Industrial Court of New South Wales CITATION: Alexander Stuart Lidden v James Leslie Comino [2007] NSWIRComm 136 APPLICANT: Alexander Stuart Lidden PARTIES: RESPONDENT: James Leslie Comino FILE NUMBER(S): IRC 3310 of 2003 CORAM: Haylen J CATCHWORDS: Unfair contract - Industrial Relations Act 1996 - s 106 - courier service sub-contract - representation of minimum engagement of six months - applicant incurs establishment costs to perform work through corporate entity at request of respondent - arrangement made orally between parties - two weeks into arrangement respondent seeks to alter arrangement to daily hire - applicant terminated for not entering new contract or agreement - contract or arrangement became unfair during its course by conduct of respondent - contract or arrangement declared void ab initio - consideration of principle of mitigation - restitution orders made in favour of applicant English v Aradlay Insurance Brokers Pty Ltd (2005) 145 IR 129 CASES CITED: Mikhail Distribtuion Services Pty Ltd v Australia Post [2004] NSWIRComm 235 Westfield Holdings v Adams (2001) 114 IR 241 HEARING DATES: 28 May 2007 DATE OF JUDGMENT: 1 June 2007 APPLICANT: Alexander Stuart Lidden (unrepresented) LEGAL REPRESENTATIVES: RESPONDENT: Mr G Newby, Solicitor (acting as agent) SOLICITORS: Avern McIntyre & Co JUDGMENT: - 42 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 1 June 2007 Matter No IRC 3310 of 2003 ALEXANDER STUART LIDDEN v JAMES LESLIE COMINO Application under s 106 of the Industrial Relations Act 1996 JUDGMENT [2007] NSWIRComm 136 AN ADVERTISMENT FOR WORK 1 In January 2002, James Comino contacted the employment agency known as Joblink Plus seeking the services of a courier. The details of the position posted on the Joblink Plus website were as follows: Courier driver Description: to work on a sub-contract basis for courier services from Coonabarabran to Orange. Five nights per week. Contract up to six months to start. Requirements: own van or ute, own insurance, ABN. Must be experienced with long distance driving. Hours include public holidays. 2 Alexander Lidden, a resident of Coonabarabran, responded to the Joblink Plus advertisement and on 13 February 2002 spoke to Mr Comino by telephone. Mr Lidden gave some details of his driving experience and Mr Comino gave him some brief details of the courier run to be undertaken. On 25 February 2002, Mr Lidden and Mr Comino had a more detailed discussion in which Mr Lidden was offered the position as courier driver carrying product between Coonabarabran and Orange five days per week with a payment of $265 plus GST for each trip. Mr Lidden accepted the terms offered but there was a delay before the courier run to Orange was able to commence. After a number of telephone contacts, the first courier run took place on 2 June 2002 but, by 17 June 2002, Mr Lidden's services were terminated by Mr Comino. PROCEEDINGS COMMENCED 3 Following these developments, Mr Lidden commenced proceedings against Mr Comino under s 106 of the Industrial Relations Act 1996. In that claim, Mr Lidden, acting for himself, raised health concerns arising from the transportation of blood products and the failure of Mr Comino to advise him of the health risks associated with the work including the risk of contracting Q Fever and also raised the prospect that the transported goods were dangerous goods required to be carried in a regulated manner. The claim also alleged that there was a verbal contract for six months' work, that Mr Comino had tried to terminate that contract and have a new contract entered for daily engagement as a courier. The original contract was for a minimum period of six months with excellent prospects of continuing, but Mr Lidden had been terminated without notice or any payment. The Summons also sought expenses associated with establishing the courier business and claimed that there was a lost opportunity of earning other income whilst he was waiting for the contract to commence. Mr Lidden claimed the payment of $38,864.84. This claim was particularised as follows: the unexpired term of the six month contract being 24 weeks at $1,325 per week, totalling $31,800 plus $6,158.04 for the costs associated with establishing the business, and $910.80 for legal advice. 4 By Notice of Motion filed in April 2004, the Summons for Relief was amended. Mr Lidden added as a further applicant the company Gran High Tops Pty Ltd naming the directors as being Alexander Stuart Lidden and Anna Marie Lidden. The respondents were now named as James Leslie Comino and Rozlyn Marie Comino trading as Comino Courier Service. The grounds in support of the application appeared in substance to be the same as had appeared in the original Summons for Relief. A PRELIMINARY POINT RAISED 5 When the application was listed for substantive hearing, Mr Lidden continued to represent himself and the respondents were represented by Mr G Newby, solicitor. At the beginning of the proceedings the respondents raised a fundamental jurisdictional issue, namely, the fact that Mr Lidden's company Gran High Tops Pty Ltd had been deregistered since late 2005 and following the decision in Mikhail Distribution Services Pty Ltd v Australia Post [2004] NSWIRComm 235, there was no longer a corporate applicant in existence and that the matter should be struck out with costs. This application was not made by way of Notice of Motion and no prior notice of the application had been given to Mr Lidden although the respondents were aware that Mr Lidden had represented the applicants from the commencement of the proceedings and was not legally qualified. No explanation was offered as to why this point was taken so late in the proceedings when the company was deregistered in late 2005. Ultimately, the point was disposed of without the need for an adjournment or an opportunity being given to the applicants to seek further advice. 6 In Mikhail, it appears that the proceedings had been commenced by a company that was deregistered which was the only purported applicant. Faced with that prospect, the court held that the proceedings were a nullity but there was no power in the Court to adjourn the proceedings to allow an application to be made for re-registration of the company. The proceedings were struck out. The important difference in the present proceedings is that Mr Lidden commenced the proceedings in his own name and in 2004 by way of amendment added Gran High Tops Pty Ltd as an applicant. As already indicated, the Application to Amend the Summons for Relief was granted but Mr Lidden personally remained an applicant. His short affidavit in support of the Application to Amend the Summons for Relief noted that he had been required by the respondents to set up a company with an ABN and, although originally the debt had been incurred by Gran High Tops Pty Ltd, all cheques from the respondent were made out to "Alex Lidden" and then endorsed to the company. 7 It seems abundantly clear from the Application that Mr Lidden had received some advice and, because of the mixture of personal cheques and performing the courier services through his company, both were to be applicants in the proceedings. I accept that, on the deregistration of Gran High Tops Pty Ltd, that company was no longer capable of maintaining the proceedings: the appropriate order is that Gran High Tops Pty Ltd be struck out as an applicant in the proceedings. The striking out of Gran High Tops Pty Ltd, however, has no effect on Mr Lidden's capacity to continue the proceedings personally and there was no submission to the contrary. The argument for the respondents asserted that, by amending the Summons for Relief, it was Gran High Tops Pty Ltd that had become the applicant and Comino Courier Services had become the respondent. A proper reading of the Application to Amend the Summons and the short affidavit in support of it does not support that contention. THE EVIDENCE 8 The original Reply to the Summons for Relief denied that there was contract between the applicant and the respondent for a fixed period or that it nominated a minimum period of six months. It was asserted the respondent had a daily contract only and that the applicant had been clearly informed on a number of occasions that the respondent could only guarantee work on each day that the respondent was given work. The respondent advised the applicant not to make financial commitments based on any work offered because the respondent could not guarantee work. The respondent asked the applicant to confirm that a back-up vehicle and driver would be available should there be any mechanical problems or if Mr Lidden was unavailable but the company refused and did not provide the undertaking as requested. It was further asserted that the respondent had at all times advised the applicant and the applicant's company that the respondent could not guarantee the work. The respondent had entered into a "casual contract" with Gran High Tops Pty Ltd to carry cattle blood samples from Coonabarabran to Orange and denied that an oral agreement was reached between the applicant and the respondent. The respondent denied that there was "ever any contractual relationship" between the respondent and the applicant. 9 In the Reply to the Summons for Relief filed in 2005 (apparently in response to the Amended Summons for Relief), the respondent asserted that Mr Comino employed the applicant on a daily basis and that Mr Lidden was paid in full for all work carried out by him. In relation to expenses, it was said that Mr Comino at all times, prior to and during the engagement of the applicant, explained the unstable nature of the work and advised the applicant against the purchase of a vehicle by solely relying on any work coming from the respondents. In the Replies filed by the respondents, a multitude of positions where adopted and numerous legal and technical points were foreshadowed although none of them were ultimately the subject of supporting evidence and no submissions in such terms were pressed at the final hearing of the matter. 10 Mr Lidden swore a number of affidavits and provided details of the conversations he had with Mr Comino after reading the advertisement on the Joblink Plus site. He also produced copies of diary notes where brief details of those conversations were recorded immediately after those conversations or shortly thereafter. Mr Lidden said that he had experience in driving delivery trucks for Goodman Fielder in Dubbo and had delivered bread from Dubbo to Bathurst/Orange, Parkes, Forbes and returning to Dubbo servicing supermarkets and driving a "bogie drive pan-tech truck". When Mr Lidden spoke to Mr Comino on 13 February 2002 he told Mr Comino about this experience and his casual employment as a delivery driver and told him that he had previous experience in running his own business involving an apple processing plant, also his experience in managing restaurants and managing a family property. He told Mr Comino he was looking to purchase a second vehicle, had been travelling away a lot to find work and this opportunity gave him "a great reason" to purchase a second vehicle as he had been looking at a sedan the previous week. Mr Comino did not tell him what product was being transported until he decided who was to be appointed to the job. Mr Comino asked Mr Lidden to contact him the following week because he wished to consider other applicants. 