Colefax v NSW Department of Education and Communities

[2015] FCCA 2966

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLEFAX v NSW DEPARTMENT OF EDUCATION AND COMMUNITIES [2015] FCCA 2966

Catchwords:
HUMAN RIGHTS – Where the applicant alleged that she had been unlawfully discriminated in her employment on the grounds of disability.

CONTRACTS – Whether there was a binding oral agreement between the parties settling the proceeding in terms set out in an earlier Notice of Offer to Compromise – whether the respondent’s response to the applicant’s offer varied the terms of the applicant’s offer as set out in the earlier Notice of Offer to Compromise and thereby constituted a counter offer – whether the conduct of the parties gave rise to the inference that a binding agreement had not been reached – whether a reasonable person in the position of the respondent would have fairly understood that a binding agreement had been reached.

Legislation:
Federal Circuit Court Rules 2001 (Cth), Schedule 1
Federal Court Rules 2001 (Cth), rr.25.07, 25.10

Cases Cited:
Ermogenous v Greek Orthodox Community of SA Inc. (2002) 209 CLR 95
Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313
Quadling v Robinson (1976) 137 CLR 192
Mooney v Williams (1905) 3 CLR 1
Grainger v Vindin (1865) 4 SCR (NSW) 32
Lang v James Morrison & Co Ltd (1911) 13 CLR 1
RA Brierley Investments Ltd v Landmark Corp Ltd (1966) 120 CLR 224
Bastard v McCallum [1924] VLR 9
Ex parte Fealey (1897) 18 LR (NSW) 282
MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125
Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1
Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673
Carter v Hyde (1923) 33 CLR 115
Ballas v Theophilos (No.2) (1957) 98 CLR 193
Mendel v Benjamin [1997] NSWCA 200

Applicant: MARGARITTE COLEFAX

Respondent: NSW DEPARTMENT OF EDUCATION AND COMMUNITIES

File Number: SYG 638 of 2013

Judgment of: Judge Emmett

Hearing dates:

28 October 2015

29 October 2015

Date of Last Submission: 29 October 2015

Delivered at: Sydney

Delivered on: 12 November 2015

REPRESENTATION

Counsel for the Applicant: Mr Anthony Howell

Solicitors for the Applicant: Maurice Blackburn Lawyers

Counsel for the Respondents: Ms Kylie Nomchong SC

Solicitors for the Respondents: NSW Crown Solicitors Office

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 638 of 2013

MARGARITTE COLEFAX

Applicant

And

NSW DEPARTMENT OF EDUCATION
AND COMMUNITIES

Respondent

REASONS FOR JUDGMENT

1. The proceeding before this Court commenced on 28 March 2013. It arose out of complaints made by the applicant to the Australian Human Rights Commissions (“the AHRC”) on 30 January 2012 and 10 April 2012 respectively. These complaints alleged that the applicant’s employer, the respondent, had discriminated against her on the grounds of disability because she could not drive a vehicle for longer than thirty minutes, and that the restriction on her driving was due to her anxiety and depression.

2. On 21 June 2013, the matter came before me on the first court date and directions were made that the matter continue by way of pleadings. On 29 July 2013, the applicant filed a Statement of Claim and on 2 September 2013, the respondent filed a Defence.

3. On 5 September 2013, the respondent made a formal offer to settle the proceeding by way of Notice of Offer to Compromise. The Notice of Offer to Compromise was in the following terms:

   “To the Applicant

   The Respondent offers to compromise this proceeding.

   The offer is:

   The respondent consents to the following orders, without admissions:

   1. The Respondent pay the amount of $8,000 in respect of the claim.

   2. The proceeding otherwise be dismissed. 

   This offer is in addition to costs calculated in accordance with Schedule 1 of the Federal Circuit Court Rules 2001.

   This offer of compromise is open to be accepted for 14 days after service of this offer of compromise.

   The amount of the offer will be paid within 28 days after acceptance of this offer.

   This offer is made without prejudice.”

4. The offer was not accepted by the applicant and, accordingly, on 19 September 2013, the Notice of Offer to Compromise lapsed.

5. Between March 2015 and June 2015, the parties filed their evidence by way of affidavit.

6. On 11 June 2015, pursuant to discussions between counsel for each of the parties, the respondent made an oral offer to settle the proceeding in the same terms as the Notice of Offer to Compromise that was made on 5 September 2013 (“the Offer”).

