Campbell v The University of Adelaide - [2006] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CAMPBELL v THE UNIVERSITY OF ADELAIDE
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Debelle and The Honourable Justice Besanko)
31 March 2006
INDUSTRIAL LAW - SOUTH AUSTRALIA
APPEAL AND NEW TRIAL - APPEAL GENERAL PRINCIPLES
Appeal against orders of Full Court of Industrial Relations Court – question of appellant’s entitlements under voluntary early retirement scheme – appellant claimed entitlement to maximum lump sum payment for 74 weeks of continuous service – employer disputed appellant’s claim on two bases – first, that initial contract of employment recognised continuity of service for limited purposes only – secondly, that by retiring on certain date, appellant accepted terms proposed by employer – held, first, that initial contract of employment recognised continuity of service in general terms – secondly, however, that by retiring on certain date, appellant accepted terms proposed by employer, including as to calculation of lump sum payment – appeal dismissed.
Statutes Amendment and Repeal (Merger of Tertiary Institutions) Act 1990 s 7; Industrial Relations and Employees Act 1994 ss 14, 191, referred to.
Summergreene v Parker (1950) 80 CLR 304; Hempel v Robinson [1924] SASR 288; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; Bacchus Marsh Concentrated Milk Co Ltd (in liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 472; Gibson v Manchester City Council [1979] 1 WLR 294; Georgoulis v Mandalinic [1984] 1 NSWLR 612; Carter v Hyde (1923) 33 CLR 115; In re Imperial Land Company of Marseilles; Harris' Case (1872) LR 7 Ch App 587; Stevenson, Jaques & Co v McLean (1880) 5 QBD 346; Global Tankers Inc v Amercoat Europa NV [1975] 1 Lloyd's Rep 666; Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; Prenn v Simmonds [1971] 1 WLR 1381; Codelfa Constructions Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; Henthorn v Fraser [1892] 2 Ch 27, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"continuity of service"

CAMPBELL v THE UNIVERSITY OF ADELAIDE
[2006] SASC 92
Full Court: Duggan, Debelle and Besanko JJ

DUGGAN J. I agree with the reasoning of Besanko J and the conclusion which he has reached. I add these comments of my own.
The letter from Roseworthy Agricultural College (“the College”) to Mr Campbell dated 22 August 1990 stated that approval had been given for Mr Campbell’s service to be regarded as continuous from 2 February 1971. The fact that leave credits were set out in the letter is not an indication that these were the only entitlements to which continuity of service applied. In my view it is likely that the details of these entitlements were included in the letter because they were able to be calculated at that stage and they were of immediate relevance to Mr Campbell’s future employment. The fact that specific reference was made to them did not evince an intention to exclude the concept of continuity of service from all other employment-related purposes. The evidence supports Mr Campbell’s argument that the agreement with the College was not restricted in this way.
However, when it came to negotiating an early retirement package, the university and applicants for early retirement were not bound to incorporate existing rights or entitlements in any retirement package agreement.
The letter which the university wrote to Mr Campbell on 19 November 2001 included an attachment which indicated that the university was proceeding on the basis that a period of 11 years service was to be used as the basis for the lump sum calculation in Mr Campbell’s case.
The acceptance form forwarded by Mr Campbell in response, nominated a retirement date which differed from that proposed by the university. As this was a material term, the form was not an acceptance of the university’s offer.
The reply by the university dated 6 December 2001 purports to be an acceptance of Mr Campbell’s offer to retire on 14 February 2002. However, Mr Campbell told the magistrate that he did not receive this letter until 10 December 2001. The postal acceptance rule does not apply because there is no evidence that the letter was posted on a particular date.
In the meantime, the issue of the basis for the calculation of the lump sum which had been set out in the annexure to the university’s letter of 19 November 2001 was raised in an exchange of emails between the university and Mr Campbell on 7 December 2001. It became apparent that the parties were not in agreement as to the method of calculating the lump sum. This essential term was in dispute between the parties before Mr Campbell received the purported acceptance of the university to his proposal for retirement.
I agree with Besanko J that there was no concluded contract until 14 February 2002 when, by retiring on that date, Mr Campbell appears to have accepted the terms proposed by the university, including the basis for calculating the lump sum payment. The only other alternative is that there was no concluded contract because the parties did not agree on the amount of the lump sum. In either event, Mr Campbell has not established a right to the amount claimed by him.
I cannot agree that the parties reached a concluded agreement on the basis that Mr Campbell would retire in accordance with the scheme and that the determination of his entitlement was to be resolved at some later time. The lump sum payment was the central feature of the Voluntary Early Retirement Scheme. Agreement was required on the amount of the lump sum or the method by which it was to be calculated before a binding contract could come into effect: Summergreene v Parker (1950) 80 CLR 304; Hempel v Robinson [1924] SASR 288.
I would dismiss the appeal.
DEBELLE J. The issue in this appeal concerns the terms of an employment contract in respect of continuity of service. The determination of that issue will affect the amount to be paid to the appellant pursuant to a voluntary early retirement scheme.
On 19 February 1990 the appellant applied for employment as an Administrative Officer at Roseworthy Agricultural College (“Roseworthy”). Before that and since 2 February 1971, he had been employed by the then Department of Mines and Energy (“the Mines Department”). As part of the appointment process, the appellant was interviewed by a Mr Zobel, a manager at Roseworthy. In the course of the interview, the question of recognition of his prior service with the Mines Department was discussed. The appellant was seeking continuity of service.
By letter dated 18 May 1990 the appellant was offered the position. The relevant parts of the letter read:
I am pleased to be able to offer you the position of Administrative Officer under the following conditions:
1. The appointment is to a continuing position on 6 months probation.
2.Your commencing salary will be $31,093 per annum within the range $28,836 to $31,846.
3.Other conditions of employment will be those specified in the PSA Award a copy of which is enclosed.
4.You are required to present a medical certificate from your general practitioner indicating your fitness for appointment to this position.
As indicated in our phone conversation I consider that you are very well suited to this position and trust that you will be able to accept this offer. I look forward to your written acceptance and advice of the date that you can commence duty.
It will be noticed that the letter made no express reference to the question of continuity of service unless the expression “continuing position” in para 1 of the letter is such a reference.
The appellant accepted the offer of employment by letter dated 31 May 1990. His letter read:
I am pleased to accept the offer of employment in the College as Administrative Officer.
I will cease work with the Department of Mines and Energy – Energy Information Centre on 15th June, 1990 and commence work at the College on 18th June, 1990.
The conditions of employment at the College are acceptable and cash payment in lieu of long service leave and recreation leave will be payed to me by Department of Mines and Energy.
I will present employment records for continuity of service entitlement purposes. Enclosed is a medical certificate indicating my fitness for appointment to the position.
I look forward to joining and working with your organization.
It is apparent from the penultimate paragraph of the letter that the appellant understood that he was to have the benefit of continuity of service. It was common ground that these two letters did not set out all of the terms of the contract of employment. It was also common ground that the position with Roseworthy was new employment. It was not a transfer or transmission of employment.
The appellant commenced employment on 18 June 1990. On 22 August 1990 Roseworthy sent to the appellant a letter in these terms:
I am pleased to be able to advise that approval has now been given for your service to be regarded as continuous as from 2 February 1971 with the following leave credits as at 18 June, 1990.
.       Long Service Leave – Nil
.       Recreation Leave – Nil
.       Sick Leave – 24 working days
On 1 January 1991 Roseworthy merged with the respondent the University of Adelaide (“the University”) and the appellant became an employee of the University. The merger was effected by the Statutes Amendment and Repeal (Merger of Tertiary Institutions) Act 1990. Section 7 of the Act provided for the transfer of staff. It was in these terms:
7.(1) A person who was, immediately before the commencement day, an employee of the College becomes, on that day, an employee of the University.
(2)Nothing in subsection (1) affects the term of appointment, the remuneration or other emoluments of office, the accrued or accruing leave rights or the continuity of service of an employee to whom that subsection applies.
Section 7 (2) expressly provided that the merger did not affect the continuity of service of an employee to whom subsection (1) applied. The appellant was such an employee.
Some ten years later, the University developed a program to reduce its staff. It was called the Staff Renewal and Realignment Program and enabled University employees to apply for voluntary early retirement. By letter dated 4 October 2001 the University offered the appellant voluntary early retirement. The letter enclosed a notice setting out the terms of the University’s Voluntary Early Retirement Scheme. The scheme provided that eligible staff would be offered a lump sum equivalent to four weeks salary for each completed year of continuous service with the University up to a maximum of 74 weeks.
The appellant applied to participate in the scheme. The University accepted his application by letter dated 19 November 2001, the relevant parts of which read:
This is to advise that your application for Adelaide University’s Voluntary Early Retirement Scheme has been authorised by the Vice-Chancellor and approval has been given for you to retire on Friday, 25 January 2002.
A copy of your benefit payment quotation is attached (Attachment 1).
Would you please complete the attached Acceptance form (Attachment 2) and ETP Pre‑Payment Statement (Attachment 3) and return to Lee Jones in Human Resources as soon as possible, but for processing purposes not later than Friday, 7 December 2001.
The benefit payment quotation referred to in the second paragraph was a calculation of the payment due to the appellant by reference only to the period during which the appellant had been employed by the University. The calculation made no allowance for his period of service with the Mines Department. In the result the benefit payment was calculated for a period of 44 weeks. The quotation was marked “Without Prejudice”. I will return to the effect of the quotation.
The appellant accepted the offer of early retirement by completing the attached acceptance form. In his acceptance he questioned the date from which his retirement was to operate. The question of the retirement date was resolved and by letter dated 6 December 2001 the University confirmed that his retirement would be effective as from 14 February 2002.
