore, in a number of cases is a transcript reflecting a different meaning from the way in which events took place as if somebody with a different recollection of events to ours had corrected the transcript by adding words in some cases and deleting them in others…It is a source of great concern to us. We were concerned that the approach of Marks J during the hearing may have been such as to give rise to a reasonable apprehension of bias. The unusual features of the dealings with the MFIs have heightened our concern. That the differences in the transcript as we expected to find it, compared with as we found it, appear to relate to the very matters about which we had concerns, has simply heightened our concerns". There was then reference to the fact that there were a number of "general spelling errors or misdescriptions" as noted in the letter with comment that such corrections had not been made in the transcript although it appeared that the transcript had been altered generally as referred to. This latter comment was repeated by Mr Shore during the course of submissions on 26 October 2005. He said: "Somebody has gone unerringly to the matters of importance and we want to explore. If this matter proceeds before this Tribunal we want to explore whether there has been some liaison between the Tribunal and the Court reporters by some process of correction because otherwise we can't see how accident could have produced the results that are in the transcript and we refer to our particular matters of concern". In the course of submissions Mr Shore referred to some difficulty in gaining access to the Court reporters so that they could be interviewed and asserted that one court reporter had said either to him or to his instructing solicitor that he was reluctant to produce his records without first communicating with the presiding member. 26 The respondent's solicitor had issued summonses compelling the attendance of the court reporters responsible for the production of the transcript at the Tribunal hearing on 26 October 2005. After some six or seven reporters had been present in the court room for over an hour, Justice Marks voiced his concern to Mr Shore that the reporters were being prevented from providing their services to other courts. He then said: "I am going to say this on the public record, Mr Shore. I have not had any communication of any kind with any court reporter with respect to the transcript in these proceedings and I will leave at that. There are other things that I could say, but I won't". Mr Shore then expressed regret that such a statement had been made because it created difficulties in him calling evidence from the court reporters in circumstances where Justice Marks had clearly indicated in their presence that he had had no communication with them. Justice Marks then said: "Mr Shore, I have said it for this reason: that in my experience, counsel, or any legal practitioner, would accept that statement from the bench of that kind as representing the truth and would therefore proceed on that basis and proceed appropriately". After a short exchange in which Mr Shore repeated that he thought he was being accused of having acted inappropriately, Justice Marks said: "Mr Shore, I have said what I have said for the purpose of assisting you in determining what is an appropriate course and I recognise the difficulty that it has created, but I have endeavoured to save a great deal of time in the proceedings and I have endeavoured to assist the court reporting service to provide a service to the courts of Sydney. Now, it's a matter for you. If you wish to test that and call the court reporters, it may be appropriate that it be done before a Tribunal otherwise constituted for that purpose and that's a matter about which you will need to give consideration as well as I and the other members of the Tribunal. But, as I have said, in my experience now in courts over 40 years, I have never come across a situation where a statement like that made by a judicial officer would not have been accepted by a legal practitioner in the presentation of a case". Mr Shore then indicated that he would like to confer with the court reporters. 27 After an adjournment to allow Mr Shore to obtain some instructions he indicated that he wished to call the court reporters with respect to two passages in particular in the transcript. One of the matters identified by Mr Shore related to page 67 of the transcript of 30 June 2005. The other appears to have been related to the transcript concerning the rejection of the tender of the MFI documents. 28 After a great deal more dialogue with Mr Shore, Justice Marks suggested that he confer with the court reporters before he called them to give evidence about any communication that they may have had with him or anyone else on the Tribunal concerning corrections to the transcript. Mr Shore indicated that he had not had any contact with the court reporters concerned. 29 After an adjournment, Mr Shore said: "I have reflected on my position and I have taken instructions upon the matter. Had I had the opportunity before I commenced making an application for disqualification prior to filing in the Court of Appeal, I think I would have welcomed the opportunity to speak with the court reporters to ascertain whether such an application should be made in the first place". Justice Marks then asked: "But why can't you speak to them now". 30 Mr Shore said: "Because as I dealt with a minute ago when the court reporter wasn't here, because I have invariably in the course of my practice adopted the position of not conferring with people that I may have to seek to cross-examine. I know the witness would be called by me however, there are provisions regarding unfavourable witnesses in the witness box. I don't know whether that situation may arise, it may well not. I cannot give a guarantee that it would not so arise and I would not want to have a conference in those circumstances … that is sometimes thought to be a cavalier approach to call people cold. On the other hand it might be thought to have the benefit of ensuring that whatever falls from the witness is likely to be unrehearsed, spontaneous, to use a term touched upon recently by me. So that is the way I would choose to go about it …it is my practice, because it is hard to cross-examine people sitting next to you or people who you know or people you have had dinner with or people you have had dealings with. The people you cross-examine in the court system are people who are at a distance. You do not normally cross-examine people you know. There is no practice as I understand it of conferring with people who you are about to cross-examine, those who have employed a party, if they have. That is the way I seek to go about it. I am not sure the respondent would seek to change the way it goes about things. If it chooses to say 'we are prepared to listen to whatever the truth might be from these witnesses, I do not wish to go about it that way', rightly or wrongly that is my position. I have taken instructions on it and I am so instructed". 31 Some little time later in the proceedings Dr Macken pointed out to Mr Shore that he would be seeking to elicit evidence from the court reporters that would indicate that Justice Marks was a liar, and that he should consider his position with respect to the matter. 32 After some further exchanges between Mr Shore, Mr Fernon SC, counsel for the applicant, and the Tribunal, the Tribunal ruled that it would not permit Mr Shore to adduce evidence from the court reporters about any communication with members of the Tribunal unless he had first conferred with them to ascertain what it was that they were likely to say. He having declined to do so, the Tribunal said that it would not permit Mr Shore to call evidence from the Court reporters with respect to any communication that they might have had with any member of the Tribunal concerning the content of the transcript. The right to call the court reporters to give evidence with respect to the accuracy of the transcript was reserved to Mr Shore. Ultimately he did not exercise that right. 