11 On 25 February 2002, Mr Lidden telephoned Mr Comino and was told that he was the only applicant from Coonabarabran who had applied for the job. Mr Comino said he wanted somebody from Coonabarabran and that one reason he was offering a six month contract was because he needed to find somebody quickly in order to start in early to mid-March 2002. Mr Comino had said he had to offer at a least six month contract because he would not be able to get anybody interested and reliable enough and this was to be the main freight being carried and had to be given priority. Mr Comino's "boss" had wanted the run set up so that Coonabarabran was approximately half way between Inverell and Dubbo. The transport involved a number of standard size Eskies with a capacity of approximately 50 litres. The product was to be taken from an abattoir at Inverell in Eskies to Orange each day and Mr Lidden's task involved carrying up to 20 Eskies. Mr Comino said that the Eskies were securely sealed and were able to be stacked on top of each other. The Eskies contained approximately 30 kilos of product plus packed ice. When asked what was the product, Mr Comino would only say it was an abattoir product and said that he would inform Mr Lidden about the product when the run started because there was competition for the run and the details had to be kept secret. Mr Comino said the price for each trip would be $265 each day plus GST, which was $1325 per week. 12 Mr Lidden and Mr Comino discussed the price. Mr Lidden said that the trip was approximately 309 kms which worked out at about 43 cents per kilometre for the return journey. He expressed the price to be "pretty reasonable", had calculated the running costs involved and that he was left with between $600 - $800 per week margin "for other costs and overheads". He did not think that this was over generous but he was comfortable with the price which was much better than he was presently obtaining on average as a casual employee having to travel to Dubbo and surrounding areas. 13 During the discussion, Mr Lidden suggested that he could supplement the business by carrying other freight to increase income. Mr Comino said there would be good potential for a service from Coonabarabran to Orange each day. Mr Comino said he was doing the same thing on the run to Brisbane by bringing back parts and parcels to Inverell. There was a general discussion about the pattern of driving and getting used to driving at night during which Mr Comino mentioned that he used a family vehicle as a back-up whenever there was a breakdown. Mr Lidden said that he had available a second car in an emergency. He could be driven by his wife if there was a breakdown but he liked to keep up the maintenance of his vehicles. Mr Comino said that he had purchased a new one tonne utility for the run to Brisbane and the Orange run. Mr Comino said that a new vehicle was not needed as he could only guarantee six months at the start of this service. There was discussion about Mr Lidden's capacity to get a second driver whom he identified. He was then told by Mr Comino that the run was to start in mid-March and that they would talk over the next two weeks. 14 Mr Comino said that, as nobody else from Coonabarabran had applied, he would appoint Mr Lidden to the position and suggested that they meet before the run started because Mr Lidden needed to organise an ABN and a company structure for GST purposes - he needed a company as the best way to do that since it allowed for income increases, especially as the business grew. Mr Comino said that Mr Lidden needed to obtain an ABN for GST purposes so that Mr Comino could pay him and claim the GST which was why a company was required: it was the best way to undertake the business. Mr Lidden accepted that he should look at a company setup with the potential for the business to grow, for his wife to work in that business and stated that it was a good idea. Mr Comino said he wanted Mr Lidden to set up a company with an ABN number since Mr Lidden and the company would be working as a sub-contractor. Mr Lidden then purchased Gran High Tops Pty Ltd with himself and his wife as directors, paying approximately $910. On 28 February 2002, Mr Lidden purchased a Ford XF utility for $3,000. 15 During the following week, Mr Lidden telephoned Mr Comino and informed him of the purchase of the company and that he had established an ABN for GST purposes. Mr Lidden told Mr Comino that, with all the setup costs associated with the business, he would not be able to get a return on those costs and would not have taken the run without a guarantee of six months work. Mr Comino replied that that was why he guaranteed the work for six months. They agreed to meet during the next week or on the weekend. 16 In the week before 11 March 2002, Mr Lidden rang Mr Comino enquiring whether the run was to start the following week but Mr Comino said he was not sure if it would start and that he would ring back in a day or two. When he did call back, Mr Comino said that there had been a hold-up and that the work would not begin until Easter. Mr Lidden commented that he could find work for a couple weeks until then. In the week before Easter, late in March 2002, Mr Lidden had telephoned Mr Comino to see when the work would start and was ultimately told that there was another delay because the laboratory at Orange had not been completed and he would seek further details. Mr Lidden asked what was the product that they were carrying. Mr Comino told him that it was bovine foetal blood, being the blood of unborn calves that were still in the cow when they were killed. The blood was processed for veterinary use in serums and vaccine and for research. There was a discussion about how the blood was collected, the expenses of collecting the blood and the reasons it was being transported by courier. Mr Lidden told Mr Comino that it was difficult to find work and to be available for the Orange work when it started and he asked for some notice because he still worked casually at the bakery at Dubbo. After Easter, Mr Comino told Mr Lidden that there was a firm date for the work to start on 13 May 2002. In this conversation, Mr Lidden told Mr Comino that he was applying for finance to tide him over until the courier run started and asked Mr Comino to support his application. Mr Lidden said that he had quoted income as "yearly" and that the contract was a minimum of six months. Mr Comino agreed. Mr Lidden advised Goodman Fielder that he would be finishing work to allow him to start the Orange run from mid-May. 17 In the week before 13 May 2002, Mr Lidden made further enquiries as to the starting date of the work as he was having difficulty trying to obtain other jobs to do while waiting to commence the run. There was some discussion with Mr Comino about other work which ultimately came to nothing. Mr Lidden was unable to go back to his previous job because another person had been engaged. There were a number of telephone calls enquiring as to when the job was to start, but Mr Comino said that there were delays because the refurbishment and the new killing floor had not been completed at the Orange abattoir. Mr Lidden then found a tractor driving job in late May 2002 which he would have to leave sometime in June 2002 because of the courier run. They had several discussions about looking for other work and the difficulty of obtaining that work. 18 On 31 May 2002, Mr Comino confirmed that the run would start on 3 June 2002. On 3 June 2002 at 8.30 pm, Mr Comino arrived at Mr Lidden's home and they met face-to-face for the first time. Mr Comino was shown the utility that Mr Lidden had purchased and told him that he had got it "for a good price". Mr Comino was introduced to Mr Lidden's family, they had a cup of coffee and Mr Comino asked to see the ABN and company documents which were produced for his inspection. Mr Comino said he was happy with them and offered Mr Lidden a cash payment to get him started for that evening. He gave over $290 to Mr Lidden to cover expenses and told him that he was required to purchase a docket book for invoicing purposes. Mr Comino then explained the procedure for delivering the Eskies each night. There was a discussion about having a second vehicle available should Mr Lidden's truck break down. Mr Lidden said he had a car and trailer and that his wife and two of his three daughters were also available to drive if necessary. There was also another driver he had in mind. Mr Lidden said he did not think it would be necessary in the first six months. Mr Comino said that he had started with a six months' contract for the run from Inverell to Brisbane but was still operating it two years later. He had just purchased a new vehicle but that had only been possible because of a written contract with his "boss". There was discussion about the mileage involved, the initial setup costs of between $6,000 and $7,000 and the work not being viable because of those costs for a period of under six months. Mr Comino agreed, stating that was why the contract was for a minimum of six months and was confident that it would continue beyond the six months in the same way that he had kept going after his first six months for more than two years. Mr Comino suggested that Mr Lidden should begin looking for extra freight for the courier run between Coonabarabran and Orange and thought there was potential for going through to Dubbo. Mr Comino said that his employer had made it a condition of the contract that he not carry any other goods with the Eskies but he regularly back loaded from Brisbane to Inverell with engine parts and document packages. Mr Comino did not want anyone else to know what was being carried as other transport companies were keen to take the business away from him by offering a lower price for the service. 19 When loading Mr Lidden's utility Mr Comino suggested that a cage be fitted to make the load more secure. Mr Lidden said that he had the materials ready and that he would have the cage in place by the next evening. There were discussions about how much each Esky was worth and an estimate was made that the load was worth up to $36,000. Mr Lidden commented that, for that type of money, it was obvious why Mr Comino's boss had made him go to so much trouble to fit out the truck as he had done. Mr Comino said there was big money involved in this type of freight and it had to be delivered in a certain time frame at night and not during the heat of the day. Mr Comino gave Mr Lidden a business card. 20 On 4 June 2002, Mr Comino arrived at Mr Lidden's home where his family was celebrating Mr Lidden's birthday. Mr Comino was invited inside for coffee and birthday cake. Mr Lidden's wife and three daughters were present. Mr Comino gave him a docket book, filled out with Mr Comino's business name and ABN and showed Mr Lidden how it was to be filled out. Mr Comino said that the contract was with James Comino Courier Services (the name on the business card) and then gave some more of those business cards to Mr Lidden. 