Aponso v Sea Corporation Pty Ltd
[2018] FCCA 339
•5 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APONSO v SEA CORPORATION PTY LTD & ORS | [2019] FCCA 339 |
| Catchwords: DURESS – Authorities examined – conduct amounting to. CONTRACT – Effect in law of affixing a person’s signature to a document. |
| Legislation: Federal Circuit Rules 2001 (Cth), r.13.10 |
| Cases cited: AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 Universe Tankships Inc of Monrovia v International Transport Workers' Federation [1983] 1 AC 366 J.W. Carter’s Contract Law in Australia (Butterworths, 6th ed, 2012) |
| Applicant: | WICKRAMASURIYA MAHAMALIMAGE PRASANNA APONSO |
| First Respondent: | SEA CORPORATION PTY LTD (ACN 077 682 681) |
| Second Respondent: | SAM THOMPSON |
| Third Respondent: | TONY GESMUNDO |
| File number: | PEG 154 of 2017 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 5 February 2018 |
| Date of last submission: | 5 February 2018 |
| Delivered at: | Perth |
| Delivered on: | 5 February 2018 |
REPRESENTATION
| Solicitors for the applicant: | MKI Lawyers |
| Solicitors for the first, second and third respondents: | HWL Ebsworth Lawyers |
ORDERS
The application filed 20 March 2017 be dismissed pursuant to r.13.10 of the Federal Circuit Court Rules 2001.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 154 of 2017
| WICKRAMASURIYA MAHAMALIMAGE PRASANNA APONSO |
Applicant
And
| SEA CORPORATION PTY LTD (ACN 077 682 681) |
First Respondent
| SAM THOMPSON |
Second Respondent
| TONY GESMUNDO |
Third Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
Introduction
Pursuant to orders made on 2 June 2017, the respondent’s application for orders under r.13.10 of the Federal Circuit Rules 2001
(“the rules”) was fixed for hearing before me today on
5 February 2018.
Both parties filed material in relation to their respective positions, the respondents in support of their application for summary dismissal of this proceeding and the applicant in opposition to the respondent's motion.
In this proceeding the applicant sought relief arising out of termination of the applicant’s employment with Sea Corporation Pty Ltd (“Seacorp”). The applicant alleged that he was forced to sign a deed of settlement upon resigning on 2 December 2016. The applicant said he executed the deed under duress. The deed made extensive provisions that required various payments to be made in return for which the applicant released Seacorp from such liability as was described in the deed. In cl.3.5, the deed provided that the release could be set up against any action, suit or proceeding taken by the applicant in respect of the applicant’s employment, the contract of employment or the termination thereof.
The deed was made on 2 December 2016.
The applicant commenced this proceeding on 20 March 2017 when he filed the application to commence this case. Seacorp has put in issue that it was not competent for the applicant to bring this proceeding in the first place having regard to the release of liability for which the deed provided. In response, the applicant contended that the deed was entered into in circumstances of duress and therefore the release that was stipulated in it was said to have been of no effect.
Seacorp resisted the claims in this case on the basis that, by virtue of the deed’s provisions, none of the applicant’s claims are maintainable. Conversely, the applicant argued that the deed was entered into under duress with the consequence that the deed was of no force and effect with the consequence that the applicant can pursue his claims in this case.
Synopsis
For the reasons that follow, in my judgment the evidence in this case did not establish that the deed was executed in circumstances of duress. In my view, the deed was regular, validly entered into and effective according to its terms, such that it had the legal consequence of releasing Seacorp from any liability associated with the applicant's contract or the termination of his employment. It follows that it is not competent for the applicant to maintain this proceeding.
A short factual recital
Certain aspects of this litigation were non-controversial. Let me endeavour to recite the more important of them.
