Industrial Relations Commission of New South Wales in Court Session CITATION : Jay v Australian Rugby League Limited & Anor [2000] NSWIRComm 114 APPLICANT: David Craig Jay PARTIES : FIRST RESPONDENT: Australian Rugby League Limited SECOND RESPONDENT: NSW Rugby League Limited FILE NUMBER: IRC6334 of 1998 CORAM: Kavanagh J CATCHWORDS : s106 Industrial Relations Act, 1996 - contract to referee rugby league matches - challenge by applicant to the selection criteria used for choosing referees as unfair under the contract - question of fairness in the conduct of the performance review a term of the contract - question whether there was the arbitrary allocation of refereeing work - the obligation to attend training whether it was a term under the contract - whether an unfairness when demoted after one particular game - contract found fair in both terms and performance except in relation to two match payments. Industrial Relations Act 1996 s106 LEGISLATION CITED : Industrial Relations Act 1991 s275 Evidence Act 1995 Pt 3.7 State Rail Authority of NSW v Earth Line Constructions Pty Limited (In Liq & Ors) (1999) 160 ALR 588 CASES CITED : Port Macquarie Golf Club Ltd v Stead & Anor (1995-1996) 64 IR 53 Furzey v Thorn EMI Pty Ltd (1991) 44 IR 223 Hand v Adelaide Bank (1997) 72 IR 289 HEARING DATES: 03/13/2000; 03/14/2000; 05/08/2000; 05/18/2000 DATE OF JUDGMENT: 07/14/2000 APPLICANT: Dr J. P. Berwick of counsel SOLICITORS: James LEGAL REPRESENTATIVES: RESPONDENT: Mr S. B. Benson of counsel SOLICITORS: Colin W Love & Co JUDGMENT: - 45 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Fri 14 July 2000 IRC6334 of 1998 DAVID CRAIG JAY v AUSTRALIAN RUGBY LEAGUE LIMITED & ANOR Application under s106 of the Industrial Relations Act 1996 JUDGMENT 1 David Craig Jay ("the applicant") brings this application under s106 of the Industrial Relations Act, 1996 ("the Act") claiming the contract he entered into between the Australian Rugby League (the "ARL") and the NSW Rugby League (the "NSWRL") was unfair, harsh or unconscionable. The applicant contracted with the ARL and NSWRL who ran the Rugby League Competition in Australia and New Zealand in 1995. The year is important because this was identified as the year in which Super League made its "raid" on rugby league to contract with players, coaches and officials, including referees and touch judges, in order to establish another rugby league competition. 2 The application is for orders declaring the contract unfair and orders varying the contract to provide just and fair compensation of $149,500 to the applicant. The pleadings are relevantly as follows: 1. An order declaring that the contract between the Applicant and the Respondents, whereby the Applicant was employed to perform work as a Rugby League Referee ("the Contract") was unfair, harsh or unconscionable, and contrary to the public interest. . . . 5 A declaration that cl. 3.2 is unfair and/or unconscionable and/or contrary to the public interest. 6. An order that cl. 3.2 Contract be amended to read: "The Official acknowledges that the Referees Advisory Board of the Leagues will on a weekly basis review the performance of the Official. The results of that review will be taken into account by the Leagues in allocating the Official to provide particular Services at Matches under this agreement". . . . B. Grounds . . . 4. The termination of the contract by the respondent was effected: (a) In a manner which denied the Applicant natural justice and procedural fairness; (b) In a manner which denied the Applicant adequate compensation in the form of payment in lieu of notice on the termination of employment; (c) In a manner which denied the Applicant the opportunity to earn money under the Contract; (d) Through the exercise by the Respondent of a dominant negotiating position. 5. The Contract failed to protect the Applicant against a termination of the Contract which was harsh, unfair and unconscionable, and against the public interest, and the Contract failed to provide for the payment of adequate compensation to the Applicant upon termination of the Contract. 6. Clause 3.2 of the Contract was harsh, unconscionable and unfair because the Contract identifies a means of assessing the performance of Rugby League Referees and the Contract fails to require that this method of assessment of referees performance will be taken into account in allocation of refereeing or other services by the Applicant under the Contract. Particulars (i) There was no system or adequate system of performance evaluation and review such that would be required for the implementation of Part 3 and Clause 1.2 of the Contract if it were to avoid the unfairness within the meaning of section 106. 7. The Contract is unfair because it does not provide a fair basis for allocating work to Rugby League Referees on the basis of their performance of their refereeing and other tasks under the Contract. The Contract allows for or permits an arbitrary allocation of Refereeing and other work. 8. At all relevant times, the Respondents were in a dominant bargaining and negotiating position with respect to the Applicant because of the monopoly the Respondents exercised in relation to hiring Rugby League Referees at the Applicant's level of expertise. The Respondents used the said dominant bargaining position for their benefit and to the detriment of the Applicant. 9. The applicant was denied the opportunity of further offers of appointment as a referee on the ground of failure to attend training, a criteria which was not a contractual requirement. 10. Such other grounds and reasons as may seem just to the Commission. C. The Award, Agreement or Determination by Reference to which the claim or any part of it is based: Not Applicable. D. Particulars of the manner in which the amount claimed is calculated: The Applicant in his first year could have earned approximately $45,000.00. The Applicant had a legitimate expectation of earning that sum per year for the remaining years of the Contract. The Applicant has not been provided with work pursuant to the Contract since approximately August 1997. The Applicant had a legitimate expectation of receiving the sum of $45,000 per annum for a period of 2 years and 8 months remaining on his contract and accordingly claims the sum of $100,000. The Applicant was not paid for refereeing trial games in breach of Clause 1.3 of the Contract and had a legitimate expectation of receiving the sum of $2,900 each year of the five year contract. ORDERS SOUGHT (i) An order that clause 3.2 of the contract be amended to read, 'the official acknowledges that the Referees Advisory Board of the Leagues will on a weekly basis review the performance of the official. The results of that review will be taken into account by the Leagues in allocating the official to provide particular services at matches under this agreement. (ii) An order for compensation. 3 The applicant was represented by Dr J Berwick, of counsel, and the respondent was represented by Mr S. Benson, of counsel. The applicant gave evidence and relied upon significant documentation. The respondent called two witnesses in defence of the claim. After submissions were received, the applicant sought leave to re-open his case to further cross examine a witness then amend his claim to add another particular related to his claim, namely, Particular 9. Evidence was finally completed on 18 May 2000. THE FACTS 4 In 1994 by agreement between the New South Wales Rugby League ("NSWRL") and the Australian Rugby League ("ARL") the elite first grade rugby league premiership competition was transferred from the NSWRL to the ARL. In 1994 there had been a 16 team first grade rugby league premiership competition and after the decision was taken to expand the competition in 1995, teams from North Queensland, Perth, Adelaide and Auckland were included and the 20 teams competed in the 1995 competition. 5 During the period 1995 to 1997, following the Super League "raid" there was a split in the ARL premiership. Several ARL teams defected to the alternative Super League competition. The ARL premiership was reduced to 12 teams. By 1997, this meant for the 1997 Rugby League season only six first grade referees were required each week to referee ARL games. 6 In early 1998 News Limited who sponsored the Super League competition and the NSWRL-ARL (together "the Leagues") agreed to conduct a joint competition known as the National Rugby League Premiership ("the NRL"). This competition was to be conducted by the NRL, which was incorporated and which adopted a charter to control and conduct the elite first grade NRL premiership. The lower grade competitions, including reserve grade (renamed first division), Metropolitan Cup (a second division for City based teams) and all New South Wales junior representative matches remained under the conduct and control of the NSWRL. 