By an email letter dated 7 December 2001 the appellant took up with the University the question of the amount of his entitlement, contending that it should be calculated on the basis of 74 weeks. The appellant referred to the fact that, when he was appointed at Roseworthy, his service was to be regarded as continuous from 2 February 1971, that is to say, that his service with the Mines Department was to be recognised as part of his service with the University. On that footing, the appellant contended that he was entitled to be paid for the maximum period of continuous service, namely, 74 weeks. The appellant re‑affirmed his position by letter dated 14 January 2002. An exchange of correspondence followed. In the result, the University denied that the appellant was entitled to any more than a lump sum equivalent to a period of continuous service of 44 weeks, that is to say, he was to receive no more than an entitlement for his period of employment by the University, ignoring his service with the Department of Mines.
On 5 April 2002 the appellant commenced proceedings in the Industrial Relations Court (“the IRC”) claiming the further sum of $29,823.60 being the difference between an entitlement for 74 weeks and an entitlement for 44 weeks. His claim was heard by an Industrial Magistrate who dismissed it. The appellant appealed to a single judge of the IRC who dismissed the appeal. The appellant then appealed to the Full Court of the IRC which, by majority, dismissed the appeal. The appellant now appeals by leave to this Court.
The Reasons of the Full Court of the IRC
The majority of the Full Court of the IRC (Senior Judge Jennings and Judge Thompson) decided that it was a common assumption of the parties that the question of continuity of service was directed only to long service leave, annual leave and sick leave. They also held that the appellant’s acceptance of the offer of the University discharged the obligations of the University under its Voluntary Early Retirement Scheme. Judge McCusker held that an application of the principles of objectivity when determining the rights and liabilities of parties to a contract meant that the agreement as to continuity of service was not restricted to long service leave, annual leave and sick leave but was relevant for all purposes under the contract of employment. He further held that the University was not relieved of its obligation to pay the whole of the lump sum calculated on the basis of 74 weeks by the appellant’s acceptance of the offer of voluntary early retirement. His Honour therefore held that the appellant was entitled to the further sum of $28,823.60. For the reasons which follow, I agree with the conclusion of Judge McCusker and I would allow the appeal.
It is clear that Roseworthy agreed to grant the appellant continuity of service. The issue is to what aspects of the employment contract continuity of service applied. The next issue is the effect of the exchange of letters between the appellant and the University in 2001 and 2002. I deal first with the question of continuity of service.
Continuity of Service
When determining the rights and liabilities of parties to a contract, the court acts objectively, having regard to the expressed intention of the parties. That principle has been frequently expressed by the High Court and was most recently affirmed in Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22] and in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40].See also Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at [34]. In Toll at [40] the Court said:
What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.
The issue in this case is to be determined, therefore, by an objective assessment of how a reasonable person would understand the language by which the parties expressed their agreement in the letters exchanged between them in 1990, having regard also to the surrounding circumstances known to the parties and the purpose and object of the employment contract.
I repeat. It is common ground that the appellant was granted continuity of service. The issue is whether continuity of service was granted in respect of leave entitlements only or whether it was for all purposes.
When considering that issue, it is relevant to note that the appellant was negotiating a contract of employment. Not infrequently, an employee who has served a long period of uninterrupted employment with an agency of government or a government department will seek to carry with him the benefits attaching to that long period of service if he is moving to another agency of government or government department. Those benefits include, but are not limited to, long service leave, annual leave and sick leave. One other kind of obvious benefit for which an employee will seek continuity of service is superannuation entitlements. Continuity of service is also relevant in respect of redundancy payments or in respect of a claim for wrongful dismissal. When the appellant applied for employment at Roseworthy, he had been employed for 19 years by the Mines Department and it is plain that he would have sought to continue any benefits accruing as a result of that long period of service.
The evidence before the Industrial Magistrate establishes that the question of continuity of service was discussed when the appellant was interviewed by Mr Zobel. As the evidence of the appellant shows, it was an inducement, among others, for him to accept the appointment. The terms of his letter to Roseworthy of 31 May 1990 demonstrate that the appellant believed that continuity of service was a condition of his employment because he simply states that he will present his employment records “for continuity of service entitlement purposes”. Roseworthy formally approved continuity of service by its letter dated 22 August 1990.
The appellant gave evidence to the effect that he had the benefit of continuous service, not only for leave entitlements, but also for his superannuation entitlements. That evidence was in no respect challenged. On the hearing of this appeal, the appellant’s counsel sought to prove additional documents in support of the appellant’s evidence on that issue, a course opposed by counsel for the respondent on the ground that it was fresh evidence which would have to be tested. The evidence of those documents should not be admitted at this late stage. However, the uncontested evidence of the appellant proves that his continuity of service applied also to his superannuation entitlements, a fact overlooked by the Industrial Magistrate, by the single judge in the IRC and by the majority of the Full Court of the IRC.

The terms of the letter from Roseworthy of 22 August 1990 are quite unequivocal. The letter simply states that the appellant’s service at Roseworthy will “be regarded as continuous from 2 February 1971” and then goes on to state, that he will have the benefit of the leave credits spelled out in that letter. The fact that the letter specifies those leave credits does not mean that the continuity of service is limited to leave entitlements. Instead, it is simply specifying what benefits will accrue in respect of one aspect of continuity of service, namely, leave entitlements. It was unnecessary to spell out what the consequences were for superannuation since the appellant had remained a member of the same superannuation fund.
Counsel for the University referred to the fact that the industrial agreement between Roseworthy and its staff permitted by clause 27 the Council of Roseworthy to give credit for previous service in listed organisations (which included the Mines Department). However that credit was limited to long service leave. This fact does not assist the resolution of what was meant by continuity of service.
The fact that the appellant had continuity of service for the purpose of his superannuation entitlements is important when determining the intention of the parties. It signifies that the appellant had the benefit of continuity of service, not only for the purposes of leave entitlements, but for other purposes including superannuation. When the University offered the appellant the opportunity to take early retirement, the appellant was, therefore, entitled to compute the benefit which he received on the footing that his period of service with the University dated from 2 February 1971, so that the appellant was entitled to the maximum of 74 weeks payable under the voluntary early retirement scheme.
The effect of the argument for the University is to seek to impose in 2001 a qualification upon the agreement made with the appellant in 1990 to grant him continuity of service. It is, in effect, stating that the appellant will have continuity of service for all purposes save the Voluntary Early Retirement Scheme. For the reasons already expressed, that was an invalid qualification. The impropriety in the University’s position is highlighted if one considers the position of other employees at Roseworthy in 1990 who remained on the staff of the University after the merger and who might have accepted the offer of voluntary early retirement. They would be entitled to calculate the lump sum payment upon early retirement by reference to all of their service at both Roseworthy and the University. However, on the argument of the University, the appellant is not entitled to the same treatment. The proposition has only to be stated to be rejected.
The reasons of the Industrial Magistrate relied very heavily on the evidence of Mr Zobel. Mr Zobel had retired in 1990. He had no recollection of what had occurred at the interview with the appellant but relied on his standard practice which, he said, recognised prior service with other government organisations for leave purposes. While he agreed with the appellant’s evidence that the question of continuity of service was discussed, he said it was only discussed in the context of leave entitlements. The magistrate should not have admitted this evidence which seeks to qualify the plain words in the correspondence. Furthermore, the evidence was of little or no weight. Mr Zobel had no recollection of the details of his interview with the appellant, which was not surprising given that there was nothing unusual about the interview and that the interview had occurred some 12 years before he gave his evidence. This was evidence of the terms of a written contract in breach of the parol evidence rules. As Isaacs J noted in Bacchus Marsh Concentrated Milk Co Ltd (in liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 410 at 451 – 452:
The rationale for the parol evidence rule lies in the desirability of preserving “finality in written instruments meant to be final” and of not allowing “written words to be altered or qualified by the uncertain testimony of slippery memory”.
This aspect of the employment contract was recorded in writing. Having reached that agreement, it is not open for the University now to say that it is not now bound by it or to seek to vary it. Where parties have entered into a written agreement, the Court will generally hold them to the obligations which they have assumed by that agreement. This is an example of that general principle.
More importantly, the reasons of the Industrial Magistrate overlook the significant fact that the appellant had the benefit of continuity of service in respect of his superannuation entitlements. When viewed in combination with the appellant’s continuity of service in respect of his leave entitlements, that fact is a clear indicator that the appellant had continuity of service for all purposes.
The Early Retirement Scheme
Once it has been decided that the appellant was entitled to continuity of service for all purposes, the answer to the question of how much was payable to him as the lump sum benefit under the University’s Early Retirement Scheme becomes very clear. For the reasons which follow, the appellant was entitled to have it calculated on the basis of the maximum benefit, that is, a lump sum payment for 74 weeks.
It is helpful to review the manner in which the offer was made and, more importantly, to note the terms of the offer.
On 4 October 2001 the University wrote to its staff informing them of the Voluntary Early Retirement Scheme (“the retirement scheme”). The retirement scheme had been approved by the Australian Taxation Office. The letter invited staff to participate in the scheme. The letter enclosed the terms of the retirement scheme. For present purposes, it is sufficient to notice three.
The first was that those who retired would be offered a lump sum payment of an amount equal to four weeks of salary for every completed year of continuous service with the University up to a maximum of 74 weeks. The offer was expressed in these terms:
Eligible staff will be offered a lump sum equivalent to four weeks of salary for each completed year of continuous service with the University up to a maximum of 74 weeks. (Emphasis in original)
Given the University’s argument on this appeal, it cannot be stressed too highly that this was a clear and unambiguous term of the retirement scheme. For the reasons already expressed, upon the appellant being employed at Roseworthy, he had continuity of service for all purposes. In 2001, therefore, he had accumulated more than 29 years service. On the basis of this offer, he was entitled to the maximum of 74 weeks. Thus, when the University announced its voluntary retirement scheme, the appellant was entitled to the maximum of 74 weeks if he retired pursuant to it. This fact cannot be overemphasised.