33 It is now necessary to refer to the specific concerns of Ms Kha and Mr Shore with respect to the accuracy of the transcript. 34 The first concern of note is expressed by Ms Kha as follows: "The Respondent's recollection is that there were multiple criticisms from his Honour Judge Marks with respect to the respondent's conduct on the issue concerning certain non-admissions as to the existence of a partnership of Colin Grech and Christine Grech trading as Grech and Son Transport with those comments expression including a reference to five potential costs implications. Although some comparatively muted criticism remains, the reference to costs does not appear and what remains in the transcript does not reflect the pungent and repetitive effect of those comments by his Honour". 35 It was part of the applicant's claim that she was in partnership with the late Colin Grech and that that partnership subsisted at all times relevant to these proceedings and continued to subsist until 5 December 2002 when Mr Grech died. The applicant submitted that so much had been conceded by the respondent in a response document filed by its solicitors in the proceedings. This appears at page 17 of the transcript of 29 June 2005. Mr Shore denied that the response document constituted such an admission. Mr Shore was then asked by Justice Marks: "On your instructions, does the respondent deny that Colin Grech and Christine Grech were in partnership having regard to the manner in which the proceedings have been conducted to date?". Mr Shore commenced his response with the following: "On my instructions we wouldn't really know because one would look at the affidavit filed by Christine Grech. I mean I would apprehend that it could be established that the partnership taxation returns were filed. I would apprehend that it would be established that there was a document entered into with the previous contractor…etc". There then continued a rambling response, culminating in further exchanges with Justice Marks in which Mr Shore ultimately stated that it was his apprehension that if evidence was called it would be likely to establish the existence of the partnership. However, Mr Shore submitted that the evidence had not been adduced. Justice Marks then said: "This is an industrial Tribunal, it is not a court and its not [a] question of putting a party to strict proof of every matter. It's a question of making appropriate concessions where appropriate and getting on with the real issues". 36 Shortly thereafter, Mr Shore said that he had taken instructions and the respondent conceded that there was a partnership up until a particular time. Mr Fernon SC complained that the concession which he said had been made in the response document extended beyond that point of time. 37 After the luncheon adjournment, the Tribunal dealt with objections taken by Mr Shore to the contents of an affidavit sworn by the late Mr Grech. During the course of hearing argument, Mr Shore referred to the concession which he had previously made with respect to the existence of the partnership. He said that the concession should have been wider and he extended it to the existence of the partnership until the end of August 2001. Mr Fernon sought to have Mr Shore concede the existence of the partnership up to the date of death of Mr Grech. Mr Shore said that he was not in a position to make that concession. At that stage Mr Fernon tendered into evidence without objection a Statement of Liquidated Claim issued in the Local Court in which the plaintiff was Bing Lee Electrics Pty Ltd, the respondent in these proceedings, and the defendant was Christine Ann Grech, the applicant in these proceedings. The Statement of Liquidated Claim was issued on 7 June 2005 by the same firm of solicitors acting for the respondent in these proceedings, Goldrick Farrell and Mullan. The Statement of Liquidated Claim said in part that "at all material times prior to the death of her husband, Colin Peter Grech, the defendant, Christine Ann Grech, carried on business in partnership with the said Colin Peter Grech under a business name being Grech & Son Transport". There is then a recital that Mr Grech died on 5 December 2002 and that "the plaintiff sues the defendant as the sole surviving partner of the partnership, and being liable for the debts and liabilities of the partnership". Once the Statement of Liquidated Claim was admitted into evidence, the Tribunal said: "…that it's quite clear from the Statement of Liquidated Claim issued by the same solicitors on behalf of the plaintiff who act for the respondent in these proceedings that there is an assertion made as to the existence of a partnership which is contrary to the position put at first instance in these proceedings. And we regard that with some scepticism in terms of the approach taken by the respondent in these proceedings which has unfortunately unduly prolonged the proceedings". 38 There then continued to be further dialogue between counsel and the Tribunal as to the tactical position taken by each of the parties with respect to the evidence. At the conclusion of the proceedings on the first day, the affidavit of Mr Grech had been admitted into evidence, albeit in an amended form having regard to objections but otherwise the matter was little advanced. At the end of proceedings Justice Marks said: "When we are talking about matters of that kind which you may wish to pursue in the legitimate interests of your (client) please bear in mind, this is a Tribunal, we are not bound by the laws of evidence. We are anxious to ensure that proceedings are conducted in a most efficient and cost effective means and they have to finish tomorrow. So all of the evidence and submissions need to be concluded by 4:00pm tomorrow and the parties will be restrained in terms of what evidence and the matter in which it is to be given to the Tribunal. The proceedings have taken an inordinately long period to date for reasons for which I don't need to traverse, and that can't be repeated tomorrow". 39 When pressed during the course of cross-examination to explain what she meant by "pungent" criticism, Ms Kha said that she found the comments to which she had referred as being "off-putting to me because I felt that there were things that I was obligated to put forward. There were objections that I felt obligated on behalf of the client, I felt we were obligated to make them. Those comments made me nervous about that but they were things I felt a duty to put". There was no evidence of any concern expressed by any representative of the respondent other than Ms Kha, its solicitor. Indeed, there is no suggestion that the application regarding apprehended bias was made with the knowledge of and on the instructions of the respondent. 40 Ms Kha was cross-examined about the complaints made by her with respect to the alleged deficiencies in the transcript. She referred to notes which she had taken during the course of the hearing. She was not able to point to any of her notes about these matters which were not accurately reflected in the transcript. She also conceded that there was nothing in the transcript which was indicative of "pungent and repetitive effect" of comments made by Justice Marks. Nevertheless, she said that she had conferred with Mr Shore on many occasions after the hearing and had endeavoured with him to recollect what had been said during the course of the hearing for the purpose of preparing her affidavit. 