7 Arising out of the initial Super League raid in 1995, the ARL and the NSWRL determined to enter into a contract with its officials, that is, its referees and touch judges. Mr Jay was one of those officials. On 26 April 1995 the applicant entered into a contract with the Leagues. The contract refers to the applicant as "the official". 8 The contract refers to service and payment for services. Both parties take no issue with the jurisdiction of the court to hear this matter. Relevantly the contract states: RECITALS: . . . B. The Leagues wish to engage the official to provide refereeing and/or touch judging services in the Leagues current rugby league competition or any future rugby league competition which the Leagues conduct either solely or jointly or by any other organisation to which the Leagues' rights to conduct such a competition have been assigned on the terms of this agreement. OPERATIVE PROVISIONS: 1. SERVICES AND PAYMENT FOR SERVICES 1.2 During the term of this agreement the League will, in consultation with the official, allocate the official to provide the services for a specified match or matches. . . . 3. QUALIFICATIONS AND PERFORMANCE 3.2 The official acknowledges that the Referees Advisory Board of the Leagues will on a weekly basis review the performance of the official. The results of that review may be taken into account by the Leagues in allocating the official to provide particular services at matches under this agreement. 3.3 The Official warrants that he is and will throughout the term of this contract make every effort to remain fit to provide the services and is and will remain able to provide the services under this agreement without exposing himself to greater than usual risk to health or greater than usual risk of injury. . . . And: 12. MEANING OF WORDS AND EXPRESSIONS 12.3 In this agreement: . . . "Match" means any rugby league football match in Australia or any match involving any team in any way representative of Australia or a state or a region of Australia, approved or sanctioned by the Leagues. . . . "Services" means refereeing and/or touch judging services set out in Schedule 1. . . . And: Schedule 1 Services The services will be those allocated to the official by the League from time to time which may include: 1. Refereeing. 2. Touch Judging. 3. In Goal Touch Judging. Schedule 2 Outlines the Fees to be paid to each grade referee/touch judge. Schedule 2 under the heading: "Training Fees" states: No Training Fees are payable as these have been incorporated into match fees and the sign on fee structure. Schedule 3 - Outlines in detail the Loadings, Allowances and Reimbursements for officials. Schedule 4 - Refers to the annual sign on fee allowed for referees and touch judges. 9 David Craig Jay is 35 years of age. At 31 years of age, and as an experienced referee, he signed this contract with the Leagues. He was at the time a Senior Manager with the Commonwealth Bank "responsible for the audit department that looked after the corporate finance area of the Bank". He had by then bought a house and purchased a number of motor vehicles. He is now married. 10 In 1982 the applicant qualified as a referee by way of an examination conducted by the NSWRL. He qualified as a "Referee Senior". In April 1983 he began as a referee of the Rugby League competition in the Manly-Warringah District. He refereed the junior fixtures for players under 16 years of age. 11 In 1984 he was appointed to referee fixtures for Senior Rugby League players aged 16 and over for the Manly-Warringah District. In 1985 he was again appointed Referee Senior for fixtures in the Manly Warringah District. During the 1985 season he was selected for the first time to referee a match run by the NSWRL at inter-district level. He refereed matches in the "S.G.Ball" Cup, "H.J.Flegg" Cup and in the "Metropolitan Business Houses" Competition. In the 1986 season he was again appointed to Referee Senior for fixtures in the Manly-Warringah District and refereed his initial A grade open-age matches. In September 1986 he refereed his first international match as referee of the New South Wales Combined Catholic Colleges and New Zealand. In the 1987 season he was again appointed Referee Senior in the Manly-Warringah District. He refereed fixtures to a maximum of A grade open-age and again was selected to officiate in various NSWRL competitions including the President's Cup. In the 1988 season he was again appointed a Referee Senior in the Manly-Warringah District. His refereeing in that season reflected that of 1987. 12 In the 1989 season he was graded to officiate in all competitions conducted by the NSWRL. At that time those competitions consisted of First Grade, Reserve Grade, Commonwealth Bank Cup and Presidents Cup. He was also appointed to the Referees Advisory Board in the Manly-Warringah District. He refereed 11 President's Cup Competitions and otherwise acted as touch judge. 13 In the 1990 season he was again "graded" to officiate in competitions conducted by the NSWRL. He continued his appointment to the Advisory Board and was invited to join the New South Wales Public Service Referees Association. He refereed the Commonwealth Bank Cup, the President's Cup, Metropolitan Cup - Reserve Grade and/or touch judge for their reserve grade and President's Cup competitions. His 1991 season reflected that of 1990. In 1992 he was also given the opportunity to referee the New South Wales Police v Great Britain Police at Parramatta Stadium. The season in 1993 was similar. In 1994 he was promoted to referee First Grade and also given the opportunity to referee the Commonwealth Bank Cup competition final game. He refereed four first grade competitions and 16 reserve grade competitions and two Commonwealth Bank competitions in that year. 14 In the 1995 season he refereed the finals of the New South Wales Combined High Schools, Buckley Shield, Interstate Fixtures in the Metropolitan Cup, 11 First Grade competition fixtures and 11 Reserve Grade competition fixtures. It was during the 1995 season the Super League war broke out and he acknowledges: In or about April 1995 referees were provided with and asked to sign five year contracts to referee competitions conducted only by the Australian Rugby League and the New South Wales Rugby League. On 6 July 1995 he refereed a first grade rugby league competition game between Manly-Warringah and Sydney City ("The Manly-Easts game"). Some decisions he made as the referee in this game were controversial. The game was conducted at the height of emotions over the split between the ARL and Super League. After his refereeing of this game he was relegated to referee reserve grade and refereed reserve grade matches for the rest of the football season in 1995. 15 In the 1996 season he was again graded to officiate in competitions conducted by the Leagues. During that year he refereed 16 reserve grade fixtures, one Commonwealth Bank Cup fixture and three Metropolitan Cup finals fixtures. During this year he was not assigned to any First Grade matches in the Leagues Competition. 16 In 1997 he was graded to officiate in the Leagues Competitions. During 1997 there was dramatic change in the ongoing Super League War and the Leagues Competition was reduced from twenty to twelve. In the first competition round of 1997 he was assigned to referee matches in President's Cup competition for the lower grades. This caused him concern. He refereed many under-20's competition matches during the season. Since the end of August 1997 he has received no further assignments to referee pursuant to his contract. 17 On 2 September 1997 he wrote a letter to the Leagues directed to Mr M. Stone, the referees' co-ordinator as follows: Match Fees Whilst completing my taxation return for the year it became clear that I had not received payments for a number of fixtures, detail of which are as follows: Date Grade Fixture 08/02/97 7'S-FIRST PNG v NEW ZEALAND 08/02/97 7'S-FIRST NSW COUNTRY v MELBOURNE 15/02/97 FIRST ILLAWARRA v PARRAMATTA It would be appreciated if you would kindly arrange for payment of these matches as a matter of priority. As a separate issue, I note that I did not receive an appointment for rounds 21(22-24 August 1997) and 22 (29-31 August 1997). As there was no consultation with me with respect to these appointments, I kept those dates free in order to fulfil my obligations to the ARL. Accordingly, I am expecting, in compensation, match fees equivalent to the average fee I earned this season for both these rounds. Your attention to these issues is appreciated. 