FEDERAL COURT OF AUSTRALIA

Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908

THE COURT ORDERS THAT:

1.    The further hearing of the proceeding be listed at 10.15 am on 7 October 2013.

2.    No less than three business days before the said hearing –

(a)    after consultation with the respondents, the applicant file and serve a minute setting out, and showing the calculation of, the damages or compensation to which she claims to be entitled for the respondents’ breaches of the commission agreements on which she sued, in accordance with the Court’s reasons published this day; and

(b)    the parties file and serve memoranda of the orders which, in their submission, should be made to reflect the Court’s reasons published this day, together with an outline of any submissions they propose to make in relation to those orders and on the subjects of penalties, interest and (if appropriate) costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    In this proceeding, the applicant, Amanda Murrihy, sues the respondents, Betezy.com.au Pty Ltd (“Betezy.com”) and Betezy Pty Ltd (“Betezy”) for breach of contract and in relation to alleged contraventions of ss 323, 340, 343 and 536 of the Fair Work Act 2009 (Cth) (“the FW Act”) and reg 3.43 of the Fair Work Regulations 2009 (Cth). The breaches and contraventions alleged arise out of the applicant’s employment by Betezy.com from late 2006 and by Betezy from 1 January 2011.

2    The applicant’s case involves two main areas of controversy. The first relates to what is alleged to have been the respondents’ failure to pay commissions to which she was entitled under two agreements, to the terms of which I shall refer in detail below. The respondents have an overriding defence that the agreements were, relevantly to the entitlements which the applicant now claims to enforce, void for uncertainty. Subject to that defence, the respondents accept that the applicant was entitled to commission. It is also common ground that no commissions were ever paid. However, if the agreements were effective, there is then a substantial controversy as to the extent, and the method of calculation, of the applicant’s entitlements under them.

3    The second main area of controversy arises under s 340 of the FW Act. The applicant alleges that, on two occasions, Betezy took adverse action against her because she had, exercised, or proposed to exercise, a workplace right, namely, the ability to make a complaint or inquiry in relation to her employment. This action was said to have been constituted, first, by a threat to terminate her employment, and, secondly, by the discontinuation of her access to Betezy’s computer system, the discontinuation of payments of salary and the suspension of her employment. This dimension of the case involves both factual and legal issues which will need to be resolved.

4    There are several subsidiary areas of controversy to which I shall turn towards the end of these reasons. I say “subsidiary” not to belittle the importance of the issues concerned, but to indicate that the core issues either have become uncontroversial (generally as the result of adjustments in the position taken by the respondents) or depend significantly on the way the main areas of controversy are resolved.

The facts in outline

5    The respondents are specialised corporate bookmakers, licensed under Northern Territory legislation. The business was originally operated by Betezy.com, but in 2009 commenced to be operated by Betezy. The reasons for this corporate re-arrangement are not presently relevant, but some of its consequences are, in ways to which I shall refer. The change occurred pursuant to an agreement between Betezy.com and Betezy made in September 2009, but took effect as from 1 July 2009.

6    Before turning to a broad narrative of the events which have led to the present litigation, it is useful to describe the ways in which the respondents’ betting system operated, at least in the normal course. This was set out in the applicant’s affidavit, and was not challenged by the respondents. In order to be able to place bets with the respondents, a punter was required to “join”. This involved the punter having an account with the respondents. The punter would then use money standing to the credit of that account in placing his or her bets from time to time, and his or her winnings would likewise be paid into that account. There were three ways of placing a bet: by way of the Internet, by way of a mobile phone application and by way of a telephone call. If using the Internet, the punter would visit the “Betezy.com.au” website (or another site operated by the respondents, examples of which will be mentioned below) and enter his or her personal identification number (“PIN”) and password. When using the telephone, the punter’s call would be taken by an operator employed by the respondents, provide his or her PIN and other details, and place the bet, or bets, with the operator. While this was happening, the operator would enter the relevant details into the respondents’ computer system. After the punter had completed placing the desired bets and the phone call had been terminated, the Intranet page by reference to which the operator was working would close, and the screen would revert to the standard page which required the entry of a new PIN or client name. With respect to bets placed by way of mobile phone application, although there was evidence of such a system, there was no evidence as to the details by which it operated.

7    I turn now to the facts of the case insofar as they concern the applicant herself. The applicant commenced her employment with Betezy.com in Darwin in November 2006. She was a “client liaison officer”, in which role her principal duty was answering the telephone. She was then paid $39,520 pa, which represented $600 per week after tax.

8    In about March or April 2007, the applicant moved to Sydney to work for Betezy.com there. Her work there was in “sales”, which involved contacting new and potential punters and offering them inducements to bet with Betezy.com. Her remuneration was $900 per week after tax, plus commission. The commission was calculated by reference to the first deposit made by a new punter, or the first new deposit made by a re-activated punter. By mid-2008, the applicant was earning commission in excess of her basic (after tax) salary: she was paid $4,276, $4,883, $4,197 and $5,023 as commission in May, July, August and September 2008 respectively.

9    In about August 2008, the chief executive of Betezy.com, Vince McDonald, addressed a meeting of staff, including the applicant (about six in total). He said that he had an idea, which was to offer organisations with databases of members a new kind of service. A mirror image of Betezy.com’s own website would be established, but it would be branded with the colours and insignia of the organisation concerned. The organisation would provide Betezy with access to the database of its male members over the age of 18 years. The betting of those who used the branded website would be tracked and would provide the basis for payments by Betezy.com to the organisation. Within Betezy.com, websites set up in this way were referred to as “white label” websites.

10    At the meeting, Mr McDonald in effect sought expressions of interest from staff to work on the white label project. Only the applicant expressed an interest, and she was subsequently employed exclusively on that project, commencing in September 2008. Her work did not involve direct sales contact with the organisations concerned. Rather, she was engaged on the development and implementation of the white label arrangements. In evidence which I was not invited to reject, the applicant said that her duties on the white label project included the following:

(a)    developing and setting up new Betezy Sponsorship Arrangements. This included explaining to new organisations the potential benefits of white label websites and other BSA arrangements, working towards reaching a mutual agreement on terms (though many of the white label arrangements were in essentially standard terms), agreeing on the Domain name, creating the logo/brand and associated artwork.

(b)    Managing relationships with organisations who have BSA and white label betting sites with the employer.

(c)    Managing and coordinating marketing, advertising and promotional activities associated with those organisations.

 (d)    Developing and implementing marketing campaigns.

 (e)    Overseeing agents promoting white labels and BSAs.

(f)    Monitoring, reviewing and reporting on marketing campaigns to white label and BSA organisations.

 (g)    Communicating with in house staff about marketing campaigns.

(h)    Overseeing and managing call centre calls made to clients of white label organisations.

 (i)    Event planning, organisation and execution.

(j)    Assisting in calculating the commission payable under the BSAs and white labels to the organisations who were party to them.

11    The applicant’s position in the white label area of work was, it seems, never the subject of a formal title, but the indications are that the respondents treated her as the manager of that area. In an email of 12 January 2009, Mr McDonald described her as being “in charge of all white label business”; and in another email of 6 August 2009, he said that she “handles all white labels”. In a capital raising due diligence report prepared for Betezy on 3 August 2010, an organisation chart listed the applicant amongst the “managers” of the business, and described her as “White Label Manager”.

12    A consequence of the applicant’s new job on the white label project was that, no longer being engaged in selling, she ceased to receive commission. Mr McDonald told her that there would be a commission agreement associated with her new work. I shall return to that aspect below. He also agreed that the applicant’s basic salary would be increased to $1,100 per week after tax. That increase was put into effect, but the applicant was not satisfied that it reflected the increased responsibility which her new role involved or compensated for the substantial amount of travel which she was now required to undertake. In her case, she contends that, in December 2008, Mr McDonald agreed to increase her basic salary to $2,000 per week after tax.

13    On 29 May 2009 the applicant and Betezy.com executed the first of two commission agreements (“the 2009 commission agreement”) under which, subject to certain aspects of the respondents’ defence to which I shall turn, the applicant was entitled to a commission of 1% calculated on Betezy.com’s “net wagering and gaming revenue” derived in connection with what were, in the agreement, referred to as “Betezy Sponsorship Arrangements”. Exactly what was encompassed in those arrangements is controversial, but, for the present, it will be sufficient to say that the intention appeared to be to provide the applicant with a commission related to the business generated by the white label websites. Regrettably, the parties’ practice under the 2009 commission agreement cannot (if otherwise it would have been admissible) be invoked to assist in the resolution of some of the constructional questions involved, since the applicant was never paid anything pursuant to that agreement.

14    In about September 2009, Betezy.com sold its assets, and all the agreements in respect of its business, to Betezy, the sale being effective from 1 July 2009. Mr McDonald was the chief executive of Betezy. The applicant, however, remained employed by Betezy.com.

15    On 14 June 2010 the applicant, Betezy and Betezy.com executed a second commission agreement (“the 2010 commission agreement”). It differed from the 2009 commission agreement in a number of ways (one being the introduction of Betezy as a party), and there are difficult questions with respect to the interaction between the two agreements which I shall have to address. Substantially, however, the 2010 commission agreement also had the object of providing the applicant with a commission related to the business generated by the white label websites.

16    As a result of an incident in about October 2010 which is irrelevant to the present proceeding, the applicant was shortly thereafter, at her own suggestion, transferred to Melbourne, where she carried out her duties subsequently.

17    On 22 December 2010, the applicant entered into a new contract of employment, this time with Betezy. The commencement date was 1 January 2011. The applicant’s position was “Executive Officer”, and her role was “to manage the AFL clubs and selected affiliates from Victoria and Australia”. The employment could be terminated by either party on two weeks’ written notice to the other. On 1 January 2011, the applicant commenced her employment with Betezy accordingly. There is, however, no suggestion that her duties changed.

18    As mentioned above, the applicant was not paid anything under the 2009 commission agreement. Neither was she paid anything under the 2010 commission agreement. Over the years 2009-2011, she also had reason to raise with the respondents what she considered were underpayments of her remuneration in other respects. I shall return to those issues below, but their present relevance is that they led to a telephone conversation on about 20 September 2011 between the applicant and Ryan Kay, who had by then replaced Mr McDonald as chief executive of each of the respondents. In that conversation, the applicant complained about the failure of the respondents to pay her commission. She said that she would get legal advice if she were not paid. This provoked a response of some kind from Mr Kay, to the detail of which I shall also have to return. On the applicant’s evidence, which is strenuously contested by the respondents, Mr Kay threatened to fire the applicant if she did as she proposed.

19    On 14 October 2011, the applicant commenced a period of leave for anxiety and distress. As events transpired, she never returned to work.

20    The applicant did consult her solicitors, who sent a letter of demand dated 25 October 2011 to Betezy. Shortly thereafter, the applicant had two further telephone conversations with Mr Kay. She took a recording of those conversations, the transcriptions of which were the subject of submissions by both parties in the present case.

21    At some point roughly contemporaneous with the events just described, Betezy discontinued the applicant’s access to its computer system. That event was one of the subjects of the telephone conversations between the applicant and Mr Kay to which I have referred. Another subject was the concern which Mr Kay then had about the applicant’s use of her “Cabcharge” card. I shall have to address these matters in detail later, it here being sufficient to advert to the next, and what became the ultimate, relevant event in the applicant’s relationship with the respondents. The applicant was not paid the salary which, in the ordinary course, would have been paid to her on 31 October 2011, and has been paid no salary since. Betezy then treated the applicant as having been suspended without pay, although that outcome was never, in terms, communicated to the applicant. Notwithstanding that presumed suspension, it was not suggested by the respondents that the applicant did not thereafter remain in the employ of Betezy.

THE 2009 COMMISSION AGREEMENT

22    The presently relevant provisions of the 2009 commission agreement are the following:

WHEREAS

A.    Betezy has engaged AM to carry out work in respect of the Introduction [sic], negotiation and completion of Betezy Sponsorship Arrangements with certain sporting clubs and other entities.

B.    Betezy has agreed to pay AM a commission in the form of a trailing commission for the duration of Betezy Sponsorship Arrangements upon the terms and conditions contained herein.

IT IS AGREED AS FOLLOWS

1.    Betezy Sponsorship Arrangements

In further consideration of AM successfully carrying out her brief and continuing to devote effort to assist the building of the Betezy business with Betezy Sponsorship Arrangements set out in the Schedule hereto and defined in clause 16 and completing and developing further Betezy Sponsorship Arrangements [sic] completion of such Betezy Sponsorship Arrangements, Betezy hereby agrees to provide AM with the benefits set out in this Agreement.

2.    Trailing Commission

Betezy will pay to AM fees as follows: -

(a)    A trailing commission of one percent (1%) of Net Wagering and Gaming Revenue ('NWGR') exclusive of GST for all transactions placed by customers (punters) with or through Betezy Sponsorship Arrangements.

NWGR shall be calculated:

      i.    As gross customer turnover minus gross customer payout. Betezy Sponsorship Arrangements will include all bets placed online or by telephone or by mobile phone through Betezy Sponsorship Arrangements.

      ii.    In accordance with Betezy’s usual commercial practice after each betting session for each customer which ends when each customer logs out of the Betezy Software System. Each betting session may involve multiple bets made by a Customer.

(b)    The fees payable by Betezy to AM shall continue to be due and payable so long as the Betezy Sponsorship Arrangements shall remain in force and effect.

3.    Payment

Payment of fees shall be made to AM as follows:-

(a)    Betezy will advise AM of the fees due in respect of any month no later than the 5th day of the next month and AM shall promptly present a tax invoice covering the fees payable to AM and any other charges which may be payable by Betezy for the relevant month.

(b)    Each monthly fees payable to AM shall be payable to AM by Betezy without deduction to AM's bank account as nominated in writing to Betezy or by cheque payable to AM or her nominee, to be received by AM no later than 14 days from the date of the tax invoice.

(c)    Betezy shall make available to AM an audited statement of all betting transactions ("Audit") in any form received through Betezy Sponsorship Arrangements online or by telephone or mobile phone (and particulars of betting sessions to which they relate) not later than 25 days after the expiration of each 6 month period of the term of this Agreement. Betezy undertakes to provide AM (or her financial advisers) with reasonable access to the records and accounts of the Betezy Sponsorship Arrangements in order to enable AM to verify the results of any Audit.

(d)    AM may give Betezy a direction in writing to electronically generate a tax invoice on behalf of AM for the fees due to AM under clause 3(a) above in which event Betezy shall send a copy of the tax invoice to AM and simultaneously transfer the fees due to AM electronically to AM's nominated bank account. AM may change the direction to Betezy above from time to time.

(e)    AM shall be entitled to dispute any fee:

•    Within 7 days of receipt of notice of the fee from Betezy pursuant to clause 3(a); and/or

•    Within 30 days of receiving the Audit under clause 3(c).

(f)    Notwithstanding that AM disputes a fee, AM shall be entitled to issue a tax invoice for the amount of the fee (or any other fees) not in dispute, which tax invoice must be paid by the [sic] Betezy no later than 14 days from the date of the tax invoice.

(g)    Any fees dispute will be resolved between the parties within 30 days of notification of the dispute by AM to Betezy (“Negotiation Period”). Any dispute not resolved within the Negotiation Period will be referred to dispute resolution pursuant to clause 10, and AM shall be entitled to charge interest on the disputed amount at the bank bill rate of AM’s bank, calculated daily from the date that the Negotiation Period ends until the date that the dispute is finally resolved.

(h)    All payments due to AM by Betezy pursuant to this Agreement shall be paid in full without any deductions and in particular free of any charges, levies, imposts, or taxes and in a manner such that no amount is deducted from the fees.

All payments due to AM shall be paid in full without any deductions or set off.

(i)    The Parties acknowledge that fees payable and any other taxable supply payable pursuant to this Agreement is, unless otherwise specifically stated, to be paid in addition to GST thereon.

4.    Term

This Agreement shall remain in full force and effect for so long as there are any continuing Betezy Sponsorship Arrangements. Payments therefore under clause 3 will continue notwithstanding termination of the Agreement for any other reason so long as any relevant Betezy Sponsorship Arrangements remain in force.

….

8.    Assignment

A party may (with the prior written consent of the other) nominate a company or entity to take over its obligations or benefits pursuant to this Agreement, provided that:-

(a)    Betezy may (without prior written consent) assign this Agreement to a related body corporate which is substantially controlled by the same persons and is no less financially viable than Betezy and any such related body corporate is acceptable to all and any relevant licensing authorities or any other competent authority in respect of the Betezy Sponsorship Arrangements.