41 Ms Kha also sought the correction of the transcript with respect to an allegedly detrimental comment made by Justice Marks regarding the length of time that Mr Shore had been practicing as a barrister "and particular knowledge his Honour held in that regard. Mr Shore SC of counsel responded to this, by saying something to the effect that counsel understood his Honour's knowledge regarding counsel's practice". 42 During the course of the hearing on 30 June 2005 there appears at page 67 of the transcript an exchange between Justice Marks and Mr Shore with respect to an objection taken by him to the receipt of certain financial records which the applicant sought to tender. The following is the exchange: "His Honour: Mr Shore, in your long experience at the bar, about which I have some knowledge, I am sure these things are encountered from time to time - what is the objection? Shore: There was a summons for production directed to Mr Andrew Courtney. I tender the summons." 43 Ms Kha was unable to point to anything in her notes which was indicative that there was any further or detrimental reference in the transcript to Mr Shore's practice as a barrister. 44 Some insight as to why Mr Shore submitted that this was a matter of some significance can be gained from an exchange between Mr Shore and Dr Macken which took place during the course of the proceedings on 26 October 2005. Lest there be any suggestion by Mr Shore that in some way the Tribunal does not accurately reflect what was said, we set out pages 5, 6 and 7 of the transcript. The passage to which we refer commences on the 9th line on page 21 of these reasons for decision. The reference to Mr Shore's practice as a barrister is in the last paragraph of on page 21. As best we understand what was put, the reference to Mr Shore's practice as a barrister appears to have been conceded as being contained within the transcript. In any event, the remainder of the material contained in that extract from the transcript gives the flavour of the approach taken by Mr Shore on behalf of the respondent in connection with the disqualification application. " SHORE: Dr Macken, I am not quite sure about the point you are raising with me at the moment. MACKEN: Your affidavit refers to - if I could read para 33 (read). SHORE: Your Honour, not to put too fine a point on it, that's a typographical error. MACKEN: What's a typographical error? "Impartiality" is the word you have used. It should have been "partiality". SHORE: Yes, that is -- MACKEN: An error? SHORE: An extremely powerful point to make. If this thing should flounder upon a typographical error, then I suppose that would be entirely within -- MACKEN: What you are suggesting against the court reporting staff, some of those typographical errors are so ridiculous -- SHORE: Dr Macken, I think you do not apprehend the point that's made in the affidavit. The point that is made is some correction seems to have taken place in relation to matters of substantial importance that would otherwise have had a total and different meaning and that correction has taken place in circumstances where the silliest little typos haven't been the subject of correction. The conclusion that one might draw in those circumstances is that the correction process applied to matters of seeming importance and was not a widespread review of the accuracy of the transcript. So, no, our concerns do not relate to tiddily little misprints, or misspellings. They were set out because we embarked upon a detail examination. We don't complain in respect to those. Our point is: How come these other things got corrected whereas the things that might be thought to be obvious and require correction on the way through hadn't been done? Somebody has gone unerringly to the matters of importance and we want to explore. If this matter proceeds before this Tribunal we want to explore whether there has been some liaison between the Tribunal and the court reporters by some process of correction because otherwise we can't see how accident could have produced the results that are in the transcript and we refer to our particular matters of concern. Yes, we have used the term "impartiality" where we should have said "partiality". Yes, we recognize court reporters can do that, but when what happens is in relation to matters that involve perhaps criticisms of me, knowledge of me, past knowledge of me, and the basis of the knowledge of me, and being a barrister for a long time, and when initially we thought that wasn't even in the transcript, but eventually we found it was in a part that we have described, or has been described in the affidavit as being softened, these are matters of concern and we raise them only on the basis of a reasonable apprehension. We don't seek to set out and prove but, if this matter proceeds, we do seek to explore whether the transcript in that respect was accurate, or whether it is not; and if it is not accurate, it is our obligation, and our obligation as counsel, as we understand it, to set about the correction of the transcript. Not so? Your Honour is shaking your Honour's head. MARKS J: No, I am shaking my head because that is the most serious allegation that I have ever heard counsel make with respect to members of the Tribunal and particularly one who is a judicial officer. You have accused the members of the Tribunal, and I assume me, of having tampered with the transcript, of having had a communication with court reporters with respect to the transcript. That is a disgraceful allegation to make and one which I intend to pursue, and I will pursue it through the course of these proceedings. Mr Shore, the court reporters are here and I will require them to give evidence to the Tribunal concerning any contact they had had with any member of this Tribunal with respect to the transcript. It is an appalling allegation you have made and one which I intend to take up in the appropriate manner. MACKEN: I share his Honour's concern about the seriousness of the allegation. Are you directing that at me and Mr Tinney? I can tell you now that I certainly haven't had any contact with the court reporting staff. SHORE: Dr Macken, I wasn't directing that at you; and "directing it" is not the proper term. We have indicated that we have a reasonable apprehension that things aren't as they ought to be and we are seeking to explore. We were deferring any application, and we expressly defer any application in the affidavits that were filed, because we recognize that we were dealing with a ticklish matter and we wanted to deal with it in a manner that was thought to be appropriate because it may have been expected that we would be met with suggestions that this is the most disgraceful allegation made to a judicial officer in the State and how dare we have made it and "I will report you to the relevant authorities in relation to it", and those threats are now eventuated. It might have been expected that such things would take place. Should counsel in those circumstances stay away from the topic altogether? MACKEN: Are you asking for a new tribunal constituted, or the proceedings abandoned? SHORE: Yes, we are. In the Court of Appeal - and I apologize that you don't have, your Honour, a copy of the summons and that has simply been a consequence of events that were unfolding - but the basis of any application that I would propose to make would have been based upon an apprehension of bias, and I was conscious of, and brought along authorities in the High Court where Gummow J has referred to a multi-member tribunal where apprehension of bias - and I stress, the allegations are apprehension of bias and we haven't gone further than that and that is appropriate, in our submission, but it would seem that the authorities favour the view that if there is an apprehension of bias, even if it were only in relation to a minority of the tribunal, that that would seem to be sufficient to cause a reconstitution of the tribunal, and I can take you to the reference where Gummow J made those remarks which have been picked up in Erinson on judicial review of an administrative action and were assigned approval in that regard. MACKEN: My recollection of those cases is that minority or otherwise of the tribunal are people who would participate in the decision. SHORE: Yes. MACKEN: That is not so here. In this, Marks J, at first instance, doesn't decide the matter for the Tribunal." 