18 In reply to this letter, Mr Stone contacted Mr Jay by telephone leaving a message suggesting that the "7's competition" was patroned by Mr Colin Love and payments were made by Mr Love directly to the Referees Association for referees. The applicant agreed he had been paid as a referee but at a lower scale to the contract rate. As to the Country Carnival games Mr Stone's view was they do not attract any payment as they were "trial" matches. As to the applicant not being allocated any games in the rounds 21 and 22 of the 1997 season, Mr Stone said: Um, the game 15th of February was a trial ah that's the Country Carnival is it? Ah there is no payment for trials as you'd ah as you'd be aware. Ah rounds 21 and 22 um the ah fact of the matter is you weren't the only one to miss out on appointment because ah we ran ah we ran out of matches. That's quite as simple as that. On 2 September 1997, the ARL wrote to Mr Jay confirming the content of the telephone conversation with Mr Stone. The letter states: 1. Payment in the Coca Cola Sevens Tournament is made directly by the promoter to your Association. Please contact Mr Les Matthews for details. 2. Country Carnival matches were trials and accordingly no match fees were payable. 3. With the diminution of other competitions there were a lack of fixtures available for referees to control. Hence, a number of referees were not appointed to Rounds 19 to 22 and the Final Series. There is no compensation for a failure to receive appointments. 19 As to the 1998 season, in February 1998 the applicant received an appointment to referee a reserve grade trial and a country carnival first grade fixture in Albury. In March 1998 he received a phone call from Mr Denis Spagarino, the new Referees Co-ordinator for the NSWRL (Mr Stone had transferred to the National Rugby League (the "NRL")), which conversation informed him that it was Mr Spagarino's view the applicant should consider a future career as a touch judge. 20 Mr Jay summarises his refereeing career as follows: As a 'graded' referee (from 1989) I refereed 17 first grade, 58 reserve grade, eight Commonwealth Bank or Aussie Home Loan Cup, 76 President's Cup or under twenties, 16 Metropolitan Cup - first grade, two Metropolitan Cup - reserve grade and eight Finals or representative fixtures, not including trial fixtures. In that time I received one hundred and eighty two written reports on my performance. 21 The reports on Mr Jay's performance as a referee became central to this case, because Mr Jay claims, following his refereeing of a particular game in July 1995, he has been relegated to reserve grade and his career as a referee has never been resurrected to first grade status. He asserts the 182 reports on games give an overview of his refereeing career sufficient for the court to infer he was an excellent referee and therefore should have been retained at first grade level and paid accordingly. It is the lost refereeing fees he asks for in orders under s106 of the Act. 22 Evidence of the Review system was given by Mr Michael James Stone. Mr Stone is currently employed as Referees Coach of the National Rugby League Limited (the NRL). He was a former Leagues' referee from 1981 to 1989. During his refereeing career he was employed at the Australian Taxation Office then in 1992 the NSWRL employed him full-time as the Referees Coaching Co-ordinator for the Leagues. At the time the NSWRL conducted the elite first grade rugby league competition in Australia. In 1994 there was an expansion of the teams to include North Queensland, Perth, Adelaide and Auckland. 23 As to the development and selection of referees Mr Stone gave the following evidence: for decades prior to 1996 there was in place a procedure to allow for a junior referee to progress through the ranks to become a premiership referee. First the referee had to qualify by sitting for an exam to get his/her "ticket"; then there was appointment to referee junior district rugby league matches where performance would be reviewed; if found suitable the NSWRL would appoint the referee to junior representative matches; then the referee would be promoted, if performance was satisfactory, to adult grade matches. During the period 1992 to 1995 Mr Stone was a member of a three man selection panel who made recommendations to the NSWRL general manager for the appointment of referees and other officials to Premiership matches and Metropolitan Cup matches. After the 1995 grand final Mr Stone became the sole person responsible to the NSWRL General Manager for the appointment of such officials. He affirmed the criteria on which he based his recommendations included: a. Match review reports; b. My own assessment of videos of matches; c. The official performance at training; d. The official response to constructive criticism; and e. Input from other referees coaches. By early 1998 the NRL employed Mr Stone full time as the NRL Referees Coach. His responsibilities were to coach the officials who were selected in the NRL premiership squad. He was solely responsible for the appointment of officials to NRL premiership matches each week from then on. 24 Mr Stone gave evidence he promoted or relegated officials between the NRL and the NSWRL competitions from time to time. The officials were paid each week by the controlling body of whichever competition in which they officiated each week. After Mr Stone's appointment to the NRL his position as NSWRL Referees Coach and Co-ordinator was filled by Mr Dennis Spagarino. 25 Mr Stone says of Mr Jay he was showing potential for first grade refereeing by 1995 and as Mr Stone was focusing on the promotion of some referees, because of the advancing age and/or retirement of several first grade referees, Mr Jay was chosen to referee some first grade games. As to the game that caused Mr Jay to be relegated, he said: . . . I saw a video of his performance at that game and I was not happy with it. Both coaches were highly critical of David Jay's performance. His refereeing performance was also the subject of widespread publicity in the rugby league press. The Easts coach, Phil Gould, walked to the sideline during the second half of that match and attempted to call his team from the field when things were becoming heated. Near the end of the game David Jay made a decision which I believe was a bad decision and which had a significant effect on the result of the game. 26 As to the applicant's demotion or any other referee's demotion, after any weekly game, Mr Stone revealed it was his normal practice to advise the referee early in the week that they were to be demoted, to allow them to consider their performance for a few days and then to chat with them again later in the week to help rebuild their confidence with some positive comments. He gave his opinion as follows: David Jay was never promoted to first grade during the 1996 season because after the application of the selection criteria...I was satisfied that other referees were more deserving of higher grade matches than David Jay. Re 1997 Season: 1997 was the season of the split ARL competition and the Super League competition. With only twelve teams in the ARL premiership there were only positions for six first grade referees each week. As a consequence, many officials who had officiated as referees and/or touch judges during the 1996 twenty team competition necessarily officiated in lower grade competitions. David Jay was one such official. At the commence of the 1997 season there was a change of policy of the NSWRL in relation to appointment of referees. As a result of the split competitions the NSWRL policy on referee selection changed so that referee appointments to the Under Twenties match and Metropolitan Cup matches were regarded as being of equal merit. This meant that officials from both these competitions were considered for appointment to any vacancies in reserve grade matches. I communicated that change of policy to officials at training, at meetings and individually during the early round of the 1997 season. He revealed the applicant officiated at under twenties matches throughout the 1997 season, that is, he refereed at Reserve Grade level. 27 The evidence as to the training sessions for referees becomes important. Training sessions were held for referees and touch judges every Wednesday night during the 1980's. From 1988 training went from 6.30 to 8pm. A qualified trainer was supplied for these training sessions. Before and after the training sessions the referees and touch judges held informal meetings in the grandstands or dressing rooms to discuss the current issues of the week. 28 Further, in 1994 Mr Stone introduced an extra training session for graded referees which took place on a Thursday evening from 6.30 to 8pm. Of these sessions Mr Stone says: Referees were coached in skill drills and shown video review of their performances, and clips of rugby league incidents which I believe were worthy of examination. Referees were also counselled on an individual basis by members of my advisory panel and me in relation to their personal refereeing performances. 