21 After being paid for the previous night's work, Mr Lidden mentioned that he appreciated the payment Mr Comino had given him the day before because the delays in getting started with the business had left him "broke" and that payment enabled him to buy materials for the cage to be put on the utility to secure the load. Mr Comino said that, with the contract being "for six months to start", that would enable Mr Lidden to obtain some return and there was no reason not to expect the run would go longer than that period, just as it had with his own business. Mr Comino said he had started with a guarantee of six months and was still doing the work two years later. Mr Lidden ventured the view that the way things had turned out he could see himself recouping his money within six months. Mr Comino provided an amount of detail as to the work, picking up the Eskies and difficulties with security. There were other conversations with Mr Comino. 22 On 5 June 2002, Mr Comino had to do a trip to Brisbane and arrangements were made for Mr Lidden to travel to Narrabri to pick up the Eskies for Mr Comino. Mr Lidden took his daughter Alexandra on this trip and Mr Comino paid him $50 cash for the extra work that night. 23 On 6 June 2002, Mr Comino told Mr Lidden that he was not to carry any other parcels as it breached Mr Comino's contract with his employer. There was discussion about Mr Lidden having trouble with glare from the lights of other traffic, which he put down to the installation of the wrong sized bull bar: he painted the back of the bull bar black, changed the lenses in his glasses and overcame the problem. 24 On 12 June 2002, Mr Comino advised Mr Lidden that there was a Q Fever issue relating to the transport of bovine foetal blood from abattoirs. Mr Comino said there were up to 400 recorded cases of Q Fever. They had a discussion about the illness, with Mr Comino saying that it came from abattoirs and that people handling animals at abattoirs were susceptible to the sickness. Mr Lidden had a discussion with his wife about Q Fever and his wife conducted a search of the topic on the internet. 25 On 16 June 2002, Mr Comino rang Mr Lidden and said that he had been speaking to his boss and that they were planning to purchase a property in Brisbane in order to set up a laboratory and, because of this new situation, he could only guarantee the run for six months. In approximately six months time under the new arrangements, blood collected at Orange would be processed there and blood from Inverell, Murgin and Rockhampton would be processed in Brisbane The laboratory site was to be purchased in August and set up at a later date. There had also been an offer from elsewhere to take the blood from Coonabarabran to Orange but Mr Comino said that he would not do the run unless he had all of the run. Mr Comino suggested that Mr Lidden must have spoken to somebody about the run. Mr Lidden said he did not remember talking to anybody about the product because Mr Comino wanted it kept secret. Mr Comino then said he was concerned about Mr Lidden's daughters driving with him on the run but said there was no other problem - there was still six months' guaranteed contract and they would see each other the next day. 26 On the afternoon of 17 June 2002, Mr Comino rang Mr Lidden and said he had consulted his solicitor and was setting up a new company. Mr Comino said that he had an agreement for Mr Lidden to look at and sign which he would send it to him by facsimile but there was nothing in it that would cause Mr Lidden a problem: when it was received, he was to sign and send it back. Mr Comino said that he had a few problems and that Mr Lidden had talked to somebody regarding the delivery of the product; he considered Mr Lidden had problems doing the run because he had complained about trouble with his vision. Mr Lidden told him that he had only spoken about his initial experiences, because driving the truck at night was different, and his problems had been overcome by painting the bull bar and changing the lenses in his glasses: he was not whingeing or complaining. Mr Comino said it would take up to six months to become fully accustomed to the run and that he had experienced similar problems. There was trouble sending the proposed agreement by facsimile and Mr Comino said he would bring it over that night with the Eskies. 27 On the evening of 17 June 2002, Mr Comino arrived with the Eskies for delivery to Orange and was met by Mr Lidden and his daughter Alexandra. Mr Comino presented Mr Lidden with a written agreement. Mr Lidden said he would read it later as he needed time to consider it and to obtain advice. Mr Comino told him that there was no problem with the document and he wanted it signed to which Mr Lidden replied that he needed to seek advice and would not sign it that night. Mr Comino then said that, if Mr Lidden did not sign the document then and there, the Eskies would remain on his vehicle and he would deliver the Eskies himself. Mr Lidden replied that that was Mr Comino's decision but that he would not sign the document until he had received legal advice. There were exchanges between the two of them with Mr Comino saying that Mr Lidden could not work for anybody younger than himself. Mr Comino then said that he would pick up the Eskies the following night together with the CB radio he had given Mr Lidden. He then left the premises. 28 On the following day, 18 June 2002, Mr Comino arrived to pick up the Eskies and had a further conversation with Mr Lidden. He said that he had been trying to call Mr Lidden all day and there had been no answer and said that he was tired because of the driving he had undertaken the previous night. Mr Lidden asked why Mr Comino had asked him to sign the new agreement - Mr Comino said that he had been to his solicitor and that it had turned into a bad day. Mr Lidden said that he had been to a solicitor that day and had been told that Mr Comino had effectively terminated the six month contract. Mr Comino said that there never was a six month contract. Mr Lidden said it had been the basis of the entire agreement. Mr Comino said that he had never entered into a six month contract because he did not have a written agreement. He denied that there was any agreement between them. Mr Comino then said he was so tired he wanted Mr Lidden to continue the run, but Mr Lidden said that Mr Comino did not want Mr Lidden to work for him anymore. Mr Lidden declined the offer and said that, after what happened the previous day, he had been terminated and the matter should be left there. Mr Lidden did not work for Mr Comino again. 29 The document Mr Lidden was asked to sign as encompassing the arrangements with Mr Comino read as follows: CONDITIONS OF DAILY SUB-CONTRACT HIRE REQUIRED FOR CARRYING FOR COMINO'S COURIER SERVICE. I, Alex Lidden, trading as (Grand (sic) High Tops Pty Ltd) ABN 80099697015 agree to supply a courier service from Coonabarabran to Orange for the sum of $265 plus GST delivery to Orange will (sic) be before 3.00 am Tuesday to Saturday. I agree not to disclose any information to anyone or any company regarding the freight that I carry for Comino's Courier Service. I agree not to contact the freight supplier or receiver at any time, for any reason whatsoever. If contact needed all enquiries will be made to James or Rozlyn Comino only. I agree that I am liable for my own vehicle but will be kept in reliable safe condition and that I am totally responsible as a company trading under (Grand (sic) High Tops Pty Ltd) for any insurance policies required to cover myself (and any person I use to use to deliver this freight), to cover any injury or any sickness that may occur. I also agree that Comino's Courier Service or any company that I deliver to will not be held responsible in the case that sickness or injury does occur. 30 Thereafter, Mr Lidden sought employment but found it very difficult to obtain as the region was in the grip of a major drought. He contacted previous employers, checked Internet job sites and also applied for jobs in Queensland. He nominated a number of particular positions he had applied for and other jobs which did not eventuate. He then undertook a TAFE course in occupational health and safety to assist him in gaining employment in the construction industry, as well as other certificates concerning responsible service of alcohol, responsible conduct of gaming and a senior First Aid Certificate. He approached local businesses for employment without success and also applied for a position in National Parks. He was unable to obtain further employment until February 2003. 31 In other affidavits, Mr Lidden recorded that Mr Comino had advised him not to purchase a new vehicle as work could not be guaranteed after the first six months. Mr Comino had said that when he started he had been guaranteed an initial six months of work and was still continuing the work two years later which had allowed him to purchase and fit out the present vehicle he was using. Mr Lidden stated that, on several occasions, he told Mr Comino that he would not have proceeded with the contract unless there was at least six months of guaranteed work as he had purchased a vehicle to carry out the work. 32 Mr Lidden had conducted some research into Q Fever and stated that Mr Comino's vehicle had been specifically modified to carry dangerous goods but a Dangerous Goods sign needed to be attached. A significant amount of material from the Internet and other sources was attached to the affidavits before the Court. 33 Mr Lidden produced extracts from his 2002 diary in which he had made notes about his conversations with Mr Comino and had recorded other details in relation to the Orange courier run. The entry for 11 February 2002 contained the following: Joblink Plus, courier driver 6 months initial Start mid-March The entry for 25 February 2002 carried the following entry: Confirmed - James Comino - six months courier contract Below those entries was the following: $265/day Cooma to Dubbo 163 + GST Dubbo to Orange 146 309 km 618 km Return to Cooma 265 ÷ 618 = 43¢/km 618 km ÷ 13 LTt/100km 618 ÷ 100 x 13 = 80.34 LT 81LT @ 98¢/Lt = $79.38 per trip $80 per trip 630 km@ 15LT/100 km = 94.5 Lt fuel 95LT x 98¢/Lt = 93.10 per day $95 x 5 = $475 wk + oil etc 1325 - 475 = $850/week net 34 The diary entry for 2 June 2002 made a reference to Mr Comino ringing regarding the Orange trip. The following entry was recorded: James asked me to have all the document ready as to the company and ABN etc. The entry for 5 June 2002 recorded the request for Mr Lidden to go to Narrabri because Mr Comino had to return to Brisbane and that he was paid $50 cash. 35 The diary page for 6 June 2002 contained a number of entries as to fuel, different times for different places, references to kilometres and then contained the following entry: James advised me that he was not to carry any other product other than the blood product as it breached his original contract. The page for 12 June 2002 contained the following entry: Q Fever issue. James informed me of Q Fever issues because of handling blood products. Anne obtained information from the net regarding Q Fever issue. 