In 2008, the applicant arrived in Australia as a migrant from Sri Lanka. Seacorp engaged the applicant in or about August 2009. The applicant subsequently became a citizen of the Commonwealth of Australia. The applicant affirmed an affidavit made 30 November 2017 in which he set out the facts relevant to this application. Relevantly paraphrased the applicant stated –
a)
he received a telephone call on 29 November 2016 from
Sam Thompson of Seacorp telling him that Seacorp proposed relocating to Albany, suggesting that the applicant may wish to move to Albany effective forthwith;
b)the applicant told Mr Thompson the applicant and the applicant's family were settled in Port Hedland and he wanted to stay there;
c)the applicant required accreditation as a grain surveyor in order to perform the tasks Seacorp wanted him to perform in Albany and that the applicant told Mr Thompson that he, the applicant, did not possess that qualification;
d)the applicant entertained personal misgivings about moving to Albany because, among other reasons, the applicant had known of another Seacorp employee in respect of whom, upon refusing to go to the place requested, Seacorp construed that as the employee’s resignation;
e)after discussing the proposed move with his family, the applicant telephoned Mr Thompson begging – the applicant's words – that Seacorp not require the applicant to move to Albany;
f)on 1 December 2016 Mr Thompson telephoned the applicant stating on behalf of Seacorp that the applicant could resign, or if he did not, then Seacorp would terminate the applicant's contract;
g)
during the 1 December 2016 telephone conversation,
Mr Thompson told the applicant that the applicant had passed confidential information owned by Seacorp to a third party to “steal Sea Corporation business”;[1]
[1] Affidavit of Wickramasuriya Mahamalimage Prasanna Aponso affirmed on 30 November 2017 at [21].
h)
during the 1 December 2016 telephone conversation,
Mr Thompson said that the applicant had taken a month’s salary as an improper benefit from the people the applicant introduced to Seacorp;
i)
during the 1 December 2016 telephone conversation,
Mr Thompson alleged the applicant had sent important documents to Fortescue Mining Group, Seacorp’s main customer;
j)the applicant denied Mr Thompson was accurate in respect of the allegations in the 1 December 2016 telephone conversation;
k)
during the 1 December 2016 telephone conversation,
Mr Thompson told the applicant that if the applicant resigned, Seacorp would pay the applicant five weeks pay and other entitlements amounting to about $20,000.00 as well as providing the applicant with a good reference; and
l)Mr Thompson said further that if the applicant did not resign, Seacorp would terminate his employment and the applicant would not be paid any more nor work in Australia.
The applicant said he decided to resign.
The events on 2 December 2016 call for close analysis.
According to the applicant, at around 8.00 a.m. on 2 December 2016 Mr Thompson telephoned the applicant and told the applicant the applicant must resign before 9.00 a.m. that day. The applicant said that he went home and wrote his letter of resignation. In fact, he sent
Mr Thompson an email at 9.12 a.m. on 2 December 2016. The email was very friendly, polite and conversational. It did not bear the hallmarks of a critical item of correspondence written in straitened financial or emotional circumstances. To my way of thinking, the email revealed a calm, measured, considered approach to its formulation and content. The email did not reveal any indicators that it was written by the applicant in a state of mind that was anything other than as it read. In other words, the email bore no signs of the writer's will having been overborne. To the contrary, it showed an appreciative employee recording his gratitude for a period of agreeable service. It is useful to record it in precise terms. It stated (errors in the original) –
Dear Sam.
Please be advised that I will give my resignations.
Please consider this e mail is my resignations from today
(dated 02/12/2016).
In finally I would like to thanks (Myself, My wife & 4 kids) to Seacorp giving me a job for a period of 7/8 years & with basis (Seacorp salary) I archive lot of things & feed my family during that time.
Please kindly confirm safe receipt.
Many Thanks and Kind Regards
W.M. Prasanna Aponso[2]
[2]At 9.42 a.m. that day, Mr Thompson sent an email to the applicant stating that the applicant's resignation was received and accepted. Mr Thompson said in that email that Seacorp’s legal team was preparing a deed of release that would outline the agreed parting terms.
