Personnel Concept WA Pty Ltd v J B Adam & Ors t/as Marsdens Law Group [2018] NSWLC 19

Local Court New South Wales

Medium Neutral Citation: Personnel Concept WA Pty Ltd v J B Adam & Ors t/as Marsdens Law Group [2018] NSWLC 19 Hearing dates: 9-10 May 2018 Date of orders: 21 June 2018 Decision date: 21 June 2018 Jurisdiction: Civil Before: Magistrate Huntsman Decision: Verdict for the Defendant Catchwords: CONTRACT - Formation of contract – offer and acceptance – terms contained in attachment to an email – whether terms brought to attention of recipient – whether a legally binding agreement Cases Cited: Danckert v Tonkin [2015] NSWSC 1570 MacRobertson Miller Airline Services and Commissioner of State Taxation (Western Australia) (1975) 133 CLR 125 Masters v Cameron [1954] HCA 79 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106 Category: Principal judgment Parties: Personnel Concept WA Pty Ltd (plaintiff)

J B Adam, J H Marsden, A J Seton, D R Baird, T C Reeve, G Bonura, P J Crittenden, G P Butterfield, N Youssef and J R Thornton t/as Marsdens Law Group (defendant) Representation: Counsel L Fermanis (for the plaintiff) B Debuse (for the defendant)

Solicitors: C Roth (for the plaintiff) A Johnson (for the defendant) File Number(s): 2016/342065 Publication restriction: Nil