29 As to the relationship between referees and touch judges Mr Stone pointed out it was not uncommon for referees who had experience in first grade to subsequently be allocated, either at their own request or at the discretion of the NSWRL, the duties of a touch judge. 30 In early 1998 Mr Spagarino was appointed the NSWRL/ARL Referees Co-Ordinator and Mr Stone moved to the NRL. Mr Spagarino, as his first task, reviewed all of the existing graded officials in the NSWRL First Division and the Metropolitan Cup competitions. He determined to move forward to representative refereeing some of the younger referees. As part of that decision he rang Mr Jay and told him of this decision on or about 16 March 1998. He said the following: DS: I've been considering all of the appointments for this season. I think it's time you considered a career in touch judging. DJ: That's totally unfair, I'm not being given a fair go. DS: David, it's time that we started bringing through some of the younger guys. I think it's time you considered an alternative career path in touch judging. DJ: Does this have anything to do with Mick Stone? DS: This is my decision in consultation with my advisory panel. DJ: I will not consider it. I will not ever consider running the line, I would rather not do anything. DS: Well, David, that's a matter for you. DJ: Well, no hard feelings Dennis, we'll have a beer sometime. DS: Sure, give me a call when you would like to. 31 Mr Spagarino has subsequently not heard from Mr Jay. Mr Spagarino's evidence was after the telephone call: In about January 1998 the Association sent letters to all members of the Association, including the plaintiff (sic), inviting them to attend a seminar conducted by the Association at a venue in Wollongong . . . . at that seminar I addressed the graded members of the Association and said words to the effect of 'don't forget that one of the requirements is attending training on Wednesday nights. If you can't attend training you are required to let us know. If you don't attend training it will affect your selection prospects. The NSWRL referees train every Wednesday night at Lidcombe Oval. Mr Jay didn't attend any training sessions during the second half of March 1998 or the first half of April 1998. As a result of our telephone conversation. . .and Mr Jay's cessation of training, I came to the conclusion that he had elected to cease being an active member of the NSWRL referees. 32 Mr Spagarino then wrote to Mr Jay affirming that he was no longer an active member of the Referees Association. In early May, Mr Jay replied by letter which letter denied he was considering retirement as a member of the Referees Association. Mr Spagarino then says: Despite Mr Jay's stated position he was considered an active member of the NSWRL's Referees, he did not attend another training session during the 1998 season. Accordingly, he was not considered for appointment to any officiating duties. 33 It is noted Mr Jay has not attended any training sessions in 1999. There was some dispute about why Mr Jay did not attend at the referees' seminar in 1998. Mr Jay said he thought he was to be given an invitation to attend the seminar and none arrived so he did not attend. The notice as to the seminar says: At this stage it is intended to request the attendance of the following participants: - National Rugby League (NRL squad) NSWLR (graded squad, referees coaches) NRL and NSWRL (squads). The final makeup of the above groups will not be known until early next week. As a possible candidate for inclusion in the squads, could you keep the weekend available until further advice. Final invitations will be extended by telephone no later than Tuesday 3 March 1998. 34 Mr Jay said he heard no more about the seminar after it was mentioned at training and it is noted that his conversation occurred on 16 March 1998 with Mr Spagarino after he did not attend the training seminar. However, the non attendance at the seminar appears to the Court to be of little consequence as it is not referred to as one of the reasons for the decision of Mr Spagarino to invite Mr Jay to become a touch judge. THE SUBMISSIONS 35 The applicant submits the contract as it operated did not take into account the system of performance review put in place by the respondent. Rather, counsel for the applicant submits the work allocated was at the total discretion of the officials of the respondents rather than as a result of any meaningful consultation with the applicant. The nature of the applicant's complaint is: the contract rather than providing a measured and managed approach to the operation of his employment as a rugby league referee, operated in an arbitrary manner so as to see the applicant relegated from a burgeoning first grade career to reserve grade and subsequently to third grade without consultation and without an adequate system of performance review. 36 It is the applicant's submission the respondents either did not use their own management system as represented by the comprehensive reports on performance or used them arbitrarily. There was a denial, the applicant submits, of a balanced estimation of the applicant's services as held out by the existence of that very performance review system. 37 The applicant submitted in an analysis of his first grade refereeing reports, he regularly received an overall good rating on his performance notwithstanding there were comments directed to areas for individual improvement. The applicant acknowledged the report forms (filled in by the official allocated by the Referees' Advisory Board who viewed each match refereed by the person under contract) had been examined by him and he had often added comments challenging the report's review of his performance. 38 The Court has examined significant documentation which are the reports made by the various referee advisory boards of Mr Jay's performance as a referee from 9 April 1983. These were tendered by the applicant in his case. Mr Benson, counsel for the respondent, painstakingly took the court through these reports and did so to support the following propositions: throughout the reports, over a significant number of years, there pervades a view, which the court should adopt, that Mr Jay on an overview had not performed well as a referee. Phrases used in the reports he submits bring into question the applicant's ability to perform as a referee first grade. Such comments referred to are: "He appeared hesitant throughout the game", "whilst David took control he let himself down in certain areas", "he should have shown more authority", "the referee standard fell away in the second half", "started game with much authority but standard slipped with standard of game", "looked unsure of himself and lacked confidence", "indecisiveness when under pressure", "lacked authority at times when stronger action needed to be taken", "appeared to be unsettled following incidents", "not a good performance by referee. Needs to look at this game very seriously", "Very casual display by referee", "a nervous beginning by the referee", "not a good performance". 39 Especially as to his refereeing in the first grade, the court notes some of the general comments from first grade game's reports, "Put in a good first half, fell away in second half with incidents", "refereed well in a game that never rose great heights", "didn't seem settled in first half, came good in second half", "think you should have taken more action . . . should have been firmer". 40 As to the game between Manly and Sydney City (Easts) on 16 July 1995, the applicant alleges this game cost him his whole refereeing career. He further alleges the reaction of the NRL to his refereeing of this game was a breach of his contract. The applicant submits on a specific analysis of the game and notwithstanding the comment "not a good performance" he still achieved a substantial number of good ratings in the performance review. 41 He submits it is significant Mr Stone, the Co-ordinator of Referees, watched Mr Jay's next game, a reserve game, and gave him a good rating. The applicant who was subsequently progressively demoted to the point where he was given no more appointments alleges such an approach is in flagrant disregard of the plain words of cl 1.2 of the contract which required "consultation". He submits a system which produces documentation which overwhelmingly designated a referee as "good" and yet allowed steady demotion of that referee was used arbitrarily and such conduct must be unfair in the terms of s106 of the Act. The use of such an absolute management prerogative was not within the terms of the contract; and as the system in place overwhelmingly designated Mr Jay as a good referee, under the contract the fact that he was demoted, must invite a finding of an unfairness in the operation of the contract. 