At 1.00 p.m. on 2 December 2016 or thereabouts Mr Thompson sent the applicant by email the deed of release and settlement with a request that the applicant sign the deed witnessed by an adult. Mr Thompson suggested that the applicant return the executed deed by 3.00 p.m. that day to enable Seacorp to arrange payment.
The applicant said in paragraph 48 of his affidavit that he did not understand the deed of settlement so he telephoned Mr Thompson.
In that same paragraph of his affidavit, the applicant purported to record on a who-said-what-to-whom basis precisely what was exchanged between Mr Thompson and the applicant. Two things must be said about that purported narrative of the conversation between the two. First, where twice appearing, the references to what was allegedly clear to the applicant was objectionable on an evidentiary basis.
The person to whom anything said had to be clear was me as the judge not the applicant. Second, to the extent that the applicant stated that
Mr Thompson told the applicant that Seacorp could only pay the applicant if the applicant signed the deed, that accorded with common, ordinary commercial practice.
The applicant said he ended the call with Mr Thompson, then printed the deed, signed it and returned it. In accordance with Mr Thompson’s request, the applicant executed the deed in front of a witness who signed the deed as having witnessed it. The witness’s name read
“Indira Aponso”. That witness did not give evidence in this case.
That witness could have given evidence about any conversation the applicant may have had with the witness immediately prior to the applicant's execution of the deed if such a conversation took place at all. As a matter of common human experience, it seemed to me that if the applicant was truly upset about Seacorp requiring him to enter into the deed as a condition to his receiving any money, then the applicant would, on the balance of probabilities, have said something to that effect to the witness before whom the applicant signed the deed.
The applicant said nothing in his affidavit about the involvement of the witness.
Most significantly, the applicant asserted in his affidavit that he did not understand the deed prior its execution. He said he did not know the deed contained a release. He said he told Mr Thompson he had not signed a deed of settlement prior to 2 December 2016, and that he, the applicant, did not understand it. I have carefully considered that assertion. The applicant stated that at or about the time when he executed the deed “[t]here was a lot of stress in [his] head”[3] and that he was thinking about how he could feed his family.
[3] Affidavit of Wickramasuriya Mahamalimage Prasanna Aponso affirmed on 30 November 2017 at [50].
It was plain that the applicant was attempting to convey,
by paragraph 48 of his affidavit, that he did not understand the contents of the deed, possibly on account of the stress that he felt at the time and that the applicant told Mr Thompson at least once on that day, that he, the applicant, did not understand the deed.
One of the issues in this case involved an assessment of whether the applicant was to be believed when he said he told Mr Thompson that he, the applicant, did not understand the deed of settlement.
The applicant signed the deed and sent it to Mr Thompson. Payment was then made.
The applicant said about an hour later he received a telephone call from his brother. During that call the applicant's brother told the applicant that Mr Thompson had said to the applicant's brother that the applicant and the applicant’s brother were attempting to pass on secret information belonging to Seacorp to third parties.
Mr Thompson swore an affidavit on 31 August 2017 in relation to this case. At all relevant times he was Seacorp's executive director. He said that in late October 2017 he met with a person, whose name
Mr Thompson did not give, who gave Mr Thompson information to the effect that the applicant in this case, along with three others, were planning to disrupt Seacorp’s business and to set up their own business with a view to contracting with Fortescue in place of Seacorp.
Mr Thompson said in his affidavit that if the applicant and the three others mentioned left Seacorp it would cause significant disruption to Seacorp. Mr Thompson said the unidentified informant also told him that the applicant and the other three persons intended to inform the Australian Taxation Office about certain irregular cash transactions.
Mr Thompson said in his affidavit that he subsequently investigated the information given by the unidentified informant, particularly about the applicant being the ringleader and about the four persons about whom the unidentified informant spoke.
Mr Thompson swore in his affidavit that he investigated information involving the applicant in relation to the way prospective employees were interviewed and tested on aspects of maritime surveying.
Mr Thompson swore that the information in his possession revealed that the applicant earmarked a prospective employee, then gave that person answers to the maritime surveying examination and once that prospective employee was hired by Seacorp, the applicant would be paid a month's salary inferentially by the newly-hired employee.