(b)    Notwithstanding the assignment of this Agreement under clause 8(a) above Betezy will continue to be liable to AM under this Agreement to the extent that the assignee fails to meet its obligations to AM.

(c)    AM may transfer this Agreement (without prior written consent) to a family trust or company controlled by AM as part of a family reorganization.

9.    Termination

This Agreement may be terminated by written notice by one party to the other where:-

(a)    Either party fails to perform and observe in any material and adverse way any of the undertakings or obligations under this Agreement and fails to remedy such failure to the reasonable satisfaction of the other party within 30 days of receiving written notice to remedy such failure.

(b)    Any information, projection, certificate, representation or warranty made or repeated by either party in connection with this Agreement (whether before or after the date of this Agreement) or in any statement delivered to [sic] made pursuant to it is or proves to have been inaccurate, incorrect or incomplete or misleading to an extent that is material and adverse in any reasonable opinion of any party.

(c)    Either Party or any of its directors are convicted of an offense [sic] involving dishonesty or any offence in terms of any applicable gaming or betting legislation or regulation, Australian Corporations Act, Australian Taxation Legislation or the Anti-Money Laundering and Counter-Terrorism Financing Act.

Notwithstanding termination of this Agreement, the provisions of clause 5 shall remain in force and effect until termination of any Betezy Sponsorship Arrangements and clauses 6 and 7 shall remain in force and effect in respect of any Betezy Sponsorship Arrangements which have ceased, for a period of 12 months after such cessation.

….

15.    Successors and Assigns

This Agreement binds and benefits each party and its successors and permitted assigns.

16.    Definitions

“Betezy” shall mean Betezy and all companies in the Betezy Group and all related companies or related body corporates and all trusts, partnerships and joint ventures or other entities in which Betezy has an interest and all relevant affiliated websites or methods of carrying on business.

“Betezy Group” shall mean Betezy and all companies and websites associated with Betezy (including without limitation Related Body Corporates and Related Entities of Betezy) through which those entities conduct wagering and gaming business.

“Betezy Software System” means software systems developed by Betezy for its wagering and gaming business and servers and other equipment for its business wherever located.

“Betezy Sponsorship Arrangements” shall mean all arrangements entered into by Betezy or the Betezy Group with sporting Clubs, social or business organizations as set out in the Schedule hereto and any additional Betezy Sponsorship Agreements agreed with Betezy and any substituted structure for Betezy Sponsorship Arrangements or Parties substituted for the original parties and all joint ventures, white label websites or other entities through which Betezy Sponsorship Arrangements are being conducted and to which Betezy Sponsorship Arrangements may be transferred and including existing and new relevant websites.

“NWGR” means the net wagering and gaming revenue calculated in accordance with clause 2(a) of this Agreement.

“Related Body Corporate” has the meaning given to it in the Corporations Act 2001 (Cth).

“Related Entities” has the meaning given to it in the Corporations Act 2001 (Cth).

There was a schedule to the agreement, to the terms of which I shall refer at the appropriate stage below.

23    The applicant’s first claim involving the 2009 commission agreement is that she is entitled to damages, or to compensation pursuant to s 545(2)(b) of the FW Act, in respect of Betezy.com’s failure to pay the trailing commission as required by cll 2(a) and 3(d) of the agreement. Her evidentiary case includes a calculation of those damages down to 31 October 2012. In relation to the period after that date, the applicant seeks an order for the specific performance of the agreement or for damages pursuant to s 38 of the Supreme Court Act 1986 (Vic) (“the Supreme Court Act”) (or the corresponding NSW provision if it should be held to be applicable). The applicant also alleges that Betezy.com failed to comply with subcll (a), (b) and (c) of cl 3 of the 2009 commission agreement by not advising her of the commission that was due in respect of any of the months down to 31 October 2012, by not presenting her with a tax invoice and by not making available to her an audit of relevant betting transactions. She claims specific performance of the provisions in question, or alternatively damages. Finally in respect of this agreement, the applicant claims the imposition of a penalty for contraventions of s 323 of the FW Act constituted by Betezy.com’s failure to pay the required commission.

24    Subject to an uncertainty plea to which I shall refer, and to some questions involving the construction of the 2009 commission agreement, Betezy.com accepts that it failed to pay the applicant her commission entitlements under that agreement. It was not suggested that this did not amount to a contravention of s 323 of the FW Act. The calculation of the damages or compensation to which the applicant would in the circumstances be entitled, including those that might be awarded in lieu of specific performance, was, however, contentious, and I shall return to it in a latter section of these reasons. In the balance of this section, I propose to deal with the uncertainty and constructional issues to which I referred.

25    The first such issue relates to cl 2(a) of the 2009 commission agreement. In her Statement of Claim as filed on 19 January 2011, the applicant alleged that, under the 2009 commission agreement, Betezy.com agreed to pay her a trailing commission of 1% of net wagering and gaming revenue for all transactions placed by customers with or through Betezy Sponsorship Arrangements “calculated in accordance with the formula in clause 2(a) of the 2009 Commission Agreement”. By their Defence filed on 16 March 2012, the respondents admitted that allegation, added two further allegations which ultimately played no substantial part in the respondents’ case and trial and said that they referred to the terms of the 2009 commission agreement “for its full terms and effect”. Neither in this pleading nor elsewhere in the Defence was there any suggestion of a controversy about the construction of cl 2(a)ii.

26    Such a controversy was foreshadowed only more than a year later on 26 April 2013, when an Amended Defence converted the admission into a pleading in the alternative, and introduced a sweeping denial of all of the applicant’s allegations as to her entitlements under cl 2(a) of the 2009 commission agreement. That denial, and a new allegation that cl 2(a) was void for uncertainty, took the following form:

5.    They deny each and every allegation in paragraph 5 and say further as follows in respect of cl 2(a) of the 2009 Commission Agreement:

(a)    the clause makes no provision for the treatment, whether by way of elimination or carry forward or otherwise, of negative balances in customer accounts at the end of betting sessions;

(b)    paragraph ii makes no provision for determining when a telephone betting session ends;

(c)    further, it is not practically possible to ascertain from the respondents' records when a betting session, either by internet or by telephone. ends:

(d)    accordingly, the clause is void for uncertainty.

At the same time, the following new allegation, made in the alternative, was introduced:

 (h)    If, which is denied, the respondents (or either of them) are liable to pay the applicant commission in accordance with cl 2 of the 2009 Commission Agreement, then for the purposes of cl 2(a), the Net Wagering and Gaming Revenue is to be calculated for each customer account at the end of each month by aggregating the negative and positive balances for every betting session for each such account in that month with no carry forward of negative balances from previous months, and commission is payable monthly on any such aggregate positive balance.

This was the form of the Defence under which the respondents went to trial.

27    Dealing with the respondents’ allegation that cl 2(a) of the 2009 commission agreement was void for uncertainty, I turn first to the proposition that the provision made no provision for “negative balances in customer accounts at the end of betting sessions”. The “customer accounts” here referred to were not the general accounts of the customer with Betezy.com, but the balance, as between wagers and winnings, yielded by the betting transactions of a particular punter in the course of a particular session.

28    It is convenient to consider at the same time the respondents’ alternative argument that, if cl 2(a) is sufficiently certain, it required the calculation of the balance, positive or negative, yielded by the betting activities of each customer in each session, and by summing those session balances over a calendar month to produce a figure which would then be added to the like summation made in the case of every other customer to produce a monthly figure which, if positive, would be used to calculate the applicant’s commission. In this context, a “customer” is, of course, a punter, not the corporate client of the respondents which operated the particular white label website.

29    For a punter who placed, say, $1000 in bets in a particular session, and secured, say, $600 in winnings in relation to those bets, it was accepted by the respondents (and subject to their other points on uncertainty) that there was no difficulty: the net wagering and gaming revenue for the session would be $400 and the applicant’s commission would be $4. The problem was said to arise when the amount of the winnings exceeded the amount of the bets in the session. In such a case, should one ignore (ie, according to the Amended Defence, “eliminate”) the negative balance, or carry it forward to be set off against a positive balance in a subsequent session? Because cl 2(a) did not answer this question it was, according to the respondents, void for uncertainty.

30    I do not accept the respondents’ argument on this point. Clause 2 was concerned with what Betezy.com would “pay” to the applicant. Calculation of the amount that would be paid was to be based on the betting session of each punter. In its natural reading, the clause provided for an entitlement to arise at the end of the session. The “grossing” for which the clause provided was, explicitly, to be done internally to the session. The clause was, of course, a provision of Betezy.com’s drafting for the remuneration of the applicant as an employee. Of its nature, remuneration can never be negative. The only consequence, in my view, of a particular punter’s winnings exceeding his or her bets in a session was that no commission would be payable for that session.

31    Turning to the respondents’ alternative argument, it is clear that the actual wording of cl 2(a) provides no warrant for the kind of month-based calculations which they advance. However, as presented in court, the respondents’ case relevantly was that, if not uncertain, the clause was at least ambiguous; and they sought to resolve the ambiguity by the introduction of evidence. They referred to so much of cl 2(a)ii as referred to “Betezy’s usual commercial practice”, and sought to show what that practice was. The practice, which was said to be in place in the period leading to the execution of the 2009 commission agreement, was said to be one under which Betezy.com made commission-like payments to persons and companies referred to as “affiliates”.

32    I do not think that cl 2(a) is, relevantly, ambiguous. Taking cl 2(a)ii with its associated introductory verbiage, the way I would read the provision is: “NGWR shall be calculated, in accordance with Betezy’s usual commercial practice, after each betting session for each customer which ends when each customer logs out of the Betezy Software System”. That is to say, Betezy.com’s usual commercial practice was one in which the “session” was the irreducible minimum period in respect of which commissions, or the like, were calculated: the calculation was not to be done bet-by-bet. This meant that, before the applicant could calculate her commission by reference to Betezy.com’s revenue, she was required to make an allowance, in favour of her employer, of the winnings which related to that session.

33    As it happens, I was not assisted by the evidence on which the respondents relied for the establishment of what was Betezy.com’s “usual commercial practice” in the period leading to the execution of the 2009 commission agreement. That the respondents’ factual case would involve an examination of such a practice was not foreshadowed in their Amended Defence. The first indication came in Mr Kay’s affidavit, affirmed about a fortnight before the commencement of the trial. He said:

In early 2009 I was managing a number of affiliate relationships who were agents that introduced customers to the Respondents who were paid commissions. The commissions they received were paid and calculated on a monthly basis. Ms Murrihy assisted me in the role of managing affiliates before May 2009. This included arranging for payment of the commission to affiliates calculated on a monthly basis.

This was, I would have to say, very light on detail for an important point on which the chief executive officer of the respondents gave the only evidence called on their behalf.

34    On the strength of that evidence, the applicant was cross-examined extensively. In the result, it became apparent that, for some of the affiliates to which Mr Kay referred, the calculation of the commission to which they became entitled was done “on a monthly basis”. There was, so far as I can see, no suggestion that the plusses and minuses from punter-sessions were aggregated in the way proposed in the Amended Defence. Rather, there may have been a single monthly revenue figure for all punters who were introduced to Betezy.com which was then discounted in some way. At least one instance to which the applicant was referred under cross-examination involved the discounting being done by a factor which reflected Betezy.com’s rate of profit over the whole of its business; and the tenor of the applicant’s evidence was that this method was employed in a number of instances. Another method to which the applicant referred was for the affiliate to be paid a fee with respect to each new customer which it introduced to Betezy.com, payable upon the customer lodging his or her first bet. There was, so far as I could discern, no suggestion that the fee would not be payable if that bet happened to be a winning one. Yet another method was for Betezy.com to make a quarterly payment, in an agreed sum, to the affiliate in question.

35    For Betezy.com’s “usual commercial practice” to be of any utility in the resolution of such ambiguity as may have existed in cl 2(a) of the 2009 commission agreement, the practice itself would have had to have been consistent, uniform and unequivocal in the constructional pointer which it provided. The practice, or practices, disclosed in the evidence did not satisfy these tests. As against what I consider to be the relatively clear words by which the parties in fact expressed their intentions in the agreement, to have recourse to extraneous evidence of intention as proposed by the respondents would only compromise the clarity which exists. It would not be an aid to construction, and would be a course which I would not be justified adopting even if, which I consider not to be the case, the provision was ambiguous.

36    The respondents’ next point was that clause 2(a) made no provision for telephone or mobile phone betting because, in such a context, the notion of a customer “logging out” was meaningless. It was implied, in effect, that I should regard that notion as utterly content-free because people do not “log out” of telephone calls: they simply hang up. In the light of the unchallenged evidence of the applicant as to the system employed by the respondents for the making of bets by telephone, to which I have referred, I regard this as an especially unmeritorious submission. That system involved a staff member exiting (to use a neutral term) from the area of the software in which access was made to the account of the punter concerned. That having been done, for the staff member again to have such access, he or she would have had to log in once more. Once he or she had exited in this way, he or she was not logged in to – that is, was logged out of – the punter’s account. In the case of telephone betting, it was the staff member’s exiting from the punter’s account area in the Betezy.com system (itself done in response to an indication from the punter that he or she had finished placing bets) that constituted the act of “logging out”.

37    With respect to betting by mobile phone application, there was, as I have indicated, effectively no evidence about how the system worked. Factually, the respondents have not established a basis for a submission that cl 2(a) could not work in the setting of this mode of betting. Furthermore, the applicant’s damages claim does not appear to depend upon revenue from this line of business. In these circumstances, I am not persuaded that the mobile phone context makes any contribution to the respondents’ uncertainty case.

38    The third arm of the respondents’ uncertainty submission was that it was not practically possible to ascertain from the respondents’ records when a betting session, either by telephone or by internet, ended. I have dealt with the dimension of the argument that relates to the telephone. As to internet betting, the respondents commence by accepting that, in terms, cl 2(a)ii was evidently based on an assumed paradigm in which the punter would log on, place a bet or bets, and log out. However, it appears that not all punters proceeded in such an orderly way: many did not bother to log out. According to the respondents, the parties had failed to provide for the necessary closing-off of a betting session in which the punter did not log out. I do not consider that the problem identified by the respondents, to the extent that there is one, involves uncertainty. The meaning of the provision as such is, in my view, quite clear: the calculation of net wagering and gaming revenue was to be done by punter-session, each session being defined by the online punter having logged on to, and logged out of, Betezy.com’s system. The issue raised by punters who did not log out relates not to the meaning, or clarity, of the provision, but to the calculation of the applicant’s commission in situations which had that feature. I shall return to that aspect below.

39    The other main area of constructional controversy under the 2009 commission agreement related to the definition of “Betezy Sponsorship Arrangements” under cl 16 (that term being used to define the applicant’s entitlement to commission under cl 2(a)). As I have said, the agreement contained a schedule, which was referred to in that definition. The schedule contained a list of organisations with which Betezy.com had arrangements which provided for white label websites, or similar arrangements. A note appeared at the foot of the list, as follows:

Note: The date of commencement of entitlement to Fees pursuant to Clause 2 (a) shall be the dates the various Betezy Sponsorship Arrangements become operative.

40    There were 18 organisations on the list in the schedule to the 2009 commission agreement. Save for one website which never operated, the respondents accept that Betezy.com’s arrangements with these organisations fell within the concept of “Betezy Sponsorship Arrangements” in the definition. They also accept that its arrangements with three other organisations, said to be the subject of specific agreements between Betezy.com and the applicant, fell within that concept. The applicant’s contention is that a great many more arrangements were caught by the definition. To resolve the difference which lies between the parties in this respect, it is necessary to construe the definition.

41    Grammatically, I consider that the correct breakup of the definition would be as follows:

“Betezy Sponsorship Arrangements” shall mean:

(a)    all arrangements entered into by Betezy or the Betezy Group with sporting Clubs, social or business organizations as set out in the Schedule hereto; and

(b)    any additional Betezy Sponsorship Agreements agreed with Betezy; and

(c)    any substituted structure for Betezy Sponsorship Arrangements or Parties substituted for the original parties; and

(d)    all joint ventures, white label websites or other entities –

    (i)    through which Betezy Sponsorship Arrangements are being conducted and

    (ii)    to which Betezy Sponsorship Arrangements may be transferred and including existing and new relevant websites.