36 The diary entry for 16 June 2002 had the following entry: 1.15 James Comino - rang Re run to Orange. His boss was purchasing a lab in Brisbane. She had an offer from someone else in Cooma. My run was only guaranteed for 6 mths. He guaranteed me this service for that period. Orange blood would be processed at Orange, Inverell, Murgin and Rockhampton. Blood to be processed in Brisbane in about 6 mths. ... His boss said they had an offer to take the blood from Coonabarabran to Orange. James said to her he would not do the run unless he had full run.. James said I must have talked to somebody about the run. I said I did not remember talking to anybody about the product as he wanted it kept a secret. James said he was concerned about my daughters coming with me and driving although he had no say in the situation. Apart from that he did not have any problems. He had been at the solicitors and was setting up a new company. He had an agreement for me to look at and sign which he would fax to me. There was nothing in it that I would have any trouble with and when I received it would I sign it and fax it back. I said I would look at it and see him tonight when he delivered the blood. He went on to say that he had a few problems in that I had talked to somebody regarding the product we were delivering and I had problems with doing the run as I complained about the vision trouble. I responded that I was only talking about my initial experience as it was different to driving trucks at night and these problems had been overcome by my painting the bull bar and changing the lense in my glasses and I was not whinging or complaining. James said it would take six months to fully get used to the run ... that he experienced similar problems. I said I was only being honest about what was happening. He said he would see me tonight. James tried to fax agreement to me but would bring it tonight. 37 The diary page dated 18 June 2002 carried an entry headed "Monday evening 17th" and contained the following: James Comino arrived with eskys for delivery to Orange. I met him outside the house and I began to ready the ute for transferring the eskys onto my vehicle. Mr Comino made conversation about not being able to fax me a document for me to read and sign. He presented me with a written contract for delivery to Orange. I said that I would read it later and I needed time to consider it and gain advice on it. Mr Comino told me that there was nothing of any problem in the document and wanted me to sign it there. I refused and stated that I needed to gain advice. He then gave me an ultimatum that if I did not read and sign the document there and then the eskys would remain on his vehicle and he would deliver the eskys himself. I said that was his decision and that I would not sign the document until I had legal advice. Mr Comino then became agitated and said that I could not work for bosses who were younger than me and did not want to work with one. I disputed this by saying that I had worked for several bosses that were younger than myself and had even worked for my wife who was my boss in an employment situation. James told me that he would pick up the eskys the following evening plus the CB radio. He then left. 38 In a separate affidavit replying to matters raised by Mr Comino, Mr Lidden said that Mr Comino had never mentioned nor talked to him about a "trial run" or being placed on wages for the initial appointment. He stated that Mr Comino wanted someone to settle into the run as soon as possible as the contract was to start shortly. He disputed there was anything in his vehicle was mechanically unsound or that it had an oil or fuel leak. He denied that he had ever slept on the trip to Orange, although had he pulled up at a service station in West Dubbo for a coffee break. He had not complained about the likelihood of the goods being re-routed to Brisbane. 39 In cross-examination, Mr Lidden denied giving information to a financial institution in support of an application for a loan, suggesting that he had been performing the work for six or twelve months and it was bringing in $75,000 per year. He explained that he had to purchase the utility and had borrowed money by using a credit card. After he had been given the position, he approached a bank and gave it figures for six months but it asked for figures for twelve months so he made the calculation as to how much would be received over twelve months. He asked Mr Comino to confirm those figures if contacted by the bank. 40 Mr Lidden said he was never told by Mr Comino that there was a trial period: there was no discussion about it. Mr Comino had never offered to buy a utility and allow Mr Lidden to drive it for the first two weeks, with the option of purchasing it if the relationship worked out. Mr Lidden pointed out that it was Mr Comino's requirement that Mr Lidden have his own utility, company and ABN number - documents were produced on the first night that they met, at Mr Comino's request. 41 In relation to the driving task, Mr Lidden denied that he pulled up for a sleep on the Coonabarabran/Orange trip but he did say that sometimes on the way back he would have a sleep. Mr Lidden was then asked who was driving the vehicle at that time and was it the fact that this valuable product was being delivered in a utility driven by an L-plate driver, one of his daughters. Mr Lidden denied that occurred. He did say that he took the opportunity, on a couple of occasions, to take his daughter who would sometimes drive on the return trip but never drove on the outgoing trip. She needed to log mileage to qualify for her licence and it was a good opportunity for her to clock up some miles. 42 Mr Lidden accepted that there was some discussion about the closure of the abattoir for maintenance and during such period he understood that the blood might be re-routed. If there was no work for that period, he was fine with that position. There was nothing he could do about it and he would wait to see what eventuated. Mr Lidden, nevertheless, said that there was a guarantee for six months work from Mr Comino but it was uncertain after that period. It was never put to him by Mr Comino that the courier business was irregular and that there might be gaps in the work. 43 In relation to the last day he worked for Mr Comino, Mr Lidden denied that he made a threat against the abattoir, or that he said to Mr Comino words to the effect that the abattoir did not know what damage he could do to it. Mr Lidden also said that on 12 June 2002, when he was informed of the danger of Q Fever, he became alarmed. He was not aware of how the blood was sealed within the Eskies and had only seen the Eskies that were taped shut. 44 In relation to his claim for $38,000, Mr Lidden accepted that the expenses should be deducted from that figure and that, from the $1,325 per week, he had to be paid between $600 and $800 wages. There might be some other expenses as well. The expenses in setting up the business of approximately $6,200 included an amount of $3,000 for the purchase of the utility - that utility continued to be used by him after the arrangement with Mr Comino was terminated. The remaining part of those expenses included the costs of purchasing the company, the cost of installing a cage to secure the Eskies in the utility, the purchase of new tyres and related matters. No particulars of these expenses had been requested by the respondent prior to the hearing. 45 Mr Lidden said he was terminated because he would not sign the new written contract pressed on him by Mr Comino. While it was true that, on the next day, Mr Comino had asked him to continue the work, Mr Lidden felt that there had been a breach of trust and that he could no longer work with Mr Comino. He thought any work would have to be on the basis of the document that Mr Comino asked him to sign and that he had tried to enforce a new agreement to overcome the guarantee of six months work. 46 Anna Marie Lidden is Mr Lidden's wife. She recalled the first occasion Mr Comino came to their home on the night that the first Orange trip was undertaken by her husband. Mr Comino had gone inside the home and shared a cup of coffee with the family while they discussed the courier run. Mrs Lidden's two daughters Alexander 16, and Monica 15, were present at the time. During a discussion about the contract, Mr Comino said that, although he had started off with a contract for six months his run from Inverell to Brisbane was still operating after two years and he had just purchased a new vehicle. There was discussion about a second driver if Mr Lidden's utility broke down, but during all of the conversations, Mr Comino had referred to six months being the minimum time frame for the work and that he was confident that it would extend beyond that time frame. In this discussion, Mr Comino stated that it would not be viable for under six months work to be offered to provide this service. Mr Comino required a cage to be fixed to Mr Lidden's utility as there were a number of Eskies and they needed to be secured. Mr Lidden had a cage custom made for that purpose but it had not been used since the contract was terminated. 47 On 12 June 2002, there was a discussion about infection control issues once Mrs Lidden was aware of the nature of the product being carried. Mr Comino had stated that he had to convert his truck by attaching a tray but expressed the view that Mr Lidden was "fine, once the contract ran longer than six months" after which he could upgrade his vehicle to a van. It was on this day that Mr Lidden told her that Mr Comino had informed him of Q Fever concerns. At no time did she ever hear Mr Comino complain to her husband about his work: she regarded her husband as being happy with the contract and having no problems with the work. 48 In oral evidence, Mrs Lidden recalled that, on the first night the run was undertaken by her husband, Mr Comino came in for coffee and the documents he required to be sighted were laid out for Mr Comino to inspect. There was a folder with the company documents, the ABN number, a TAFE certificate, an invoice for the utility and an occupational health and safety green card. She recalled that, on the second night of the run, it was her husband's birthday and Mr Comino had been invited into the house to have coffee and birthday cake and had stayed for some twenty minutes. Mrs Lidden was aware that her daughter Alexandra had accompanied Mr Lidden on a few occasions on the Orange trip. On those occasions she had seen Mr Lidden drive the utility out of the house to commence the run but she had not seen her daughter driving the utility - she understood that she would occasionally drive on the way back. During all of the discussions between Mr Lidden and Mr Comino there was never any discussion of a trial period or being given a utility to drive while employed. There was no indication given at any stage during these discussions about the work finishing. She was present when the men discussed the potential risk of Q Fever. On the last evening, she overhead the discussion between Mr Lidden and Mr Comino and Mr Comino's demand that her husband sign the new contract. When her husband refused to sign the document Mr Comino said that was the end of it and terminated Mr Lidden's services. 