Barratt-Hassett v Perc Group Pty Ltd

[2018] FCCA 3518

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARRATT-HASSETT v PERC GROUP PTY LTD [2018] FCCA 3518

Catchwords:
INDUSTRIAL LAW – Application in a Case to set aside Notice of Discontinuance – whether the deed of settlement was complied with – application dismissed.

Legislation:

Fair Work Act 2009 (Cth)

Applicant: PAUL BARRATT-HASSETT

Respondent: PERC GROUP PTY LTD

File Number: BRG 581 of 2018

Judgment of: Judge Vasta

Hearing date: 5 November 2018

Date of Last Submission: 5 November 2018

Delivered at: Brisbane

Delivered on: 5 November 2018

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the Respondent: Collas Moro Ross Lawyers

ORDERS

1. That the Application in a Case filed 14 August 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 581 of 2018

PAUL BARRATT-HASSETT

Applicant

And

PERC GROUP PTY LTD

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. This matter comes before me today as an interlocutory application.  Originally, it was a small claims matter that went before Registrar Lynch. 

2. The matter ended up being mediated, and a deed of settlement was signed by both parties.  In that deed, there were certain matters that were agreed. Firstly, there was to be a payment of money of $4000 gross to the Applicant.  That money has been paid gross.  The moneys for taxation have been taken out.

3. It will be a matter then for the Applicant to talk to the taxation people at the end of the financial year to ensure that any moneys that he is owed by the Tax Office are paid back to him. 

4. Secondly, that there will be removal of photographs from the website, and that has been done. 

5. Thirdly, that each party would bear their own costs, and that has been complied with. 

6. Fourthly, that this deed would be confidential and that neither would denigrate nor disparage the other.

7. There were notations then entered into.  The first notation was:

   Perc Group Pty Ltd T/A as Perc Tiling and its solicitors shall consent to QPS exercising its prosecutorial discretion to not proceed further regarding QP1800801003 & QP1800806199

8. That was signed by Mr Russ who was the director. 

9. The next notation was that the Applicant himself “confirm that I have not been pressured into a settlement by the complainants in police complaints QP1800801003 and QP1800806199”, and that was signed by Mr Barratt-Hassett, the Applicant.

10. His application before this Court is, in effect, to reinstate his claim that had been settled because there was a failure to comply with the settlement agreement. 

11. His original case was that he had not been paid the $4000.  It was pointed out to him that the money had to be taxed as required by law.  He was given, in effect, the equivalent of a group certificate tax which showed that the money taken out, as required by law, has been taken out and it is a matter for the Tax Office to do what it will.  So there has been no failure to comply in that respect.

12. With regard to the notations, the Applicant is aggrieved because it seems that the complaints are still being proceeded with by police.  As I pointed out, no one can direct the prosecutorial discretion of a prosecutor.  No complainant, no victim and no accused person can in any way taint that discretion; however, it is a matter for the police to take into account the wishes of the complainants. 

13. It is clear to me that Mr Barratt-Hassett had the clear impression that the Respondents were going to withdraw their complaints and that was the meaning of it.

14. The letter that was sent to the QPS by the Respondent was that the complainant said he was not comfortable withdrawing his complaints, however, he would consent to the QPS exercising its prosecutorial discretion to not proceed further regarding those matters. 

15. The term that the Respondent used that he was not comfortable really is not particularly helpful at all.  Whether he is comfortable or not, the question is whether it is that he was prepared to withdraw his complaint.  On my reading of the letter that he had sent, whilst he was not comfortable, he was still prepared to withdraw the matter.  It is then a matter for the police service to do what it will.

16. I have therefore concluded that the Respondent has not failed to comply with the deed of settlement.  As I say, it is not for me to tell the police what to do;  however, it seems to me that the letter sent was clear that whilst the complainant was not comfortable, he was telling the police that he was prepared to withdraw the matter but it was a matter for them to exercise their discretion. 

17. Having come to that conclusion, the basis upon which this application is based, that is non-compliance with the deed, cannot be established, therefore I dismiss the application.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  8 January 2019