The drafter’s use of the adjectives “all” and “any”, twice each, has made this breakup both uncomplicated and, therefore, obvious to a degree. It remains to consider whether, taking into account the circumstances of Betezy.com’s business and of the applicant’s employment, this grammatical construction would produce anomalous results and to see what it would mean in practical terms.

42    Part (a) of the definition as so broken up is uncontroversial: both parties accept that Betezy Sponsorship Arrangements included at least Betezy.com’s arrangements with the organisations listed in the schedule to the agreement.

43    In the sense that it constituted an additional discrete category, part (b) is also uncontroversial. Both parties accept that additional arrangements “agreed with Betezy” should be included. However, the applicant contends that “agreed with Betezy” meant agreed as between Betezy.com and the organisation concerned. The respondents contend that that phrase meant agreed as between Betezy.com and the applicant herself. In this area, I prefer the applicant’s construction. I would say, first, that the use of the word “Agreement”, with its initial capital, in this part of the definition was by way of an oversight or typographical error. It should have been “Arrangement”, which is the term of art employed in the agreement. As so adjusted, the passage was not circular, but referred to an arrangement that would be recognised as being of the same kind as those listed in the schedule (the subject of part (a)).

44    I think it quite improbable that the parties had in mind that a further agreement between themselves would be required before the applicant became entitled to any commission arising out of the business that Betezy.com might transact as a result of additional sponsorship arrangements being made with parties other than those referred to in the schedule. Here it must be recalled that, at the time of the execution of the 2009 commission agreement, the white label project was still in its early days. It is to be inferred that Betezy.com aspired to the achievement of more client organisations for that project in the period ahead. The applicant had responsibility for all white label websites. The 2009 commission agreement provided for her remuneration, and there was, as her counsel pointed out in his final address, no apparent reason why Betezy.com might have wanted to remunerate her, by commission, in relation to some only of the relationships which she was managing.

45    On the other hand, if “agreed with Betezy” is treated as a reference to the agreement between Betezy.com and the client organisation concerned, the provision would make more sense from a business, and also from a human resources, point of view. Understanding, as I do, the expression “Betezy Sponsorship Agreements” in the sense of “Betezy Sponsorship Arrangements”, part (b) should be read as drawing a particular affiliation into the definition only when a concrete agreement had been made between Betezy.com and the organisation concerned. I would so construe this part of the definition.

46    Part (c) of the definition is not problematic. It operated only when there was an arrangement, otherwise within the definition, which had been affected by the substitution of one or more of the parties, or by a “substituted structure” (that latter term, although obscure in itself, not being the occasion of any difficulty in the facts of the present case).

47    Part (d) of the definition is perhaps the most difficult. I read it as concerned with forms of business organisation. Parts (a) and (b) referred to the arrangements as such which Betezy.com made, and intended to make, with sporting clubs and the like. Part (d) recognised that there may be structures of various kinds “through which” these arrangements were effected. Joint ventures might have been instances of those structures. The reference to “other entities” made this a very broad category, but it was still, I consider, confined to arrangements which fell within one or more of the preceding parts of the definition. At first glance, the reference here to “white label websites” looks anomalous, in the sense that it does not refer to a form of business organisation, or to an entity. But there was evidence of what were called “internal” white label websites, that is to say, of websites conducted by Betezy.com itself which had their own design and getup, but which were not associated with any other body or with any sponsorship arrangement. These were, in my view, the concern of the expression “white label websites” in part (d).

48    For the sake of clarity, I have broken part (d) up into two further parts. This is justified by the use of the formula “… through which … and … to which …”. I consider that the indefinite article at the end of (i) is to be read disjunctively, that is to say, a joint venture (etc) would be covered if a Betezy Sponsorship Arrangement was, at the time of the execution of the agreement, being conducted through it or if a Betezy Sponsorship Arrangement were later to be transferred to it. The final passage – “including existing and new relevant websites” – was, perhaps out of caution, included to make it clear that all the websites that were associated with the arrangements referred to in (i) and (ii), whether existing or new, would be covered by the definition.

49    I would construe the definition of “Betezy Sponsorship Arrangements” in the 2009 commission agreement accordingly.

THE 2010 COMMISSION AGREEMENT

50    The 2010 commission agreement was based on, and was in substantially the same terms as, the 2009 commission agreement. However, there were some differences, and one particular aspect of the 2010 commission agreement has become important.

51    The 2010 commission agreement commenced as follows:

WHEREAS

A.    Betezy.com entered into a Sales Commission Agreement with AM dated 1st December 2008 to reward and incentivize AM for the introduction and management of Betezy’s sponsorship arrangements with certain sporting clubs and other entities which Agreement was replaced by a Commission Agreement between the parties dated 29th May 2009.

B.    Betezy.com sold its Assets as defined on a “walk in walk out basis” including all Agreements in respect of the business effective from 1st July 2009 pursuant to a Business Acquisition Agreement dated 17th September 2009.

C.    In accordance with the Business Acquisition Agreement Betezy has agreed to enter into this Agreement and pay AM a commission in the form of a trailing commission for the duration of Betezy Sponsorship Arrangements upon the terms and conditions contained herein.

IT IS AGREED AS FOLLOWS

1.    Substituted Agreement

1.1    The Parties acknowledge that the Sales Commission Agreement dated 1st December 2008 and the Commission Agreement dated 29th May 2009 referred to in Recital A are hereby terminated and replaced by this Agreement as of the commencement date of this Agreement.

1.2    This Agreement shall be deemed to commence on the 1st day of July 2009 (“the Commencement Date”) and shall continue for the term referred to in Clause 5.

2.    Betezy Sponsorship Arrangements

In further consideration of AM’s assistance in the introduction and management of the Betezy Sponsorship Arrangements set out in the Schedule hereto as defined in clause 17, Betezy hereby agrees to provide AM with the benefits set out in this Agreement.

52    Clause 3 was in the same terms as cl 2 of the 2009 commission agreement. The only difference from the 2009 cl 3 – which now became cl 4 – was the introduction of the words “of any losses from previous months or otherwise” after “without deduction” in subcl (b). Clause 4 of the 2009 commission agreement, on the subject of “Term”, was repeated as cl 5(a) of the 2010 commission agreement, and a new cl 5(b) was introduced as follows:

(b)    Betezy Sponsorship Arrangements as defined in Clause 17 shall include the White Label Websites in the Schedule hereto and any other Betezy Sponsorship Arrangements agreed between Betezy and AM from time to time.

53    In the 2010 commission agreement, the definition (now in cl 17) of “Betezy Sponsorship Arrangements” was changed to the following:

“Betezy Sponsorship Arrangements” shall mean all arrangements entered into by Betezy or the Betezy Group with sporting Clubs, social or business organizations as set out in the Schedule hereto and any additional Betezy Sponsorship Agreements agreed between Betezy and AM and any substituted structure for Betezy Sponsorship Arrangements or Parties substituted for the original parties and all joint ventures, white label websites or other entities and agencies through which Betezy Sponsorship Arrangements are being conducted and to which Betezy Sponsorship Arrangements may be transferred and including existing and new relevant websites and agencies (emphasis added).

A new definition was introduced, in the following terms:

“Agreed between Betezy and AM” shall mean a letter Agreement or exchange of emails between Betezy and AM signed by or on behalf of Betezy by the Chief Executive Officer or a Director of Betezy and in the case of AM, signed personally.

The note at the foot of the list in the schedule was replaced by the following:

Note: The date of commencement of entitlement to Fees pursuant to Clause 3(a) shall be 1st July 2009 in respect of all Betezy Sponsorship Arrangements which took effect prior to that date and otherwise shall be the dates the various Betezy Sponsorship Arrangements become operative from time to time.

54    The claims which the applicant makes under the 2010 commission agreement correspond with those made under the 2009 commission agreement, to which I have referred in para 23 above. Save for the one matter specifically addressed below, the conclusions which I have reached in relation to the 2009 commission agreement above apply equally to the 2010 commission agreement.

55    That matter is the impact of the introduction of the new defined term “agreed between Betezy and AM” (“AM” being the applicant). That term was used in the definition of “Betezy Sponsorship Arrangements”. As so amended, the new definition might be broken up as follows:

“Betezy Sponsorship Arrangements” shall mean:

(a)    all arrangements entered into by Betezy or the Betezy Group with sporting Clubs, social or business organizations as set out in the Schedule hereto; and

(b)    any additional Betezy Sponsorship Agreements agreed between Betezy and AM; and

(c)    any substituted structure for Betezy Sponsorship Arrangements or Parties substituted for the original parties; and

  (d)    all joint ventures, white label websites or other entities and agencies –

  (i)    through which Betezy Sponsorship Arrangements are being conducted; and

     (ii)    to which Betezy Sponsorship Arrangements may be transferred and

including existing and new relevant websites.

The addition of the words “and agencies” to part (d) of the definition is of no moment. However, the introduction of the qualifier “agreed between Betezy and AM” into part (b) had the result that, after Betezy’s arrangements with the organisations mentioned in the schedule, any “additional” arrangements would be covered only if they had been agreed between Betezy and the applicant in the way contemplated by the new definition of that qualifier. It is not suggested by the applicant that any such agreement was ever made.

The relationship between the agreements

56    An issue which attends the determination of the applicant’s entitlement to commission under the 2009 commission agreement and the 2010 commission agreement is the relationship between them. On this aspect, the parties took very different positions.

57    The problem arises because cl 4 of the 2009 commission agreement provided that the agreement would remain in full force and effect for so long as there were any continuing Betezy Sponsorship Arrangements, and that “payments therefore” under cl 3 would continue notwithstanding termination of the agreement “for any other reason” so long as any relevant Betezy Sponsorship Arrangements remained in force. However, cl 1.1 of the 2010 commission agreement provided that the 2009 commission agreement was “terminated and replaced by [the 2010 commission agreement] as of the commencement date” of the latter; and, by cl 1.2, the latter was deemed to commence on 1 July 2009, that is, about 11½ months before it was actually made and only about one month after the execution of the 2009 commission agreement.

58    The applicant relied on cl 4 of the 2009 commission agreement. It was submitted on her behalf that the termination of that agreement by the 2010 commission agreement did not terminate her right to receive commission in relation to Betezy Sponsorship Arrangements which were made, or were current, during the term of the 2009 commission agreement. It was further submitted that, with effect from 1 July 2009, the applicant became entitled to commission under the 2010 commission agreement, even in relation to Betezy Sponsorship Arrangements under which she also had a right to receive commission under the 2009 commission agreement. In relation to arrangements which were covered by both agreements – and there were some – the applicant was, it was submitted, entitled to commission twice.

59    The respondents relied on cl 1 of the 2010 commission agreement. It was submitted on their behalf that the 2010 commission agreement not only terminated the 2009 commission agreement but replaced it, and that this went further than the concept of termination as such as was contemplated by cl 4 of that agreement. From 1 July 2009, it was submitted, the applicant was entitled to commission only under the 2010 commission agreement, notwithstanding that, had Betezy.com been observing its obligations under the 2009 commission agreement, she would by then have been paid substantial commissions under that agreement (and it was not suggested that Betezy.com would have been in any position to recover them on the execution of the 2010 commission agreement).

60    Each in its own way, the positions adopted by the parties as to the operation of these agreements during the period when they overlapped are extreme ones. Although each derives some sustenance from the written words of the agreements, I cannot accept that the parties would have intended either outcome. I cannot accept that they would have intended for the applicant to be remunerated twice for the same line of business, and I cannot accept that they would have intended that the operation of cl 4 of the 2009 commission agreement would be wholly snuffed out, silently but effectively, by the general words of cl 1.1 of the 2010 commission agreement.

61    As stressed by counsel for the applicant, cl 4 of the 2009 commission agreement was an unusual provision. Yet it must be given effect. Two circumstances are relevant in this regard: first, this was a clause of Betezy.com’s drafting (in fact it was drawn by Betezy.com’s solicitor), and secondly, this clause was advantageous to the applicant, and must be taken to have been a significant element in the consideration for which she worked for Betezy.com. It is apparent from the recitals to the 2010 commission agreement that the need for the new, replacement, agreement arose wholly from changed business arrangements as between the respondents. The applicant had nothing to do with that. There is nothing in these circumstances which would suggest a need for the rights which she had under the 2009 commission agreement to be revisited. Against this background, I consider it to be significant that, although professionally advised at the time, Betezy.com did not take the opportunity to amend cl 4 of the 2009 commission agreement in terms. It was, in a sense, the creator of the problematic situation in which it now finds itself, namely, one in which, literally, the termination of the 2009 commission agreement by the 2010 commission agreement left cl 4 of the former with work to do.

62    What was the extent of that work? An important difference between the 2009 commission agreement and the 2010 commission agreement, of which the parties must be assumed to have been conscious, was the amendment to the definition of “Betezy Sponsorship Arrangements” to which I have referred. That is to say, the arrangements which entitled the applicant to commission under these agreements were not necessarily the same in each case. But in some cases they were the same. In my view, it was in relation to the arrangements which fell within the definition under both agreements that the parties used the expression “replaced” in cl 1.1 of the 2010 commission agreement. Recognising that the termination of the 2009 commission agreement would leave the applicant with ongoing entitlements under cl 4, the parties replaced those entitlements with the like entitlements which arose under the 2010 commission agreement. However, where no corresponding entitlement arose under the 2010 commission agreement – ie in the case of an arrangement which fell within the 2009 definition but not within the 2010 definition – there was no “replacement”, and the applicant’s entitlement remained under cl 4 of the 2009 commission agreement notwithstanding the termination of that agreement by the 2010 commission agreement.

63    Of course, cl 4 of the 2009 commission agreement did not mean that the termination of that agreement could be ignored for all purposes. The expression “for so long as there are any continuing Betezy Sponsorship Arrangements” (emphasis added) referred to arrangements within the meaning of the definition in that agreement that had been established prior to the effective date of termination. The clause did not, in my view, give the applicant an entitlement to commission in relation to arrangements, even if otherwise within the definition, which were established after that date. The effective date of the termination of the 2009 commission agreement was 1 July 2009. The applicant’s entitlement to commissions in relation to arrangements established after that date did not arise under cl 4 of that agreement.

64    In summary, for the period to 30 June 2009, the applicant’s entitlement to commission arose under the 2009 commission agreement. For the period which commenced on 1 July 2009, the applicant’s entitlement to commission arose –

(a)    in relation to arrangements which were in place on 30 June 2009 and were not covered by the definition of Betezy Sponsorship Arrangements in the 2010 commission agreement, under the 2009 commission agreement;

(b)    in relation to arrangements which were in place on 30 June 2009 and were covered by the definition of Betezy Sponsorship Arrangements in the 2010 commission agreement, under that agreement;

(c)    in relation to arrangements which were established on or after 1 July 2009, under the 2010 commission agreement.

65    I recognise that this conclusion as to the interrelationship between the operation of the two agreements produces a result which, on one view at least, is unjust for the applicant, in the sense that, in relation to arrangements which were established between 1 July 2009 and 14 June 2010 and fell within the 2009 definition of “Betezy Sponsorship Arrangements” but not within the like 2010 definition, her entitlement to commission was retrospectively stripped away. However, the fact is that, as at 14 June 2010, no payments of commission had been made under the 2009 commission agreement. The parties knew this. It was within their contractual competence to re-define the applicant’s rights in relation to the period which had elapsed since 1 July 2009, just as they had chosen to create rights for the applicant which had retrospective operation when they executed the 2009 commission agreement. There was no suggestion that the applicant had been misled, pressured or otherwise unfairly prevailed upon when she was asked to execute the 2010 commission agreement. In her affidavit, she said that there had been no discussion about the subject at the time, that she was given the new agreement by the respondents’ solicitor, that he asked her to sign it, that she read it “quickly”, that it “looked similar to the 2009 agreement” and that she signed it. These are not circumstances such as would sustain a submission – and no submission was in fact made – that the terms of the 2010 commission agreement should not be given their natural effect upon a proper construction.

the logging out question

66    That leaves the question of how the applicant’s commission was to be calculated in situations in which the evidence does not permit the identification of a point at which an online punter logged out after placing a bet or bets, if, indeed, he or she did so. Here I should recount something of the procedural history of the case, to the extent that it relates to this problem. Evidently, the applicant was conscious of the need to prove her entitlement to commission, or her damages from not having been paid commission, by reference to log-in and log-out times. On 12 December 2012, the applicant sought and obtained an order that the respondents make discovery of what were described as “show reports” for their clients who placed bets under white label or Betezy sponsorship arrangements over the period 1 September 2008 to 1 November 2012 (I refer to this order in more detail at para 87 below). As part of the order, the respondents were required to identify, in relation to each bet which was placed over the internet, “when the betting session commenced and when the betting session ended”.