The second relevant term of the offer was that the Vice‑Chancellor had the sole right to approve an application for early retirement. The third relevant term referred to the retirement date. It was in these terms:
Staff for whom voluntary early retirement is approved will be required to terminate their employment with the University on a date mutually agreed but not later than 14 February 2002 or such later date as approved by the Vice‑Chancellor. (Emphasis in original)
There is plainly an inconsistency in the italicised words. That inconsistency is not relevant for present purposes. It is sufficient to proceed on the footing that the University intended to state that staff could retire on a date which was agreed, provided it was no later than 14 February 2002. The clause provided a good deal of flexibility as to the date on which any individual member of staff might retire. The flexibility as to the retirement date is another fact which cannot be overemphasised. The only real constraint was that it could not be any later than 14 February 2002.
The University’s letter of 4 October 2001 enclosed an application form. The appellant submitted an application on the enclosed form. The application form permitted the applicant to state a preferred retirement date which was to be no later than 14 February 2002. The appellant nominated 14 February 2002 as his preferred date. The application form included these typed words:
I wish to apply for early retirement under the Adelaide University’s Voluntary Early Retirement Scheme on the date indicated above or such date as is determined by senior management of the University.
It will have been noticed that this part of the form expressly stated that early retirement was to be under the Voluntary Early Retirement Scheme. The fact that an appellant was retiring in accordance with the terms of the retirement scheme is emphasised by a statement in the application form which appeared immediately beneath the extract just quoted. It was headed “Terms and Conditions” and read:
I have read the details of the Scheme and understand the conditions therein.
I understand that should my application be successful, there will not be any agreement either formal or informal at the time of termination for re‑employment after the date of early retirement.
The University thereby spelled out in the clearest terms that participation in the retirement scheme was subject to the terms and conditions of the scheme. It emphasised that a successful applicant could not be re‑employed. The form did not in any way qualify the basis upon which the lump sum retirement benefit was to be calculated.
The words at the conclusion of the typed statement in the previous paragraph concerning the date of the retirement scheme, namely “or such date as is determined by senior management of the University” were inconsistent with the terms of the scheme. I have already quoted the terms of the scheme relating to the retirement date. The correct position was that it was to be such date as was agreed provided it was no later than 14 February 2002. This is but one of two instances where the University misstated the terms of the scheme.
It is necessary to review the position at this stage.
1.     The University had announced its Voluntary Early Retirement Scheme and the terms of the scheme.
2.     For present purposes the scheme contained two clear and unambiguous terms, namely,
(i)     those whom the Vice‑Chancellor agreed could participate in the scheme would receive a lump sum benefit equal to four weeks of salary for each completed year of continuous service up to a maximum of 74 weeks, and
(ii)    the actual retirement date was negotiable provided it was no later than 14 February 2002.
3.     The University retained the right to determine those members of its staff who would be entitled to participate in the scheme.
4.     The appellant applied to participate in the scheme.
The terms of the scheme were clearly identified. Thus, all staff who were invited to participate in the scheme knew the manner in which the lump sum benefit would be calculated. It simply depended on the number of years of continuous service to which the employee was entitled. The appellant was entitled to the maximum benefit of 74 weeks under the terms of the scheme.
The appellant’s application was approved by letter from the Vice‑Chancellor dated 19 November 2001. It is helpful to repeat the terms of the letter.
This is to advise you that your application for Adelaide University’s Voluntary Early Retirement Scheme has been authorised by the Vice‑Chancellor and approval has been given for you to retire on Friday, 25 January 2002.
A copy of your benefit payment quotation is attached (Attachment 1).
Would you please complete the attached Acceptance form (Attachment 2) and ETP Pre Payment Statement (Attachment 3) and return to Lee Jones in Human Resources as soon as possible, but for processing purposes not later than Friday, 7 December 2001.
Please note that it is a condition of the Scheme that you will not be eligible for re‑employment by the University.
If you require any clarification of the points in this correspondence please contact Lee Jones on 34643.
I extend the University’s best wishes to you for the future and thank you for your valuable contribution during your time here.
Thus, the University offered the appellant the opportunity to participate by completing the acceptance form enclosed. It cannot be overemphasised that the letter stated that the appellant was retiring under the terms of the University’s Voluntary Early Retirement Scheme.
The appellant accepted the offer by completing the enclosed acceptance form. The acceptance form was expressed as an agreement to retire in accordance with the University’s Voluntary Early Retirement Scheme. In the case of the appellant the acceptance form as completed read:
I Graham Ernest Campbell agree to retire from the Adelaide University on 14 February 2002 in accordance with the University’s Voluntary Early Retirement Scheme.
The appellant added a handwritten note to the acceptance form. It addressed the discrepancy between the retirement date of 14 February 2002 nominated in his acceptance, which was consistent with the terms of the retirement scheme, and the retirement date of 25 January 2002, nominated in the Vice-Chancellor’s letter. The fact that the University nominated the retirement date could amount to no more than a suggestion by the University as to an appropriate date because the scheme provided for an agreed retirement date. If the University purported to require 25 January 2002 as a retirement date, it was inconsistent with the scheme and would be the second occasion when the University did not act consistently with the terms of the scheme. The appellant’s note read:
Please note error in your letter dated 19 November 2001 in which you referred to a date in January. My application cited 14/2/02 as the date for retirement, which is consistent with the scheme and all documents, quotations and offers upon which I relied to apply.
On this appeal, the University contended that the appellant’s request for a different retirement date constituted a counter‑offer. I will return to that issue.
There is a second issue to note about the Vice‑Chancellor’s letter. The University’s calculation of the benefit payment was attached to the Vice‑Chancellor’s letter. It was described in the letter as “your benefit payment quotation” and the attachment is marked “without prejudice”. It is plain that the University did not regard itself as bound by that quotation. No other conclusion can be drawn from the fact that it was described as a quotation and was marked “without prejudice”. For like reasons, it could not bind the appellant. The so‑called “without prejudice quotation” could amount to no more than an indication of what the University believed was the lump sum due to the appellant. In addition and more relevantly, the University was not in a position to bargain with the appellant as to the amount of the lump sum because the University itself had already stipulated the manner in which the lump sum was to be calculated. That was a term of its offer to the appellant. The amount of the lump sum was to be calculated by reference to the appellant’s years of continuous service. It was capable of ready and objective calculation. By accepting the offer, the appellant did not agree the amount included in the “without prejudice” quotation. Instead, he accepted what was offered by the retirement scheme, namely, an entitlement to a lump sum equivalent to four weeks salary for each completed year of continuous service with the University up to the maximum of 74 weeks. The only issue was his length of service. It is interesting to note that Mr Daysh, the General Manager of the University, gave evidence that the University did not regard itself as bound by the quotation. That is a further reason why the appellant could not be bound by it.
The question of the retirement date was quickly resolved. By letter dated 4 December 2001, Mr Daysh explained why 25 January 2002 had been nominated as the retirement date. It is unnecessary to note the reason. In his letter Mr Daysh went on to state that it had been drawn to his attention that some members of the staff had perceived the nominated date of 25 January 2002 as a change in the terms of the retirement scheme. The letter then offered the appellant a later retirement date provided it was no later than 14 February 2002:
Should you wish to accept the voluntary early retirement but consider that the date of 25 January is impracticable, you should return your acceptance form to Lee Jones in Human Resources nominating the alternate date up until 14 February 2002 on which you wish to retire. All acceptance forms must be received in Human Resources by Friday, 7 December 2001.
The retirement date of 25 January 2002 would have been an alteration of the terms of the retirement scheme only if the University had not permitted its staff to retire as late as 14 February 2002. By re‑stating that retirement could be as late as 14 February 2002, the University adhered to the terms of the retirement scheme as originally stated.
By letter from Mr Daysh dated 6 December 2001, the University confirmed that the appellant’s retirement date was to be 14 February 2002 as he had initially requested. The letter was in these terms:
Further to receipt of your acceptance form, I confirm your retirement from Adelaide University effective from the close of business on 14 February 2002.
You will be paid your early retirement scheme lump sum and any sum due in lieu of your leave entitlements as of that date.
It would be appreciated if you would ensure that you have returned any University property to your head of department before you leave. If you have any further queries or would like to discuss any matter at an exit interview please do not hesitate to telephone me.
You should also contact the Superannuation Office (extension 35222) in order to arrange for the disposition of your superannuation entitlement.
May I take this opportunity to thank you for your service to the University and to convey my best wishes for the future.
It will be noticed that the letter unequivocally states that the appellant will be paid the “early retirement scheme lump sum”. That could only be a reference to the lump sum as calculated in accordance with the terms of the retirement scheme. It is clearly implicit in this letter that the appellant was to retire in accordance with the terms of the retirement scheme. There is no direct evidence as to the manner in which the letter was sent to the appellant or the date on which it was sent. The only evidence is that it was “sent” on 6 December 2001. There is no evidence whether it was sent by post or by some other means. The appellant’s evidence was that he received the letter on 10 December 2001.
The University’s letter of 19 November 2001 had invited the appellant to contact Ms Lee Jones, a member of the University’s staff, if he required “clarification of the points in this correspondence”. Before he had received the University’s letter of 6 December 2001, the appellant had sent a letter by email on 7 December to Ms Jones. In that letter he sought clarification of two matters. One concerned what was called “an ETP pre-payment statement”. The other concerned the calculation of his lump sum payment and in particular his years of continuous service. The email was in these terms:
Dear Lee
I confirm my retirement on 14 February 2002 in accordance with the Scheme. You have already received my “acceptance form” to this effect.