45 Ms Kha was taken to the complaint in her affidavit to the effect that Mr Shore recollected saying something to the effect that counsel understood Justice Marks' knowledge regarding counsel's practice, and that having been omitted from the transcript. Ms Kha said that the omission of such a comment would not give rise to any apprehension of bias. She said, however, that it caused her concern "as to where those statements came from and what history they were driven from". 46 For completeness, we should add that Ms Kha listed, in an annexure to her affidavit, a number of other matters concerning corrections to transcript which are clearly of a typographical nature and, as we apprehended, were not advanced as indicating that the Tribunal had interfered with the production of inaccurate transcript. Rather, they were put forward as being matters which had not been the subject of correction by the Tribunal in the context of other more supposedly significant matters where tampering had occurred. 47 In the course of written submissions in support of the disqualification application, Mr Shore referred to a number of other matters. Those matters which were referred to in oral evidence were repeated in the written submissions, with the following additional claims: "… 2. That the Tribunal refused to allow the respondent to make a "no case" submission; 3. That the Tribunal refused to allow the respondents to call certain oral evidence which had not been the subject of affidavit evidence; … 5. That the Tribunal adopted different standards in determining whether to admit or reject documentary evidence, the differential standards applying to the applicant and the respondent; … 9. The refusal of Justice Marks to allow Mr Shore to seek information from him about the identity of his staff and about certain matters attended to by his staff in connection with the proceedings. 10. An alleged threat by Justice Marks to report Mr Shore to external authorities" In this regard we note that the matter about which Mr Shore complains is contained on page 6 of the transcript of 26 October 2005. 48 As we understand the further complaints levelled against the Tribunal by the respondent in written submissions, they fall into three areas. The first concerns the acceptance and rejection of certain evidence. It is, in our opinion, a long bow to draw to sustain an argument that evidence has been either accepted or rejected because a tribunal might be biased in some way towards or against a party. 49 The second concerns the criticism levelled against the respondent, and in particular the respondent's counsel, Mr Shore, concerning the manner in which he conducted the respondent's case. Whilst it is true that Mr Shore was criticised for taking an overly technical approach to the matter, for failing to appreciate and conduct himself by reference to the circumstances of the tribunal in which he was appearing and for unduly prolonging the proceedings, these are not matters which would, in our opinion, be indicative that we might not bring an impartial and unprejudiced mind to the resolution of the ultimate issue. Unfortunately, from time to time, courts and Tribunals have occasion to be critical of the presentation of cases by representatives of parties, including counsel. It is this area which created concern for Ms Kha, the respondent's solicitor. She said she became anxious about the matter and that she found the situation "off-putting". These concerns and her anxiety, and the fact that she found these matters off-putting, were coupled with her feelings generated by the fact that some of the evidence which the respondent sought to have admitted was rejected. In our opinion, the approach taken by Ms Kha in terms of every day practice of litigation is naïve and is perhaps explicable by the fact that she has only practiced as a solicitor for five years. 50 The third area is the one that has caused the greatest concern for the members of the Tribunal. This concerns matters which occurred after the conclusion of the substantive hearing and involve problems with respect to MFI documents, the fact that an exhibit was being held by the respondent's solicitor, and allegations made by Mr Shore and Ms Kha to the effect that Justice Marks had colluded with the court reporters to amend the transcript in a manner prejudicial to the interests of the respondent. Coupled with this is, of course, an allegation that the court reporters had been compliant in this activity. We regard the making of such a submission as of itself something which is inappropriate, particularly as, on the evidence of Ms Kha there is simply nothing to suggest that the transcript has been amended in the manner contended for. It has not been sustained. We give it no credence in determining the disqualification application. 51 The test which governs the determination of applications of this kind is well-known. It was recently referred to by the High Court of Australia in Johnson v Johnson (2000) HCA 48. At paragraph [11] the Full Court described the test as "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide". 52 It is apposite to refer further to the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson. In discussing the test their Honours said: "[12] It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." ( R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263 per Barwick CJ, Gibbs, Stephen and Mason JJ.) The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial" ( Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted in (1989) 167 CLR 568 at 584-585 per Toohey J). [13] Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge (Webb v The Queen (1994) 181 CLR 41 at 73 per Deane J.), the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly (1989) 167 CLR 568 at 571, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case." (See also Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 at 15 per Murphy J; 32 ALR 47 at 53). Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them". 53 It will be seen in Johnson that the emphasis is focussed on a pre-judgment of the case and a pre-judgment of an issue in the proceedings which has to be determined by the Judge or Tribunal. 54 The respondent, in its application for disqualification, does not suggest that there is any apprehension that the Tribunal may not accept the evidence of any particular witness. There is no suggestion that the Tribunal has expressed any particular view about the credibility of any particular witness. There is a complaint made about the refusal of the Tribunal to accept certain documentary evidence. This, in our opinion, is not indicative of bias in the sense referred to in the well-known authorities in this area; it is indicative of the discretion which reposes in the Tribunal as to what evidence ought properly to be admitted and what evidence ought properly to be rejected. These are matters which are capable of being challenged on appeal but which, in our opinion, cannot be said, with respect to the authorities, to constitute bias. If Mr Shore were correct in his submission, almost every case brought before every court would create circumstances in which a claim of apprehended bias might be made. 55 As we have shown, there is no substance in the claim made by the respondent in aid of this application that the transcript has been amended in any significant manner based on the evidence of Ms Kha. In the absence of any conclusion that the transcript is not substantially correct, any allegation that the Tribunal or any member of the Tribunal has tampered with the transcript must logically be incorrect and demonstrate the inappropriate nature of such an allegation. 