67    In ostensible compliance with the order of 12 December 2012, the respondents produced, electronically, a document titled “LoginData_Murrihy” which contained a record, of sorts, as to the online betting which had been undertaken by named punters. It provided the name and PIN of each punter, and contained a column headed “eventTime”. In her affidavit sworn on 25 March 2013, the applicant said that this document was about 15,000 pages long, and exhibited the first six pages of it. She added that “there was no discovered document produced setting out the log out times”. She continued:

92.    During the course of my employment, on the Betezy software and computer system there was an Administration page. On that page, one of the options was a button for a report titled ‘client log ins’ (or similar name). By pressing that button, there is a record of all log ins and log out times for all of the punters. It identifies when the punter logs in and logs out of the internet based Betezy software system. The log in data has been produced pursuant to the order for discovery. The log out data has not been produced. I understand this data is available and in the hands of the respondent.

93.    The betting session of clients logged on via the internet automatically ends when the clients does [sic] not regularly place bets. To the best of my recollection, the Betezy software system logged the punter out within 60 minutes of no bets being placed, by being timed out. I understand that this system may now operate differently.

68    The respondents did not accept that it was possible for them to produce log-out times in all cases. In his affidavit affirmed on 1 May 2013, Mr Kay said:

26.    The practical difficulty of determining when a betting session ends is that when a client logs onto the internet, it is often the case that the site is left open and not specifically closed by the operator. The website will then either time out or continue inactive for different times. That creates a difficulty in determining when an internet session ends. Only if a client logs out (that is through a log out button and does not merely exit the window) is the fact of the logout and the time of the logout recorded. The same issue arises for telephone betting sessions as when a customer calls to place a bet they go through to a sales person who uses the internet site to place the bet but again the session may be open for a variable amount of time depending on how many bets that person makes by telephone during the course of a day. When a punter places a bet by a mobile phone application or the API web service (a service for use by computer programmers or third party websites) it is impossible to determine either log in and log out times.

27.    I refer to paragraph 92 of the first Murrihy affidavit and do not agree that the log out data can be produced by the Respondents in every case. Log in and log out details have been produced where possible. If a client does not log out of the web page, the log out data is not recorded by the system.

Under cross-examination, the applicant accepted that, in response to her solicitors’ complaints that the document discovered by the respondents did not show logout times, the respondents had invited her, or her representatives, to attend at their premises and inspect the computer records that were available. That invitation was not taken up.

69    It seems to be uncontroversial that, where a punter did execute the “logout” function on his or her computer, the respondents had a record of the time and date of that event. Albeit that they were required to discover records, to the extent that they existed, of the ending of betting sessions, no records of these explicit logouts were discovered or produced. The problem to which Mr Kay referred was the other case, namely, that in which the betting site was simply “left open” on the punter’s computer. What actually happened in such a case was, I would have to say, dealt with rather unsatisfactorily in the respondents’ evidence. The applicant, who had, I would infer, an intimate association with the respondents’ systems while she was working for them, was, at the time of the trial, no longer in a position of such advantage. She gave the evidence to which I have referred at para 67 above. She was also cross-examined as follows:

We’re at the stage, and I think you’ve agreed with me, a customer has got into the system, the customer can do various things in the system, and there is a logout function? Mm.

And we’re all familiar with that on a lot of websites. Are you aware – and if you’re not aware, say so – but are you aware that in many instances, a customer does not execute that function? Well, my – well, my understanding is that it – the system times out or lapses after, say, a period of maybe an hour and that at the – sometime during the earlier the early hours of the morning, regardless of whether that particular punter presses a logout button, is logged out automatically.

Yes, that’s really the point, isn’t it? That in those cases where a customer doesn’t execute the logout function, either at some point after a certain period of time or at a cut-off date at some stage, the customer is automatically logged out? Yes. That’s my understanding, yes.

Yes. And in those cases, the customer, him or herself, has not logged out of the system. He has been logged out? Well, he would – yes, he would be logged out.

Yes.

The significance of this series of exchanges is that senior counsel for the respondents was putting to the applicant, and she accepted, that there was some point at which a punter who had logged on but then been inactive would be automatically logged out.

70    When Mr Kay was under cross-examination, however, he was not prepared to accept the essence of what his counsel had put to the applicant. It was put to him that one method of ending a betting session was (to use the words of counsel for the applicant) by way of “an automatic termination mechanism whereby the customer ceased to be logged in after a period of time”, and he denied it. He was taken to an instance, of which there was evidence, in which a punter had, apparently, logged on at 6.12 pm one day and logged on again at 6.04 am the following morning. When asked whether this meant that the punter had logged in when he was already logged in (from the previous evening), Mr Kay said:

When someone logs in, it gives the client what’s called a session hash and he would be given a new session hash. So he will be given a session hash that night which would have stayed active, and then when he went in the next morning he would have been logged in again and given a new session hash which

And what happens to the old one? It was – it’s replaced. It’s the field on the client – the client level which is replaced by the new login ...

When he was asked about the risk, to the logged-on punter, that would arise from the circumstance that his or her account with Betezy.com would then have been “open” on the particular computer over an extended period, Mr Kay accepted that there was such a risk, but indicated that it had not created a problem in practice.

71    As against Mr Kay’s evidence, there was also the evidence of the applicant that “we did have an internal report where you could tell whether an internet person was actually logged in and logged out and I know that, especially early in the mornings, there would be very few people that would be logged into the system at the time.” She was not directly challenged on her evidence that the staff of the respondents were able to know how many punters were logged on to the system at any point in time, and that she knew, from her experience, that very few were logged on in the small hours of the morning. If that evidence were correct, it would seem to follow that, somehow, the presumably numerous punters who had, in the periods leading up to those early hours, omitted specifically to log out had been effectively logged out by some automatic process.

72    I think it quite unlikely that the respondents’ system would be such as allowed for a customer’s account to remain open, and accessible on the computer concerned, indefinitely in circumstances where he or she had omitted to log out by his or her own hand. Mr Kay’s evidence as to this situation under cross-examination was, both in its content and in the manner of its giving, unconvincing. I think I am entitled to note that that evidence departed, apparently, from the instructions which he had, I infer, given to his counsel for the purposes of the cross-examination of the applicant. On the other side, the applicant herself gave the evidence to which I referred in para 69 above. Although Mr Kay directly contradicted that evidence, I accept what the applicant said in preference to his contradictions.

73    I was most impressed by the applicant as a conscientious and careful witness, who did not overstate her own factual case but was quite firm in the way she recounted the matters of which she had a clear recollection. Subject only to her uncertainty about the time which was allowed to elapse before the respondents’ system timed out, or automatically terminated the logged-in status of a particular punter, this was an instance of such a recollection. By contrast, I would have to say that Mr Kay was not, generally, an impressive witness. In respects other than those presently under discussion, I propose to reject his evidence (see paras 129-138 below). In relation to the present matter, I recognised a certain tightness and reserve, to the point of giving the appearance of being less than fully forthcoming, in the way he responded to cross-examining counsel’s questions about the respondents’ system and how it dealt with the punter who did not log out. I got the impression that the way the respondents operated their system in practice may well have been more accommodating to such circumstances than Mr Kay was prepared to concede. For example, he was shown a copy of an agreement entered into by Betezy.com (over the hand of Mr Kay himself) in December 2007 with a corporate client which provided that “a betting session ends when a customer logs out of the System or otherwise terminates their connection with the System”. It was suggested by cross-examining counsel that Mr Kay understood that there was a mechanism, other than logging out, by which a betting session might be terminated. Mr Kay’s reply was that he did not believe that “the person that drafted this agreement understood the system”. I think it closer to the truth that the person drafting this agreement, and Mr Kay executing it, inserted this provision because they recognised the reality that many punters did not log out as such and that a period of inactivity had to be accepted as one means by which a session might be effectively terminated. They understood the system quite well.

74    The respondents’ preparation of the 15,000-page document to which I have referred also reflected what I would have to regard as a less than satisfactory attempt to provide the applicant with the facts which would be necessary to calculate her entitlement to commission. In that electronic document, the information under the heading “eventTime” was given in a form which proved to be problematic. The figures were meaningless, conveying neither the date nor the time of any betting session or activity. It was only after the applicant had closed her case and Mr Kay was being cross-examined by counsel for the applicant that some sense was introduced into these figures. Using a computer, Mr Kay demonstrated that, when these figures were “re-formatted”, they made sense, and conveyed a date and time. They did not, however, provide all the information that had been required under the court’s discovery order. It was not clear to what event the data referred. Mr Kay himself was not able to throw any light on the subject. In his evidence, he said that he had given instructions to his staff to produce logon and logout times, but he did not know whether the single time given in relation to each punter mentioned on the list was a logon time, a logout time, or something else altogether. Given the shortcomings of this document in the form discovered, I would not accept that the respondents effectively exonerated themselves from responsibility for their failure fully to comply with the court’s order by inviting the applicant or her representatives to examine, for themselves, the Betezy computer system.

75    In all the circumstances, I am disposed to accept the evidence of the applicant given in para 93 of her affidavit, as set out in para 67 above. I accept that, if a punter had undertaken no betting transaction for 60 minutes, his or her connection with the respondents’ system would time out. I would also hold that this fell within the connotation of logging out as used in cl 2(a)ii of the 2009 commission agreement.

76    In the case of telephone betting, I have referred to the way the system worked in para 6 above. Contrary to what might have been conventional expectations when the respondents’ own operators were in control of the relevant activity, there appears to have been no record kept of when each logging out occurred (or at least no such record was produced to the applicant on discovery). In her affidavit, the applicant said:

In my experience, there are virtually no phone calls in which bets are placed which last for more than 30 minutes. Approximately 99% of them will last for no more [sic] two or three minutes. It would be extraordinary for a phone call from a client wishing to place a bet to last more than 10 minutes. So, for example, in the first page of “AM 32”, on 3 September 2008 Christopher Simmons placed two bets over the telephone. The first was at 4:23 PM and second is at 6 PM. They were as a result of separate phone calls and between the two bets [sic] the Betezy software system. The staff member would have concluded the first betting session and a new betting session would have needed to have been opened at 6 pm.

In his affidavit in response to the applicant’s affidavit, the extent to which Mr Kay challenged this evidence of the applicant was as set out in para 26 (see para 68 above). In particular, there was no issue taken with the applicant’s estimate of the time occupied by the vast majority of telephone calls in which the respondents’ customers placed their bets. I accept the applicant’s evidence in these respects.

CALCULATION OF THE APPLICANT’S DAMAGES UNDER THE COMMISSION AGREEMENTS

77    Conformably with the findings and determinations I have made above, the applicant is entitled to damages (in which I include alternatively compensation under the FW Act) in respect of the respondents’ non-compliance with the commission agreements. Those damages should represent 1% of net gaming and wagering revenue calculated in accordance with my findings above in relation to the arrangements, and for the periods, mentioned in para 64. However, there are problems arising from the respondents’ failure to maintain such records as would permit precise calculations to be made.

78    The first problem is the absence of any record of when each punter’s betting session ends, either for telephone betting or for internet betting. As I have found, in the case of telephone betting there will have been a definite point at which each session ended, constituted by the respondents’ staff member logging out of the account of the punter concerned. However, if there were any records of such log-outs, they have not been produced – either on discovery or as part of the respondents’ evidence. In the case of internet betting, there will, in some (perhaps the minority of) cases, have been a definite point at which each session ended, constituted by the punter specifically logging out of the respondents’ software. Again, however, records of such log-outs have not been produced. In the other cases, there will have been no such specific log-out, but I have found that the system effectively logged out such a punter after an hour of inactivity. There are no records of net gaming and wagering revenue referable to sessions which concluded in this way; nor, I would have to say, to sessions which concluded under any even remotely similar rule of thumb. The fact is that, having made agreements for the remuneration of the applicant by reference to net gaming and wagering revenue session-by-session, the respondents did nothing to maintain any such records as would have made an actual calculation of that remuneration possible.

79    There cannot be any real doubt but that, in failing to maintain these records, the respondents were in breach of the commission agreements. That arose in two ways. First, there is cl 3(c) of the 2009 commission agreement (and the corresponding provision in the 2010 commission agreement) which I have set out in para 22 above. No statement, and no particulars, was or were ever provided as required by that provision. Indeed, so far as the evidence shows, none existed. In the case, the respondents have been unable to produce any “particulars of betting sessions”.

80    Secondly, the respondents’ failures amounted to breaches by them of the implied duty of co-operation which exists as between parties to a contract of this kind: Mackay v Dick (1881) 6 App Cas 251, 263; Butt v M’Donald (1896) 7 QLJ 68, 70-71; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596, 607. The respondents failed to do “all such things as [were] necessary on [their] part to enable [the applicant] to have the benefit of the contract”.

81    Those considerations become relevant in the following way. The onus of quantifying damages lies, of course, on the applicant. If means to do so were reasonably at her disposal, but she chose not to avail herself of those means, she would be in no position to ask the court to make approximations favourable to herself. However, the applicant has done everything she can to extract from the respondents the particulars necessary to make the required calculations, but without avail, for the reason that the particulars, in the required form, do not exist. In such a case, the court “must do its best to quantify the loss even if a degree of speculation and guess work is involved” (Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 57 ALR 167, 183), or, expressed a little differently, “it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed” (Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257, 266 [38]). Such an approach is apposite particularly “where the inadequacy of the evidence is caused by a recalcitrant or unco-operative respondent or one who has kept no adequate records of dealings”: Paramount Pictures Corporation v Hasluck (2006) 70 IPR 293, 302 [42].

82    To provide evidence of the calculations necessary to quantify her entitlements to commission, the applicant called Antony Hood, a chartered accountant and director of William Buck. He was supplied with the data which the respondents had provided to the applicant on discovery. He was instructed to answer a number of questions by reference to that data. In relation to the 2009 commission agreement, those questions included a group in which he was asked to assume that an internet betting session commenced when the first bet was placed by the punter concerned on a particular day, and ended 60 minutes later unless, within that time, a further bet was placed by that punter, in which case the session would be taken to continue until there was a period of 60 minutes since the last bet so placed. He was then asked to aggregate all of the loss amounts (ie the amounts of the bets placed) by that punter in that session and to deduct therefrom the aggregate of all the win amounts which related to those bets, disregarding any result which was zero or less. With respect to bets placed by telephone, Mr Hood was asked to aggregate all of the loss amounts incurred by a punter within a 30-minute period and to deduct therefrom the aggregate of all the win amounts which related to those bets, disregarding any result which was zero or less. He was then asked to calculate those figures per client (ie the club or organisation with which Betezy.com had its arrangement) per month. Finally, he was asked to calculate 1% of the result. This approach, in relation to internet and telephone betting, corresponds with the view I have taken as to the proper method of calculating the applicant’s entitlements under the 2009 commission agreement. Mr Hood then carried out corresponding calculations under the 2010 commission agreement.

83    The total period for which Mr Hood calculated the applicant’s entitlements was from 1 September 2008 (which was the uncontroversial starting date for such entitlements as the applicant had under the 2009 commission agreement) to 31 October 2012 (which was also accepted by both parties as the closing-off date by reference to which the applicant’s damages would be calculated).

84    To provide a factual basis for what was, in their submission, the proper approach to the calculation of the applicant’s commission, the respondents called the IT Manager of Betezy, Ritesh Aggarwal. He made his calculation by organisation-month, by which I mean he summed the value of the bets placed by all punters through a particular organisation over the course of a month, and deducted the winnings paid by the respondents in relation to those bets. The result was treated as net gaming and wagering revenue for the purposes of the two commission agreements. This method of calculation does not reflect the rulings I have made above, in which circumstances I cannot treat Mr Aggarwal’s workings as of any assistance in the determination of the applicant’s entitlements.

85    Subject to two qualifications, I accept Mr Hood’s calculations, and the assumptions on which they were based. The first qualification relates to the circumstance that Mr Hood’s calculations were based on the outer limit, as it were, of the applicant’s claim. There are several respects in which the findings I have made in these reasons would not justify the inclusion of all the sums so calculated within the applicant’s entitlements to damages. This will become clearer when I deal with particular categories of arrangement below.