I note, however, that you have requested the return of an ETP pre-payment statement. I am unable to advise presently to where any ETP should be rolled-over – I still await financial advice regarding these matters. I shall complete all necessary documentation in due course.
In any event, I am not satisfied that the figures quoted by the pay office as to my lump sum entitlement are accurate. I believe that I am entitled to the full 74 weeks lump sum payment, having accrued well in excess of 29 years’ service (the University of Adelaide being the successor in law and my transmitted employer in relation to continuous service with the SA Public Service of which Roseworthy Agricultural College was part).
I have discussed this matter with Glenn Uzzell, Campus Registrar, Waite/Roseworthy but he has been unable to clarify my status.
I would therefore be grateful, if you could confirm that all of my years’ service will be included in the calculation (to the maximum lump sum payment in accordance with the Scheme) and provide proper advice as to the breakdown of the various components. I can then advise to where I wish the payment directed.
Thanks for your assistance
Regards, Graham Campbell.
It is clear that the appellant was doing no more than seeking clarification on two issues. To the extent that he was questioning the calculation of his lump sum entitlement, he was doing no more than asserting what he believed to be his entitlement. The email also confirmed that the appellant believed that he was retiring in accordance with the terms of the retirement scheme.

Ms Jones sent the letter to Ms Karen Jenkins, another officer of the University, asking for her advice on the matters raised by the appellant. Ms Jenkins replied by email on 7 December in these terms:
Lee
The records we have from the Roseworthy College merger clearly state that Continuing Employment dates from 18/6/90 and that 6 months probation applied. The position was confirmed on 20/12/91(although this maybe should have been written as 20/12/90).
Roseworthy College had recognised prior service for LSL purposes but his LSL balance at 18/6/90 was Nil. This makes it clear that his service with another area was considered to be prior service and that his LSL must have been paid out before he moved to Roseworthy College.
Therefore his service for Redundancy purposes can only date from 18/6/90 as stated in the quote.
Karen
On 7 December, Ms Jones sent the appellant an email attaching that email. Ms Jones email was in these terms:
Dear Graham
See Karen Jenkins’ response below. Please note that for the purpose of calculating the years of service for the ERS only the service for the University (including Roseworthy College because of the merger agreement) can be counted. If you have any further queries please contact Karen Jenkins on 35213.
Regards
Lee.
As is apparent from the terms of these last two emails, the officers of the University had a complete misunderstanding of the appellant’s entitlement to continuity of service. Each member of this Court has held that the appellant’s continuity of service was to be reckoned from his employment by the Department of Mines.
On 10 December 2001 the appellant received the acceptance from the University. After 10 December, the appellant and the University engaged in a dispute as to the amount of the lump sum to be paid on his retirement. An examination of both the oral and the documentary evidence shows that the dispute concerned, not the calculation of the lump sum payment, but how many years of continuous service with the University had been served by the appellant. The University’s officers were all proceeding on the footing that the appellant had served the University continuously for 11 years only. The appellant insisted throughout that it was 29 years continuous service. As already noted, it was the appellant who was in fact correct.
Thus, even if the acceptance form which the appellant returned to the University with the rider that the retirement date would be 14 February 2002 constituted a counter‑offer, on 10 December 2001 the University unequivocally accepted that offer.
After 10 December 2001, there was no further communication between the appellant and the University until the appellant sent a letter dated 14 January 2002 to the University. In that letter the appellant stated that he was retiring in accordance with the retirement scheme and that the University had incorrectly calculated his lump sum payment. The appellant repeated those assertions in an email sent on 4 February 2002 to Mr Mooney, another officer of the University. In the last paragraph of that email he said:
In the event, that the University underpays me upon retirement on 14 February 2002, then I shall have no alternative but to take action for recovery of the underpayment together with a claim for interest on the sum due to me. You will appreciate that the sum is substantial and I am entitled to the benefit to facilitate my early retirement.
On 8 February 2002 the appellant met Messrs Daysh and Mooney. At that meeting he was told that he could withdraw his application and he would not be forced to retire. Messrs Daysh and Mooney presented him with several options. One was to reject the University’s offer and to keep working. Another was to accept the offer. A third was to provide further information but he was unable to do so. He was also told that he should not expect another offer of early retirement. At that meeting the appellant made it clear that he would retire on 14 February 2002 and would then claim the additional amount he was seeking.
As the Magistrate found, Mr Daysh emphasised that the without prejudice “quotation” included in the Vice‑Chancellor’s letter of 19 November 2001 was informal and was not binding on the University. He also found that Messrs Daysh and Mooney had the view that the appellant had not accepted the contract in its entirety so that it was within the power of the University to withdraw the offer of early retirement. For reasons I give later, the Magistrate erred in reaching that conclusion. The Magistrate then correctly found that it was not possible for the University unilaterally to withdraw the offer. The Magistrate proceeded on the footing that the parties could agree to rescind the agreement or, at least, agree not to enforce it. The Magistrate found that the University, through Messrs Daysh and Mooney, had made it clear that the University’s offer was conditional on acceptance of the lump sum payment calculated on the footing of 11 years continuous service so that the appellant was not in a position to dispute the payment. The basis for this conclusion is not clear. For the reasons which follow, it is grounded on a misconception of the facts and, in particular, fails to notice the fact that the parties had entered into a contract on 10 December 2001. It also fails to recognise that what occurred thereafter was an attempt by officers of the University unilaterally to amend the contract, if not also the terms of the retirement scheme, when plainly they had no authority to do so. One consequence of the University’s argument is that the appellant retired on a different basis from all others who participated in the retirement scheme.
Furthermore, to assert that, when the appellant retired on 14 February 2002, he accepted the University’s offer, which included a term that he receive a lump sum based on 11 years completed service, is to overlook the clear and unequivocal statement in the appellant’s email dated 4 February 2002 that he reserved his
… right to pursue the University for any underpayment of sums otherwise due to me, in particular the sum in dispute under the Voluntary Early Retirement Scheme.
The appellant did nothing to qualify the effect of that statement. Indeed, that statement is entirely consistent with the position that he had maintained throughout, namely that he was retiring in accordance with the terms of the retirement scheme.
The appellant contends that the University was contractually bound to pay him the maximum amount of the lump sum pursuant to the terms of the retirement scheme. I turn to the question whether the appellant entered into an agreement with the University and, if so, when.
The question whether a contract was made must be determined in light of the following facts:
·the University had offered staff an early retirement scheme;
·the University had stated the terms on which staff would retire under the scheme;
·the University and each member of staff who wished to retire early were to be bound by the terms of the scheme;
·the terms of the scheme provided for a lump sum payment to be made to those who retired early;
·the terms of the scheme stipulated the manner in which the lump sum payment would be calculated.
Thus, once the University had agreed that an employee could retire under the scheme and had agreed the retirement date, there was a concluded contract between them. By that time there was nothing further which remained to be agreed.
When considering whether a contract has been made by an exchange of correspondence between the parties, the Court must apply the conventional approach of looking at the documents and seeing whether upon their true construction there is to be found a contractual offer and an acceptance of that offer: Gibson v Manchester City Council [1979] 1 WLR 294 per Lord Diplock at 297. The University’s letter of 4 October 2001 was no more than an invitation to treat. However, the Vice‑Chancellor’s letter of 19 November 2001 was a clear offer to the appellant capable of acceptance by the appellant.
On one view of the Vice‑Chancellor’s letter of 19 November 2001, it was an acceptance of the appellant’s offer to retire early in accordance with the retirement scheme. It proceeded on the footing that the appellant had applied for early retirement and that his application had been approved. The letter concluded by extending the University’s best wishes to the appellant for the future and thanking him for his past service. The letter has all the hallmarks of an acceptance of an offer to retire. However, the letter required the appellant to accept the offer. A contract could not, therefore, be made until he communicated his acceptance.
The next question is whether a contract came into existence once the appellant had accepted the offer in the letter of 19 November 2001. As is apparent from both the terms of the retirement scheme in relation to the retirement date and the terms of the application form completed by the appellant, the actual retirement date was a matter to be agreed provided that it was no later than 14 February 2002. Once the appellant had accepted the offer in the letter dated 19 November, both he and the University were bound. The appellant had agreed to retire in accordance with the terms of the retirement scheme. The University was bound to permit him to retire on an agreed date and to pay him a lump sum calculated in accordance with the terms of the retirement scheme. The amount of the lump sum was not a matter for further negotiation between the parties. Instead, it was an amount to be paid in accordance with the terms of the retirement scheme. All that remained was to fix the date on which the appellant was to retire. That would not be a matter of difficulty as Mr Daysh’s letters of 4 and 6 December 2001 illustrate.
It is always open to an offerer to stipulate the manner of acceptance. The University did so in this case. It stipulated the manner of acceptance by including the acceptance form in the letter of 19 November 2001. Consistently with the terms of the retirement scheme, the acceptance form permitted the appellant to nominate his preferred date of retirement. Once the appellant had returned the acceptance form to the University, a contract had been formed between the appellant and the University, whereby the University was bound to allow the appellant to retire pursuant to the terms of the retirement scheme, including the payment of the lump sum benefit and the appellant was bound to retire and, pursuant to the retirement scheme was entitled to receive the lump sum benefit. The date of retirement was to be the date mutually agreed by them. The actual date of retirement would not be a factor which would cause any difficulty because the appellant would not forego retirement and the substantial lump sum payable on retirement merely because of a difference as to the actual date of retirement.