56 In our opinion the hypothetical, reasonable observer of what occurred during the course of the proceedings on the first two days of hearing, assisted by reference to a close reading of the transcript, will detect a sense of frustration on the part of the Tribunal with respect to the manner in which Mr Shore represented the interests of the respondent. Whether and to what extent he was so instructed by the respondent we are unable to comment. However, it is clear from the brief references which we have made that Mr Shore frustrated the efforts of the Tribunal to deal with the claim in an efficient, cost-effective and speedy manner. So much can be seen from the refusal at first instance by Mr Shore to make any concession as to the existence of a partnership at all relevant times. His attitude was that the applicant should be put to strict proof. Such an approach is certainly utilised in the course of criminal proceedings and was formerly utilised in certain civil proceedings, but to a much lesser extent given the more extensive involvement of courts in the case management process aimed to ensure that only the real issues between the parties are litigated. On each occasion that counsel for the applicant pointed to matters which justified the granting of a concession about the existence of a partnership Mr Shore gradually made the concession which was dictated by the circumstances and eventually the partnership issue faded from the scene. In the course of submissions, Mr Shore said that he had been forced to make the concession because of the irritation which had been expressed by members of the Tribunal concerning his attitude. Nothing, however, can be further from the truth. His initial concessions were made because the reply document filed by the respondent did not put the existence of the partnership into issue. The final concession was made when Mr Shore was confronted with a Statement of Liquidated Claim issued by his client, through the same solicitors who instructed him, within three weeks of the commencement of the hearing in these proceedings, in which his client brought a claim against the applicant based on the existence of the partnership. 57 In the same way, the respondent complained that the Tribunal sought to ensure that the proceedings finished within the two days allocated for hearing as had been agreed upon by the parties as being appropriate. In reality, through very little fault of the applicant, the proceedings during the course of the first day were occupied in dealing with technical matters raised by Mr Shore. We do not criticise Mr Shore for raising some of the matters and, indeed, some of those matters were upheld by the Tribunal. However, the proceedings overall were much protracted and Mr Shore was criticised for unduly prolonging them. This is not indicative of having pre-judged an issue in the proceedings. It is indicative only of irritation and concern created by the advocacy style of Mr Shore. As Mr Fernon advanced in his submissions: "The transcript does not disclose any basis for an application for disqualification on the grounds of apprehended bias as submitted by the respondent. Rather, the transcript discloses an anxiety and wish on the part of the Tribunal to conclude the proceedings as efficiently and quickly as possible. This is consistent with the desirable objective of "the just, quick and cheap resolution of the real issues" (cf Supreme Court Rules Pt1, r3. and Industrial Relations Commission Rules , r89.) in proceedings". 58 In our opinion, based on the relevant authorities, the respondent has not established any grounds for disqualification by reason of apprehended bias. It has often been pointed out that courts, and presumably also Tribunals, should be careful in assenting to any application for disqualification, for reasons which are obvious. The application is refused. 59 We add that we are so concerned about the conduct of Mr Shore and the conduct of Ms Kha in connection with the proceedings and in particular matters associated with the application for disqualification that we propose to refer these reasons for decision and the proceedings to the Legal Services Commissioner for investigation as to whether their conduct constitutes professional misconduct. 60 We have referred to the fact that the respondent, through its counsel and solicitor, alleged that the Tribunal conspired with the court reporters to amend the transcript of the proceedings in a manner adverse to the respondent's interests and that the court reporters acquiesced in this conduct. We have referred also to other allegations of misconduct levelled against the Tribunal by the legal practitioners representing the respondent. 61 As we have already observed, allegations of this kind can readily create apprehensions of concern and impact upon the confidence of the parties in the deliberations of and conclusions reached by the Tribunal. Arguably, therefore, these allegations may be seen as being designed to or having the effect of undermining public confidence in the work of this Tribunal. To this extent they may be seen as interfering with the proper administration of the functions of this Tribunal. We regard the allegations so made in the circumstances in which they were made as going beyond anything which might have been justifiably undertaken in the legitimate interests of the respondent in pursuing its case before the Tribunal. In the course of his judgment in the New South Wales Court of Appeal in Harkianakis v Skalkos (1997) 42 NSWLR 22, Mason P referred to the publication of material which would create improper pressure on litigants and whether that material constituted "an unbalanced and scurrilous attack" or whether it lacked any justification or whether there was "vehemence", "unrestrained language and evocative imagery" and whether a litigant had been held up to "public obloquy and derision". These expressions, whilst not applying to improper pressure on any litigant in these proceedings, are of a kind which have been directed to this Tribunal and describe the nature of the attack made on it on behalf of the respondent. In our opinion, the conduct which we have described arguably constitutes contempt of this Tribunal. Accordingly, we direct the Registrar to apply by motion for, or to otherwise commence proceedings against the respondent, Bing Lee Electrics Pty Ltd for contempt. The Substantive Claim 62 The decision on this matter is of the part-time members of the Tribunal given pursuant to s 352(2) of the Act. 63 We refer briefly to two of the submissions made by Mr Shore on behalf of the respondent. The first was that this Tribunal had no jurisdiction to deal with the matter because when the proceedings came on for hearing, Mr Grech had died, and there was therefore no partnership in existence. Mr Shore said in written submissions: "Even if, therefore, the partnership had been a 'carrier' at an earlier point in time, it was not a 'carrier' at the time when it was necessary that the Tribunal be clothed with jurisdiction…Arbitration depends upon the continuing existence of a claim by a relevant claimant, ie a 'carrier' as defined…". 