86    The second qualification relates to the source, and the limitations, of the raw data with which Mr Hood dealt. As mentioned above, his calculations were based on the documents discovered by the respondents. Regrettably, in some instances those documents proved unsatisfactory as a basis for an accurate calculation of the applicant’s commission entitlements. Because of a submission made in closing on behalf of the respondents, it will be necessary to give some attention to the quality of the respondents’ discovery, and of the records which they apparently maintained.

87    On 3 May 2012, I ordered, by consent, that the respondents make discovery of documents which included, in relation to each of the 2009 commission agreement and the 2010 commission agreement, the following:

1.    A record of each transaction placed by customers with or through Betezy Sponsorship Arrangements in the period 1 October 2011 to 1 January 2012 and a computer summary record of all transactions placed by customers with or through Betezy Sponsorship Arrangements in that period.

2.    A computer summary record of all transactions placed by customers with or through Betezy Sponsorship Arrangements in the period 29 May 2009 to 18 January 2012.

On 7 June 2012, the respondents filed a list of documents ostensibly in compliance with those (and other) orders. In the view of the applicant, the list was deficient. In an affidavit affirmed on 5 December 2012, her solicitor stated, on instructions from the applicant, that the respondents kept what were described as “show reports”, in which the betting history of each punter was set out. On the application of the applicant, on 12 December 2012 I made an order in the following terms:

2.    On or by 11 January 2013, the respondents make discovery of the show reports for each bet for each client who placed a bet with or through any White Label or Betezy Sponsorship Agreement during the period 1 September 2008 to 1 November 2012 in the following form:

(a)    The documents will be discovered electronically, in Excel or CSV provided on a USB;

(b)    The documents will be in a separate document for each month;

(c)    The documents will identify:

(i)    the name of each of the clients;

(ii)    the name of the Betezy Sponsorship Agreement or White label account with or through which the transaction was placed;

(iii)    the PIN of each of the clients;

(iv)    the date and time of the transaction;

(v)    the nature and details of the transaction, such as whether it was placed on the outcome of a particular sporting event or race (identifying that race or event);

(vi)    the type of bet that was made, such as race or sports;

(vii)    whether the bet was placed over the internet or by telephone;

(viii)    where the bet was placed over the internet, when the betting session commenced and when the betting session ended;

(ix)    the amount of the bet;

(x)    the amount the client won as the result of the bet (if any); and

(xi)    the amount the client lost as the result of the bet (if any).

In the result, the respondents made discovery of their show reports, and it was these which provided the basis for the calculations which Mr Hood carried out.

88    The data provided to Mr Hood, however, proved to be deficient in a number of cases. Perhaps the most egregious instance involved the South Sydney Rabbitohs, who apparently had a white label website branded as “Bunnybet”. This organisation was listed in the schedule to each of the 2009 commission agreement and the 2010 commission agreement and its website operated for about 24 months, but the show reports indicated that no bets at all had been placed through that site. Mr Kay accepted that that was not the case. According to him, when the arrangement was terminated “the data was transferred to the [respondents’] system without having any markers to identify which website it came from”. The show reports, apparently, although accurate at the time of their creation, did not always reveal an accurate historical record because, when a punter, or group of punters, “migrated” away from the website in question, their betting history was not thereafter associated with the website through which they had originally operated. As it was explained to the court, the “tag” which made that association in the computer system was removed. Thus, in the case of Bunnybet, when the site closed all the relevant punters were “migrated” somewhere else (probably the respondents’ own site, but that is of no moment). The historical record of their betting was not thereafter, in the show reports, associated with the South Sydney Rabbitohs. But that was not the only kind of situation in which the show reports would fail to reflect betting patterns as they had actually occurred. Another was when an individual punter – and, it seems, this might typically have happened in the case of high-volume punters – migrated from the relevant white label website to the respondents’ own site, or to their “VIP” site. Then, his or her historical record would no longer, in the show reports, be associated with the website through which the relevant bets had in fact been placed.

89    In her case as advanced at trial, the applicant had two solutions to this problem. In a situation such as existed with Bunnybet, where the show reports indicated a total, or near total, absence of betting activity, she proposed a proxy method of estimating the damages she suffered by the non-payment of commissions to which she was entitled, as follows. First, using all the data that was available across all relevant arrangements, the applicant calculated an average relationship between what she ought to have been paid and the gross turnover of the respondents under those arrangements. Where commissions were calculated on a daily basis, the average relationship was 0.29%. If anything, that would be an underestimate of the applicant’s commissions calculated on an hourly (for internet betting) or half-hourly (for telephone betting) basis as I have held to be appropriate in these reasons. Secondly, using such information as was at her disposal (to which I refer further below), the applicant estimated the respondents’ turnover with respect to the organisation of concern (that is, the organisation in relation to which the respondents’ records were incomplete). And thirdly, the applicant applied the percentage derived at the first stage to the turnover estimate made at the second stage, the result being her estimate of the commission to which she would have been entitled.

90    The second solution related to situations in which it was apparent, from data available to the applicant and placed into evidence, that the show reports for a particular organisation understated what had actually been the respondents’ betting revenue from punters operating through the website in question, but where those reports nonetheless did reveal substantial turnover. Here the applicant accepted that the available data should not be jettisoned, but submitted that, where she could demonstrate an understatement of this kind, the extent of the understatement, expressed as a percentage, should be applied as an “uplift” to the commission otherwise calculated by Mr Hood, derived as it was from the show reports.

91    The respondents had two objections to the applicant’s solutions, one being of general application and the other relating to the “uplift” aspect of the exercise. To understand these objections, it is necessary to appreciate that the evidence of the respondents’ actual (ie accurate) turnover upon which the applicant relied came from records which she had herself retained from the period when she was actively working for Betezy. Those records were of two kinds. The first consisted of what were described as “affiliate reports”, being, apparently, statistical artefacts maintained by the respondents in relation to each of the organisations with which they had arrangements, for their (the respondents’) own internal purposes. They were not, it seems, subject to the “de-tagging” phenomenon to which I have referred above in relation to the show reports. The second consisted of spreadsheets given to the applicant while she was actively working for Betezy and which set out the turnover in relation to particular organisations.

92    The respondents’ general objection, in short, is that the deficiency in the state of the evidence was the applicant’s fault because, having been intimately involved in the administration of the respondents’ white label project, she of all people ought to have realised that affiliate reports existed, and contained a better historical record of the betting transactions of various punters than did the show reports. Notwithstanding that, it was submitted in closing on behalf of the respondents, the applicant chose, in December 2012, to insist on the respondents making discovery of relevant show reports. To the extent that this is to be understood as a submission that the applicant has not done enough to prove her actual damages such as would bring her within the authorities referred to in para 81 above, I would reject it. The respondents themselves were under a contractual obligation to maintain such records as were necessary to calculate the applicant’s commission. They fell well short in the discharge of that obligation. They also fell short in the discharge of the obligations which lay upon them pursuant to the discovery orders made on 3 May 2012. That it might now be suggested that there were all along, and still are, records which the respondents could and would have discovered if only they had been asked, which would have disclosed the true historical picture, is, in my estimation, remarkable. The respondents, on whom the primary obligation to maintain records lay, led no documentary evidence at all on the subject of the transactional histories of the organisations with which they had sponsorship arrangements. Their evidence-in-chief in relevant respects was limited to a commentary upon the evidence which the applicant had been able to put together, either from her own limited records or from the documents which she had been able to obtain only after securing court orders in response to the shortcomings in the respondents’ discovery. I regard this submission made on behalf of the respondents as quite unmeritorious.

93    The objection which related to the “uplift” part of the applicant’s case was at one level co-extensive with the submission with which I have just dealt. But it went further. It was said that the applicant, not being an expert, was in no position to say, as she did in her evidence, that the percentage relationship between the turnover as disclosed in the affiliate reports (or other records upon which the applicant relies) and the turnover as disclosed in the show reports was most likely consistent over all the months during which the website in question was in operation. As I understand the respondents’ point, it is said that there is no reason to assume any particular pattern of consistency in this statistical relationship, since the divergence between the two figures in any month would usually have arisen from the random circumstance that one or more, often quite high-activity, punters had migrated away from the white label site at that time.

94    I do not propose to take a categorical approach to this objection. It must be remembered that the applicant is doing the best she can to improve upon the quality of the respondents’ own records, in circumstances where the respondents have not complied with their contractual obligation to her (or, as indicated above, with their original discovery obligations). The question will be whether the court should hold it to be reasonable that the applicant should base her estimates of the true position upon the limited material which she has, without going to the additional expense of engaging further expert evidence on the subject. Whether I accept that approach should be decided on a case-by-case basis, taking into account both the length of the period with respect to which the applicant has been able to demonstrate the true position, the extent of the divergence disclosed by such evidence as there is and other relevant circumstances.

95    Subject to that rider, I consider that the applicant’s approach is a practical and realistic one, and is likely to lead to a better estimate of her damages than reliance on the raw data in the show reports as such. To estimate damages in this way in a case in which the original data is incomplete, and/or has been altered since the occurrence of the transactions to which it ostensibly relates, would be four-square within the principles to which I referred in para 81 above.

96    I turn next to the specifics of the arrangements which the respondents had with various organisations, to the extent to which those arrangements fell within the determinations which I have made above in these reasons. Those arrangements fall into five categories, as set out below.

1.    Arrangements which were set out in the schedules to both the 2009 commission agreement and the 2010 commission agreement.

97    Before 1 July 2009, the applicant’s entitlement arose under the 2009 commission agreement. On and after that date, her entitlement arose under the 2010 commission agreement. The entitlements were the same, so the total period, from the commencement of each relevant agreement until the end of each relevant agreement, or 31 October 2012, is relevant. The organisations concerned, and the websites with which they were associated, are the following:

Adelaide Football Club (Footclubbet/Crowsbet)

Brisbane Football Club (Betezy.com.au)

Essendon Football Club (Donsbet/Bombersbet)

Footscray Football Club (Doggiesbet)

Melbourne Football Club (Betezy.com.au/Deesbet)

North Melbourne Football Club (Roobet)

Port Adelaide Football Club (Teamsbet/Thepowerbet)

St Kilda Football Club (Clubbet/Saintsbet)

Canterbury Bulldogs (Betezy.com.au/Bulldogsbet)

Cronulla Sharks (Sharksbet)

Gold Coast Titans (Titansbet)

South Sydney Rabbitohs (Bunnybet)

98    Of the above organisations, there were two in respect of which the respondents had maintained no, or almost no, records of the kind that would be necessary to permit the calculation of the applicant’s commission: the Adelaide Football Club and the South Sydney Rabbitohs. I have referred to the latter above: the respondents had no data at all in the relevant show reports, and Mr Hood, accordingly, was unable to calculate any commission by reference to those reports. In the circumstances, I accept the appropriateness of estimating the applicant’s damages as 0.29% of the respondents’ turnover in respect of this organisation. The applicant had records of that turnover in respect of the months from August 2009 to July 2010, except January 2010, the monthly average of which was $173,308. I accept that this figure might be used as a basis for estimating the respondents’ total turnover for the South Sydney Rabbitohs over the 24 months during which the relevant website operated.

99    With respect to the Adelaide Football Club, the applicant had internal reports by reference to which she was able to demonstrate that, for the months March 2009 to April 2011, the show reports discovered by the respondents understated their turnover by a factor of between 95% and 100%. Indeed, for 13 of those 26 months, the understatement was 100% and, for a further nine months, the understatement was in excess of 99%. Mr Kay’s explanation for this was that, after the relevant website had been “terminated”, “the data was transferred to the [respondents’] system without having any markers to identify which website it came from”. It was no longer possible to “track from which website this data originated on the [respondents’] computer system”. While this doubtless provided a factual explanation as to the shortcomings in the respondents’ records, it goes nowhere to justifying their failure to keep the records necessary to measure the applicant’s commission. The extent of these understatements of turnover, and the length of the period over which the applicant was able to produce a more accurate record, justify the court taking the same approach for this arrangement as I have above in relation to the South Sydney Rabbitohs. The applicant’s damages should be estimated as 0.29% of turnover over the whole period during which this website operated. For the 26 months in respect of which the applicant had accurate turnover figures, the total was $3,250,397, representing an average of $125,015 per month. That average should be applied to each of the relevant months.

100    Quite different were the circumstances of the Essendon Football Club. The applicant had affiliate reports in respect of five months only for this organisation, but she had retained, and placed into evidence, a spreadsheet which she had been given in June 2011 which recorded the turnover for the “Bombersbet” site. That covered the months May 2009 to March 2011. Using the spreadsheet, the applicant was able to demonstrate that, over those months, the show reports understated the respondents’ turnover by 7.75% on average. The respondents, however, point out that actual monthly percentage relationships over this period varied from a high of 19.73% (November 2010) to a low of 0.43% in the other direction (February 2010 – an interesting figure in itself, reflecting as it does the fact that the show report had a higher figure that the spreadsheet for that month). The respondents contend (as I have explained above) that, in the absence of expert evidence, neither the applicant nor the court is in any position to extrapolate the 7.75% relationship from these 23 months to the whole of the period covered by the applicant’s claim.

101    There are three factors which lead me to resolve this issue favourably for the applicant. The first is the length of the period in respect of which the applicant has produced actual turnover data from her spreadsheet – 23 months out of a total potential period of 42 months (April 2009 – October 2012). On any view, the applicant is entitled to her uplift for those 23 months without the need for extrapolation. That they should not be broadly representative of the other 19 months is, in my estimation, an unlikely prospect. Put another way, to accept the applicant’s approach would not be to have the tail wagging the dog. The second factor is the size of the uplift: any departure of the figure of 7.75% from what might have been the true average over the full 42 months is unlikely to be the cause of significant injustice to the respondents. The third factor is a circumstance to which I have already referred in these reasons: the respondents are in effect the authors of their own problems in this area. Having failed to produce records which would demonstrate what was their true turnover in relation to this organisation, they are in no position to complain that the applicant’s attempts to do the best she can with what she has run the risk of overstating the damages which they will be obliged to pay her as a result of this case.

102    For the above reasons, I accept that, in relation to the Essendon Football Club, the estimate of the commissions to which the applicant was entitled should be as calculated by Mr Hood, but uplifted by a factor of 7.75%.

103    The next organisation in this category which requires specific mention is the St Kilda Football Club, whose website was branded “Clubbet” or “Saintsbet”. Although the site commenced (to use the applicant’s words on which she was not challenged) “in about February 2009”, the first month in respect of which the respondents’ show reports yielded any evidence of betting was October 2009. In that month, the turnover apparent from the show report understated by 85% the turnover apparent from the corresponding affiliate report which the applicant had. From this I infer that 85% of the betting volume which in fact occurred in that month had been undertaken by punters who were subsequently “migrated” away from the site, so their past transactions were no longer associated with the site in the show reports. The applicant did not have many affiliate reports for this site, but those that she did have revealed understatements of 61% (November 2009) and 58% (January 2010); in addition to which she had affiliate reports for August and September 2009, in each of which cases the understatement was, of course, 100%.

104    In the case of Saintsbet, counsel for the applicant proposed that the same approach should be taken as I have found appropriate above in the cases of Bunnybet and Crowsbet, namely, one based on 0.29% of estimated total turnover. From the five months of affiliate reports which the applicant placed into evidence, the average monthly turnover of the respondents may be seen to be $27,377. In my assessment, the approach proposed by counsel would be more realistic, and more likely to yield a commission result closer to the actual, than would be the result of any attempt to apply an “uplift” based on the difference between the show report figures and the affiliate report figures for the three months in respect of which the court has data for both. I would accept that approach, and hold that the applicant’s damages in relation to this organisation should be estimated at 0.29% of the respondents’ total turnover, taken to be $27,377 per month over the whole period of the operation of the relevant site.

105    The only other organisation in this category which requires specific mention is the Brisbane Football Club. That organisation was mentioned in the schedules to the 2009 commission agreement and the 2010 commission agreement, but did not have its own white label website in the sense I have explained. Rather, the respondents had a more conventional kind of sponsorship agreement with the organisation. It seems that one of the characteristics of that agreement (which was not in evidence) was that there would be a Betezy promotional panel or link on the organisation’s website, whence the punter would be directed to the respondents’ own website. On the applicant’s evidence, the respondents maintained records of bets placed through this mechanism, but neither those records, nor the agreement with the organisation, were or was discovered. Mr Kay accepted that “tens of thousands of dollars” had been placed in bets in this way. However, Mr Hood’s calculations did not include this organisation, and the submissions made on behalf of the applicant, while proposing that the organisation’s betting record should be included in the base from which her commissions were calculated, did not contain any actual figures or estimates in that regard. In the circumstances, I cannot take account of this organisation in my assessment of the applicant’s damages.