42 As to any submission Mr Jay displayed consistent difficulty in asserting his authority of a match such as in the report of Mr Ryan on 16 July 1995 which stated, "The players do not appear to respond to the referee, they were constantly at him trying to intimidate him, he should have been firmer," the applicant submits this view cannot be supported by an examination of the mass of documentation. The applicant concedes it may well have been the perception of Mr Stone that Mr Jay lacked some capacity and did not have the personal equipment to be a first grade referee. Such a view was attested to by Mr Stone in the witness box. However, nowhere in the evidence the applicant submits did Mr Stone say this or anything like this to Mr Jay. The Court therefore must find, counsel submits, there was no consultation. Therefore, there is an unfairness in the performance of the contract. 43 The applicant alleges Mr Stone in cross examination in commenting on the review document qualified the meaning of "good" "very good" "pass" and "fair". They however rely on the evidence of Mr Stone who allowed if a referee received a "good" endorsement over most of the year's matches, a referee would be entitled to infer he was a good referee. 44 The applicant invites the court to consider the further point that the court has no independent expert verification before it that Mr Jay lacked authority or control over the game, and having conceded Mr Jay looked "reticent" in the witness box, submits there is no evidence as to what Mr Jay looked like or performed like on a rugby league field, and so his demeanour in the witness box should not be taken into account. 45 The respondents on the evidence submit the contract was entered into by parties of equal stature. They submit it cannot be used against their interests that the applicant claims he did not understand the full import and effect of the contract as to the services he contracted to supply to the Leagues. 46 The respondents deny they did not take into account the system of performance review they had in place. They rely on the reports as much as does the applicant, submitting: . . . a detailed perusal of those reports indicates that many of the assessments were qualified, with one significant area of criticism being his apparent lack of authority in controlling rugby league games. This weakness in his skills as a referee were unfortunately exposed in the first grade match on 16 July 1995 between Sydney City and Manly (see Exhibit A at p249). That report rated his overall performance as "Pass". Mr Stone testified that "Pass" means less than acceptable (Tp75.50) and that in his opinion the applicant refereed very poorly on that occasion making many errors (see Tp90.50). It was following the assessment of the applicant's performance in that match that he was relegated to Reserve Grade and in subsequent performances did not re-establish his comparative credentials to justify being re-appointed to First Grade. 47 As to whether the demeanour of Mr Jay in the witness box should be taken into account in consideration of his capacity to exercise authority during the course of a rugby league game, the applicant submits there was no evidence led from the respondent which would enable the court to form a view as to precisely what the necessary characteristics of a rugby league referee are, let alone what the characteristics of a good or bad referee are. The applicant submit there was no independent, expert verification Mr Jay lacked authority or control over the said game. The applicant submits while Mr Stone may have said that he did not consider Mr Jay to be a good referee, Mr Stone admitted he had not seen any of Mr Jay's first grade games. 48 The applicant relies on the comments of Kirby J in State Rail Authority of New South Wales v Earth Line Constructions Pty Limited (In Liquidation & Ors) (1999) 160 ALR 588 (at 619): But because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had. 49 The applicant also relies on the view of Odgers in a commentary on Part 3.7 of the Evidence Act 1995 (NSW) says at 201: Matters bearing on the credibility of a witness thus include truthfulness or veracity, intelligence, buyers with a motive to be untruthful, opportunities of observation, reasons for recollection or believe, powers of perception and memory, any special circumstances affecting competency, prior statements consistent or inconsistent with testimony, integral inconsistencies and ambiguities in testimony and direct contradiction of testimony. However, the content of Kirby J's remarks go to the extent to which an appellant court can overturn a finding as to the truthfulness or otherwise of a witness's evidence at first instance. Indeed, the issue in the SRA case was the extent to which a judge at first instance could form a view as to the credibility of a witness which negated a large body of documentary evidence. In this case the applicant submits the large body of documentary evidence is against the proposition that Mr Jay had some particular problem with control or authority. 50 The respondents submit that the applicant's demeanour in the witness box was that of a timid person. The respondent submits that it is open for the court to take account of the court's observations of the witness in preferring the relative assessments between the respondent and the applicant as to the likelihood of the level of authority he may display as a referee. The respondent's submission is the court is entitled to have regard to its observations of the applicant's demeanour having informed the applicant's counsel of that prospect and he having had an opportunity to answer that issue: see Minagall v Aryes (1966) SASR 151 (at 156) which was affirmed in Angaston and District Hospital v Thamm (1987) 47 SASR 177 (at 178); Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 179); and State Rail Authority v Earth Line (1999) 160 ALR 588 (at 615). CONSIDERATION 51 Section 105 of the Act relevantly reads: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or . . . 52 Section 106 of the Act relevantly reads: 106 Power of the Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. . . . (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. 53 As to the unfairness in the contract or in the performance of the contract through the conduct of the respondents, the court is guided by the principles enunciated in Port Macquarie Golf Club Limited v Stead & Anor (1995-1996) 64 IR 53. The Full Bench examined s275 of the Industrial Relations Act 1991 which is a similar provision to s106 of the 1996 Act. The court, it says, must make an examination of the particular facts of the case (at 59): Unfairness may arise either from the terms of the contract or arrangement itself, the surrounding circumstances and/or from the manner of performance or operation of the contract or arrangement: Barry v Incitec Limited (1991) 45 IR 143 at 146; Incitec Limited v Industrial Court of New South Wales (1992) 45 IR 155 at 157-158; and Baker v National Distribution Services Ltd (1993) 50 IR 254 at 270-271. 54 In applying the test for unfairness the Full Bench guides the court to take (at 59-60): . . . the common sense approach characteristic of the ordinary juryman by applying standards providing a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement, bearing in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement: Davies v General Transport Development Pty Ltd (1967) AR (NSW) 371 at 374: A & M Thompson Pty Ltd v. Total Australia Limited [1980] 2 NSWLR 1 at 13; and Baker at 271-272. 55 As to unfairness, the Full Bench also held (at 59-60): (5) The nature and degree of the unfairness within the purview of s.275, as a matter of law, relates to ordinary standards of fairness by directing attention to the particular circumstances of the individual contract or arrangement concerned; whether or not a contract or arrangement is unfair is a matter to be decided upon examination of the facts of each particular case: Incitec Limited v. Barry (1992) 45 IR 148; and Baker at 270. (6) Unfairness may arise either from the terms of the contract or arrangement itself, the surrounding circumstances and/or from the manner of performance or operation of the contract or arrangement: Barry v Incitec Limited (1991) 45 IR 143 at 146; Incitec Limited v. Industrial Court of New South Wales (1992) 45 IR 155 at 157-158; and Baker at 270-271. (7) The test of unfairness involves the commonsense approach characteristic of the ordinary juryman by applying standards providing a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement, bearing in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement: Davies v General Transport Development Pty Limited (1967) AR (NSW) 371 at 374; A. & M. Thompson Pty Limited v Total Australia Limited [1980] 2 NSWLR 1 at 13; and Baker at 271-272. 