The University contended that the appellant’s request for a later date of retirement than 25 January 2002 constituted a counter‑offer and so precluded the formation of a contract when the appellant accepted the University’s offer. That contention is founded on the fact that the letter of 19 November 2001 stated a retirement date of 25 January 2002 and the appellant’s acceptance nominated 14 February 2002. The change in date is said to constitute the counter‑offer. There are several reasons why that contention must fail. The first is that the terms of the retirement scheme did not permit the University unilaterally to fix the retirement date. The terms of the retirement scheme were that the actual date of retirement was to be the subject of mutual agreement, provided it was no later than 14 February 2002. Secondly, the acceptance form enclosed in the letter permitted the appellant to nominate his retirement date. The appellant accepted that opportunity and nominated 14 February, a date which entirely accorded with the terms of the retirement scheme.
Thirdly, as already noted, the University had stipulated the manner of acceptance and the appellant had accepted in accordance with that stipulated procedure. Although it is well established that a contract will not be formed unless the acceptance corresponds with the terms of the offer, where the offer presents alternatives to the offeree, it is a sufficient and valid acceptance if the offeree’s acceptance corresponds to one of those alternatives: Georgoulis v Mandalinic [1984] 1 NSWLR 612 at 615, 619. The question is whether it is clear that the offeree intends to be bound by the terms of the offer. When he returned the acceptance form, the appellant unequivocally communicated to the University that he intended to retire in accordance with the terms of the retirement scheme. His request that his retirement date be 14 February 2002 was in accord with the terms of the scheme which stated that the retirement date was a date to be mutually agreed provided it was no later than 14 February. The appellant was not rejecting the offer nor making a counter‑offer. He clearly stated his acceptance under the terms of the scheme and wished to retire in accordance with its terms on the date he had originally nominated. He was not introducing a new term into the offer but accepting it in the terms of the offer, that is to say, in accordance with the terms of the retirement scheme as to the retirement date which constituted part of the offer. There is nothing in the evidence which even remotely suggests that he would not have retired had the University insisted that he retire on 25 January 2002. He did not make his acceptance conditional upon the retirement date. Furthermore, the University’s offer was not conditional on him retiring on 25 January 2002. The appellant’s acceptance did no more than add a mere detail, which did not affect the terms of the offer but was, instead, a detail consistent with the terms of the offer: Carter v Hyde (1923) 33 CLR 115; see also In re Imperial Land Company of Marseilles; Harris’ Case (1872) LR 7 Ch App 587; Stevenson, Jaques & Co v McLean (1880) 5 QBD 346; and Global Tankers Inc v Amercoat Europa NV [1975] 1 Lloyd’s Rep 666, 671. As Ipp JA pointed out in Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 194, the question whether the appellant’s acceptance constituted a counter‑offer depends on the construction of the acceptance in light of the terms of the retirement scheme. As the terms of the retirement scheme provided the appellant the opportunity to negotiate the retirement date, his acceptance did not constitute a counter-offer.
However, if that conclusion is wrong and the appellant’s acceptance was a counter‑offer, a contract was nevertheless formed. It was formed on 10 December 2001 when the appellant received the letter from the University dated 6 December 2001. I set out my reasons for that conclusion.
Upon the appellant receiving the University’s letter of 6 December, the University had communicated its acceptance of the appellant’s counter‑offer and a contract would then have been formed. However, the University contends that a contract could not then have been formed because on 7 December 2001 the appellant had raised questions as to the amount of the lump sum payment he was to receive. For the reasons which follow, the appellant’s question did not prevent the formation of a contract on 10 December.
First, as already noted, the appellant was merely questioning the amount of the lump sum and received a reply stating that it would be based on 11 years’ continuous service. Both the appellant and the University were asserting what they each believed to be the correct position under the terms of the retirement scheme. Neither indicated any intention to resile from the scheme. The email from Ms Lee Jones dated 7 December did not in any respect constitute a qualification of the terms of the retirement scheme. Nor did it affect the terms of the contract made between the appellant and the University on 10 December. It simply provided information. It did not purport to do more than answer the appellant’s request for information. In addition, Ms Jones had no authority to amend the terms of the retirement scheme. The exchange of emails on 7 December did not and could not constitute a variation of the terms of the retirement scheme nor prevent the formation of a concluded contract between the appellant and the University on 10 December 2001.
When the appellant sent his email on 7 December, he was proceeding on the footing that he was retiring on 14 February. That is evident from the first sentence of his email. He relied on the fact that he had returned his acceptance form to the University. His email amounts to no more than a question as to the amount of the lump sum which he was to receive, which in turn, depended on the number of years of continuous service with the University. He was asking the University to confirm that he had 29 years of continuous service. The University’s reply did no more than state the University’s position, a position which, as already noted, was incorrect.
This was the appellant’s first response to the quotation in the letter of 19 November. The appellant was doing no more than taking up the offer for information contained in the letter of 19 November. In that respect the appellant’s enquiry was no different from an enquiry, say, by another member of eligible staff who had accepted the offer suggesting to the University that he had served continuously for 15 years as opposed to 13 years on which the University had made a quotation of the lump sum payment.
Secondly, neither the appellant nor the University were then negotiating whether the appellant was to retire and on what terms. There are several reasons for that conclusion. First, the terms of the retirement scheme were not at any time a matter for negotiation by either the appellant or the University. The University had in October 2001 stated the terms of the retirement scheme. If the appellant or any other member of the University staff was to participate in the scheme, he would participate on the terms nominated by the University. Secondly, before 7 December 2001 the appellant had been offered and had accepted the offer of early retirement under the terms of the retirement scheme. Although the appellant’s retirement date had not been fixed, it was a matter for mutual agreement under the terms of the retirement scheme. Thirdly, and perhaps most importantly, the appellant’s enquiry on 7 December did not concern the terms on which he was to retire. It could not, as the terms of the retirement scheme had been fixed by the University. Instead, it concerned only the implementation of one of those terms, namely, the computation of the lump sum benefit which depended on the number of years of continuous service by the appellant. The appellant was doing no more than taking up the offer in the letter of 19 November to seek further information from Ms Jones for the purpose of knowing the University’s view as to how many years he had continuously served the University. He was making an enquiry about a matter affecting the amount of his entitlement under the terms of the scheme. It was not a question as to whether he had an entitlement. An entitlement capable of calculation had been fixed by the terms of the retirement scheme. The only question was the factors affecting the calculation of that entitlement.
Thirdly, notwithstanding that the University did not agree that he had 29 years of continuous service, the appellant did not attempt to withdraw his acceptance but adhered to it. Thus, when on 10 December the appellant received the University’s letter of 6 December, he was still intending to retire on 14 February 2002 under the terms of the retirement scheme. He had stated his intention in his email of 7 December and everything he said or did thereafter was entirely consistent with that position. Thus, even if the appellant’s acceptance of the University’s offer amounted to a counter‑offer, the communication of the University’s acceptance of that counter‑offer by its letter of 6 December, which the appellant received on 10 December, resulted in the formation of a contract by which the appellant was to retire on 14 February 2002 under the terms of the retirement scheme. On 10 December 2001 that was clearly the common intention of both the appellant and the University. For these reasons, the parties entered into a contractual relationship on 10 December 2001 by which the appellant was bound to retire on 14 February 2002 under the terms of the University’s retirement scheme and, for its part, the University was bound to permit him to retire in accordance with the terms of the retirement scheme.

In his reasons, Besanko J has quoted a lengthy passage from the Magistrate’s reasons. I will not therefore repeat them. Those reasons contain material errors. It is sufficient to note that the Magistrate has erred in holding the parties did not enter into a contractual relationship.
It was suggested that on 10 December 2001 the appellant and the University were in dispute about the amount of the lump sum benefit, such dispute having arisen on 7 December. The above reasons demonstrate that is not correct. The University and the appellant did not enter into a dispute until after that date. However, even if it is assumed that they were in fact in dispute on 7 December as to the amount of the lump sum benefit, that does not alter the position. The important fact to note is that the dispute did not concern the terms on which the appellant was to retire. As already mentioned, the University had already fixed those terms and the terms could not be altered. Instead, the dispute concerned only the implementation of one of the terms of the scheme so far as it applied to the appellant. It was on that footing that the appellant sought to negotiate with the University as to the amount of the lump sum benefit. Throughout his negotiations with the University, the appellant adhered to his acceptance of the terms and sought to persuade the University to agree to the fact that he was entitled to a lump sum benefit paid in accordance with the terms of that scheme, a lump sum calculated on the footing that he had 29 years of continuous service with the University.
Finally, the lump sum was an amount capable of objective calculation by reference to the appellant’s years of continuous service. The important fact is that the terms of the scheme stated that eligible employees were entitled to four weeks pay for every year of continuous service to a maximum of 74 weeks. Once the appellant had accepted the University’s offer, the amount of the lump sum was not a matter for subsequent negotiation between the parties. Instead, the lump sum was to be an amount to be calculated and paid in accordance with the terms of the retirement scheme. The calculation depended only on the number of years of continuous service. The fact that the University later disputed the appellant’s claim that he had 29 years of continuous service could not alter the appellant’s entitlement to have the lump sum calculated in accordance with the scheme. Shortly put, the amount of the lump sum was a matter for calculation, not negotiation.