106    Otherwise, to the extent that organisations in this category are involved in the estimate of the applicant’s damages, I would accept the figures presented by Mr Hood, as explained above.

2.    Arrangements which were set out in the schedule to the 2009 commission agreement only.

107    The applicant’s entitlement arose under that agreement throughout, pursuant to cl 4 thereof as discussed above. The organisations concerned, and the websites with which they were associated, are the following:

VIP Clients (BestDividend)

Venue Media (Pubbet)

All Fighting Promoters (Fightbet)

Club Partners (Platinumbet)

Of this group of four, the calculations for the second (Venue Media) and the fourth (Club Partners) were done by Mr Hood on a daily basis only. There was no explanation of why that was so. It does not correspond with the rulings I have made as to the way in which the applicant’s entitlements should be calculated, but the difference would be to her disadvantage, and to the benefit of the respondents. In the circumstances, I can but hold that the figures presented by Mr Hood should be used as the basis, relevantly, of the estimate of the applicant’s damages.

3.    Arrangements which were in place as at 30 June 2009 but were not set out in the schedule to either of the agreements.

108    The applicant’s entitlement arose under the 2009 commission agreement throughout, pursuant to cl 4 thereof as discussed above. The organisations concerned were not identified, but the relevant websites are the following:

Multibet

Betclubs

Westsbet

Bowlsbet

Manlybet

Motobet

Bet247

In final submissions made on her behalf, the applicant also included websites identified as Acebet, Dialabet, Dynabet and Turfaccounts in those that commenced prior to 1 July 2009, but the primary evidence in the case shows that this was not so: each of those arrangements commenced after that date.

109    Of the websites listed above, the only one which requires specific mention is Bet247. I include it in this category only because counsel for the applicant, in a table attached to his final outline, inserted the symbol “Y” in a column headed “commenced pre 1/7/09” in relation to the site. However, the copy agreement between Betezy.com and the relevant organisation which was placed into evidence by the applicant was undated. There is no evidence of revenue having been derived by the respondents in relation to this site before October 2009. As things stand, therefore, the site should not be in this, or any, category. But, because of the written submission made on behalf of the applicant, and because no submission to the contrary was made on behalf of the respondents, I will allow for the possibility that there is, somewhere in the evidence, proof of a commencement date for the website which fell before 1 July 2009. In such an eventuality, but only then, will I include this site in the material by reference to which the applicant’s damages in respect of unpaid commission should be estimated.

110    Subject to that proviso, the website appears to fall into the same class as Bunnybet. The respondents were unable to provide any data such as would make the actual calculation of the applicant’s commission possible. The site was not included in Mr Hood’s calculations. I was invited by the applicant to use a percentage (0.29% as previously) of gross turnover as a proxy for her actual commission entitlements. I propose to proceed in that way. Some turnover figures are available: a total of $5,309,937 for the four months October 2009 – January 2010. The reason those figures are available is that they happened to be the ones set out in emails from Mr Kay to the relevant client – on 4 January 2010 in relation to October and November and on 2 February 2010 in relation to December and January. In her affidavit, the applicant said that November tended to be “a busier that [sic] usual month for punters and turnover” and that December and January tended to be “quieter months”. She estimated that the average monthly turnover for this website would have been in the range $1.2m - $1.5m. She was not challenged on that evidence. Mr Kay said that the website “was in existence for 6-12 months and generated in total approximately $4-5m”. He said that he could not “confirm or deny” that the estimates given by the applicant were accurate. But Mr Kay’s own emails demonstrated that, in four of the “6-12 months” to which he referred, the turnover was about $5.3m. I cannot, therefore, take seriously his approximation of turnover in respect of the total period. Given that they did not keep the records necessary to calculate the applicant’s commission in relevant respects, I do not see why any estimate which I must necessarily make should err, if it errs at all, in favour of the respondents. I am satisfied that I should take the midpoint of the applicant’s estimate as an indication of the likely monthly turnover which this website yielded for the respondents ($1.35m) and the midpoint of Mr Kay’s estimate of the length of the arrangement (9 months). The damages estimate should be made by applying the 0.29% factor to the product of $1.35m and 9.

111    Otherwise, to the extent that organisations in this category are involved in the estimate of the applicant’s damages, I would accept the figures presented by Mr Hood, as explained above.

4.    Arrangements which were set out in the schedule to the 2010 commission agreement only.

112    The organisations concerned, and the websites with which they were associated, are the following:

Eastern Suburbs Rugby Union (Eastsbet)

Burleigh Bears FC (Burleighbet)

Punters Paradise (Bigbets)

Southport Sharks FC (Betsharks)

Redcliffe Dolphins FC (Dolphinbet)

Newcastle Knights (Knightsbet)

113    Two of these organisations require specific consideration. The first is the Redcliffe Dolphins FC. The applicant’s unchallenged evidence was that this website commenced operation in October 2008. However, the first of any evidence of revenue as disclosed by the show reports was in March 2011. The applicant herself placed into evidence Betezy.com’s affiliate reports for the months September 2009 and November 2009 to April 2010. They showed an average monthly turnover of $22,634. In his affidavit, Mr Kay said that “this was one of the early websites and only involved a small number of clients”. When the site was terminated (an event of which there is no evidence otherwise), the data “was transferred to the respondents’ system without having any markers to identify which website it came from”. Notwithstanding that evidence, the show reports which the respondents discovered disclosed a turnover for the 16 months between July 2011 and October 2012 of $8,061 on average. The figure for July 2011 itself was $8,628. There are quite small turnover figures for each of March and June 2011, but, given the earlier and later patterns of turnover I would not accept the reality of them. The situation with which I am faced, therefore, is that the site appeared to have been generating revenue in the order of $22,000 - $23,000 per month in late 2009 and early 2010, that the site was terminated at some point, and that the respondents’ revenue from the site per month was down to about $8,000 by the second half of 2011. In these circumstances, I am not disposed to accept the invitation of counsel for the applicant to apply the higher figure to all months in respect of which there is no data. On the other hand, in the absence of any assistance from the respondents in making the necessary estimate, I consider that I must take some measures to fill in the gaps which their recording-keeping has created. The approach I intend to take is as follows. For each of the months between (and including) October 2008 and August 2009, the revenue estimate is $22,634 (based on the average from the affiliate reports to which I have referred). For each of the months where the applicant has presented affiliate report data, that data should be used. For October 2009, the average figure of $22,634 should be used. For the period between May 2010 and June 2011 (inclusive), I shall adopt a rule of thumb whereby the diminution in revenue from $30,623 (April 2010) to $8,628 (July 2011) followed a straight, descending, line. For the period from (and including) July 2011, Mr Hood’s figures should be used. The applicant’s commission should then be estimated at 0.29% of the revenue so calculated.

114    The other organisation which requires consideration is the Newcastle Knights. From her own records, the applicant had affiliate reports for this organisation in relation to the months from (and including) August 2009 to May 2010 (excepting March 2010). They demonstrated that the show reports, by reference to which Mr Hood worked, understated the respondents’ turnover by between 20.42% and 59.37%, with an average of about 49%. Mr Kay aligned the nature of the problem which existed here with that which existed in relation to the Adelaide Football Club. In the circumstances, the applicant submits that the damages calculated by Mr Hood should be doubled. The alternative, which the applicant did not suggest, would be to treat the turnover for the eight months with respect to which she had data from the affiliate reports as representative, and to apply the 0.29% factor mentioned elsewhere in these reasons. The respondents advanced no reason why the doubling proposed by the applicant should not be adopted, and it would have the advantage of reflecting whatever actual trend in show report turnover may be apparent over a period longer than those eight months. Considering the respondents’ failure to maintain actual records such as would have permitted the calculation of the applicant’s commission in relation to this organisation, I am disposed to accept the approach suggested on her behalf. The loss of commission as calculated by Mr Hood should be doubled.

5.    Arrangements in relation to which the applicant’s entitlement is established on the pleadings.

115    The organisations concerned were not identified, but the relevant websites are the following:

Betballarat

BoxHillHawksBet

Workersbet

116    There are no issues or difficulties, specific to these organisations, which need to be addressed.

117    Subject only to the qualifications and exceptions which I have set out above, the applicant’s damages for unpaid commission in respect of the organisations and websites included in those five categories should be as calculated by Mr Hood. I will direct the applicant, after consultation with the respondents, to bring in minutes of an order, or orders, to give effect to my reasons in relevant respects.

STATUTORY DIMENSION OF COMMISSION CLAIMS

118    The applicant contends that the respondents’ failure to pay commissions due to her under the 2009 commission agreement and the 2010 commission agreement gave rise to contraventions of s 323 of the FW Act. Section 323(1) provides as follows:

An employer must pay an employee amounts payable to the employee in relation to the performance of work:

(a)    in full (except as provided by section 324); and

(b)    in money by one, or a combination, of the methods referred to in subsection (2); and

(c)    at least monthly.

Contravention of this provision attracts a penalty, on the application of the employee concerned, under s 539(2) of the FW Act.

119    It was not suggested by the respondents that their failure to pay the applicant’s commission entitlements did not involve a contravention of s 323(1). It clearly was such a contravention. Pursuant to cl 3 of the 2009 commission agreement, and the corresponding provision in the 2010 commission agreement, commission ought to have been paid monthly and, as it happens, that corresponds with the least frequent basis of payment for which s 323(1) provides. Subject to any submissions I may receive from the parties, it appears that there was, therefore, a contravention of the section at the end of every month during which a commission entitlement arose. The parties did not address me on the determination of the penalty or penalties that ought to be imposed in relation to these contraventions, a practical course in the light of the then unknown way in which I would define the extent of the applicant’s entitlements, and thus the extent of the respondents’ contraventions. I shall hear further from the parties on the matter of penalty.

120    Although I have dealt with the applicant’s commission underpayment allegations under the rubric of her case in damages for breach of contract, at the point of making final orders it will be necessary to determine whether damages should be awarded as such or compensation should be ordered under s 545(2)(b) of the FW Act. The resolution of that question may have consequences for the source of the court’s power to award interest – under s 51A of the Federal Court of Australia Act 1976 (Cth) or s 547 of the FW Act. That is a subject upon which I would also expect to be addressed by the parties.

The applicant’s case in equity

121    As I have said, Mr Hood made his calculations down to 31 October 2012. For subsequent periods, the applicant seeks an order for specific performance of the respondents’ obligations to make commission payments. Such an order, the applicant proposes, would bind the respondents for so long as she had any entitlement to commission. However, the applicant recognises that the making of such an order may be problematic (for reasons which include the need for supervision), and she claims, in the alternative, equitable damages pursuant to s 38 of the Supreme Court Act, made applicable by s 79(1) of the Judiciary Act 1903 (Cth). Section 38 provides as follows:

If the Court has jurisdiction to entertain an application for an injunction or specific performance, it may award damages in addition to, or in substitution for, an injunction or specific performance.

The respondents resist specific performance for the very reason to which I parenthetically referred, namely, that compliance with any such order would require the supervision of the court: see JC Williamson Ltd v Lukey (1931) 45 CLR 282, 297-298. Counsel for the applicant accepted that this may be a valid objection to an order for specific performance as such, but submitted that s 38 was calculated to deal with just such an objection. At the general level, I would be disposed to agree with a submission along those lines: see Meagher, RP, Heydon, JD, and Leeming, MJ, Meagher, Gummow and Lehane’s Equity – Doctrines and Remedies, 4th ed, 2002, p 845. However, I consider that there is a more fundamental objection to this dimension of the applicant’s case.

122    The obligation which the respondents had under the two agreements was to pay the applicant the commission to which she became entitled by reference to the betting and wagering business which had been transacted in the relevant time period. The commission was, as it is called, a “trailing” one. The respondents’ relevant obligation was purely financial, and did not arise until the business upon which each entitlement is based had been transacted. Each failure to pay would amount to a separate breach of the relevant agreement. Relevantly to the remedies to which the applicant would then presumptively be entitled, the commission agreements would be executed, not executory, contracts. Then, but not before, the amount of the applicant’s entitlement would be known. Then, but not before, the applicant’s cause of action would be complete. And significantly – and subject to matters of proof which, I accept, may be problematic, as they have been in this case – the applicant would have a conventional action at law on the contract. The circumstances are, in my view, a long way short of any that would require the intervention of equity, whether by way of specific performance or otherwise.

123    It was submitted on behalf of the applicant that this was a case in which the court would order specific performance on a quia timet basis, such as it might make a quia timet mandatory injunction. That is no answer to the objections to which I have just referred. Once the legal questions of construction and otherwise which arise in this proceeding have been resolved, the respondents will be bound by them, and the basis for apprehending that they will not pay the applicant her commissions as and when they fall due will, I am prepared to assume, be removed. In this respect the case is akin to one in which, for instance, rent for premises is calculated by way of a formula as to which there is a dispute. The tenant may well have been in default, but, once the area of disputation is resolved by judicial determination, there is no longer any basis for apprehending that rent will not be paid according to the formula, as settled by the court. I do not understand it ever to have been proposed, in such a situation, that the landlord could, in effect, ask the court to anticipate that there would be breaches continuing into the future and to add to its determination a court order requiring the tenant to comply henceforth.

124    It was said to be established that equitable damages in respect of apprehended future loss could be granted under s 38 of the Supreme Court Act: Leeds Industrial Co-Operative Society Ltd v Slack [1924] AC 851; Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558, 570 [34]. So much may be accepted, but the principle does not do away with the need for a proper basis for the equitable remedy of specific performance in the first place. The present case stands in stark contrast to Leeds Industrial. In that case, a conventional entitlement to an injunction had been established, but, rather than enjoining the defendant from continuing with the construction of its partly-completed building which, when finished, would have interfered with the plaintiff’s ancient lights, the court (on the urgings of the defendant, I would add) awarded the plaintiff damages on the assumption that the defendant, unrestrained, would continue with its project. That the defendant would, without the intervention of equity, respect the plaintiff’s lights was, quite clearly, not a realistic prospect. In the present case, by contrast, the respondents have resisted the applicant’s claims on grounds which are quite susceptible to resolution at law and, in my view, are more appropriately so resolved. Having been resolved, that the respondents will thereafter pay the applicant in accordance with her now-clarified entitlements is the assumption which I would make.

125    Either because of the view, which, as appears from the above, I take, that the present case is not within the class of situations in which equity would, quite apart from discretionary considerations, order specific performance, or in the exercise of my discretion under s 38 – the reasons for which are sufficiently reflected in what I have said above – I am not persuaded that the applicant has made out a case for equitable damages in respect of what she claims to be the respondents’ apprehended failure to comply with the commission agreements in the period subsequent to 31 October 2012.

The applicant’s case under Div 3 of Pt 3-1 of the FW Act

126    In her Further Amended Statement of Claim, the applicant alleged that, between about mid-August and mid-October 2011, Mr Kay told her that Betezy was proposing to merge with Sportsbet Pty Ltd (“Sportsbet”), that he wanted her to continue working with him after the merger, that he would make sure that she got “a really good deal” after the merger and that, even if others were made redundant, she would be “assured of a job” after the merger. These allegations were denied, without elaboration or the provision of any alternative version of the conversations relied on by the applicant. However, in answer to other allegations made by the applicant, this time with respect to a telephone conversation said to have taken place on or about 27 October 2011 (to which I refer below), the respondents alleged that, in an earlier conversation in person, Mr Kay had told the applicant that he was “happy to put her name forward as a potential employee to Sportsbet … should Sportsbet acquire the respondents”.

127    Turning to the evidence, in her affidavit sworn on 25 March 2013, the applicant said:

From about mid – 2011 there was a proposal being negotiated that the employer merge with Sportsbet. The consequences of such a merger were discussed on a number of occasions between myself and Ryan. He explained that, after the proposed merger with Sportsbet, he wanted me to continue to work with the merged body. He said that he’d get me a job and a really good deal after the proposed merger. We discussed the prospect that employees might need to be made redundant as the result of any merger. Ryan assured me that even if others were made redundant, I would be assured of a job after the proposed merger with Sportsbet.

The applicant was not cross-examined on this evidence.

128    In his affidavit affirmed on 1 May 2013, Mr Kay did not refer to the applicant’s evidence as such, but he did refer to the corresponding allegation in the Further Amended Statement of Claim which, as noted above, had been denied. He said:

I did say to Ms Murrihy that Sportsbet were likely to do a corporate transaction with us at the time described. I simply stated that I would be happy to recommend her for a position with Sportsbet in the event that Sportsbet acquired the assets or business of the Respondents. I did not promise or undertake anything else to her as the whole possibility of Sportsbet doing a transaction with us was very much still undecided.