56 The first consideration is whether the contract is unfair as the applicant was at a disadvantage in its negotiation because the respondents were in a dominant position and were a monopoly. Mr Jay was a 35 year old bank manager who by the time he entered this contract had already purchased a home and contracted and paid for a number of motor vehicles. Any submissions that because of the Super League "raid" Mr Jay was under duress I reject. No evidence has been called to support such an inference. Mr Jay was offered a contract and made a decision to sign with the Leagues. He gained from this agreement an opportunity to advance his refereeing career in rugby league given some senior referees had chosen to go with Super League. As to the contract, the applicant said: Q. As best you can remember how old were you there? A. About thirty one, your Honour. Q. You say you were not in a management position at the Commonwealth Bank then? A. No, I was in a management position. Q. What were you then? A. I was a senior manager. Q. What does that mean, what did you do? A. I was responsible for the audit department that looked after the corporate finance area of the bank. Q. Were you married at that stage? A. No, your Honour. Q. Had you purchased a home, a car, anything like that in your young life? A. Yes your Honour, I have a home. Q. Did you have it back in April of 1995? A. Yes, your Honour. Q. You had purchased a home by then? A. Yes. Q. You had purchased a car? A. Yes your Honour. Q. More than one car up to when you were thirty one? A. I had had several, your Honour. 57 From the evidence I reject the submission the applicant entered this contract with the respondents in a dominating position. He entered into this contract as a competent adult and there is no evidence before me of any duress laid upon him. 58 The applicant also alleges he negotiated his contract to serve only as a football referee. This is not the case. Under the terms of the contract the applicant negotiated to provide "services". This clause allowed the Leagues to allocate to him which service as identified in Schedule 1, namely, refereeing, touch judging and in goal touch judging (when relevant) they required of him each week. The applicant in his evidence does not seem to acknowledge this fact. He said to be a touch judge was simply not what he envisaged. He did not believe it was a consequence of the contract he signed. Mr Jay evidence's on this issue was as follows: Q. Now you understand that paragraph 1 refers to services and payment for services? A. Yes, your Honour. Q. When you look over at the schedule "services", look at that, "may include refereeing, touch judging and in goal touch judging". A. That is correct, your Honour. Q. You contracted to provide services which included touch judging? A. I acknowledge that, your Honour. Q. They offered you that, didn't they? A. They did, your Honour. Q. And you did not accept the offer ? A. At the time of signing this contract this contract was a contract that they used to cover all forms of people and being a touch Judge it wasn't something I envisaged as being part of this contract, whether incorrectly or not. Q. But you were a thirty one year old man with some experiences in life at the time you signed it? A. That is correct, your Honour. Q. Had you not realised you had a signed contract that said you could be a touch judge? A. I just did not believe it was a consequence of the contract that I signed your Honour. 59 The consequences of the contract are defined by its terms. The applicant contracted to provide three identified services. He may not have realised same but that does not alter the terms of the clause of the contract given the finding he was competent to enter into the contract and did so without duress. 60 The applicant seeks to vary clause 3.2 of the contract as he alleges that it requires that performance "may" be taken into account for allocation of referees to games. All the evidence supports a finding by the court the weekly performance reviews were taken into account in the allocation of matches to each referee. Even if, under the contract, there is only a discretion for the referee co-ordinator to take same into account, these reports, in Mr Jay's case from the evidence, were taken into account. I am not persuaded the discretion contained in the contract under cl 3.2 is unfair and therefore that the clause itself is unfair. I am especially not persuaded that the clause of the contract should be varied to ensure the use of such a discretion becomes mandatory provision as the summons application for variation requires. The fact is, and the court has found, the discretion was used in Mr Jay's career review and that is what he wishes. 61 Mr Jay alleges generally he was not "consulted" either in the performance of the contract especially after the July 1995 game or in the termination of the contract. I have before me evidence of one of the most efficient and comprehensive consultative processes this court has ever been asked to examine. The officials of Rugby League and especially the referees have persistently been given performance reviews after every match in accordance with the terms of the contract. The referees are brought together for fitness training each Wednesday night and are provided with trainers to assist in their compliance with their obligations under the contract to remain fit. They are then given an opportunity to attend on Thursdays a further training session where the referee co-ordinator analysed the past week's games, analyses the ploys and tactics of the various clubs so they are recognised by the referees to assist in refereeing, and the co-ordinator goes to the trouble to splice various videos to assist in these training sessions. Mr Jay's own evidence confirmed Mr Stone would talk to him on occasions about his performance after a game. Further I accept if someone was downgraded they usually received two telephone calls that week from Mr Stone indicating a sensitivity from him as to the decisions he took. 62 There was considerable evidence from handwritten notes on the referee reports that Mr Jay questioned some of the challenges to his performance. He meticulously examined each report and sometimes made notations by way of comment on the comments of his performance as a referee. He notated follow up conversations about his concerns with issues addressed in the reports. From an examination of the documents I find Mr Jay did not always accept each assessment as to his performance as a referee. Those notes further reveal he was able to discuss his view of the criticisms with others including Mr Stone. 63 Both parties, in analysis of the reports in minute detail, invite the court to conclude whether the applicant was or was not a good referee. The court is considering a contract case where the contract contained a clause that allowed a performance review of a referee after each game. The court finds the respondents conducted these reviews in accordance with the contract and through Mr Stone came to a decision to downgrade the applicant after a particular review of a particular game. It was entirely open, under the contract for Mr Stone to so act. However, Mr Stone also stated Mr Jay did not return to first grade refereeing because using his selection criteria which involved match review reports, his assessment from videos of matches; performance at matches; response to constructive criticism and input from other referees & coaches, he determined other referees were more deserving of the higher grade matches. 64 A number of other intervening events occurred. Each such event affected Mr Jay's service as a referee. There is no doubt the performance of Mr Jay in refereeing first grade games was such that Mr Stone, taking into account a particular refereeing performance, made a decision to relegate the applicant to reserve grade in 1996. I find he was empowered under the contract to so do. The applicant then continued to referee in reserve grade during late 1996 and in 1997. However, cumulative upon this decision in 1997, the Leagues' circumstances changed and the number of referees required for the Leagues competition was almost halved as the competition was affected by the Super League dispute. This circumstance also affected Mr Jay's career as a referee in the top grades. The Leagues did not need as many senior referees. Mr Stone then made a further decision in 1998, about which he notified Mr Jay, not to include Mr Jay as a referee in the NRL competition when it took over the premiership games. Mr Stone had by then become the NRL referee co-ordinator. 65 Mr Spagarino then became the referee co-ordinator for the ARL. He took a separate decision from Mr Stone, when he offered Mr Jay consideration as a Touch Judge. 