Judgment

Background 1. These proceedings involve a dispute about payment of professional fees for a service allegedly provided to a law firm by one, or both, of two recruitment firms, in relation to the recruitment of a solicitor. The recruitment firms are – Personnel Concepts WA Pty Ltd (PCWA) and Personnel Concept Group Pty Ltd (PC Group). The law firm is JB Adam and Others trading as Marsdens Law Group (Marsdens). The solicitor who was recruited to work at Marsdens is Mr Leith. Each of the plaintiffs, PCWA and PC Group, conduct a business in personnel recruitment. The plaintiffs are separate companies but at times work together. 2. Ms Felicity McManus is an employee of the first plaintiff, PCWA, and has worked as a recruiter for several years. Ms McManus is based in Perth, Western Austrlia. Mr Albert de Bruyn is employed by the second plaintiff, PC Group, and is based in Sydney, New South Wales. 3. Mr Leith, solicitor, was working in Western Australia but was searching for employment in Sydney with a view to relocating. As part of that process he became involved with the plaintiffs and the defendant (Marsdens). Mr Leith is currently an employed solicitor with the defendant. 4. Mr de Bruyn became aware of a commercial litigation position at Marsdens because Mr de Bruyn saw an advertisement for the position, which was placed by Marsdens on the website, seek.com. Mr Johnson, a partner at Marsdens, caused an advertisement for a commercial litigation solicitor to be placed on seek.com by the Human Resources (HR) department of Marsdens; this occurred on or about 22 February 2016. 5. Mr Butterfield is a senior partner with Marsdens who was contacted by Mr de Bruyn. It is not disputed that Mr Butterfield received an unsolicited phone call from Mr de Bruyn about the advertised litigation position, and that during this phone call Mr de Bruyn sought to bring a possible candidate to the attention of Marsdens. Mr de Bruyn subsequently sent an email to Mr Butterfield, which Mr Butterfield forwarded to another partner in his firm, Mr Johnson. Mr Johnson conducted a telephone interview with Mr Leith. These matters are further detailed below. 6. Mr Leith was independently seeking employment and was regularly checking the website, Seek, for available positions. In February 2016 Mr Leith saw a role, on Seek, for a Commercial Litigation position in Sydney. The contact on the advertisement was Albert and there was a mobile phone contact number. The advertisement was under a logo "Lawjobs.Go" and the contact was "Albert@Lawjobs.com.au." Mr Leith contacted Albert (who was Albert de Bruyn) about the job and was advised by Albert that he was a recruiter, and was recruiting for a position with a law firm in Sydney. The details of the conversation will be further set out below. As part of the conversation Albert requested a copy of Mr Leith's CV. There was a further phone call in March 2016 during which Mr de Bruyn advised Mr Leith that he was now searching for a candidate for a role with Marsdens Law group. Following the conversation with Mr de Bruyn, Mr Leith received an email from Mikayla Stone (of PCWA – the email was from "Personnel Concepts.com" but stated that Ms Stone works with Ms McManus). The email stated it was confirming that Mr Leith had consented to the recruiter providing his CV to both Marsdens and another other firm, Brown Wright Stein. Mr Leith then received a phone call from Felicity McManus who works for the first plaintiff, PCWA. 7. It is agreed that at the time of Mr de Bryun's unsolicited phone call to Mr Butterfield, he was in the snowy mountains region of New South Wales on a family holiday – Mr Butterfield states that the phone call occurred while he was driving in the alpine region, on 17 March 2016. Accommodation records evidence that Mr Butterfield was staying in the Snowy Mountains region from 17 March 2016 to 20 March 2016. The contents of the phone conversation are in dispute. What is agreed is that Mr de Bruyn made the phone call to Mr Butterfield, to introduce a candidate for advertised positions at Marsdens Law firm. Mr Butterfield's evidence is that he said that Mr de Bruyn could forward his candidate's CV but that no payment would be made by Marsdens as they do not use recruiters. Mr de Bruyn's version is that he told Mr Butterfield that he would forward the CV and the fee structure documents by email. The evidence about the phone call is further detailed below. 8. On 18 March 2016 Mr Butterfield received an email from Mr De Bruyn with three attachments. Mr Butterfield was on holidays, his evidence is that he forwarded the email without opening the attachments, to Mr Aaron Johnson. The forwarding email indicated to Mr Johnson that Mr Butterfield had agreed to Mr Johnson following up on the CV which had been forwarded. On 22 March 2016 Mr Leith participated in a telephone interview with Mr Aaron Johnson. Mr Leith and Mr Johnson state that during the interview Mr Johnson queried the role of the recruiters, and also Mr Johnson advised Mr Leith that the recruiters had no relationship with Marsdens. 9. Mr Leith, in response to a request from Felicity McManus, forwarded his academic transcript and referees to Ms McManus on 23 March 2016 and Ms McManus forwarded the material to Mr Johnson at Marsdens. Mr Leith states about a week later he received a call from Mr Johnson; there was some concern about the referee information which had been forwarded by Ms McManus, and Mr Marsden again indicated to Mr Leith that Marsdens had not engaged recruiter services. Mr Johnson advised Mr Leith during that phone call that they would be interested in offering him a position, subject to salary negotiations. It was after about another week that Mr Leith received a salary offer which was unacceptable to him, there were further negotiations and a salary review system was settled. An employment offer from Marsdens was accepted by Mr Leith. There were further communications between Mr Leith and the HR Manager of Marsdens in April 2016 and Mr Leith commenced employment with Marsdens on 30 May 2016. 10. It is agreed that there was a conversation between Mr Leith and Ms McManus in April 2016 where Mr Leith expressed concern that the plaintiffs had misrepresented their position in relation to Marsdens. The exact specifics of this conversation are in dispute although it is agreed that such a conversation occurred. 11. It is not in dispute that there was some ongoing contact in March 2016 between Ms McManus and Mr Leith. Mr Leith's evidence is that he believed Ms McManus was authorized to represent Marsdens, Ms McManus's evidence is that they were contracted by Marsdens in relation to the plaintiffs' presentation of Mr Leith as a candidate for the litigation position at Marsdens Law firm. The parties agree that Ms McManus forwarded some reference checks to Marsdens and that the plaintiffs facilitated a telephone interview. Other issues relating to communications between Ms McManus and Mr Leith are in dispute as detailed below. 12. Mr Johnson and Mr Leith agree that Mr Johnson advised Mr Leith that Marsdens were not represented by the plaintiffs, and that Marsdens were dealing with Mr Leith directly. They also agree that Mr Johnson queried the role of PCWA with Mr Leith, and advised Mr Leith that PCWA had no connection with Marsdens. 13. It is not in dispute that Mr Leith subsequently had a conversation with Ms McManus asking whether the plaintiffs were authorised to act on behalf of Marsdens, however the contents of the conversation are in dispute. 14. It is also not in dispute that Marsdens subsequently hired Mr Leith.