This evidence was tendentious at best and, in one respect, false. Mr Kay was cross-examined on it. The extent of his dissembling is best conveyed if I set out the relevant section of the transcript:

In mid-2011, you had a conversation with Ms Murrihy about the proposed merger with Sportsbet? — Yes.

At the time, it was likely there was going to be some merger with Sportsbet? — Most likely, yes.

And you had had discussions with Sportsbet as to which employees might go over? — Very basic at that stage.

You wanted Ms Murrihy to go over and commence at Sportsbet, didn’t you? — I thought it likely that she would come across, that she

You wanted her to go over and work with Sportsbet, didn’t you? — Possibly.

Well, you considered her to be – in late 2011, you considered her to be an excellent employee, didn’t you? — I wouldn’t say excellent, no.

You considered her to be one of your best performing employees, didn’t you? — No, probably not.

You told her that if the merger went ahead, you would get her a job and a good deal at Sportsbet, didn’t you? — I only said that, you know, I would do my best.

You said more than you would do your best. You promised her that she would get a job at Sportsbet? — No, later, I said that I would do my best after that promise, yes.

So you promised her that you would get her a job at Sportsbet, didn’t you? — I [may] have been a little bit loose with my words, yes.

I’m not asking whether or not you were loose with your words then — Okay, yes.

I just want to get this right. You promised her that you would get her a job with Sportsbet if that transaction went through? — I would do my best, yes.

Well, which is it? That you said you would do your best or you said you would promise? — I promised that I would do my best.

Mr Kay was then confronted with the transcript of the telephone conversation which he had had with the applicant on about 27 October 2011, and in which he said, “I promised you that I would get you a role there ….” Mr Kay then conceded that he had promised the applicant that he would get her a role at Sportsbet. In the circumstances, I have no hesitation in accepting the evidence of the applicant set out in the previous paragraph.

129    The next relevant event took place on 20 September 2011, when the applicant spoke to Mr Kay by telephone. She complained about the respondents’ failure to pay her commissions. She told him that, if she were not paid, she would get legal advice. In her affidavit, the applicant said that Mr Kay’s response was: “If you take that avenue then you will be fired”. In his affidavit affirmed on 1 May 2013, Mr Kay denied the applicant’s allegation. He said:

I reject that I made any threat at all to fire Ms Murrihy if she obtained legal advice regarding the non-payment of her commission. I simply said to her that we should work together to get the business working right so that we could pay the commissions to her and to others who are owed money. I did not threaten her in the way she describes or at all. All I said to her was that we can resolve this process ourselves or if she were to obtain legal advice then the Respondents would be required to obtain legal advice also and there would be the usual costs associated with taking such action. I deny any suggestion that I threatened her as she alleges.

130    In their submissions on this difference between the applicant and Mr Kay about the terms of their conversation of 20 September 2011, both parties relied on a transcribed recording of the telephone conversation between the two, of 27 October 2011 or thereabouts, which the applicant had, unbeknownst to Mr Kay at the time, taken. That was the second of the two conversations to which I refer at para 148 below. I shall refer later to that conversation, but, for present purposes, it is sufficient to set out the relevant part of the transcript as follows:

Ms Murrihy:    The last time I spoke to you about it ---

Mr Kay:    (indistinct)

Ms Murrihy:    ---you said to me, “If you’re going to go legal,” – I said to you, “You’re going to force me into doing something that I don’t wish to do and it’s go legal” and you said, “Well, you go down that path and you’ll get sacked,” and that’s exactly what you said to me.

Mr Kay:    I didn’t say you’d get sacked.

Ms Murrihy:    Yes, you did. Gosh, Ryan, please.

Mr Kay:    No, I didn’t.

Ms Murrihy:    You did. I’ve got witnesses.

Mr Kay:    I didn’t say you’d get sacked.

Ms Murrihy:    Yes, you did. I’ve got witnesses to say that you did.

Mr Kay:    I’ve never said those words, Amanda. I’ve never used the words, “You’ll get sacked”, in my life. I might have said something different, but I never said you’d get the sack.

Ms Murrihy:    You did, Ryan.

Mr Kay:    (indistinct) I didn’t use such words.

131    Under cross-examination, it was suggested to the applicant that, anticipating that Mr Kay would repeat the threat which he was alleged to have made on 20 September, she recorded this conversation. But the threat was not repeated: to the contrary, when the subject was broached by the applicant, Mr Kay denied that he had made any such threat. On this point, I am disposed to think that nothing said, or not said, by Mr Kay in this second conversation can make a realistic contribution to the task of determining whether he threatened to fire the applicant on 20 September: by the time of the conversation, he had received, and read, a letter from the applicant’s solicitors, in which their instructions as to the threat were set out in terms. It was said that this constituted a contravention of s 343(1) of the FW Act. Under the circumstances, Mr Kay is unlikely to have repeated any earlier threat to fire the applicant, or to have conceded that any such threat had been made.

132    The applicant was adamant that Mr Kay had used the words set out in her affidavit. Under cross-examination, she said that she had “never, ever been threatened to be fired before”, so Mr Kay’s threat was something that stuck in her mind. Within about a month, she had instructed her solicitors that Mr Kay had threatened to fire her. To my observation, her adherence to her affidavit was convincing and unhesitating.

133    I did not find Mr Kay’s denials of the applicant’s allegation at all convincing. At one point, his cross-examination by counsel for the applicant proceeded as follows:

And you had a conversation with Ms Murrihy in which she made complaints to you about the non-payment of her commissions? Yes.

And she said that she was going to – she threatened to take legal action, is that correct? Yes.

She said that she would get legal advice if she was not paid? And I said, yes

And you consider that to be a nasty attitude to take, don’t you? I thought it was something that we could resolve, as we had previously.

That’s not my question. You considered – when she said that she would get legal advice if she was not paid, you considered that to be nasty, didn’t you? I don’t consider getting legal advice nasty.

You gave evidence earlier on about what was nasty about her attitude and it was her threat of litigation? Well, I was meaning if she took litigation.

And threatening to take – to get legal advice – – –? I don’t know if – okay.

– – – was the first step in that course, wasn’t it? She just said simply that she was going to seek legal advice and I said that was fine.

It is clear that Mr Kay did not have the view that it would be “fine” if the applicant sought legal advice: the whole tenor of his remarks was that the applicant’s recourse to legal remedies, or to the legal profession, would be to the exclusion both of any informal settlement of her claims as between the parties and of any prospect of her being recommended for a continuing role in the business should Betezy be taken over by Sportsbet. To the extent that Mr Kay used the word “fine” in his discussion with the applicant, it was in the heavily ironical sense.

134    The cross-examination of Mr Kay proceeded as follows:

You said, “If you take that avenue then you’ll be fired”? No.

Those words, “if you take that avenue” – you were likely to use the word “avenue” there rather than path? No.

Is avenue the sort of word that you use in relation to legal action? No.

Fired. Are you saying that “fired” is not a word …? I never use the word “fire”.

Which word would you use instead? “Sack”? I try to be very professional in the office. I would probably use the word “dismiss” if I was going to use such a word.

Notwithstanding the second and third denials contained in this passage, “avenue” was a word which Mr Kay used in the legal context. According to the transcript of the first of the two conversations on about 27 October 2011 which he had with the applicant, he said:

If you want to work with me, great. If you don’t we leave it with the legal avenues, then I’ll leave it up to them, I don’t mind.

When Mr Kay was confronted with this inconsistency, he said: “I don’t use it regularly, no, and I think it was a slightly different context.” In the light of this unconvincing rationalisation, it is hard to take seriously Mr Kay’s statement that he tried to be “very professional in the office”, and would probably have used the word “dismiss” if he had had occasion to use such a word.

135    But the resolution of the question of whether Mr Kay threatened to fire the applicant on 20 September 2011 does not rest on the evidence of the two participants alone. While he was on the telephone to the applicant on that occasion, Mr Kay was in the Betezy office. Also present was another employee of Betezy, Greg Stewart. He worked in an open-plan office area, in which groups of four desks were divided by partitions about four feet high. While Mr Stewart was sitting at his desk, Mr Kay seated himself at one of the other desks in the group of four. Mr Stewart heard Mr Kay’s part of the conversation with the applicant. According to Mr Stewart’s evidence, Mr Kay referred to legal problems and trying to sort them out without legals. Although not purporting to recount Mr Kay’s statements in terms, Mr Stewart said that Mr Kay said “something along the lines of” –

    “If you go the legal way of things you won’t have a job here”;

    “I will make things difficult”;

    “If that is the way you want to go, then that is what will happen”.

As to the first of these statements, Mr Stewart could not remember (when he affirmed his affidavit on 13 May 2013) whether Mr Kay had said “won’t have a job here”, “will be sacked” or “will be fired”. It was, he said, something like that. Mr Stewart heard nothing in this conversation about Sportsbet, or the possibility of the applicant having a job with that organisation.

136    Mr Stewart was cross-examined, but adhered to the evidence to which I have referred. I accept that evidence.

137    It is true that Mr Stewart could not recall the actual expression used by Mr Kay when he overheard him threatening the applicant that she would not have a job if she went “the legal way of things”, but he confirmed the substance of the applicant’s version of the conversation. Counsel for the respondents sought to portray as uncertain the applicant’s recollection of the expression which Mr Kay had, in her allegation, used, namely, whether it was “fired” or “sacked”; or whether it was a benign prediction that she would not have a job under Sportsbet management if Mr Kay chose not to recommend her. Indeed, it was put to the applicant under cross-examination – and so put extensively – that it was in the third sense that Mr Kay’s words were to be understood. Apart from Mr Stewart’s inability to recall any reference to Sportsbet in the conversation (a circumstance of no real moment, since Mr Stewart was privy only to the later parts of the conversation), the problem with this aspect of the respondents’ case is that it does not correspond with Mr Kay’s own evidence in chief on the subject, which I have set out at para 129 above.

138    In the circumstances, I am satisfied that, in the conversation between Mr Kay and the applicant on 20 September 2011, Mr Kay threatened the applicant that, if she took legal advice about her unpaid remuneration and commissions, she would be fired.

139    In this compartment of her case, the applicant invokes s 340(1) of the FW Act, which provides:

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)    to prevent the exercise of a workplace right by the other person.

The “adverse action” on which the applicant relies is Mr Kay’s threat (see s 342(2)(a) of the FW Act) to dismiss her from her employment (see item 1 in the table in s 342(1) of the FW Act). On the findings set out above, there can be no doubt but that such a threat was made on 20 September 2011. Neither can there be any doubt but that the reason for the threat was that the applicant proposed to seek legal advice in relation to her entitlements. That is to say, if the applicant had a “workplace right” within the meaning of s 340, it is established that she proposed to exercise that right, and the threat to her was made because of that circumstance. What remains is to consider whether the applicant did have a relevant workplace right.

140    By s 341(1) of the FW Act –

(1)    A person has a workplace right if the person:

(a)    is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b)    is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c)    is able to make a complaint or inquiry:

(i)    to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii)    if the person is an employee—in relation to his or her employment.

The applicant relies on para (c)(ii) of this provision. She alleges that she was able to make a complaint or inquiry in relation to her employment, namely, to obtain legal advice about her rights in relation to remuneration and commission. The respondents say that s 341(1)(c)(ii) is not invoked when the employee’s “ability” to make a complaint or inquiry arises from nothing more than the absence of a prohibition upon proceeding in that way: what the section requires, they say, is a relevant provision of some kind, be it statutory, regulatory or contractual, or arising from some applicable grievance procedure, under which there is some provision for the making of a complaint or inquiry.

141    Section 341(1)(c)(ii) has two presently relevant predecessors, namely, ss 659(2)(e) and 793(1)(j) of the Workplace Relations Act 1996 (Cth). They were activated upon “the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation or laws or regulations or recourse to competent administrative authorities”, and upon the making of a complaint or inquiry “to a person or body having the capacity under an industrial law to seek … compliance with that law; or … the observance of a person’s rights under an industrial instrument”, respectively. In relation to s 659(2)(e) when it was numbered s 170CK(2)(e), Lander J (with the assent of Spender and Kenny JJ) held that a complaint by an employee to his or her employer would not be caught by the provision: Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347, 351 [25]. Read literally, s 341(1)(c)(ii) would cover the making of a complaint or inquiry to the relevant employer. On one view, that would be a wide reading of the provision, but there seems to be little doubt but that the provision was intended to mean what it says. By s 15AB(1)(a) of the Acts Interpretation Act 1901 (Cth), in the construction of a provision of an Act, recourse may be had to the relevant Explanatory Memorandum for the purpose of confirming that the meaning of the provision is the “ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act”. In the case of s 341(1)(c)(ii), the ordinary meaning is the wide one to which I have referred. The relevant Explanatory Memorandum noted the wider terms of the new provision by comparison with the previous s 659(2)(e), and observed that the new provision would “include situations where an employee makes an inquiry or complaint to his or her employer”. One of the illustrative examples, that of “Rachel”, seems apt to cover the meaning for which the applicant contends.

142    In the present case, it was not the employer to whom the applicant proposed to make a complaint or inquiry: it was her solicitor. Indeed, she had been making complaints to her employer over an extended period. It was the inefficacy of those complaints, and the applicant’s frustrations with the respondents’ failure to address them, that led to her advising Mr Kay on 20 September 2011 that she proposed to seek legal advice. The question, therefore, is whether the seeking of legal advice falls within the connotation of a complaint or inquiry within the meaning of s 341(1)(c)(ii). A significant innovation introduced by the FW Act was the imposition of an obligation upon a “national system employer” (such as each of the respondents was) to pay its employees amounts payable to them in relation to the performance of work in full at least monthly: s 323(1) of the FW Act. Thus the legislation picks up, amongst other things, entitlements arising under contracts of employment and gives statutory consequences to an employer’s failure to make good on them. In this respect, s 323(1) is a civil remedy provision. There is – and there would have been at the time of the introduction of this provision – no reason to assume that the employees for whose benefit s 323(1) was enacted would be confined to those in unionised sectors and occupations. Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.

143    Against the wide terms of s 341(1)(c)(ii), I can think of no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer, as within the range of protections provided by the provision. That such an employee should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of “adverse action” taken by the employer, would be well within the purposes of the section as they may be perceived in the legislative context to which I have referred. Further, to regard the seeking of legal advice as an “inquiry” within the meaning of para (c) is, in my view, a natural reading of the provision. I take the view, therefore, that the applicant’s proposal, conveyed to Mr Kay on 20 September 2011, that she would seek legal advice was a proposal by her to make an inquiry in relation to her employment within the meaning of s 341(1)(c)(ii) of the FW Act.

144    It follows from my reasons above that Mr Kay’s threat to fire the applicant, made on 20 September 2011, amounted to a contravention, by Betezy, of s 340(1)(a)(iii) of the FW Act. I shall hear the parties on the question of penalty.

145    In her Further Amended Statement of Claim, the applicant also alleged that, when he threatened to fire her on 20 September 2011, Mr Kay (and therefore Betezy) intended to coerce her not to exercise certain workplace rights in contravention of s 343 of the FW Act. This aspect of the claim was not, however, developed in the final submissions made on behalf of the applicant, and I take it to have been, in effect, a string in the applicant’s bow secondary to her recourse to s 340. In the circumstances, I make no findings on the subject of coercion.

146    It is necessary next to turn to the direct relevance of two telephone conversations between the applicant and Mr Kay on 27 October 2011, to which I have already referred in passing. In her Further Amended Statement of Claim, the applicant alleged that, in a telephone conversation between herself and Mr Kay held on or about 27 October 2011, Mr Kay said that he had promised that he would get the applicant a job after what was then a proposed merger involving Betezy and Sportsbet, that they (Betezy and the applicant) could work “this” out between them or “get the lawyers involved”, but if the applicant “did not want to play ball then he [Kay] would tell Sportsbet don’t worry about the applicant and that would be it”, and that, if the applicant did not want to work with him [Kay] in resolving the underpayment issue then he would not put her name forward to Sportsbet. In their Amended Defence, the respondents denied these allegations and countered with the allegation to which I have referred briefly in para 128 above, namely, that, in an earlier conversation, Mr Kay had told the applicant that he was “happy to put her name forward as a potential employee to Sportsbet … should Sportsbet acquire the respondents”. I have rejected Mr Kay’s limited version of that earlier conversation.