49 Alexandra Joyce-Elizabeth Lidden is Mr Lidden's daughter. She swore an affidavit that was read in the proceedings but she was not required for cross-examination. In her affidavit, Ms Lidden stated that Mr Comino had stated to her father that he had started on a six month contract and it had eventuated into a two year contract, that her father just like Mr Comino had six months to begin with. This was said on at least two occasions. She was present when Mr Comino arrived and handed her father a piece of paper asking him to read it and sign it. She heard her father refuse to sign the paper because he wanted to read it and obtain advice. Mr Comino then told her father that he was taking over the run and that her father was not to do the run. Mr Comino demanded the return of the UHF radio that he had given to her father. 50 James Leslie Comino gave affidavit evidence and was cross-examined. He confirmed that he entered into a "verbal arrangement" with Gran High Tops Pty Ltd where he offered daily hire work to that company through its director Mr Lidden. He said he clearly indicated to Mr Lidden that he could not offer him or guarantee him work as he had no contract with the beef company in Inverell and that he could only offer Mr Lidden work when he was offered work. 51 The beef company conducted an abattoir at Inverell. Mr Comino was paid per trip to collect blood from Inverell and deliver it to a laboratory in Orange owned by the beef company. Mr Comino said he told Mr Lidden that he could pay $265 plus GST for each trip, that he told Mr Lidden about the contents of the delivery and suggested that he should be inoculated against Q Fever. 52 Prior to Mr Lidden and his company taking up the work, he received a telephone call from Mr Lidden who asked him if he would confirm to a financial institution that the company was earning $75,000 per year. Mr Comino declined to provide incorrect information and refused to assist. 53 After the first trip, Mr Lidden complained to Mr Comino that he did not like working on a daily basis and Mr Comino confirmed to him that he could not guarantee the work as he did not have a contract - he could only offer to Mr Lidden whatever work had been offered to him. Mr Comino then advised a representative of the laboratory at Orange that Mr Lidden had been complaining that he did not like the work. On the sixth night that the work was carried out, Mr Lidden told him that he could not drive without having to pull up and sleep. Mr Comino became concerned because the trip was only six and a half hours in the utility and he was also concerned because of the time constraints involved. Mr Lidden also said he was having problems with his vehicle as the fuel filter was leaking and using oil and he was unable to use high beam because his vehicle was fitted with the wrong bull bar. 54 On or about 17 June 2002, Mr Comino told Mr Lidden that he was not satisfied with his work on the basis of his complaints to representatives at the laboratory, the mechanical condition of his vehicle and the fact that Mr Comino's request that he make arrangements for a back-up driver and vehicle to be available had not been carried out. Mr Comino was also concerned that Mr Lidden constantly complained that he was too tired to carry out the work. Mr Lidden refused to give undertakings concerning the vehicle and back-up driver and, "on that basis", Mr Comino indicated that he "could no longer offer any daily work when such work was offered to me". Mr Comino said he tried to discuss the situation with Mr Lidden but Mr Lidden refused to speak to him. 55 On 24 June 2002, Mr Comino had received a letter from solicitors acting for Gran High Tops Pty Ltd and Mr Lidden, demanding payment of $31,800 in relation to the unfairness surrounding the termination of the contract and threatening to commence proceedings if the matter was not settled. Mr Comino's solicitor wrote a response to that demand on 16 July 2002, in part stating that the work had ceased on 20 June 2002 56 During the first week that Mr Lidden carried out work for him, Mr Lidden had indicated that he was going to buy a new vehicle. Mr Comino told him that he could not guarantee the work if he did not have a contract and suggested to Mr Lidden that, if he was considering a new vehicle, he should make sure that the company had other work available in the event that Mr Comino could not offer any work. 57 Mr Comino was aware of the contents of a letter sent by his solicitors in reply to the letter of demand sent by solicitors acting on behalf of Mr Lidden. He was aware of its contents and had given instructions for that letter to be sent. In that letter the following was stated: It should be noted that our client commenced the deliveries from Inverell to Orange on 3 June 2002 and the last trip was made on 20 June 2002. Work was terminated because the laboratory in Orange was apparently not suitable. Our client does not know if he will obtain any further work. This letter also denied that there was an offer of a permanent contract and asserted that the only offer was casual work subject to work being made available to Mr Comino. There was no guarantee of five deliveries per week for a period of not less than six months. It was also asserted that, prior to completing the first trip, Mr Comino advised Mr Lidden that there was a risk of Q Fever and suggested that Mr Lidden should be inoculated. There was also a reference to a threat allegedly made by Mr Lidden who, on learning that alternative arrangements could be made for the testing of the blood: allegedly stated, "They have no idea what damage I could do to them". 58 In an affidavit sworn in February 2005, Mr Comino recalled that towards the end of January 2002 he contacted the employment agency known as Joblink Plus. He told an operative from the agency that he was a courier looking for somebody to do a run from Coonabarabran to Orange and that he would prefer an established courier with experience. Failing that outcome, he was prepared to buy a utility and put a driver on wages and that, after a trial period if that person so desired he could establish his own business. Mr Comino again described how he came into contact with Mr Lidden and how he favoured him because he was located at Coonabarabran. Late in February 2002, he offered Mr Lidden the position saying that he was looking for a utility and that would put Mr Lidden on wages first for a trial run. There was general discussion about wages and being paid as an independent owner/driver. He said Mr Lidden sounded enthusiastic about commencing a business with his own vehicle but Mr Comino warned him that, although the choice was his whatever he did, he was "on trial to start with". Mr Comino told him that the abattoir was "fairly optimistic" for the run to Orange being for most nights each week for up to six months. The abattoir told Mr Comino and he told Mr Lidden at the beginning that the work from Orange was not permanent and that the company looked like re-routing the product to Brisbane. Mr Lidden appeared to be keen to buy his own vehicle and before finishing the conversation, Mr Comino told him that, if he did buy his own vehicle, he should be able to pick up some other work by way of backloads from Orange returning to Coonabarabran. 59 A few days later, Mr Lidden telephoned Mr Comino and told him that he had purchased a Ford XF utility for $3,000. Mr Comino said to Mr Lidden, "You're game". There was then a discussion about the utility and what it was like mechanically. There was also general conversation with Mr Lidden about what he would need in paperwork for the company and insurances. 60 There was a delay before the work commenced and ultimately, Mr Comino was told towards the end of May 2002 that the run to Orange would begin on 3 June 2002. He contacted Mr Lidden and told him of the commencement date. Mr Comino then met Mr Lidden at his home in Coonabarabran. He looked at his utility and, although it looked "fairly straight", it appeared to have the wrong bull bar and, as it turned out, when the vehicle lights were on high beam they struck the back of the bull bar and reflected into the driver's cabin. He was also informed by Mr Lidden that there was a fuel leak in the vehicle and it was using a lot of oil thus driving up his overheads. Mr Comino met Mr Lidden's wife and adult daughters when Mr Lidden showed him "his papers". 61 Mr Comino said he engaged the services of Mr Lidden for the next two weeks, being 10 trips in all. During the first week, he became concerned and, when the load changed over at Coonabarabran, Mr Lidden looked "very tired" and on a couple of occasions he could not pick up an Esky to load. Mr Comino became aware that his daughters were driving part of the way after Mr Lidden had admitted that he was pulling up to have a sleep for an hour or so on the run to Orange. Mr Comino stated that he was very concerned that Mr Lidden would either kill himself or cause his daughters to be involved in an accident. Over the next two weeks, Mr Comino said he became increasingly agitated by Mr Lidden's complaints concerning the likelihood of the goods being re-routed to Brisbane. Mr Comino kept telling Mr Lidden that the work would be going to Orange for six months during which time he should be able to develop a run of his own on the backload: if the transporting of the blood did cut out after six months, he would be in a position to pick up other freight. Mr Comino also remembered telling Mr Lidden it was possible that the transportation of the blood to Orange would go on for longer if the setup in Brisbane was delayed in a similar fashion to the delays experienced at Orange. 62 Just before Mr Lidden started work, he told Mr Comino that he wanted to buy a new utility. Mr Comino told him to slow down and that it had taken him two years of work before he could finance his new utility. Mr Lidden replied that all Mr Comino had to say to the financial institution was that Mr Lidden had been working for him for six months and was making $75,000 per annum. Mr Comino said to him that there was no way he would do that and that Mr Lidden was "on trial". Mr Comino replied that, on the Tuesday of the last week in which Mr Lidden worked for him, Mr Lidden telephoned him and said that a finance company would ring Mr Comino. He asked Mr Comino to tell them that he had been working for him for six months and was earning $75,000 per annum. Mr Comino said he simply hung up in Mr Lidden's ear. The same thing had been mentioned on another occasion a week earlier, when they were loading the utility and he had told Mr Lidden "point blank" that he would not lie for him. On a day following this conversation, Mr Comino's wife received a telephone call from a finance company. 63 In the weeks leading up to the start of work, Mr Comino said that he had "continually stressed" to Mr Lidden that the product they were carrying was "top secret" and that he should not tell anybody because in the transport industry the opposition would always contact one's employer and try to undercut the rate. During the first week that Mr Lidden worked for him, Mr Comino received a telephone call from an unknown person who quizzed him about calf foetal blood that was being transported and the charges being imposed by Mr Comino. Mr Comino did not give any details to the unknown caller and hung up on him. He said he was very angry about the telephone call and confronted Mr Lidden about it but Mr Liddendenied being "loose lipped" over the matter. 