Mr Thompson said he took the view that the applicant had the capacity to inflict real disruption – his words – on Seacorp. Consequently,
Mr Thompson said he discussed with the applicant relocating him to Albany or Esperance. Mr Thompson swore that the applicant initially rejected the proposal for his relocation.
Mr Thompson said that on 1 December 2016 he telephoned the applicant and put to the applicant the allegations of the applicant’s misconduct referred to above. The applicant also referred to the fact that Mr Thompson put those allegations to him on 1 December 2016. According to Mr Thompson, the applicant denied the allegations.
That accorded with the applicant's version of the same event.
Mr Thompson said he then gave the applicant an opportunity to resign, a proposal of real value according to Mr Thompson. The version of events given by Mr Thompson about the applicant’s email thanking him for his years of employment with Seacorp was very similar to the applicant’s own version.
So far as the events of 2 December 2016 were concerned,
Mr Thompson's version was in fact different to the applicant’s.
Mr Thompson said he spoke to the applicant at about 3.00 p.m., following which the applicant sent an email with a signed version of the deed.
Critically, Mr Thompson said nothing in his affidavit about the applicant telling Mr Thompson that the applicant was unable to understand the provisions of the deed.
Against that factual backdrop, it is now necessary to make some observations of the state of the evidence before addressing matters of law.
First, it was uncontroversial that the applicant arrived in Australia having been born in Sri Lanka and that he commenced employment with Seacorp in August 2009 or thereabouts. Second, while the applicant asserted that English was his second language, there was no evidence that indicated that the applicant's command of the English language was anything but proficient. Next, the applicant's legal representative described the applicant as “vulnerable”,[4] yet there was no evidence that the applicant was under a special disadvantage as that phrase was interpreted in cases commencing with Blomley v Ryan[5] or Commercial Bank of Australia Ltd v Amadio.[6]
[4] Applicant’s submissions in opposition to application to dismiss under rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) filed on 30 November 2017 at [6].
[5] (1956) 99 CLR 362.
[6] (1983) 151 CLR 447.
Next, not only was there no evidence that the applicant suffered from any special disadvantage on account of his lack of education, but there was no evidence that Seacorp knew of any such special disadvantage or that it unconscientiously exploited that state of affairs.
Next, so far as the burden of proof in this case was concerned, it fell to the applicant to establish the existence of misrepresentation, mistake or duress as being an inducement to the entry into the settlement deed and once the applicant did that, the onus shifted to Seacorp to show that those matters contributed nothing to the decision by the applicant to enter into the deed of settlement. So much flowed from the decision of the Court of Appeal of the Supreme Court of New South Wales in Crescendo Management Pty Ltd v Westpac Banking Corporation,[7]
a decision that has stood for 30 years unimpeached.[7] (1988) 19 NSWLR 40 at [46].
Next, the unconverted evidence revealed that the applicant was unwilling to relocate to Albany or elsewhere including Esperance. As a result, the applicant was willing to enter into an arrangement pursuant to which the employment contract with Seacorp came to an end so long as an appropriate rate of compensation was agreed. Put differently,
the evidence did not reveal that at any stage did the applicant protest about leaving Seacorp, nor did he threaten Seacorp with unfair dismissal. To the contrary, once Mr Thompson canvassed the option of the applicant's resignation with him, the applicant freely assented and recorded his willingness to resign in a friendly, open and polite
email sent by the applicant to Mr Thompson at 9.12 a.m. on
2 December 2016. To my mind, that email revealed that the applicant freely gave his assent to the idea of his resignation from Seacorp and it also revealed the applicant's gratitude for the years he had spent at Seacorp.Next, when Seacorp provided the applicant with the draft deed,
the applicant was not resistant to its receipt. In fact under its terms,
the applicant stood to receive a considerable payment. At the time,
he was keen to provide for his family. The deed achieved that. At the time, the applicant was unwilling to relocate to Albany as Seacorp had required. The applicant had resigned and the deed was the formal record of the terms under which the applicant’s and Seacorp’s work relationship came to an end. There was no evidence that the applicant protested upon being provided with the settlement deed. Had he been concerned in any shape or form about Seacorp’s request for him to enter into the deed of settlement, the applicant could have, but failed to, call for Seacorp to give him a very short opportunity to seek legal advice. He did not do that.