147    As I have also mentioned, the conversation which the applicant placed at 27 October 2011 was recorded. The recording as such and a transcription of it were placed into evidence by the applicant. Although no party drew attention to it, it is clear both from the recording and from the transcript that there were in fact two such conversations. One may have been on 27 October 2011, and it is a fair inference that the second followed shortly after the first. In the transcript of the first conversation, Mr Kay noted that the applicant had not been at work for two weeks, which would have been about right if that conversation occurred on 27 October or thereabouts (the applicant having been on sick leave since 14 October). At that time, Mr Kay appears to have known that the applicant had consulted her solicitors, since he said “if you want to get it legal, then fine, we’ll just deal with our solicitors, can deal with your solicitor, and you know I’m not going to do anything more than leave it to the legal team”; “we can work it out or I can get the legals to it”; and “… if you want to talk to legals, then I’ll just let my legals deal with your legals”. There was, however, no mention of the detailed letter of demand which had been written by the applicant’s solicitors and bore the date 25 October 2011. In the second conversation, by contrast, that letter was the subject of some comment, both by Mr Kay and by the applicant.

148    These conversations are relevant in the present case in two respects. One involves the potential of the second conversation to throw light back on the content of Mr Kay’s conversation of 20 September 2011, and I have already dealt with that. The other relates to action which was, in about late October, taken against the applicant by Betezy. I shall commence by laying out the nature of the applicant’s case in these respects, and then turn to the conversations.

149    In circumstances to which I have referred at para 21 above, the applicant’s remuneration for the week ending on 31 October 2011 was not paid. Neither has she been paid any remuneration since. Shortly before that date, the applicant’s access to Betezy’s computer system was curtailed and, on 31 October if not before, she was effectively suspended from her employment by Betezy. The applicant claims that these measures amounted to adverse action within the meaning of Div 3 of Pt 3-1 of the FW Act, and that they were taken against her because she had complained to Mr Kay about the non-payment of her commission, and because of her solicitor’s letter of 25 October 2011.

150    The respondents accept that these measures amounted to adverse action within the meaning of s 342(1) of the FW Act. Although not controversial, I would hold that they fell within at least one of paras (b) and (c) of item 1 in the table in that subsection. But the respondents resist the applicant’s claim at each of the other statutory levels involved in it. They say that she did not have, did not exercise and did not propose to exercise, a relevant workplace right within the meaning of s 341. And they say that the reason for which the measures referred to were taken was not that alleged by the applicant: rather, they say that Betezy took them because of issues with the applicant’s use of its “Cabcharge” facility which she had not adequately explained.

151    As to the first of these areas of contention, I have substantially dealt with the questions of statutory construction which arise above. The only additional comment which is necessary in the present context is that the applicant was here actually making a complaint (ie as distinct from proposing to make an inquiry) to her employer within the meaning of s 341(1)(c), thereby bringing herself within the context expressly referred to in the Explanatory Memorandum: see para 141 above. She complained to Mr Kay in the telephone conversations to which I have referred, and her solicitor’s letter constituted another complaint. Save for the reason which actuated Betezy, therefore, the applicant has made good her allegation under s 340 of the FW Act.

152    With regard to Betezy’s reason, the applicant relies on ss 360 and 361(1) of the FW Act, which provide as follows:

360    Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

361    Reason for action to be presumed unless proved otherwise

(1)    If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

Because of the terms of s 360, the “otherwise” to which s 361(1) refers cannot be a state of facts that would admit of the relevant proscribed reason being one of the reasons for which the action challenged was taken.

153    On the Cabcharge question, Mr Kay gave evidence-in-chief as follows (and here I set out in full the evidence to which I briefly referred at para 21 above):

[In the course of conducting an investigation] it became apparent that [the applicant] was often using cab charges and they appeared to be picking her up very late in the evening or in the early hours of the morning to take her to various locations. The behaviour started to cause problems in numerous ways with sales staff working in the Melbourne office and it also reflected the fact that she had a significant drinking issue at the time and was coming home late according to the cab charge information I had obtained. I came to the view that she was abusing the cab charges and was using them for other purposes rather than work.

It was for this reason that I emailed and spoke to her in late October 2011 and asked her to explain the use of the cab charges which I had obtained and provided to her. She never responded to either my verbal or email request to provide this information…. She eventually stopped coming to work on or about 28 October 2011 because of stress. I did not take any further steps in respect of her employment and she effectively never returned to work. I did not take legal advice about how to deal with the situation and simply left it on the basis that she was suspended without pay.

Under cross-examination, it became clear that the first time that Mr Kay (or anyone on behalf of Betezy) had sent an email to the applicant about Cabcharge was on 4 November 2011. Likewise, when it was put to him that the first time that any kind of allegation of misuse of the Cabcharge facility was raised with the applicant was during the telephone conversation on 27 October 2011, Mr Kay responded: “It’s possible. It was around that time, that’s right”.

154    In the first of the two telephone conversations to which I have referred on about 27 October 2011, Mr Kay had called the applicant, and opened by saying that there were “a few things we’ve got to chat about”. According to the transcript, the conversation continued as follows:

Mr Kay:    …One is we got our Cabcharge invoice come through. Do you realise that the Cabcharge was $1621 for last billing day period?

Ms Murrihy:    Well, probably because I’m not the only one that uses it. The agents use it when they ---

Mr Kay:    Okay, who else?

Ms Murrihy:    Pardon?

Mr Kay:    Who else used it?

Ms Murrihy:    Well, whatever agents. Rob has used it to go to places, just if there’s any functions on.

Mr Kay:    There’s Cabcharges there at 2.30 in the morning, 3.30 in the morning on a Sunday.

Ms Murrihy:    Well, I don’t know. I can’t explain.

Mr Kay:    All right, no worries.

The conversation then turned to the matter of the applicant’s complaint as to the non-payment of her commissions and other remuneration, and her intention to seek legal advice.

155    After that, the applicant (who, it will be recalled, was on sick leave at the time) asked why her computer access had been taken away. At this point, the conversation proceeded as follows:

Mr Kay:    I’ve only taken some access of [sic] you, I haven’t taken all the access off.

Ms Murrihy:    You’ve taken pretty much everything off me, Ryan.

Mr Kay:    Taken some off you, well at the moment, Amanda, there’s a massive investigation into your, you know, misuse of company funds with Cabcharge. If they’re all legitimate, there’s no worries in the world mate. Basically, we can talk about that.

Ms Murrihy:    Okay then, fine.

Mr Kay:    But there is a big issue here.

Ms Murrihy:    So because of the Cabcharge, Ryan, so you’re trying to tell me because of the Cabcharge you’ve taken my access away – my full access away.

Mr Kay:    I have taken everyone across the company. You’ll notice the contacts have been locked down. The whole company is ---

Ms Murrihy:    No, I’m talking about – Ryan, I’m not an idiot so please don’t talk to me like an idiot. I’m talking about ---

Mr Kay:    If you talk to any staff member and you’ll see that their access has been taken off – even myself (indistinct)

Ms Murrihy:    I know that’s not true, Ryan. I know that’s not true, so please don’t sit there and lie to me, okay.

Mr Kay:    I’m not lying to you.

Ms Murrihy:    You are lying to me. You’ve taken away all my access to reports, all my access to everything.

Mr Kay:    (indistinct)

Ms Murrihy:    You’ve given me the basic – you’ve given me the basic as in, like, call centre staff.

Mr Kay:    You tell me which ones you need and I can give them to you, that’s not a problem, but there is still a massive investigation into misuse of company funds. We need to – we need to get that done.

Ms Murrihy:    Okay, well, you take that avenue, okay.

156    The second of these telephone conversations between the applicant and Mr Kay was concerned substantially with the applicant’s decision to engage solicitors, whose letter of 25 October 2011 had by then been received by Mr Kay, and with Betezy’s withdrawal of the applicant’s access to its computer system. It is clear that this conversation, if not on 27 October as such, took place before 4 November 2011, since (as appears from the extract below) Betezy’s letter of that date was then only a matter of intention on Mr Kay’s part. What is also quite clear is that Mr Kay regarded the applicant as having crossed the Rubicon when she procured her solicitors to write their letter. At a point in the conversation where the transcript is incomplete, but where I would infer Mr Kay had made a reference to the Cabcharge issue, the applicant said that she had never done anything illegal within the company. The conversation continued:

Ms Murrihy:    I’ve probably been your best staff member. I’ve caught so many people out doing the wrong thing.

Mr Kay:    I know. You have been, I’m happy to acknowledge you probably have been one of our best staff members, I’m happy to acknowledge that, but that’s why I don’t understand why you want to rip it all up now and anyway ---

Ms Murrihy:    It’s not the fact that I want to rip it all up, Ryan, I’m just wanting the money that’s owed to me.

Mr Kay:    I understand and I’ve told you I’ll come down and sort it out with you, but I’m not going to sort it out with you if you’re going to go legal I’ll get our legals look [sic] after it.

Ultimately, the applicant told Mr Kay that she was happy to speak to him “one on one”, but that she was “still proceeding”. The conversation continued:

Mr Kay:    All right, no worries, it’s your choice, and I’ll send you through the Cabcharge and you can write out for me all the different uses for the Cabcharge I’d appreciate it mate.

Ms Murrihy:    No, no, I definitely will. Ryan, I’ve never ever done anything illegal and ---

Mr Kay:    its still misuse of company funds 3am in the morning on a Sunday. You can’t tell me that was yours (indistinct)

Ms Murrihy:    Well, I’m happy to go through it.

157    The position with the Cabcharge matter was, therefore, that Mr Kay proposed to write the applicant a letter setting out the particulars of the occasions, and times, on and at which she had seemingly misused the card. That letter was sent on 4 November 2011. The allegations made by Mr Kay related to events in the past, and it would not be credible to suggest that they provided any justification for holding the applicant out of the performance of her duties pending the completion of any such inquiry as Betezy might have had in mind conducting (that is, even if she had not been on sick leave). Before even writing the letter (much less receiving the applicant’s response to it), Betezy withheld her pay due on 31 October 2011. In these circumstances, and taking into account both the findings I have made against Mr Kay with respect to the telephone conversation of 20 September and the tenor of the two October conversations to which I have referred, any finding that the applicant’s complaints to Betezy about her underpayments and her having had recourse to legal means of redress were no part of Betezy’s reasons for discontinuing her access to its computer system and for suspending her from her employment (by withholding payments of remuneration) would be, in my view, a most improbable one.

158    Indeed, I find that those circumstances were a reason why Betezy took those steps. It is not necessary for me to go that far, of course, since Betezy has the onus of proof under s 360 of the FW Act. To that extent, I am not satisfied that the reasons for which this adverse action was taken against the applicant by Betezy did not include the proscribed reasons on which the applicant relies, namely, her having made a complaint in relation to her employment, both to Betezy itself and to her solicitors. I would hold that Betezy contravened s 340(1) of the FW Act in these respects. I shall hear from the parties on the question of penalties.

159    The applicant sought compensation for this adverse action pursuant to s 545(2)(b) of the FW Act. She calculated her claim by reference to the remuneration which she would have received (ie if not suspended from her employment) down to 10 June 2013, including a component reflecting a 9% employer superannuation contribution, at $175,235. The only demur which the respondents ventured in relation to this was based upon the fact, which emerged during the trial, that the applicant had been in receipt of workers’ compensation payments for a considerable part of the period concerned. After I had reserved, the parties forwarded a memorandum recording their agreement that the compensation to which the applicant was entitled should be quantified at $37,557.35.

160    There are two further comments which I need to make with respect to the applicant’s allegations about the telephone conversation(s) on or about 27 October 2011. The first is that, as laid out in her Further Amended Statement of Claim, those allegations included the proposition that, in presenting the applicant with the alternative course of pursuing her legal remedies, Mr Kay was, on behalf of Betezy, threatening to dismiss her in contravention of s 340 of the FW Act. That allegation was not developed in the final submissions made on behalf of the applicant, and I say nothing further, and make no findings, on the subject. The second comment is to note that these same statements by Mr Kay were alleged to constitute action taken with the intent to coerce the applicant not to exercise workplace rights in contravention of s 343 of the FW Act. That allegation too was the subject of no elaboration in the applicant’s submissions, from which I presume that, relevantly, she would be content with findings based on the steps actually taken against her at about that time, which have been the focus of my reasons above. I say nothing further on the subject of coercion.

UNDERPAYMENT OF SALARY

161    In her Further Amended Statement of Claim, the applicant alleged that, by an oral variation of her then contract of employment with Betezy.com, from December 2008 she was entitled to receive $2000 per week after tax by way of ordinary remuneration. This allegation was resisted by the respondents until quite late in the piece, but, during final submissions, counsel for the respondents indicated that their clients had been pressing the applicant to accept various alternative bases for the settlement of the claim. Ultimately, after I had reserved, I was informed by the parties that the claim had been settled. I do not understand the settlement to have removed the basis for the applicant’s claims that the underpayments in question – to the extent that there were any – constituted contraventions of s 323 of the FW Act. The difficulty is that the applicant was paid her remuneration in what were on any view unusual ways. Because of the settlement, it is necessary to say no more than that, although it may be accepted that there were underpayments, the occasion for each presumptive contravention of s 323 was not readily apparent from the material with which the court was presented. For example, written submissions filed on behalf of the applicant demonstrated with precision what was said to be a total underpayment of $786 in respect to the period from 15 December 2008 to 20 May 2010. However, the evidence was not presented in a way that would justify the conclusion that there was an underpayment at the end of every pay week over that period.

162    In these circumstances, I think the appropriate course is to permit the parties to address me further on the consequences under s 323 of the result of the case in relation to the applicant’s salary underpayment allegations. At the same time, I would expect to be addressed on the applicant’s claim for penalties and interest.

BONUSES

163    Under the terms of her contract of employment with Betezy, the applicant was to be paid a bonus of 5% of the first deposit made by a client introduced by agents working under her control. The bonuses were to be paid on a monthly basis. In her Further Amended Statement of Claim, the applicant alleged that bonuses fell due between 1 January 2011 and 18 January 2012, but were not paid. The applicant’s evidence (based on the respondents’ discovery) demonstrated that, in each of the months between (and including) January and November 2011, excluding June, at least one such first deposit was made. At the end of each such month, the 5% bonus should have been paid. It is common ground that no bonus was paid at the time (or at any time thereabouts). There was, in the circumstances, a contravention by Betezy of s 323 of the FW Act in respect of each such month. I shall hear from the parties on the question of penalty. The amount claimed by the applicant has now (ie very recently) been paid, as a result of which I do not understand the applicant to seek the making of a compensatory order.

SUPERANNUATION

164    Under her contract of employment with each of the respondents, the applicant was entitled to have superannuation contributions made to a fund of her choice “in accordance with applicable legislation”. Each contract specified that the current rate was “9% of your gross salary”. It was submitted on behalf of the applicant that the applicable legislation – the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth) – required, for the avoidance of the superannuation guarantee charge, that the respondents make regular superannuation contributions at the level of 9% of “total salary or wages paid by the employer”. The respondents did not resist these submissions. Neither, as I understand the position, do they resist the making of the necessary contributions once the appropriate base for calculation had been established by the decision in this case. In final submissions made on her behalf, the applicant said that the only outstanding superannuation dispute was that which depended on the quantification of her commission entitlements. Once that has been done, it will be necessary, absent the agreement of the parties to some other course, to frame an order in terms appropriate to require the respondents to make the contributions to a fund of the applicant’s nomination.

PAYSLIPS AND RECORD KEEPING

165    Finally, the applicant alleged that the respondents had failed to provide her with pay slips in contravention of s 536 of the FW Act and failed to make employee records available for inspection by the applicant as required by reg 3.43 of the Fair Work Regulations 2009 (Cth). The respondents accept that there were contraventions as so alleged, and that the court should hear from the parties on the matter of penalties. I shall proceed in accordance with that indication.

DISPOSITION OF THE PROCEEDING

166    For the reasons given above, the only orders I propose to make are to fix a date to receive the parties’ submissions as to the orders necessary to give final, and categorical, effect to my rulings and determinations, to require the exchange of submissions in that regard, and to require the parties to consult on the subject of the quantification of the damages or statutory compensation to which the applicant is now, as a result of those rulings and determinations, entitled in respect of the respondents’ failure to comply with the commission agreements.

Associate:

Dated:    10 September 2013