64 On the day before Mr Lidden was "terminated", he and Mr Comino were loading a utility at Coonabarabran and Mr Lidden had been "going on and on" about the company sending the goods to Brisbane. Mr Comino said he became quite irate and told Mr Lidden to speak no more about it and that he did not care if the work went to Brisbane. The Eskies were on the side of the road and at that point Mr Lidden pointed to them and said in a threatening manner, "Well I could cost this company a lot of money". Mr Comino said he became quite angry and they had a heated exchange over the comment. As Mr Comino was driving back to Inverell he began to be concerned that Mr Lidden could carry out his threat and that he would lose the work. On the following day, Mr Comino contacted his solicitor about his concerns and was advised to draw up something himself stating that Mr Lidden should be adequately insured for the damage of the goods. That evening, Mr Comino presented Mr Lidden with an agreement but Mr Lidden looked at it and said he was not signing it until he had seen his solicitor. Mr Comino replied that, until he had taken that step, Mr Comino was going to perform the run himself. That caused Mr Lidden to become agitated. Mr Lidden said, "You've guaranteed me six months' work. You have no right to do this to me, I've spent money setting up". Mr Comino said he became really angry and swore that he had never given such a guarantee - that there were no guarantees in this business. He then said to Mr Lidden: "You're finished. I'll pay you tomorrow". 65 Mr Comino then undertook the Orange run himself and, together with his other run, he worked for nearly 20 hours. At the end of the run, he realised that there was no way he could continue to do the run on his own and he regretted "going off" his head at Mr Lidden. He came to the conclusion that he would use another driver as soon as possible but realised that he needed Mr Lidden that evening. He tried to contact Mr Lidden on many occasions during the day and Mrs Lidden would not speak to him. He telephoned Mr Lidden's daughters who informed Mr Comino that he was not at home. He spoke briefly to Mr Lidden on his mobile telephone but was told that he was at his solicitor's office. That evening Mr Comino called at Mr Lidden's home and apologised to him for "going off", told him that he could not do the run himself and asked Mr Lidden if he wanted to start back that night. Mr Lidden replied, "No, as far as I am concerned you terminated me last night. I'll take my chances in court". Mr Comino said he would give him a week to make up his mind and shook Mr Lidden's hand and left. 66 Over the next few days, Mr Comino tried to contact Mr Lidden approximately ten times but he did not return the calls. He managed to find a driver in Dubbo who could go to Orange towards the end of the Inverell to Orange run. The Orange run stopped almost exactly six months after Mr Lidden commenced working for Mr Comino and was then re-located to Brisbane. Mr Comino continued on that run for approximately two weeks. In the first week of January 2005, Mr Comino was informed by the abattoir that there was no work for him and that they had decided to give the contract to a larger firm that had undercut his rates. Mr Comino was unemployed for a week but was then contacted by the abattoir to say that the its courier had not worked out so he recommenced the run on 13 January 2005. 67 Mr Comino presented evidence from Bindaree Beef Pty Ltd that the contents of the blood being carried was free from communicable disease to humans or other animals. The blood carried by Mr Lidden was not placental calf blood but was foetal calf blood extracted directly from the heart of the calf. 68 In oral evidence, Mr Comino said that he had been a courier driver for 12 years and had carried the blood product for 11 years. In that period, he had worked for four companies which had all used his courier business. He had been put off four times because cheaper rates were offered by other courier companies but was always re-engaged. In relation to the employment agency advertisement, he said that it did not represent what he had told the operative and there had been another option that was that he would put a driver on wages and buy a utility and give him the chance to purchase the utility after a trial of two weeks. 69 In the first conversation with Mr Lidden, Mr Comino said that he told Mr Lidden that he would purchase the utility and trial Mr Lidden for two weeks. If everything worked out, Mr Comino would sell the utility to Mr Lidden. Mr Lidden agreed to that proposal. The next day, Mr Lidden telephoned Mr Comino and told him that he had bought a utility: Mr Comino told Mr Lidden that he was an idiot. In the discussion that followed, Mr Comino advised him to operate as a sole trader and Mr Lidden said he would set up his own company. 70 On the first occasion that he met Mr Lidden, which was on the first night of the run, Mr Comino asked him for his business documents. Mr Lidden said that he had them and had made all the arrangements but the documents were with his accountants. He had a look at the utility purchased by Mr Lidden for $3,000 and regarded as an "average" vehicle., but it was "rough". 71 On the second day, he arrived to transfer the Eskies to Mr Lidden's utility, Mr Lidden was not there. He asked to see Mr Lidden who came from the house looking as if he had come straight from bed. He looked tired as if he had done a full day's work. For the whole of the two weeks that Mr Lidden did the Orange run, it was a totally bad experience and he did not regard Mr Lidden as being up to the work - he was absolutely appalling. He was told three times by Mr Lidden that his daughter was driving the run, but it was not mentioned whether she was driving to Orange or back from Orange. 72 Mr Comino said he became worried and spoke to a solicitor, Mr Watts. He told Mr Watts that Mr Lidden was continually complaining about the freight going to Brisbane and that Mr Comino was becoming stressed by the comments. Mr Lidden had asked how he was employed and Mr Comino told him he was on a two week trial employed on a daily basis. On the last night, there was another argument with Mr Lidden and Mr Comino said that he had enough of Mr Lidden's tantrums, his daughters driving the run and his overall attitude. He said that Mr Lidden stood over him and, pointing his finger, said: "I could cost this company a lot of money". Mr Comino thought that probably the product would not arrive at the destination. This occurred at the end of the two week trial and although there were problems, Mr Comino found himself in a spot of bother in having the work performed, needing to have it performed and decided he would give Mr Lidden a go. All the problems were then raised in the argument and he told Mr Lidden that he was not required and that he was finished. 73 In cross-examination, Mr Comino said that he did not tell Mr Lidden that he had the job - it was just that there were no other suitable candidates. On the second night at his home, Mr Lidden looked tired and every other night thereafter he looked tired as if he was "out on his feet". Nevertheless, Mr Comino asked Mr Lidden to help him out by doing an extra run to Narrabri and Mr Lidden performed that run. Mr Comino confirmed that he had terminated Mr Lidden because he would not sign the document. He rejected Mr Lidden's suggestion that he had never offered to buy a utility for Mr Lidden to purchase after a two week trial and asserted that there was a two week trial. 74 Mr Lidden had told Mr Comino that he did not have the money to set up a business and purchase a utility and that is why he made him the offer of buying his utility. Mr Comino denied that Mr Lidden had told him that he would to purchase a vehicle of the same value as the utility ultimately purchased . 75 In relation to Mr Comino's observations on the second night of performing the run, he rejected the suggestion that he was invited into the house and shared some birthday cake and coffee with Mr Lidden that night. On the first night, Mr Comino said that he asked for evidence of WorkCover insurance and which was not produced and Mr Lidden told him that all the documents were with his accountant. He rejected the suggestion that all the documentation was presented to him inside the house in a black folder. 76 Mr Comino said that he continued to perform the run for two to three weeks after terminating Mr Lidden. He then found another person to take over the work. The work was likely to last for five to six months but there was no guarantee that the work would continue for that long or thereafter. Mr Comino had his attention drawn to his solicitor's letter replying to Mr Lidden's solicitor's letter of demand in June 2002. Mr Comino accepted that he had given instructions for that letter to be sent and had seen it. In that letter, it was stated that the last trip that Mr Comino performed on the Orange run was on 20 June 2002 and, at the date of the letter 16 July 2002, the work had not resumed and had been terminated because the laboratory in Orange was not suitable. The letter also said that Mr Comino did not know if he would obtain any further work. Mr Comino said that was an accurate statement, that there had been a break of a few weeks but, after another two to three weeks, the work resumed and he continued to perform that work. 77 John Watts, solicitor, gave affidavit evidence that he had a discussion with Mr Comino towards the middle of June 2003. Mr Comino had told him that he was worried about the Orange run and the "casual driver" doing the run from Coonabarabran. He said that on the night before they had "a bit of a row" and his driver had threatened to ruin the whole business. Mr Comino said that part of the reason for the disagreements involved his concerns about Mr Lidden's vehicle and his need for a back-up vehicle and comprehensive insurance. Mr Comino said that Mr Lidden had said "I could cost this company a lot of money", and told Mr Watts that he was worried that Mr Lidden would do something to damage the blood. Mr Comino said that he simply paid Mr Lidden for each run and that he did not have a contract for the work himself. Mr Comino had also heard from the abattoir at Orange that Mr Lidden was "mouthing off" to workers there and speaking about how he did not like the work. A person from the abattoir rang Mr Comino and told him that Mr Lidden sounded like "a bit of a troublemaker". Mr Comino said that he would have to look for another driver but that he would have to keep using him until that arrangement was in place. He also mentioned that it was day-to-day work and it could stop at any time. There was then a discussion with Mr Comino about a propsoed agreement to be signed by Mr Lidden. Mr Watts was not required for cross-examination. DELIBERATION 78 The essential issue to be determined, before consideration can be given to the applicant's monetary claim, is the terms on which Mr Lidden undertook the run to Orange and the extent of the arrangements with Mr Comino for that work to be performed. There was no written agreement or contract and the evidence of the parties is in substantial conflict as to the essential elements of the arrangement. 