64 Such a submission, in our opinion, is fundamentally flawed. Claims for compensation which may be made under s 346 are brought by reference to a contract of carriage which has terminated. Unless and until there has been a termination of the contract of carriage, a claim for compensation cannot be made before the Tribunal. To require that a claimant be and remain a carrier at the time that the proceedings are dealt with by the Tribunal, as asserted by Mr Shore, would negate the jurisdiction of the Tribunal. The requirements that there be a carrier and a head contract of carriage are apposite to a period of time expiring with the termination of the contract of carriage. 65 Mr Shore also submitted that there was a requirement that there be a declaration by the Industrial Relations Commission of New South Wales that the contract of carriage be a contract of carriage, that no such declaration had been made with respect to the contract of carriage the subject of these proceedings and therefore this Tribunal lacked jurisdiction. In order to deal with this submission it is necessary to refer to the provisions of s 309 of the Act, which are in the following terms: s 309 Contract of carriage—meaning (1) For the purposes of this Chapter, a "contract of carriage" is a contract (whether written or oral or partly written and partly oral) for the transportation of goods by means of a motor vehicle or bicycle in the course of a business of transporting goods of that kind by motor vehicle or bicycle, but only: (a) where the carrier is not a partnership or body corporate—if no person except the carrier is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the carrier or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business, or (b) where the carrier is a partnership—if no person other than a partner is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the partnership or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business, or (c) where the carrier is a body corporate—if no person is, except in the prescribed circumstances, employed (whether pursuant to a contract of employment or not and whether by the body corporate or not) in driving or riding on that or any other motor vehicle or bicycle in the course of that business unless the person is: (i) a director of the body corporate or a member of the family of a director of the body corporate, or (ii) a person who, together with the members of his or her family, has a controlling interest in the body corporate, or (iii) a member of the family of a person who, together with the members of his or her family, has a controlling interest in the body corporate. (2) For the purposes of subsection (1), a reference to a carrier includes a carrier carrying on business under a franchise or other arrangement. (3) A contract of carriage includes any contract that the Commission declares, after inquiry, to be such a contract. The Commission may make such a declaration if, in its opinion: (a) the contract was entered into for the purpose of defeating, evading or avoiding the provisions of this Act relating to contracts of carriage, and (b) but for being entered into for that purpose, the contract would have been a contract of carriage. (4) A contract of carriage does not include a contract: (a) that is, if the carrier is a common carrier, made in the ordinary course of the business of the carrier as a common carrier, or (b) that is made in the ordinary course of business for the carriage of packaged goods for different principal contractors by the use of the same motor vehicle or bicycle, or (c) for the carriage of mail by or on behalf of Australia Post, or (d) for the carriage of bread, milk or cream for sale or delivery for sale, or (e) for the carriage of goods that are to be sold pursuant to orders solicited during the carriage of the goods, or (f) for the carriage of livestock, or (g) if the principal contractor is a primary producer or a member of the family of a primary producer and the contract is for the transportation of primary produce (other than timber), or (h) for the transportation of primary produce (other than timber) from or to land used for primary production, or (i) for the delivery of meals by couriers to homes or other premises for consumption. 66 The submission made by Mr Shore shows a complete misunderstanding of the provisions of s 309. Subsection (1) clearly defines a contract of carriage. Subsection (3) allows the Industrial Relations Commission of New South Wales to make a declaration that a contract is a contract of carriage in the circumstances set out in that subsection. It is abundantly clear that a declaration made under subsection (3) is directed to a contract which may not otherwise be a contract of carriage under subsection (1). There can be no basis for subsuming into subsection (3) the necessity for a declaration by the Commission before a contract can be a contract of carriage for the purpose of s 309. As we have said, the submission made by Mr Shore is based on a complete misunderstanding of the provisions of subsection (3). 67 Mr Shore also submitted that there was no entitlement on the part of the applicant, as the surviving partner of the partnership, to maintain a claim on behalf of the partnership. Such a submission was made without reference to any authority and without consideration of the provisions of any legislation, including the Industrial Relations Act 1996 and, more importantly, the Partnership Act. In such circumstances, it is not necessary that we deal with this submission for the purpose of resolving the proceedings. 68 Mr Shore further submitted that the Tribunal had no jurisdiction to deal with the matter because the applicant had not established that the contract of carriage was a "head contract of carriage" as defined in s 345 of the Act. That definition requires that there be an agreement that the carrier provide services "exclusively and on an agreed regular basis" for the principal contractor. No evidence was directed to this aspect. The submissions of Mr Shore do not contain any reference to the evidence in support of this submission. In any such case, there is a provision in s 346(2) which entitles a claim to be made if the carrier performs minor or incidental work for a person other than the principal contractor. Such evidence as is before the Tribunal would, however, lead to the conclusion that the work which was performed was undertaken only for the respondent. 69 There were a number of other issues which were dealt with in the proceedings. It is only necessary that we refer to three of them, namely: 1. Whether there was a contract of carriage in existence at 12 February 2001 which met with the five threshold requirements set out in s 346, and in particular the requirement contained within s 346(1)(b). 2. Whether there was a termination of the contract of carriage on 12 February 2001. 3. Whether any such termination was unfair, harsh or unconscionable. Was the Contract of Carriage One Where a Premium or Fee Had Been Paid? 70 Evidence tendered in the proceedings was to the effect that the partnership entered into an agreement for the purchase of what was alleged to be a contract of carriage from Vincent and Almaza Maroon-Yacoub on 7 May 1998. The purchase price referred to in the written agreement was $50,000. The completion date was stated to be on or about 19 May 1998. The business purchased was described as "general carriers," located at Villawood, known as "Bing Lee". The written agreement contained no other details with respect to any contract or arrangement between the vendor of the business and "Bing Lee". 