The question as to when the contract was formed, either on the acceptance of the offer by the appellant or on the University’s acceptance of the appellant’s counter‑offer, is of little importance because, whatever view is taken, the legal consequence is the same. If the appellant’s acceptance of the offer in the letter of 19 November 2001 constituted a concluded contract, the appellant was to retire “in accordance with the University’s Voluntary Early Retirement Scheme”. If he had made a counter‑offer, the University accepted that offer by its letter dated 6 December 2001 in which it stated that the appellant would be paid “your early retirement scheme lump sum and any sum due in lieu of your leave entitlements as of that date”. The reference to “your early retirement scheme lump sum” could only be a reference to what was due to the appellant under the retirement scheme. For these reasons, by 10 December 2001, a contract had been formed between the University and the appellant. All relevant terms had then been agreed. The terms of that contract, which are relevant purposes were
1.     that the appellant was to retire in accordance with and was to be bound by the terms of the retirement scheme;
2.     that the University was bound by the terms of the retirement scheme to permit the appellant to retire in accordance with the terms of the retirement scheme;
3.     that the appellant was to be paid a lump sum in accordance with the terms of the retirement scheme, namely, a sum equal to four weeks pay for each year of continuous service to a maximum of 74 weeks; and
4.     that the appellant was to retire on 14 February 2002.
The amount of the lump sum payment was to be determined pursuant to the terms of the retirement scheme and would depend on the question whether the appellant had continuity of service stretching back to 2 February 1971 and so entitle him to a lump sum of 74 weeks instead of 44 weeks. In other words, the parties had concluded an agreement the terms of which were that the appellant would be entitled to retire in accordance with the University’s Voluntary Early Retirement Scheme, that he would retire on 14 February 2002, and that he would receive the lump sum to which he was entitled under the Voluntary Early Retirement Scheme. That lump sum was a matter of calculation depending only on what was determined to be the appellant’s years of continuous service with the University.
The exchange of correspondence and other communications between the appellant and the University after 10 December 2001 was concerned with how many years the appellant had continuously served the University and with the consequence of that service upon the calculation of the lump sum to which the appellant was entitled.
Whatever transpired between the appellant and the University after 10 December 2001 did not and could not in any respect affect the agreement which had been concluded once the University’s letter of 6 December 2001 had been communicated to the appellant. At the risk of unnecessary repetition, the amount of the lump sum was not a matter for further negotiation. Instead, it was to be an amount to be paid in accordance with the terms of the retirement scheme. It was four weeks for each year of continuous service. On the basis of the finding of this Court that the appellant had served continuously for at least 29 years, he was entitled to the maximum of 74 weeks. He is, therefore, entitled to be paid the sum of $29,823.60, being the balance of the entitlement not paid to him.
By not paying the appellant the lump sum due to him, the University unilaterally altered the terms of the retirement scheme in so far as they affected the appellant. Further, the University discriminated against the appellant in the sense of paying him a lesser entitlement for years of continuous service than was paid to other University employees who participated in the retirement scheme. The terms of the retirement scheme were that employees participating in the scheme were to receive a lump sum calculated on the basis of four weeks for every year of continuous service to the maximum of 74 weeks. That was the basis on which the lump sum was calculated for those who participated in the scheme. In calculating the lump sum on the basis of 44 weeks, the University effectively altered the scheme so that the lump sum paid to the appellant was based on 2.38 weeks for each year of continuous service (up to the maximum of 18.5 years continuous service), not four weeks as the scheme provided. The proposition has only to be stated to demonstrate the flaw in the University’s reasoning, if not also the injustice of it.
For all of these reasons, by no later than 10 December 2001 the appellant had entered into a contract with the University by which he was bound to retire on 14 February 2002 in accordance with the retirement scheme and, for its part, the University was bound to pay him the lump sum benefit under that scheme calculated in accordance with the scheme. There was in fact an earlier agreement to the same effect made when the University received the appellant’s acceptance form.
For these reasons, I would allow the appeal. I would set aside the order of the Full Court of the Industrial Court and in lieu thereof order that the appeal from the Industrial Magistrate be allowed. I would further order that the University pay to the appellant the sum of $29,823.60 and interest thereon. I would hear the parties as to the precise terms of the orders to be made.
BESANKO J: Mr Campbell brought a claim in contract against the University of Adelaide (“the University”) in the Industrial Relations Court of South Australia. The claim was brought under s 14(a)(i) of the Industrial Relations and Employees Act 1994. That Act has since been repealed, but it remains the relevant legislation for the purposes of this appeal.
Mr Campbell was an employee of the Department of Mines and Energy (“Mines and Energy”) from 2 February 1971 to 15 June 1990, a period of about 19 years. On 18 June 1990, he commenced employment as an administrative officer with the Roseworthy Agricultural College (“the College”). The College “merged” with the University on 1 January 1991 and the Act effecting the merger provided that employees of the College became employees of the University: Statutes Amendment and Repeal (Merger of Tertiary Institutions) Act 1990, s 7(1). Section 7(2) provided as follows:
7(2) Nothing in subsection (1) affects the term of appointment, the remuneration or other emoluments of office, the accrued or accruing leave rights or the continuity of service of an employee to whom that subsection applies.
The present case raises issues concerning continuity of service and, for those purposes, the distinction between Mr Campbell’s employment by the College and his employment by the University is immaterial, and the reasons which follow proceed on that basis.
Mr Campbell retired from the University on 14 February 2002. He was then about 62 years old and had completed over 11 years’ service with the University. He retired pursuant to an offer of early retirement made by the University. On his retirement, he became entitled to, among other benefits, a lump sum payment.
Mr Campbell claimed that a term of the agreement under which he retired early, and therefore of his contract of employment with the University, was as follows:
Eligible staff will be offered a lump sum equivalent to four weeks of salary for each completed year of continuous service with the University up to a maximum of 74 weeks.
Under this term, an employee who had completed 19 years or more continuous service with the University was entitled to the maximum lump sum payment.
On or about the date of his retirement from the University, Mr Campbell received a lump sum payment of $43,741.38. That figure was calculated on the basis of 11 completed years of continuous service, commencing on 18 June 1990. Mr Campbell claimed that he was entitled to the maximum payment, and that he had been underpaid in the amount of $29,823.60. That was the amount that he claimed from the University in his application.
In his Particulars of Claim, Mr Campbell alleged that his service with Mines and Energy was part of his continuous service with the University on the ground that his employment with Mines and Energy was transmitted or transferred to the College. He did not pursue that claim in the courts below. Plainly, for reasons which will become clear, the contract of employment between Mr Campbell and the College was a new contract of employment.
At trial and on appeal, Mr Campbell based his claim on another ground. He claimed that it was a term of his contract of employment with the College agreed in 1990 that, save for certain matters which do not affect his claim, the College agreed to treat his service with Mines and Energy as part of his continuous service with the College. Mr Campbell’s claim therefore is based on two alleged terms of his contract of employment, one agreed in 1990 as part of the initial agreement and the other agreed in 2001 or 2002 as part of the agreement under which he retired early.
The University disputed Mr Campbell’s claim. It said that, for relevant purposes, there was no agreement in 1990 that his service with Mines and Energy would be treated as part of his service with the College. That was the first issue considered in the courts below, and if the University succeeded on this issue then that was a complete answer to Mr Campbell’s claim.
The University put an alternative argument on the assumption that it failed with respect to the first issue. It said that whatever had been agreed previously, Mr Campbell agreed in 2001 or 2002 as part of the agreement under which he retired early, that the lump sum payment would be calculated on the basis of 11 completed years of service. That was the second issue considered in the courts below and, if the University succeeded on this issue, then that was a complete answer to Mr Campbell’s claim.
Mr Campbell’s application came on for hearing before an industrial magistrate. The magistrate rejected a submission by the University that the claim did not arise under a contract of employment and that decision is not in issue. The magistrate dismissed Mr Campbell’s application.
Mr Campbell appealed to a single judge of the Industrial Relations Court but his appeal was dismissed. He then appealed to the Full Court of the Industrial Relations Court, but that appeal was dismissed by a majority (Senior Judge Jennings and Judge Thompson). The dissenting judge (Judge McCusker) would have allowed Mr Campbell’s appeal.
Mr Campbell applied for leave to appeal to this Court under s 191 of the Industrial Relations and Employees Act 1994. A single judge of this Court granted leave to appeal and Mr Campbell filed a notice of appeal containing eight grounds of appeal.
As I have said, there are two main issues. On the evidence and submissions in the courts below, the first issue in turn raises two issues, namely, whether any statements by the College about continuity of service were promissory in nature and therefore part of the contract, and, if they were, whether as a matter of construction, they have the meaning and effect alleged by Mr Campbell.
Before turning to consider the facts and the decision appealed from, it is convenient to make some observations about the concept of continuous service, or perhaps more accurately on the facts in this case, recognition by an employer of an employee’s prior service with another employer. Although Mr Campbell’s contract of employment with Mines and Energy was not transmitted or transferred to the College, it was open to Mr Campbell and the College to agree that Mr Campbell’s employment with Mines and Energy would be recognised by the College either generally or for certain purposes.
In 1990, Mr Campbell had certain entitlements under his contract of employment with Mines and Energy in relation to long service leave, recreation leave and sick leave. Mines and Energy paid to Mr Campbell his entitlements in relation to long service leave and, prior to the cessation of his employment, Mr Campbell took his entitlement to recreation leave. Mr Campbell had an entitlement under his contract of employment with Mines and Energy to 189 days of sick leave and the College agreed to carry over an entitlement to 24 days of sick leave. The evidence before the magistrate did not make clear on what basis the figure of 24 days was calculated.