79 Mr Lidden's version of events obtains support from his wife and his daughters' evidence as to the discussions about the run being for an initial period of six months. It is also supported by Mr Lidden's diary notes made at or about the same time as conversations he had with Mr Comino. Those notes support a finding that a representation was made that there was six months' work, although there is nothing to suggest that the word "guaranteed" was used. 80 Mr Comino's evidence is based on his recollection, some of it well after the discussions held in early 2002 when the arrangements were entered into to perform the Orange run. There are no internal memoranda or notes made by Mr Comino to support his version: the terms of the advertisement placed on the Joblink Plus website show that it was represented that there was a "contract up to six months to start". While that statement may be thought to be a little equivocal, it is a clear reference to six months and is consistent with the evidence of the Lidden family that Mr Comino stated on a number of occasions that there was at least six months' work available. At various times during his evidence, Mr Comino confirmed the six month duration of the work although the future beyond that time was unclear. Mr Comino challenged the accuracy of the Joblink Plus advertisement, stating that he had not been given a copy of it, had not checked it and that it did not represent what he had communicated to the agency operative. As the evidence came out, it appears there is nothing incorrect about what is in the advertisement and that Mr Comino believed that there was a second option he had discussed, namely, that if he could not obtain an experienced driver he would buy a utility and employ somebody for a period of two weeks after which, if it worked out, he would offer the utility to the employee to take over the run as effectively his or her own business. No evidence was sought from the employment agency by way of Summons for Production or otherwise as to the terms of the advertisement. 81 Mr Comino's version of what he wanted advertised does not necessarily favour his version of events. On his own account, there would be an experienced driver (and Mr Lidden was an experienced driver) for the Orange run for "up to six months" using his own company and vehicle but it was only if there was no such experienced person available would the employment option be offered. Mr Lidden denied that he was ever offered employment or the purchase of a utility after a two week trial. There was no mention in the advertisement of a trial period of any kind. The offering of an engagement to Mr Lidden as a trial was not raised in the solicitor's letter of response to Mr Lidden's letter of demand in July 2002, nor was it alleged as part of the defence in the Reply to the Summons. The allegation of a trial period for Mr Lidden, who was not engaged as an employee, first arose in Mr Comino's affidavit of 3 February 2005 and was not mentioned in his first affidavit of 8 September 2003. 82 There are other examples in the evidence where Mr Comino's account was called into question by the detailed account of both Mr and Mrs Lidden. One example of that is Mr Comino's evidence that, on the second night he could not find Mr Lidden, who eventually came from the house as if he had just woken after a day's work, which raised concerns about Mr Lidden's capacity to perform the work. Mr and Mrs Lidden's detailed evidence was that it was Mr Lidden's birthday which the family was celebrating and that they had invited Mr Comino inside to share cake and coffee. Mr Comino could not remember any of this. The second clear example is the first night, when Mr Lidden was required to show Mr Comino all the documentation relating to the setting up of the company, insurance of the vehicle, the ABN number and his WorkCover green card. Mr and Mrs Lidden again gave detailed evidence of that documentation being contained in a black folder and being laid out for Mr Comino to examine. Mr Comino's oral evidence was that the material was not available and that Mr Lidden had said it was with his accountant. In affidavit evidence, Mr Comino said that he was presented with documentation on the night. Mr Lidden said that, at that time, he had no accountant. Ultimately, Mr Comino's evidence was that there was work available for five or six months and that work continued after Mr Lidden was terminated to almost precisely six months. In his oral evidence, Mr Comino said that the work continued except for a short break when he was rehired but, in instructions given to his solicitor in July 2002, he asserted that the work finished a few nights after Mr Lidden was terminated, although in his oral evidence, he said he continued to do the work for another three weeks before obtaining another driver. 83 Mr Comino's evidence demonstrated a certain degree of inconsistency and a tendency to exaggerate the circumstances to favour his case. A few examples follow: (a) in his solicitor's letter of 16 July 2002, it was asserted that Mr Comino did not threaten to terminate the contract if Mr Lidden did not sign the new contract but in oral evidence Mr Comino accepted that was precisely why Mr Lidden was terminated; (b) the same letter of July 2002 mentioned Mr Lidden's threat against the product and how he could cost the company a lot of money but made no mention of Mr Lidden standing over and threatening Mr Comino. In his oral evidence, Mr Comino spoke for the first time of being "stood over" by Mr Lidden but having regard to the fact that Mr Comino was a much younger and larger man and having observed their demeanour during the proceedings, it seems highly unlikely that was an accurate description of what took place. The "standing-over" allegations had not been put to Mr Lidden in cross-examination; (c) Mr Comino said that he had proposed employing Mr Lidden and buying a utility to drive and after the trial period allowing Mr Lidden to purchase the utility to perform the work on his own account. Mr Lidden had told him that he had no money to buy a vehicle. If this was so, it was highly unlikely that after the two week trial period Mr Lidden was going to be in any better position to purchase a vehicle, even Mr Comino's utility, in circumstances where he would then be off wages as an employee and would have to undertake the setup costs of the business. Mr Comino did not specify how much he would spend in purchasing this vehicle, surely a matter he would have to discuss with Mr Lidden. Mr Comino, however, also gave evidence that he had to restrain Mr Lidden from buying a new vehicle - an unnecessary step if Mr Lidden was "broke" and was to be provided with a vehicle as an employee. Mr Lidden said that he told Mr Comino that he had been considering purchasing a car the week before and would spend the same amount in purchasing a utility for the job. Mr Comino in oral evidence also said that it made no difference as to whether Mr Lidden got the job whether or not he had his own vehicle. That was quite contrary to the terms of the advertisement. The provision of the utility as part of an employment package and on a trial was never pleaded by the respondent; (d) Mr Comino was apparently concerned from the second day of the job that Mr Lidden was always tired, at one stage could not even lift an Esky and looked as if he had being working in another job. He was concerned for the wellbeing of the product being delivered yet at no stage did he pursue Mr Lidden over his capacity to do the work but in fact asked him to perform additional work, namely, the Narrabri run when Mr Comino could not perform that run. Although Mr Lidden was thought to be dangerously tired and a threat to the wellbeing of product, Mr Comino did not look for anyone else to perform the work and indeed, after terminating him, offered him to continue in the work, admittedly while looking for a new driver; (e) Mr Comino expressed concern about Mr Lidden's daughter driving this valuable product yet there is no evidence of a direction being given to Mr Lidden that his daughter was not to drive the product to Orange. In fact, Mr Comino complained that despite his constant requests that there be a back-up vehicle available he had received no guarantee of such availability from Mr Lidden, a matter denied by Mr Lidden. Nevertheless, it was clear that any back-up vehicle was likely to be driven by Mr Lidden's wife or daughter. Mr Comino gave no direction for an experienced driver to be nominated as a back-up; (e) in cross-examination, Mr Comino stated that he had never offered the position to Mr Lidden but did not indicate what was the nature of the relationship; (f) in oral evidence, Mr Comino said there was a lot of stress placed on him by Mr Lidden's constant complaints and described it as the worst stress he had ever experienced on a job. He referred to Mr Lidden's tantrums, being stood-over, thinking that the product would end in a gully and generally that Mr Lidden was driving him mad. He finally reached the point where he did not want to employ Mr Lidden on any type of agreement at the end of two weeks. This "stress" was not articulated, in terms, in any pleadings or earlier affidavit sworn by Mr Comino. Bearing in mind that the men met for 20-40 minutes each night to change over the Eskies, the alleged level of "stress" appears to be an extraordinary claim; (g) again, in oral evidence, Mr Comino said that by putting Mr Lidden off it cost him money although he continued to perform the work until a replacement driver was found. How this cost Mr Comino money was not explained; (h) in the course of the argument, Mr Comino agreed that Mr Lidden had stated that Mr Comino could not do this to him because he had been guaranteed six months' work. That statement was at least consistent with Mr Comino's advertisement and all of Mr Lidden's evidence but according to Mr Comino there was nothing but a trial period and day-to-day work offered with no mention of six months' work. 84 The Court is then left in the position of having the firmly given evidence of Mr and Mrs Lidden supported by their daughter and the detailed accounts of the discussions leading up to the arrangements, following the arrangement and during the period Mr Lidden performed the run. Against that detailed evidence, are Mr Comino's recollections, some of them spread over a number of years and well after the event, unaided by any notations, memorandas or written notes of what occurred, including a challenge to the very wording of the advertisement of the position placed with Joblink Plus. He readily conceded in oral evidence that his memory of these events was "hazy" after so many years. Having closely observed the witnesses give their evidence, I am satisfied, from the detail maintained by Mr and Mrs Lidden, that their evidence is accurate and where it conflicts with that of Mr Comino, their evidence is to be preferred. 