Peter John Monie & Others v Commonwealth of Australia [2006] NSWSC 505

New South Wales Supreme Court

CITATION : Peter John Monie & Others v Commonwealth of Australia [2006] NSWSC 505 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 31 January 2006 - 16 February 2006, 24 March 2006, 7 June 2006

JUDGMENT DATE : 13 June 2006

JUDGMENT OF : Barr J at 1

DECISION : Direct the entry of a verdict and judgment for the defendant. Order the plaintiffs to pay the defendant's costs of the retrial on an indemnity basis. No order made as to the costs of the first trial. Plaintiffs granted a certificate under the Suitors' Fund Act 1951 for the costs of the first trial.

PARTIES : Peter John Monie, Jennifer Ann Monie, Samuel Monie, Commonwealth of Australia

FILE NUMBER(S) : SC 20043/2001

COUNSEL : DF Rofe QC and AJ Tudehope RS McIlwaine SC and B Skinner

SK & Associates SOLICITORS : Australian Government Solicitior

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GRAHAM BARR J

13 JUNE 2006

20043/2001 PETER JOHN MONIE & OTHERS v COMMONWEALTH OF AUSTRALIA

JUDGMENT 1 HIS HONOUR: The plaintiffs, Peter John Monie (Mr P Monie), Jennifer Ann Monie (Mrs Monie) and Samuel Monie (Mr S Monie) seek an award of damages against the Commonwealth of Australia in the right of the Commonwealth Employment Service (CES). Mr P and Mrs Monie are husband and wife. Mr S Monie is their eldest son. Mr P Monie and PJ Monie & Co Pty Limited carried on the business, under the name Thornleigh & Co, of a cattle and sheep farming property at Thornleigh about 32 kilometres from Bingara. Mr P and Mrs Monie were the Directors of PJ Monie & Co Pty Limited and at all material times its shareholders were Mr P and Mrs Monie and their children, including Mr S Monie. 2 Thornleigh & Co used to take on labour from time to time and dealt on occasions with the Inverell office of the CES. In March 1993 further labour was needed and Mr S Monie, on behalf of Thornleigh & Co, spoke about it to an officer of CES. As a result, a labourer, Darren Winsor, went to the property for an interview. He spoke to Mr P Monie. The details are controversial and I shall defer consideration of them. On 22 or 23 March 1993, having interviewed Mr Winsor, Mr P Monie offered him the job and told him that he and his wife could move into the labourer's cottage, which was situated a short distance from the homestead. Mr Winsor accepted and it was agreed that he and his wife should move into the cottage on 23 March and that he should start work on 24 March. That is what happened. On 1 April 1993 Mr P Monie and Mr Winsor signed an agreement which recorded, inter alia, the commencement of employment on 24 March. 3 There was in 1993 a scheme called Jobstart, administered by CES, one aim of which was to encourage and assist those who were out of work to get back into work. By the scheme, CES paid to the employer of any eligible worker a subsidy calculated at a particular rate for a nominated period of time. The rate and duration of the subsidy varied according to the history and attributes of each eligible worker. 4 An agreement, called a Jobstart Individual Agreement and dated 22 March 1993, was brought into existence. The parties were the defendant and Thornleigh & Co. The agreement was expressed to be in respect of the employment of Darren Winsor, who was throughout called the employee. For present purposes the important parts of the Agreement were these - 2.1 The employer shall provide employment to the employee and shall provide work experience in accordance with this Agreement. 2.2 The Commonwealth shall provide subsidy payment in accordance with this Agreement in respect of the employment of the employee by the employer under the Program. 3.1 At no time shall the employee, by virtue of this Agreement, become or be considered an employee of the Commonwealth. 3.2 The relationship between the employer and the employee shall be an employment relationship subject to all the customary and statutory rights and obligations subsisting between employer and employee. 4.1 The employer shall adhere to all the provisions of the award covering the employee or, where the employee is not covered by an award, the employer shall adhere to all the provisions of the award specified in the Schedule. 4.2 The employer shall use his best endeavours to provide employment and work experience which will maintain or improve job-related skills, motivation and confidence of the employee. 5.2 Subject to the obligations of the employer under this Agreement being fulfilled, the Commonwealth shall pay the employer the subsidy specified in the Schedule upon receipt and certification of claims for payment submitted by the employer, or the authorised representative of the employer, in accordance with clause 7. 12.1 This Agreement shall become effective on the later of the respective dates on which this Agreement was executed by each party and that date shall be entered as the date of this Agreement.