Under the long service leave system adopted by the College, the leave accrued at a higher rate after 15 years’ service. On his employment by the College, Mr Campbell was treated as having that service and granted the leave which accrued at that higher rate. In other words, there was no qualification period for him to serve with the College. To this extent and for the purposes of long service leave, Mr Campbell’s service with Mines and Energy was recognised by the College. In relation to recreation leave, ordinarily a new employee would need to accrue leave over his first year of service before taking any leave. However, as the magistrate put it, “without any particular reference to or recognition of any period of service the applicant was permitted, during his first RAC year of service, to take annual leave as and when it proportionately accrued”. To this extent, and for the purposes of recreation leave, Mr Campbell’s service with Mines and Energy was recognised by the College.
The University’s case at trial was that the College and Mr Campbell agreed in 1990 that Mr Campbell’s prior service with Mines and Energy would be recognised by the College for certain limited purposes in relation to long service leave, recreation leave and sick leave. There is no dispute about Mr Campbell’s entitlement in relation to those matters. Mr Campbell’s case at trial was that, in addition to the particular matters agreed in relation to leave, it was agreed by the College and became a term of the contract of employment, that his prior service with Mines and Energy would be generally recognised by the College.
The contract of employment between Mr Campbell and the College in 1990
The College advertised the position of administrative officer at the College in early 1990 and Mr Campbell made a written application for the position on 19 February 1990. At some time between 19 February 1990 and 18 June 1990, Mr Campbell was interviewed for the position by representatives of the College. The interviewing panel consisted of three persons and the chairperson of the panel was Mr Maurice Zobel, who was the manager, general services at the College. Shortly after the interview, Mr Campbell and Mr Zobel had a telephone conversation.
Mr Campbell and Mr Zobel gave evidence at the trial before the magistrate. Both gave evidence of conversations said to be relevant and which took place before the relevant correspondence. Both were giving evidence some 12 years after the conversations, and in the case of Mr Zobel, he had no specific recollection of the conversations and gave evidence by reference to his practice at the time. The evidence about the conversations was very general and was led in a way which meant that it was unclear whether the witness was giving evidence of what was said (or the effect of what was said) or what he concluded from the conversations.
For example, in chief Mr Campbell gave the following evidence about what was said about continuous service at the interview and during a subsequent telephone conversation with Mr Zobel:
Q     During the course of the interview for this position, was the topic of continuous service ever raised by anyone.
A     That came into the discussion towards the end of the interview and it was recognised that my background, which was – a significant part of the strength of my application, and it was indicated that, because of the nature of the two establishments, there would be continuity of service if I was successful in obtaining the job.
…
Q     Were any assurances given to you by anyone, during that interview for the position of administrative officer at Roseworthy, in relation to continuity of service.
A     Except from what I have said, I was advised that the success or otherwise of my application would be given to me within a few days, which it duly was. I was phoned by Mr Zobel to say that he’d recommended to the college council that I be made an offer. I reiterated my concern about continuity of service, and he gave me a clear understanding verbally at that time that it would apply, because it was necessary for me to know things like that – that particularly, and other things, before I made a decision to accept the offer, which was duly sent to me in writing.
Even accepting that the University cannot now object to the form in which this evidence was given, it cannot be accepted at face value. Mr Zobel did not have the authority of the College to make a binding promise. The question of continuity of service must have been discussed in more detail than is deposed to by Mr Campbell because the issue of leave, and in particular long service leave, was discussed. It is unlikely that there would have been no more than a simple statement that there would be continuity of service because that is not what happened in relation to the three forms of leave and there is no complaint by Mr Campbell about the College’s approach to continuity of service insofar as his leave entitlements were concerned.

Mr Campbell retired from the University on 14 February 2002 and on that date, or shortly thereafter, he was paid a lump sum calculated on the basis of 11 completed years of service.
The magistrate found that, even if there was a contractual term which arose from the conversations or correspondence in 1990 that, except for the particular matters agreed in relation to leave, Mr Campbell’s service with Mines and Energy would be recognised for all purposes, such a term was varied or overtaken by Mr Campbell’s acceptance of the University’s offer that he retire with a lump sum payment based on a period of 11 completed years of service. The single judge did not consider it necessary to address this aspect of the matter.
The decision of the Full Court of the Industrial Relations Court
The majority of the Full Court of the Industrial Relations Court agreed with the reasoning of the single judge and magistrate respectively. In other words, they agreed:
1with the single judge that the statements of Mr Zobel were of a tentative character and not in the nature of promises or assurances;
2with the magistrate, that even if the statements as to continuous service were a term of the contract of employment, regard could be had to surrounding circumstances and if that was done the phrase “continuity of service” was only ever discussed in the context of leave provisions and should be construed accordingly.
3with the magistrate, that Mr Campbell, even if he was under no obligation to do so, accepted the University’s offer of early retirement with a lump sum payment calculated by reference to 11 completed years of service.
The majority also addressed an argument put to them that had not received attention in the courts below. It was a matter upon which the appellant sought to adduce further evidence, although he said the argument could still be put even if the application to adduce further evidence was rejected. Prior to commencing with the College, Mr Campbell was a member of what was referred to in submissions as the old State pension scheme that closed to new members in 1986. It was contended that when he took up his employment with the College, his membership of the old State pension scheme continued and that that could only have occurred by the College’s acknowledgement of continuity of service for this purpose. The majority referred to the lack of evidence on the superannuation scheme and how Mr Campbell retained his membership and said that the evidence did not permit the drawing of the inferences advanced by Mr Campbell.
The dissenting judge also rejected the submission based on Mr Campbell’s continued membership of the old State pension scheme but he did so on the ground that it could not be raised on appeal because it might have been the subject of evidence in the court below. Nevertheless, he would have allowed the appeal on the grounds that having regard to the letter from the College to Mr Campbell dated 22 August 1990 continuity of service, or recognition of prior service was a term of the contract and the acceptance form signed by Mr Campbell on 29 November 2001 gave rise to a contract and it was “then a matter of working out what amount was owed”. The dissenting judge said that Mr Campbell did nothing to compromise his entitlement to a lump sum payment properly calculated.
Preliminary matters
I have identified the two main issues raised on the appeal. Before examining those issues, there are two preliminary matters to consider.
First, Mr Campbell sought to argue in this Court that in the alternative to the action in contract, he was entitled to succeed by reference to the doctrine of estoppel. It was submitted that, on the facts, the elements of estoppel were made out, namely, and speaking broadly for the moment, a representation by the University in the letter dated 22 August 1990 that Mr Campbell’s service would be treated as continuous for all purposes, except for the particular matters agreed in relation to leave, which remained effective and operative in late 2001 when Mr Campbell acted upon it by retiring early. The act of retiring early was said to be a detriment.
The Particulars of Claim filed by Mr Campbell do not contain an allegation of estoppel and it is not a claim addressed in any of the judgments of the courts below.
I reject the submission that an estoppel arose. Even if Mr Campbell thought that on his retirement he would receive the maximum lump sum payment, it is not clear that, but for that belief, he would not have retired, or that it was a material cause of his decision to retire. Nor is it clear to me how it is said that the act of retiring early was a detriment. However, even if it be assumed that these difficulties can be overcome, in my opinion, it is fatal to Mr Campbell’s claim based on estoppel that, after he became aware that the University took the view that he was only entitled to a lump sum payment calculated by reference to 11 completed years of service, he could have avoided early retirement by continuing to work. This follows from the magistrate’s findings as to what occurred at the meeting on 8 February 2002 and thereafter. The magistrate referred to the University offering to rescind the agreement, and Mr Campbell knew full well that he could have continued to work if he was not prepared to accept the payment that the University was offering.
The estoppel argument must be rejected and if Mr Campbell is to succeed it must be in relation to his claim in contract.
The second preliminary matter, which should be addressed before the two main issues raised on the appeal, is Mr Campbell’s submission that his continued membership of the old State pension scheme after June 1990 supports his case with respect to continuity of service. Mr Campbell sought to call further evidence before this Court in support of the submission. In other words, he made the same application to this Court as he had made to the Full Court of the Industrial Relations Court.
The extent to which Mr Campbell’s arrangements with respect to superannuation after he commenced employment with the College were raised before the magistrate is not clear. In his Particulars of Claim and in the context of an allegation that Mr Campbell’s employment with Mines and Energy was transmitted or transferred to the College (an allegation not pursued in any of the courts below), there is a plea that his membership of the State Superannuation Fund and entitlements to the pension scheme were carried over and continued to accrue uninterrupted. In his evidence in chief, Mr Campbell said that after his employment by the College his membership of the State Superannuation Fund and entitlements to the pension scheme continued. There was a brief reference to the topic in the course of Mr Campbell’s cross-examination. As far as I can see, there was no other oral evidence put before the magistrate on the topic of Mr Campbell’s superannuation arrangements. There was no evidence from Mr Campbell or Mr Zobel that the topic of superannuation was discussed in 1990.
Mr Campbell sought to put before the Full Court of the Industrial Relations Court and this Court three documents showing Mr Campbell’s continued membership of the old State pension scheme from the year ending 30 June 1992 to 2001 and that he was accepted by the scheme as a contributor on 1 July 1971. It may be accepted that, even if regard is had only to the evidence put before the magistrate, Mr Campbell’s membership of the old State pension scheme continued after his employment by the College. However, neither the evidence, including the proposed further evidence, nor the submissions put on appeal made it clear how the fact that the College, and then the University, made contributions to the old State pension scheme supported Mr Campbell’s case that it was agreed by the College that Mr Campbell’s previous service with Mines and Energy would be recognised by it. It follows that I agree with the approach of the majority of the Full Court of the Industrial Relations Court. Without apparently ruling on the admissibility of the further evidence, the majority of the Full Court of the Industrial Relations Court took the view that the evidence would simply not support an inference that the University recognised Mr Campbell’s prior service outside the topic of leave.
Issues on the appeal
I turn now to the two main issues raised on the appeal.