85 Having reached that conclusion as to the competing evidentiary position of the parties, I am satisfied that, whatever terms were actually used in the discussions, Mr Comino made representations to Mr Lidden that there was six months' work involved in the courier service to Orange and that, depending on developments, that work might last considerably longer. The short term security of the work for a period of six months is also supported Mr Comino's evidence that his alternative proposition was that he would buy a utility and place an employee in that work for a trial period of two weeks, then give that person the opportunity to buy the truck and continue the work in his own business. For that proposition to be viable there had to be something more than merely casual work or day only work. In a similar vein, it is unlikely that Mr Lidden would give up his existing work, expend money on buying a utility and face the costs of setting up a company for the prospect of day-to-day work with no guarantee that there would be work on each day of the week or that there would be some continuity of the work, even if limited to six months. Mr Comino did not deny that he had spoken about his own experience in the work and although it had started with a relatively short term of six months, it had evolved into an ongoing business that allowed him to purchase a new vehicle. The proposed new agreement (that brought about the termination of the arrangement) seems to have at least as one of its purposes the entering into of a new arrangement of daily hire as opposed to the secure term of six months spoken about in the advertisement placed by Mr Comino. That combination of matters serves to support the case brought by Mr Lidden and a finding that he acted on the representations made by Mr Comino that there would be secure employment of six months' duration in this work. 86 The unfairness claimed by Mr Lidden arose during the course of the arrangement and through the conduct of Mr Comino. Relying on the absence of a written arrangement, I am satisfied that Mr Comino attempted to alter the arrangement so as to remove any obligation to engage Mr Lidden for the minimum period of six months. Mr Comino's evidence was that he was angry that Mr Lidden had apparently told somebody else about the work because an unidentified person had contacted him making enquiries about the work, how much was charged for the work and also because the beef company had indicated that it had been approached by somebody else about the work. It was common ground that Mr Comino wanted to keep the fact of the work a secret so that it would not be subject to competition by other courier services. There was no explanation in his evidence as to why he thought Mr Lidden was responsible for disclosing the work but it appears that he was not only angered by the fact that the work was made known to others, he had also formed the view without any established evidence that Mr Lidden was responsible for leaking that information. Whatever else might have been concerning Mr Comino about Mr Lidden's work and, having regard to the limited contact they had over a short period of time, this aspect of the respondent's case appears to be exaggerated. It is clear that Mr Comino decided that Mr Lidden could not be trusted to keep secret the nature of the work, although he had no basis for that view, and determined to replace him on the run. I accept the evidence that Mr Comino was already aware of and had sighted the documents setting up the company and the insurances that had been arranged by Mr Lidden and reference to these matters in the proposed new contract appears to be little more than window dressing for the central purpose, which was to place Mr Lidden on a daily contract so that he could be quickly dispensed with once a new driver was found. 87 The termination of the arrangement with Mr Lidden in those circumstances was unfair. It provided him with no opportunity to continue in the business so as to recoup his costs in setting up the business to perform the work for Mr Comino and it failed to make any provision to adequately reimburse him for those costs if the six month term was prematurely terminated. In all the circumstances, considering the fact that the arrangement actually operated for just over two weeks, the appropriate course is to declare the contract and arrangement as being unfair and to void the contract and arrangement ab initio except in regard to payments already made to Mr Lidden. 88 The next issue raises the question of what, if any, money order should be made in favour of Mr Lidden. The Amended Summons for Relief sought the payment of the unexpired portion of the six month term, being 24 weeks at $1,325 per week. Establishment costs of $6,200 were also sought and legal costs of just over $900. It might be noted at this point that, although there was some evidence of the dangerous nature of the blood being transported the evidence did not establish that position, although I accept that Mr Lidden was not informed of the possible danger of Q Fever and the need for precautionary inoculation until 12 June, more than a week into the operation of this contract or arrangement. Apart from alleging that it was unfair not to be properly informed of these dangers and to be advised of proper markings to be placed on the vehicle, no money order was sought in relation to these matters: Mr Lidden did not claim that he incurred medical costs or became ill in a way that inhibited him from obtaining employment nor did he frame any claim for the payment of money on the basis of these matters. In those circumstances, it is not necessary to rule on the validity of those allegations and denials by the respondent. 89 This is an appropriate case for orders to be made that largely restore Mr Lidden to the position he was in prior to entering the arrangements with Mr Comino and expending financial resources to set up a business to undertake the work involved in the courier service to Orange. During the course of the case, Mr Lidden readily accepted that his actual loss was not $1,325 per week but on his own calculations he was netting between $600 - $800 per week out of the arrangement, although there could be additional costs within that figure, bearing in mind that there could be additional costs in operating this business over the initial six month term of the arrangement. I believe it would be just, in the circumstances of this case, that Mr Lidden be awarded $700 per week for the 24 weeks of the term that he was not able to complete the work because of unfair treatment at the hands of Mr Comino. That would result in an order for the payment of $16,800 to Mr Lidden. 90 The provisions of s 106(6) of the Act require the Court to take into account whether or not the applicant took any action to mitigate the loss. In applying this provision, the Court bears in mind the discussion of the principle of mitigation found in Westfield Holdings v Adams (2001) 114 IR 241 and in English v Aradlay Insurance Brokers Pty Ltd (2005) 145 IR 129. It is sufficient to say the assessment of appropriate compensation under s 106(5) as well as under s 106(6) involves an act of judgment on the part of the trial judge where the general law principles as to mitigation and damages are relevant, but are not decisive as to what order or award is made. In the present matter, although there were representations that the work would initially last for six months with only a prospect of further work, Mr Lidden did not work again until February 2003. I am satisfied on his evidence, which was uncontested, that he took numerous steps to obtain other employment and was unable to do so until February 2003. However, an issue arises about the respondent's offer, after terminating the original contract or arrangement, to return to work because Mr Comino was finding it difficult to perform his other work and the Orange run. The first thing to note about this issue is that it was clear from Mr Comino's evidence that this work would only continue until another person was found to undertake the run. Although there is some confusion in his evidence as to precisely when this took place, it appears that another person was ultimately found to perform the Orange run. The other matter to consider is the fact that this work would continue on a daily basis only and was not an offer to reinstate the minimum period of engagement of six months. Mr Lidden declined to take up that offer because it was only an offer of daily hire when he was after some more security than daily hire but also because, importantly, he regarded Mr Comino's actions as a breach of trust and was not prepared to work with him again. Although Mr Lidden might be justified in rejecting the offer of further work on both those counts, nevertheless, some small amount should be allowed by way of mitigation and as a recognition of the fact that Mr Lidden could have earned some amount of money while looking for other more secure employment. However, the circumstances do not warrant a significant reduction in the amount that should be paid to Mr Lidden. In all the circumstances, it is appropriate to order the payment of $14,500 to Mr Lidden in relation to this part of his claim. 91 There was some cross-examination as to the establishment costs calculated in the sum of $6,200. Mr Lidden had not brought to Court the documents that justified that figure but gave evidence that it involved the expenditure of $3,000 on the purchase of the Ford utility with the remainder of the sum being made up of the costs of purchasing material and building the cage to secure the Eskies for transport, the purchase of tyres, insurances and the set-up costs for the company (which were in evidence). The respondent sought no particulars of these establishment costs prior to the hearing. While Mr Lidden's evidence on these matters can generally be accepted, he should not be reimbursed for the cost of the utility which he continued to use and which was purchased in circumstances where the family was already considering buying a second vehicle. He therefore obtained continuing use and benefit from the vehicle although not for work and it would not be appropriate in those circumstances that the purchase price of the vehicle be reimbursed to him. Because of the lack of precision in calculation and the limited evidence as to establishment costs, it would be just, in the circumstances of this case, to award $2,000 for the establishment costs arising from the requirement to set up the business. 92 Mr Lidden claims $910.80 for legal expenses. These expenses appear to be incurred in taking steps to commence the proceedings and relation to the Amended Summons for Relief he filed. Bearing in mind that Mr Lidden appeared for himself during the proceedings and the fact that the claim for specified legal expenses was clearly articulated and not contested, I think it is appropriate that there be an order for legal costs in the sum of $910.80 in favour of Mr Lidden. 93 The orders of the Court are as follows: 1. The contract and/or arrangement between the applicant and the respondent whereby the applicant performed work in the courier industry is declared to have become unfair during its course because of the conduct of the respondent. 2. The contract and/or arrangement between the applicant and the respondent is declared void ab initio, except in relation to payments made by the respondent to the applicant. 3. The respondent is to pay the applicant $16,500 in relation to the contract and/or arrangement declared void. 4. The respondent is to pay the costs of the applicant in the sum of $910.80 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.