Next, the applicant said he did not understand the content of the deed. If anything, that was his subjective state of mind and if it was, he did not voice it. He gave Mr Thompson no reason at all to believe that he was unable to comprehend the deed. He did not say so in terms. While the applicant's subjective state of mind may have been such that he did not understand the tiny detail of the deed and the applicant's evidence on this matter was extremely brief, the applicant did not descend into the detail to explain which portions of the deed he did not understand or why. For example, the applicant gave no evidence about his ability to read and write in the English language, nor the extent to which he may have obtained help in the past to deal with documentation that was technical or legal in nature.
Next, the applicant’s evidence was to the effect that he executed the deed in front of Indira Aponso. That person did not give evidence, especially on the subject of the applicant's hesitation, if there was any, to execute the deed.
Next, when returning the deed after signing it, the applicant did not state to Mr Thompson that he signed the deed under protest or that he signed the deed despite not understanding aspects of it. The applicant merely returned the signed deed. He later complained about entering into it.
Let me now record my factual findings in this case as a precursor to the application of legal principles.
In my judgment –
a)the applicant freely and willingly entered into the settlement deed;
b)if he suffered from any limitations on his ability to comprehend the deed, he did not bring that to the attention to Mr Thompson, and I reject the applicant’s assertions that he did not understand the contents of the deed;
c)the applicant knew full well prior to his execution of the deed that he was signing it having resigned from Seacorp and that he would be paid a sum of money upon his resigning;
d)the applicant gave no detail about any comprehension difficulties he said he had in respect of the deed and I was left with an unparticularised assertion that the applicant did not understand the deed, but the precise way he did not understand it he did not say; and
e)it was an undisputed fact that payment under the deed was made.
Application of legal principles
Seacorp's solicitor filed written submissions dated 31 August 2017.
In those submissions, Seacorp relied on r.13.10(a) of the rules as the basis for its motion for summary dismissal of the applicant's claim. That rule empowers a judge in my shoes to dismiss a claim where the applicant has no reasonable prospects of successfully prosecuting his or her claim. In the High Court decision of Spencer v Commonwealth of Australia[8] (“Spencer”), it was held that a court's power of summary dismissal should not be exercised lightly. A similar holding emerged from the decision of the Full Court of the Federal Court in AMF15 v Minister for Immigration and Border Protection.[9] In Spencer, the High Court held that a proceeding need not be “hopeless” or “bound to fail” for it to have no reasonable prospects of success but the majority declined to judicially construe precisely what was envisaged by the phase “no reasonable prospects”. That was mainly because the majority chose not to confine the definition to previously decided cases, preferring instead to hold that the phrase was to proceed in like manner as had the phrase “just and equitable” been decided by reference to content.
[8] (2010) 241 CLR 118.
[9] [2016] FCAFC 68.
In this case, the starting point is the recognition that the applicant affixed his signature to the deed in the context of a commercial as opposed to a social or domestic arrangement. In the absence of fraud or misrepresentation, the party signing the deed was bound by its terms and it was wholly immaterial whether the person signing the document had read the document. That statement of principle emerged from the judgment of Scrutton LJ in L’Estrange v F Graucob Ltd[10] (“L’Estrange”) and the statement of principle was affirmed by the High Court of Australia in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[11] (“Toll”).
[10] [1934] 2 KB 394, 403.
[11] (2004) 219 CLR 165.
In Toll, the High Court delved into the rationale of the theory and significance in law of a person affixing his own signature to a document, tracing the learning to the observations of Mellish LJ in Parker v South Eastern Railway Co[12] and to the decision in Foreman v Great Western Railway Co.[13] Even an illiterate person who signs the document is in no better or worse position than if a literate person had signed the document without reading it.