71 The evidence is, however, to the effect that, prior to entering into the agreement, Mr Grech had an interview with Mr Cedric Lee at the premises of the respondent, and discussed the acquisition of a "run" from Mr Maroon- Yacoub. After the completion of the agreement, Mr Grech commenced carrying out work delivering goods, which we assume were required to be delivered from the premises of the respondent to its customers. 72 In about September 2000, a representative of the respondent indicated to all drivers delivering goods for the respondent that they were required to sign new contracts to be backdated to 1 July 2000. Mr Grech signed the contract, a copy of which became evidence in the proceedings. 73 As we have previously stated, there is very little evidence about the contractual arrangements between the respondent and the partnership prior to the entry into this written agreement. We assume that any prior arrangement or contract was oral. We also assume from evidence contained in the affidavit of the late Mr Grech that it was his understanding that he had acquired a dedicated run pursuant to the agreement with the vendors, Maroon-Yacoub. 74 However, the written agreement stated that the territory in which the partnership might be required to work would be "New South Wales". There is no specific reference to any particular run in any particular area. Furthermore, the written agreement contained a finite term: it was expressed to commence on 1 July 2000 with an expiry date of 30 June 2002. 75 In addition, the written agreement contained specific provisions outlining obligations of the carrier and contained specific provisions with respect to termination, including a right on the part of either party to terminate after the expiration of 12 months from the commencement date by giving 14 days notice in writing. 76 In order to succeed in a claim for compensation, the applicant must demonstrate that the contract of carriage upon which the claim is based is one for which a sum of money was paid to a previous carrier as a premium or fee as required by s 346(1)(b). This is, in our opinion, a critical factor in connection with these proceedings. If, as is claimed by the applicant, the written contract signed some time after September 2000 is, in effect, a variation of, or otherwise may be characterised as, the same contract that was entered into in May 1998, then this requirement is satisfied. If, however, the written contract is indeed a new and different contract from that which applied as and from May 1998, then this latter contract will not satisfy the requirement of s 346(1)(b). We observe that, if a claim were to have been brought under the 1998 contract then this would have to have been notified within 3 months of termination by reason of s 348(3) of the Act. 77 The essential distinction between a variation of a contract and a rescission, either in whole or in part, so as to bring about a new contract, was discussed by Taylor J in the High Court of Australia in Tallerman & Co Pty Ltd v Nathan's Merchandise (Victoria) Pty Ltd (1956 - 1957) 98 CLR 93. In a passage which has often been cited with approval, his Honour said: "It is firmly established by a long line of cases commencing at least as early as Goss v. Lord Nugent (1833) 5 B & Ad 58 (110 ER 713) and ending with cases such as Morris v. Baron & Co. (1918) AC 1 and British & Beningtons Ltd. v. North Western Cachar Tea Co. Ltd. (1923) AC 48 - and, indeed, including Goss v. Lord Nugent (1833) 5 B & Ad 58 (110 ER 713) itself - that the parties to an agreement may vary some of its terms by a subsequent agreement. They may, of course, rescind the earlier agreement altogether, and this may be done either expressly or by implication, but the determining factor must always be the intention of the parties as disclosed by the later agreement. Variation, of course, may involve partial rescission as is pointed out in "Salmond and Williams on Contracts", 2nd ed. (1945), pp. 488, 489, but "Partial rescission . . . does not completely destroy the contractual relation between the parties. It merely modifies that relation by cutting out part of the rights and obligations involved therein, with or without the substitution of new rights and obligations in their place. Partial rescission is not the extinction of the contract but the variation of it." Hence it is said "A contract may be varied (1) by way of partial rescission without the substitution of new terms in place of those rescinded, or (2) by way of partial rescission with the substitution of new terms for those rescinded, or (3) by the addition of new terms without any partial rescission at all." These passages, in my view, correctly state the accepted view of the manner in which an agreement by way of variation operates". (at p144) 78 In our opinion, the contract entered into in or about September 2000 is sufficiently different from our understanding of the nature and extent of the 1998 contract such that we would conclude that the September 2000 written contract is a new contract and one which therefore does not satisfy s 346(1)(b). The mere fact that the latter contract is in writing and the former is not is not necessarily determinative of this matter. However, in the absence of any other evidence we can only assume that there would be implied by law a provision that termination of the 1998 contract could have been effected by either party upon giving reasonable notice. This is not the case with respect to the contract made in September 2000. In our opinion, such evidence as is before us is more capable of indicating that the respondent wished to create a new contractual regime when the partnership entered into the written contract in September 2000; rather than indicating that the respondent merely wished to confirm in writing existing oral arrangements. The most compelling feature of the changed circumstances is the fact that under the September 2000 written contract the respondent clearly had the right to determine the area in which the partnership could be compelled to effect deliveries. The evidence is to the effect that Mr Grech clearly intended that the 1998 oral contract was one which gave him the specific right to carry the goods on a particular designated run to the exclusion of any entitlement of the respondent to change that run. Was There a Termination on 12 February 2001? 79 As it was common ground that the partnership continued to perform work under the contract of carriage for the respondent after 12 February 2001, and until December 2002, it was necessary for the applicant to establish that the contract had been terminated by reference to the alteration in runs which in turn imposed serious financial disadvantage on the partnership. 80 Before discussing the details of the financial impact of the changes made, it is necessary to review the evidence about what occurred. In his affidavit, Mr Grech said that he attended the warehouse of the respondent on 12 February 2001 and was told to unload everything in his truck. He alleges that he was first told by Mr Jim Lee that he no longer had a job. Eventually he was told that he would continue to work for the respondent but that he was to undertake another run. He said that he had complained that he had paid for his run and didn't want to change, and that it involved delivery to less stores than previously. He said that after his run had changed his income had reduced by approximately 40 to 50 per cent. He said that he had no choice but to assume the altered run as he had financial commitments. He also said that he had not been told why his run had been altered. 