66 After submissions and judgment was reserved, the applicant asked for leave to recall Mr Spagarino arising out of submissions from the respondent relying on the fact that Mr Spagarino's evidence in relation to the termination had not been challenged in cross examination. In consideration of the application to re-open, the court examined the transcript of the matter and also addresses. Transcript revealed the court had commented during addresses to the applicant's counsel that Mr Spagarino's evidence was unchallenged in relation to the termination: HER HONOUR: Q. What consolation do you take from the evidence of the last witness, Mr Spagarino? BERWICK: A. His evidence was he was essentially being told in no uncertain terms that he was touch judging and that was it. "HER HONOUR: Q. What consolation do you take in relation to that? BERWICK: A. It is part of the pattern of simply failing to have any communication with him in any way, communication in a two way sense. He was basically taken off the field. HER HONOUR: Q. You did not cross-examine him about the proposition he thought other persons should be coming through or the fact he had not turned up for training. You accepted all those statements as statements of truth. BERWICK: A: There is evidentiary material about training and his evidence was, which was essentially uncontested, when he could not come to training he sent a fax. HER HONOUR: Q. You made much of the proposition he was not invited to the referees' seminar. None of that was put to the two witnesses and it is at that point the training drops off, so I only have evidence -- BERWICK: A. That was by 1998. In finding whether the contract operated unfairly we do not think your Honour would say for five years Mr Jay should have been a first grade referee. We submit he was not treated fairly -- 67 On consideration the court granted leave for Dr Berwick to cross examine Mr Spagarino limited to evidence relied upon in the applicant's submissions. After re-examination Mr Spagarino's evidence is: Q. You recall there was a telephone conversation between you and Mr Jay? A. Yes. Q. You referred to that telephone conversation in your affidavit sworn in these proceedings? A. Yes. Q. You say it was that conversation and Mr Jay not going to training which caused you to conclude Mr Jay had elected to cease being an active member of the New South Wales Rugby League referees, is that correct? A. Would you repeat that? Q. That conversation combined with Mr Jay not going to training after that conversation led you to conclude Mr Jay no longer wanted to be a referee, is that right? A. Yes - didn't want to be active. Q. You put some emphasis on training, that he is not going to training in making that decision? A. That was only one part of the scenario. Later: Q. Have you had a look at Mr Jay's contract for the purposes of giving evidence in these proceedings? A. Yes. Q. You would therefore be aware the contract has no requirement to attend training to be considered before selection as a referee does it? A. I am not sure; I am not aware. Later: Q. He can remain fit without going to those training sessions can he not? A. He cannot be assessed. Later: Q. You well know he gives evidence in his affidavit that his fitness has always been at a high level, do you not? A. If that's what the affidavit states, yes. Q. You have no reason to doubt that or you have no basis for a contrary opinion do you? A. We were not able to measure it. Q. You were never able to measure it? A. From his cessation going to training, we were not able to measure his fitness. Q. Before that time, Mr Jay's fitness was never in issue with New South Wales Rugby League? A. Before that time it was never an issue. 68 There was some dispute about Mr Jay not attending a seminar in early 1998. The letter Mr Jay received suggested people would get telephone invitations to the seminar. Mr Spagarino agreed Mr Jay did not receive a telephone call. He says: Q. He (Mr Jay) further says as you will know from the letter, there is a paragraph in the letter that final invitations will be extended by telephone no later than Tuesday 3 March 1998. He says he never got that telephone call. There is no evidence in your affidavit of having made that telephone call is there? A. Correct. Q. So we can then conclude you did not make the telephone call can't we? A. Correct. Q. So nobody could realistically expect Mr Jay to go to that seminar in Wollongong could they, given all of those circumstances? A. I disagree. Q. You disagree? A. Yes. In re-examination: Q. In relation to the last question by Mr Berwick, why did you disagree? A. I disagreed because at the time there was the formation of the NRL and there was a lot of confusion, the combination of Super League and the ARL and that's why the late notice. But referees are constantly in contact with each other. All of the referees, 99.9 per cent of them attended the seminar. At the time there was constant telephone contact with each member because of the lateness of forming the different competitions and the earlier start of the season. . . . Q. Did Mr Jay make any approach to you prior to the conference about any failure to get an invitation? A. No, none whatsoever. And: Q. Are you saying the fact he did not go to this seminar had absolutely no role to play in your decision-making at all? A. I disagree, yes. Q. So it did have a role to play? A. I'm sorry, it didn't have a role. Q. Why did you put it in your affidavit? A. About the seminar? Q. Yes. A. It was just that at that seminar we had discussions with my coaching panel and my advisory board on the season, the upcoming season. 69 Mr Spagarino in his evidence said while making the decision to bring other younger referees through, he was of the view he was only able to offer a touch judge position to Mr Jay for the NSWRL/ARL games. 70 The court finds Mr Spagarino attempted to encourage Mr Jay to stay in the game and to continue to provide a service, that of touch judging, for which, under the contract, he would have received payment. Mr Jay rejected this offer. There is under clause 1.2 of the contract, power for the Leagues to allocate officials to a specified match or matches. The official can be allocated as a referee, as a touch judge or an in goal touch judge (when it existed). This allocation, the contract states, will be made in consultation with the official. The evidence reveals, and I accept it, there was considerable consultation with Mr Jay by both Mr Stone and Mr Spagarino about his match allocations. At the end of his career, Mr Spagarino tried to talk to him about his future. It was a disappointing and futile effort. 71 As to the circumstances of the termination of Mr Jay's contract and Mr Spagarino's offer of appointment as a touch judge position, Mr Jay was asked: Q. . . . you have not taken any steps to avail yourself of that invitation? A. No, I believe we addressed that in a subsequent affidavit. In the subsequent affidavit at para 34, Mr Jay affirmed: I did not attend this seminar as I had received a message on my answering machine from Michael Stone on 2 February 1998 saying words to the effect: 'David, Michael Stone, just wanted to let you know you had not made the NRL squad. I will talk to you more later'. Mr Jay confirmed he left for an overseas holiday on 6 March 1998 and returned on 14 March 1998. As to the question of not attending at training throughout 1998 and into 1999 Mr Jay said: . . . as I didn't receive an appointment as an official in the first round in 1998, in my mind I had been effectively dismissed. There didn't seem to be any point going to training when I had no appointments as an official at any level of the game. However, all during the Rugby League season and to day I have continued to maintain my fitness levels and keep my weekends free in hope of appointment. And: . . . I again deny that attendance at training was a requirement to the position in my contract with NSWRL and ARL. And: I deny the contract provides that matches will be allocated on the basis of the official's performance at training. And: I agree Mr Stone emphasised the importance of training. . . . however, if the ARL and NSWRL are willing to compensate me adequately for games missed and to guarantee me appointments commensurate with my experience and skills, I would consider returning for appointment. And: Q. You took no steps to attend training and seek further appointments? A. No. 72 I accept Mr Spagarino's evidence as to why he made his decision to offer Mr Jay a touch judge role and that not attending training played only a part in the decision making and not attending the seminar played no role in the decision to offer him a touch judge's position. I do not find that the applicant was denied further offers of appointment as a referee solely on the ground of a failure to attend training. I accept the applicant's submission under the contract all he had to do was prove fitness. So does Mr Spagarino. However Mr Jay over the years was always 100% reliable at attending the training sessions. It is trite to say but every requirement for compliance within a term of the contract need not be detailed in the contract. The fact of his not attending training sessions was taken only as an indication "he didn't want to be active". I find this a very reasonable reaction by Mr Spagarino. It does not transfer to an unfairness in the contract or a variation of a term of the contract making the attendance at training sessions a mandatory term of the contract. I reject the claim of the applicant that he: was denied the opportunity of further offers of appointment as a referee on the ground of failure to attend training, a criteria which was not a contractual requirement. 