[12] (1877) 2 CPD 416 at 421.
[13] (1878) 38 LT 851.
Of course, in L’Estrange Scrutton LJ removed from any consideration about the effect of signing a document instances where the signature has been procured by misrepresentation or fraud. Two things must be said of that in this case. First, nowhere in the form 2 claim pursuant to which this proceeding was commenced did the applicant use the word misrepresentation. The applicant’s solicitor relied heavily on concepts of common law misrepresentation despite the fact that no case was asserted on the applicant's own material. Those submissions were therefore unconnected to this case.
The second aspect related to how the rule in L’Estrange does not apply where fraud is involved. In this case duress, not fraud, has been alleged. Fraud is very different from duress. In my view, fraud was not part of the applicant’s contentions in this case. It followed that in my judgment the applicant was bound by the settlement deed as he signed it.
It is now important to address the factual and legal matters
associated with the concept of duress on which the applicant relied. The manner in which the applicant cast his case for duress appeared in paragraphs 33(c) to (f) of the applicant's form 2 claim. Relevantly paraphrased, the allegations were as follows –
i)Mr Thompson told the applicant he had the choice of resigning or his employment would be terminated;
ii)if the applicant's employment was terminated, the applicant would not be paid out his entitlements (inferentially, paid without his having to go to court);
iii)conversely, if the applicant resigned he would be treated more favourably;
iv)if the applicant did not resign, Mr Thompson would not allow the applicant to do any job in Australia as Mr Thompson would not provide the applicant with a favourable reference;
v)the applicant had no choice but to resign; and
vi)the applicant was forced to sign a deed of settlement under duress including threats of being denied payment of his lawful entitlements.
Before going to the legal issues that those matters threw up,
the evidence on those issues did not give rise to the noxious complexion the applicant sought to place on them. It is necessary to take them one at a time.
The applicant alleged that Mr Thompson told the applicant that the applicant had the choice of resigning or his employment
would be terminated. Mr Thompson swore in his affidavit that on
1 December 2016 he confronted the applicant with allegations of misconduct, after which Mr Thompson gave the applicant the opportunity of resigning. Mr Thompson swore that if the applicant had been sacked for the misconduct alleged, he would never have got another job in Australia, but if he resigned the applicant could be paid out. Mr Thompson did not say in his affidavit – as the applicant alleged he said – that unless the applicant resigned he would be dismissed.
The applicant bore the burden of proving that Seacorp had made an illegitimate threat. On the version of the events narrated merely to that point, no threat was involved. Seacorp was well within its rights to do as Mr Thompson did by confronting the applicant with details of misconduct. If true, it was nefarious and struck at the very trust and confidence an employer is entitled to expect and require of its employee. In a lengthy and detailed survey of the law of that issue,
I addressed it in Baird v Crowe Horwath (Aust) Pty Ltd.[14] The evidence in this case did not travel so far as to show that Mr Thompson threatened the applicant in any way.
[14] [2016] FCCA 1379 (especially at [135] et seq).
Next, it was said that the improper threat lay in the consequences of
Mr Thompson's proposal, namely that the applicant would not be paid unless he accepted the suggestion of resigning. Mr Thompson's evidence revealed he said no such thing. In any event, even if that had been said (and I was not persuaded it was) then that set of circumstances put the matter in a wholly unexceptional situation that the applicant would have to litigate to enforce his rights. That scarcely amounted to duress. Every day in this court, litigants take opposite views of the enforceability of claims. The fact that an applicant may be forced to sue to enforce a perceived claim does not make the other party who refuses to pay guilty of duress.