81 In his evidence, Mr Jimmy Lee said that changes had been made to a number of runs of drivers on 12 February 2001. This was partly because the respondent had encountered difficulties with some of the drivers. With respect to Mr Grech, he said that he told Mr Grech that the run had to be changed because there were "a lot of problems on your previous run, such as monies going missing, customers' complaints and stock going missing…". The run was changed partly so that Mr Grech would be delivering to stores where the person receiving the goods would be astute to watch out for any problems concerning Mr Grech's deliveries and his truck. It was alleged that Mr Grech had consistently been unable to reconcile monies which he had collected by way of cash on delivery from customers of the respondent with monies which he had paid to the respondent. 82 Mr Lee also said that it was difficult for the respondent to keep track of monies earned by drivers after 1 July 2000 when GST was introduced. From then on the customers paid each delivery driver direct for a delivery charge, the amount of which varied depending upon whether a product had to be installed and whether an old product had to be taken away. The respondent had a record of how many items were delivered from each store each day, but not how much money was paid by customers to the drivers. 83 Mr Grech had complained about losing one particular store, namely Fairfield, but Mr Lee subsequently found out that Mr Grech had "sold" the right to deliver to that store to another driver for $15,000. 84 Records which were attached to Mr Lee's affidavit indicated that between July 2000 and 10 February 2001 and beyond, substantial amounts were deducted on a regular basis from monies otherwise payable by way of remuneration to the partnership, by way of contribution to shortfalls in payments of monies collected by Mr Grech from customers for cash on delivery transactions. A working paper dated 6 January 2001 indicated that over five days, Tuesday to Saturday, Mr Grech had made 43 deliveries from four different stores and had collected in cash on delivery payments, $47,095. He reported, however, that there had been "stolen stock" of $12,627 and asked that $1,000 be deducted from the monies otherwise payable to him. Deductions were also made on 13, 20 and 27 January 2001, although the amounts varied. A deduction was also made on 3 February 2001 of $2,250. All of these deductions were made pursuant to written authorisation signed by Mr Grech. Between 6 January 2001 and February 2001, the number of deliveries varied between 43 and 65 from four stores. There appears to have been a significant reduction in the number of deliveries from 24 February 2001 onwards. There also appears to be a much greater variation, with deliveries in some periods of less than 20 but others in the 40s and 50s. 85 A schedule prepared by Mr Lee indicates that between the period 8 July 2000 and 10 February 2001 there were 32 invoices with a total invoice value of $90,576.70, being an average of $2,830.52 per invoice. For the period 17 February 2001 to 30 June 2001 there were 20 invoices with a total invoice value of $44,947.10 being an average of $2,247.36 per invoice. 86 With respect to Mr Grech's difficulties in accounting for monies received on deliveries, Mr Ken Lee, the then-managing director of the respondent wrote to Mr Grech on 9 May 2001. That letter said in part: "We note that you have conducted deliveries on our behalf for some time. On numerous occasions throughout the year of 1999, even prior to the contract dated 11 December 2000 being entered, there were occasions wherein monies received from deliveries were not transferred or appropriated to us. There have been occasions when this has been brought to your attention and then attempted to be remedied by you with provision of a personal cheque to the money, which on some occasions have dishonoured. We further note that with your consent, an account has been set up to keep a record of monies or stock missing. Deductions are then made from your account by consent. We enclose for your reference a computer print-out of deductions made from your account, with your consent to reimburse us for monies you have on occasion failed to forward to us". 87 The magnitude of the amount which Mr Grech agreed to deduct from invoices is shown from a statement prepared by Mr Michael Kha, the respondent's company secretary and personnel officer. That statement showed that from the period 13 February 2001, to 30 June 2001 a total of $53,424.60 was invoiced by the partnership to the respondent. From this amount, $9,024.50 was retained with respect to amounts for which Mr Grech had not accounted, and net payments had been made to the partnership of $34,400.10. 88 By way of verification of the concerns which the respondent had about Mr Grech's performance of his contract, there was tendered into evidence a copy of a "final warning" notice given to Mr Grech on 9 November 2000, referrable to his alleged failure to account properly to the respondent for monies received on a cash-on-delivery basis from the customers. Mr Grech signed the document, acknowledging that the warning notice had been given to him. 89 The figures which have been extracted above indicate that there was some diminution in earnings up to 30 June 2001. The question arises as to whether this can be seen to be the imposition of a "serious" financial disadvantage. Given that there was already a lessening in monies earned, we accept that this would have created a serious financial disadvantage to the partnership, even allowing for the deductions made. Was the Termination Unfair, Harsh or Unconscionable? 90 We have already set out the evidence concerning the circumstances in which the runs previously operated by Mr Grech were arbitrarily changed by the respondent on 2 February 2001. The principal reason advanced by the respondent was Mr Grech's unsatisfactory performance record which, in our opinion, was adequately borne out by the evidence to which we have referred. There was a consistent and regular pattern of a failure to account for deliveries. To some extent one might express surprise that the respondent continued to utilise the services of Mr Grech. Although, unfortunately, Mr Grech is not available to give evidence about the specific matters raised by the respondent, there is sufficient documentary evidence containing his acknowledgment of his failure to account and the fact that monies were regularly deducted from invoices so as to ensure that the irregularities were rectified. 91 In these circumstances we are unable to characterise the rearrangement of the runs as constituting conduct on the part of the respondent which is unfair, harsh or unconscionable. 92 For the above reasons the applicant's claim must fail. The claim for compensation is dismissed accordingly 93 We were requested to refrain from dealing with the matter completely, in the event that some application was made for costs, even allowing for the restriction imposed under s 353 of the Act. Costs are reserved. We grant liberty to apply with respect to costs which must be exercised within one month of this date. 94 The following orders are made by all the members of the Tribunal: 1. The application by the respondent for disqualification on the grounds of apprehended bias is dismissed; 2. The Registrar is directed to forward a copy of these reasons for decision and of the proceedings to the Legal Services Commissioner for inquiry as to whether the conduct of Mr Shore and of Ms Kha constitutes professional misconduct. 3. The Registrar is directed to apply by motion for or to otherwise commence proceedings for contempt against the respondent, Bing Lee Electrics Pty Ltd. 95 The following orders are made by the part-time members of the Tribunal: 1. The claim brought by the applicant is dismissed; 2. Liberty to apply is granted with respect to costs, which must be exercised within one month of this date. 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