73 Mr Jay in his evidence reveals he had conversations with Mr Stone about his concerns when being relegated to reserve grades. The contract gives him no guarantee of selection as a first grade referee. It gives him no guarantee as to selection as a referee. Circumstances in the well recorded history of the Rugby League/NRL/ARL Super League dispute have conspired against Mr Jay's opportunities to get back to refereeing first grade games after being downgraded but those are not circumstances which make an unfairness to the contract or the performance of the contract. 74 I do not find that the respondent was in any way, at any time, unfair in the performance of this contract related to the allocation of the games. Mr Jay was well qualified to express his views on the match allocations and has done so. While they are not necessarily views that persuade me the contract was unfair or the performance of the contract was unfair, these views have certainly been considered by the Leagues. They have properly consulted with the applicant, they assessed his allocations and regularly reviewed his performance and discussed same with him. 75 I do not find the respondents are under any obligation to appoint Mr Jay to referee matches. Mr Jay has shown no inclination to return to be a Leagues official since he was not, in February 1998 included in the NRL squad as a referee as informed by Mr Stone. He then did not accept Mr Spagarino's offer of appointment as a touch judge for the ARL/NSWRL squad. From his evidence he chooses to not make himself available unless he receives compensation. He may be fit. Such is not relevant when he is only available to serve as a grade referee and not a touch judge. 76 As was said by Hungerford J in Furzey v Thorn EMI Pty Ltd (1991) 44 IR 223 (at 245): . . ., relief under s.88F should be reserved for the most extreme cases where it is positively established in an objective sense that an employer has unfairly changed the essential duties, responsibilities and conditions of an employee without his agreement so as to be manifestly different from the previous position and detrimental to the employee's interests. The present is not such a case. There is no evidence before the Court the NRL/ARL has changed the essential duties or responsibilities and conditions of Mr Jay's employment under the contract. 77 I have considered the submissions as to a consideration of the applicant's demeanour. In Hand v Adelaide Bank (1997) 72 IR 289 (at 290), the Full Bench of this Commission held: . . . To decide the matter on subtleties of demeanour and hesitancy of response is not wrong as such. However it will be a rare case where this, standing alone, justifies such a strong condemnation of a witness. Where a witness's testimony is to be rejected as a lie, in our opinion he or she is entitled to a rigorous and detailed justification in the reasons citing cogent grounds for that conclusion: (see State Bank of SA v D'Marco (unreported Duggan J S3978). Further, in the State Rail Authority of New South Wales v Earth Line Constructions Pty Limited (In Liquidation & Ors) (1999) 160 ALR 588 (at 619) Kirby J warned: There is a growing understanding by both trial judges and Appellate Courts of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the court room. His Honour further commented (at 618): They (the courts) need to minimise, and not exaggerate, the role of the judicial assessment of credibility from appearances. 78 I do not take into account the applicant's demeanour in the witness box in this consideration. I accept the applicant as a witness of truth although I do not accept all the applicant's views as to events to which the court has given its consideration. I take into account the activities and decision making procedures followed by the persons involved in the performance of this contract and an assessment as to its fair conduct. 79 The court declines to find any unfairness to the applicant in the making or conduct of the contract so as to vary the contract in accordance with the application to provide for compensation payments to the applicant for lost earnings as a referee. 80 However, the court must also consider two particular claims pleaded namely, a claim for payment for refereeing in the 7's Competition and for refereeing two Country Carnival games. 81 I reject the applicant's claim that there was an unfairness in the conduct of the contract when Mr Jay was not paid, in accordance with the contract, for two "7s" games as particularised. I find from the evidence the "7s" games were not matches as defined under the contract as part of a Leagues conducted competition. They were games, as Mr Stone opined, that were patroned by Mr Love. Monies were paid by Mr Love to the Referee Association and passed on to referees including Mr Jay for these games. Mr Jay agrees he received some payment from the Referees' Association for these games. The claim in rejected. 82 As to the claim for the Country Carnival refereeing this issue is a little more complicated. Mr Stone, a respondent's witness, agreed he allocated the Referees for these games and that in his opinion they were matches "between a region of Australia sanctioned by the Leagues". He adopts the definition of "match" as in cl 12.3 of the agreement. Such matches are games covered by the contract and attract payment. 83 The respondents allege these games are "trial" games and therefore do not attract payment under the contract. The respondents allege Country Carnival games are not matches for competition. The Leagues submit these games were not matches as defined in clause 12.3 and therefore did not attract payment because they were not part of the Leagues then Rugby League Competition. 84 Mr Jay alleges that the Country Carnival matches could not be called a "trial" game for a number of reasons: a ground entry fee was charged by the Leagues which is generally not the case for a trial; an advisory report was written and delivered on the performance of each referee which is not the case for a true "trial" game; such advisory reports makes no reference to the matches being "trials"; an ARL ground official was always appointed for these games and this is not the case for trial games. 85 The Leagues agreement with Mr Jay as in Recital B extends to all "matches" refereed by "the official". The contract at Recital B enunciates: The Leagues wish to engage the official to provide refereeing and/or touch judge services in the Leagues current Rugby League Competition or any future Rugby League Competitions which the Leagues conduct either solely or jointly or by any other organisation to which the Leagues right to such a competition have been assigned on the terms of this agreement. 86 In clause 12.3 of the contract "match" is defined as: "Match" means any rugby league football match in Australia or any match involving any team in any way representative of Australia or a state or region of Australia, approved or sanctioned by the Leagues. 87 An examination of the pleadings indicate the applicant refereed two country carnival matches, one on 15 February 1997 between Illawarra and Parramatta at Moruya, a first grade game for which the applicant received a referees report and a second game between Melbourne and Canberra played at Albury in 1998. As best the court understands the evidence is the applicant's expenses were paid but not refereeing fees. 88 The court finds, from a reading of the contract and its terms, the definition of "match" as contained in the agreement and the conduct of the respondent in its organisation of these games, such games are covered by the terms of the contract and the applicant should have been paid a fee for the two matches claimed. The court finds an unfairness in the performance of the contract as to the respondent's refusal under the contract to pay Mr Jay the appropriate fee for refereeing at two country carnival games. The court in finding this unfairness in the performance of the contract, in the use of its discretion, determines it is just in the circumstances to order payment for the two games particularised. 89 As to the question of costs, the applicant has succeeded in a very minor part of his claim. I will hear argument from the parties as to costs if the parties cannot reach agreement. Leave to apply. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.