Next, the applicant said a component of the illegitimate threat allegedly exerted by Seacorp lay in Mr Thompson's position that, unless the applicant accepted the resignation option, the applicant would not do any job in Australia because Mr Thompson would not provide a favourable reference. Mr Thompson’s versions of events on this issue was set out in paragraph 59 of his affidavit. Mr Thompson did not swear in his affidavit that he told the applicant that the applicant would not get another job in Australia. Hence, a factual dispute arose about whether the words allegedly used were in fact used. The applicant bore the burden of proving the conduct. I was not persuaded the conduct alleged was in fact proved. But even if it had been, a reference to the applicant never getting a job again on the basis that Seacorp was unlikely to provide a favourable reference to the applicant in the face of the misconduct of concern to Mr Thompson was, on the balance of probabilities, entirely plausible. It seemed to me that if Mr Thompson had in fact said those words – and I was not persuaded that he did – then those words would fit into the category of mere commercial pressure of the sort about which Lord Wilberforce and Lord Simon spoke in Barton v Armstrong.[15] Mere commercial pressure is not duress.
[15] [1976] AC 104, 121.
The applicant’s statement that he had no choice but to accept the proposal to resign did not tell of any illegitimacy of Mr Thompson’s conduct, but it did bear upon the question of causation. Ultimately, it became relevant for me to inquire into the causative motive for the applicant’s entering into the settlement deed. If there had been anything like deception, the contract cannot stand, a point made as long ago as 1852 in Reynell v Sprye[16] per Lord Cranworth, LC. It seemed to me that the applicant entered into the settlement deed voluntarily. On the balance of probabilities he resigned because –
a)he was challenged on his conduct that may have led to his being disciplined;
b)had he been sacked for misconduct, he may not have received long service leave;
c)upon resignation he was to receive considerable financial benefits after his years of employment with Seacorp; and
d)he was happy to resign as his email attested.
[16] (1852) 42 ER 710, 728.
In J.W. Carter’s Contract Law in Australia (Butterworths, 6th ed, 2012), the learned author postulated three elements of the doctrine most recently espoused by Lord Scarman in Universe Tankships Inc of Monrovia v International Transport Workers' Federation.[17] Those three elements were –
a)there must be an element of unlawful conduct or unlawful demand constituting illegitimate pressure;
b)there must be an analysis of why the victim chose to enter into the contract rather than pursue a claim in relation to that pressure; and
c)the contract into which the victim entered needs to be examined for consideration.
[17] [1983] 1 AC 366.
Examining those three elements, I was unable to detect any unlawful conduct by Mr Thompson. To the contrary, he was presented with a state of affairs that the applicant as one of Seacorp’s employees may have engaged in conduct that represented a breach of his fiduciary duties or worse. There was no illegitimate pressure in Mr Thompson discussing with the applicant his options having regard to what
Mr Thompson then knew. Next, upon analysing why the applicant entered into the deed of settlement, on the balance of probabilities he did so rather than face repercussions from Seacorp pursuing his misconduct as it had been reported to Mr Thompson. The applicant's legal position, had Seacorp pursued the applicant for misconduct, could not have been gainsaid as being favourable. Finally, the consideration for the deed was manifest, amounting to resignation and payment in return for Seacorp being rid of a potentially dishonest employee.
In view of the matters above, I am of the view that the deed of settlement was validly entered into, there being no evidence of duress.
Clause 3.5 of the deed enabled Seacorp to plead the existence of the deed as a bar to any action, suit or proceeding taken by the applicant in respect of the employment as defined or the contract or the termination. Here, the applicant brought this proceeding in respect of the employment, the contract or the termination or any one of them. Squarely, cl.3.5 of the deed enabled Seacorp to plead that this proceeding was barred. It was.
Conclusion
Seacorp has succeeded in this application. In my view, the applicant’s claim in this proceeding had no reasonable prospects of success.
I make an order under r.13.10 of the rules.
So far as costs are concerned, this is a no costs jurisdiction.
Costs orders are rarely made. Neither party sought costs at the conclusion of the hearing.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of His Honour Judge Wilson
Associate:
Date: 14 February 2018
Exhibit WA4 to the affidavit of Wickramasuriya Mahamalimage Prasanna Aponso affirmed on
30 November 2017.
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