The first issue is whether in 1990 it was a term of the contract of employment between Mr Campbell and the College that for the purposes of his employment by the College his service would be regarded as continuous from 2 February 1971. That will only be so if such a term was agreed during the interview and subsequent telephone conversation or in the correspondence.
I start with the conversations. The magistrate appears to have accepted the evidence of Mr Zobel, but, at the same time, he did not expressly reject the evidence of Mr Campbell. In those circumstances, although due weight must be given to the findings made in the courts below, it is open to this Court to draw its own conclusions as to the effect of the conversations.
I have read and re-read the evidence of Mr Campbell and of Mr Zobel. The question of the recognition of Mr Campbell’s service with Mines and Energy and the way in which it was likely to be recognised for the purposes of long service leave, recreation leave and sick leave were discussed. I think it is also possible to conclude that Mr Zobel said it was likely the College would recognise his previous service, at least for certain purposes in relation to the three forms of leave. I do not think anything said can be construed as a firm promise except perhaps a promise by the College to consider, or favourably consider, recognition of Mr Campbell’s prior service for certain purposes. I do not think it is possible to make any more precise findings than those which I have indicated. I do not think it is possible to make a finding that Mr Zobel made a promise that the College would recognise Mr Campbell’s prior service for all purposes save and except for the specific matters discussed in relation to leave. Because it will be relevant later to a submission made by the University, I should also say at this point that I do not think it is possible to find that, to a reasonable observer, the conversations about the recognition of prior service were clearly restricted to recognition for the purpose of leave entitlements. I do not think that the evidence is clear enough to permit such a finding.
It follows that if Mr Campbell is to succeed in establishing the term for which he contends, it will be by reason of what is said in the letter from the College to Mr Campbell dated 22 August 1990. The letter is set out above [112]. There are three issues in relation to the statement in this letter. First, is it promissory in nature? Secondly, if it is, did it become a term of the contract of employment? Thirdly, if the answer to the first two questions is yes, what is the proper interpretation of the term?
As to the first issue, I think that, by its terms, the statement in the letter is promissory in nature. If the statements in the letter had been included in the College’s letter of offer dated 18 May 1990, I do not think there would be any argument but that they formed part of the terms of the contract of employment. That observation leads to an examination of the second issue. Mr Campbell accepted the College’s offer by letter dated 31 May 1990 and he commenced employment with the College on 18 June 1990. The letter dated 22 August 1990 was written after these dates. Is it a purported variation of the contract which is unenforceable because it is not supported by consideration moving from Mr Campbell? I think that it is a term of the contract of employment and not a variation. In this case, there was no formal written contract of employment. From the outset it was envisaged that it was likely that Mr Campbell’s prior service with Mines and Energy would be recognised in some way. Indeed, the College’s practice of recognising prior service in the way in which it did in relation to leave could probably be held out as a benefit in terms of the position offered by the College. The evidence of Mr Campbell and Mr Zobel suggests that the promise contained in the letter dated 22 August 1990 could just as easily have been given before Mr Campbell commenced his employment. For example, Mr Zobel said:
QWhy would Mr Campbell have been entitled to a credit in respect of long service leave.
AAs I indicated, as a standard practice the Roseworthy Agricultural College was prepared to consider granting continuity of service for leave purposes and so rather than wait for the issue to be raised by an appointee later, it’s an issue that we would resolve at the time of commencing employment.
The statement in the letter being a term of the contract of employment, a question then arises as to what it means. That question is to be determined objectively, and the subjective beliefs and intentions of the parties are irrelevant. The court looks at how a reasonable person would construe what was said and done by the parties. That does not mean that a court may not have regard to surrounding circumstances in an appropriate case. One case in which the court will have regard to surrounding circumstances is where the parties use a particular phrase or expression and that phrase or expression is capable of more than one meaning: Prenn v Simmonds [1971] 1 WLR 1381; Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337. The court may have regard to the surrounding circumstances to determine the meaning intended by the parties. The University submitted that this principle could be applied here in relation to the meaning of the phrase, “your service to be regarded as continuous” in the letter dated 22 August 1990. The magistrate found that the discussions and communications were in the context of leave, and, that the discussions were about continuity of service and were “confined to leave aspects”. He said that the statement in the letter dated 22 August 1990 should be construed accordingly. The majority of the Full Court of the Industrial Relations Court agreed with that conclusion.
The difficulty with that conclusion is that it is based on a finding that, in their earlier conversations and correspondence, the parties clearly understood that continuity of service related only to possible entitlements with respect to leave. I do not think that that finding can be made. The correspondence between the College and Mines and Energy is not relevant to this question because there is no evidence that it was seen by Mr Campbell at the time. It is only the conversations between Mr Campbell and Mr Zobel which are relevant to this question. I have already referred to the findings that I think can be made in relation to those conversations at [145]. I do not think that the evidence supports a finding that the discussions, objectively viewed, related only to recognition of prior service for leave purposes.
It follows that the letter of 22 August 1990 must be construed according to its terms. Leave entitlements are referred to in the letter but the statement about service being regarded as continuous is in quite general terms. In my opinion, there is no reason to construe the reference to service being regarded as continuous, as limited or confined in some way to the matter of leave entitlements.
In my opinion, it was a term of the contract of employment entered into in 1990 that the College would regard Mr Campbell’s service as continuous from 2 February 1971, subject to the particular matters agreed in relation to leave.
That conclusion means it is necessary to consider the University’s alternative argument, which was accepted by the magistrate and the Full Court of the Industrial Relations Court, that Mr Campbell agreed to retire and that it was a term of the contract then concluded that he would receive a lump sum payment calculated by reference to 11 completed years of service.
Mr Campbell retired on 14 February 2002. The first question is whether before that date an offer had been made by Mr Campbell and accepted by the University, or made by the University and accepted by Mr Campbell.
That question is to be determined having regard to the objective facts and circumstances, and bearing in mind that a party does not accept an offer if, in his purported acceptance, he proposes a different term to the one contained in the offer. In those circumstances the party is, in law, making a counter-offer. The other basic contractual principle to be borne in mind is that an acceptance is not effective to create a binding contract until it is conveyed to the offeror. That principle is subject to one exception, namely, the postal acceptance rule. Where that rule applies, the acceptance is effective on the posting thereof: Henthorn v Fraser [1892] 2 Ch 27 per Lord Herschell at 33.
On 19 November 2001, the University wrote to Mr Campbell advising him that approval had been given for him to retire on 25 January 2002. I do not think a contract came into existence at that point in time because the parties were not then agreed as to the retirement date. Mr Campbell had previously indicated that his preferred retirement date was 14 February 2002. Furthermore, the letter from the University asks Mr Campbell to complete the acceptance form attached to the letter and that suggests that there was to be no binding contract until that was done.
Mr Campbell completed the acceptance form and returned it to the University at some time between 19 November 2001 and 4 December 2001. The terms of the acceptance form are set out in [121] above. I do not think a binding contract came into existence upon receipt of the acceptance form by the University because the parties were not then agreed upon Mr Campbell’s retirement date. That was a material term and Mr Campbell was effectively making a counter-offer in his acceptance form.
The University’s letter dated 19 November 2001 contained the benefit payment quotation which referred to 11 completed years of service and submissions were made to this Court as to whether it formed part of the University’s offer, bearing in mind that it was referred to as a quote and headed “without prejudice”. The magistrate held that it did, and was part of a binding contract that came into existence when the parties finally agreed on the retirement date. Mr Campbell submitted that it did not, because the University was, in effect, reserving to itself a discretionary power to change the calculations. For reasons which will become apparent, I do not need to resolve this dispute. At the very least, the benefit payment quote put Mr Campbell on notice that the University was then asserting that his lump sum payment was to be calculated by reference to 11 completed years of service.
On 4 December 2001, the University wrote to Mr Campbell explaining the reasons why it proposed a retirement date of 25 January 2002 and asking him to reconsider his position with respect to the retirement date.
By email on 7 December 2001, Mr Campbell advised the University that he considered that he was entitled to the maximum lump sum payment.
By letter dated 6 December 2001, the University advised Mr Campbell that it agreed to a retirement date of 14 February 2002. However, there is no evidence that this letter operated as an effective acceptance before Mr Campbell raised the question of the basis of his calculation of his lump sum payment by his email dated 7 December 2001. As I have said previously, it is not known if the University’s letter dated 6 December 2001 was posted, or, if it was, when it was posted. In those circumstances, it is not appropriate to apply the postal acceptance rule. The magistrate found that the University’s letter dated 6 December 2001 was not received by Mr Campbell until 10 December 2001. By that time, the University and Mr Campbell were clearly in dispute as to the basis upon which the lump sum payment would be calculated and, viewing the question objectively, the receipt of the letter dated 10 December 2001 did not lead to a concluded contract between the parties. From 7 December 2001 onwards, the parties were in dispute as to the calculation of the lump sum payment.

For these reasons, I do not think there was a concluded contract between the parties before 14 February 2002. The second question is whether a contract between the parties was entered into on that day.
In my opinion, a contract came into existence on 14 February 2002, because, by retiring on that day, Mr Campbell accepted the University’s offer which included a term that he receive a lump sum payment based on 11 completed years of service. Mr Campbell clearly disagreed with that basis for calculation but the matter is to be determined objectively. The findings of the magistrate are to the effect that the University, through Mr Daysh and Mr Mooney, made it clear that its offer was conditional upon acceptance of the lump sum payment it had calculated and that Mr Campbell should continue to work if he did not accept it.
In my opinion, by retiring on 14 February 2002, Mr Campbell accepted the University’s offer and he cannot now claim a lump sum payment calculated on a different basis.
Conclusion
For these reasons, I would dismiss the appeal.