7. At 12.25pm on 23 June 2015, the applicant’s solicitors sent the following email to the respondent’s solicitors:

   “Dear Mr Woolard,

   Further to the discussions between our respective counsel earlier this morning, we have obtained instructions with respect to the oral offer of settlement made between counsel on Thursday, 11 June 2015, the effect of which was to reinstate the offer reflected in the Notice of Offer of Compromise from the Respondent and dated 5 September 2013. A copy of that Notice is attached for your convenience. Our client accepts the settlement proposed, in terms of the attached Notice.

   We note the offer was not put on a “without admissions” basis, and was not conditioned by the completion of a Deed of Release.

   We will forward a copy of an outline of costs in accordance with the offer shortly.

   Kind regards,

   Sascha.”

8. On 8 July 2015, the applicant filed an Application in a Case seeking the following Orders:

   “1. Pursuant to terms [of] settlement reached on 23 June 2015, the Court Orders:

   a. The Respondent is ordered to pay to the Applicant $8000 in respect of the claim, within 28 days of the making of these Orders.

   b. The Respondent is to pay the Applicant’s Costs of the proceedings calculated in accordance with Schedule 1 of the Federal Court Rules 2001.  

   2. The Respondent is to pay the Applicant’s costs of this Application in a Case on an indemnity basis.

   3. The proceedings are otherwise dismissed.”  

9. Both parties confirmed that the only issue before the Court is whether there was a binding agreement on 23 June 2015 between the applicant and the respondent settling the proceeding. The parties posed the question for the Court to answer as follows:

   “What would a reasonable person in the position of the respondent have fairly understood to be the meaning of the email from Ms Peldova-McClelland dated 23 June 2015 at 12:25pm in all of the circumstances, excluding the discussions between counsel referred to in Annexure 2 to the affidavit of Ms Peldova-McClelland, affirmed on 3 July 2015 and filed on 8 July 2015.” 

10. The dispute arose from the respondent’s solicitor’s response at 3:00pm on 23 June 2015 to the email of Ms Peldova-McClelland at 12:25pm on 23 June 2015. The email from the respondent’s solicitors at 3:00pm on 23 June 2015 was as follows:

    “Dear Ms Peldova-McClelland

    I refer to your email of 23 June 2015, purporting to accept my client's reinstated Notice of Offer of Compromise dated 5 September 2013.

    However, I note that you have stipulated that your client has accepted the settlement proposal on the basis that the offer was not put on a “without admissions” basis.

    This is not correct. The offer was put on the same basis as was set out in Notice of Offer dated 5 September 2013, being: “The Respondent consents to the following orders, without admissions” (my emphasis).

    As such, I advise that my client does not accept your counter-offer in those terms.

    I also advise that my client's offer as put on 11 June 2015 is withdrawn effective immediately.

    Regards

    Chris Woolard.”

11. At 4.58pm on 23 June 2015, Ms Peldova-McClelland responded to Mr Woolard’s email as follows:

    “Dear Mr Woolard,

    We refer to your email of 23 June 2015.

    Our client has not proposed a “counter offer”. Our email said in terms: “…We have obtained instructions with respect to the oral offer of settlement made between counsel on Thursday, 11 June 2015, the effect of which was to reinstate the offer reflected in the Notice of Offer of Compromise from the Respondent and dated 5 September 2013. A copy of that Notice is attached for your convenience. Our client accepts the settlement proposed, in terms of the attached Notice” and attached a copy of the Notice.

    There can be no realistic suggestion that our client has made a “counter offer”. You are right - the Notice in terms says on a without admissions basis. That was what our client accepted.

    The observation at the end of our email, including the word  “not” was a typographical error, and was plainly a typographical error as the Notice (which we attached) plainly identifies the offer was put on an without admissions basis. The “note” at the end of the email should have said “We note the offer was put on a ‘without admissions’ basis, and was not conditioned by the completion of a Deed of Release”. There is, with respect, no basis to assert this was a counter offer.

    We note Rule 25.07 and 25.10 of the Federal Court Rules [and] have absolutely no desire to have to make any form of interim application. Please confirm, as a matter of urgency, that the matter is settled.

    Kind regards,

    Sascha.”

12. Thereafter, correspondence followed between the solicitors for the parties, each proposing settlements on terms different to those proposed in the email sent by the applicant’s solicitors at 12:25pm on 23 June 2015 to the respondent’s solicitors.

13. In written and oral submissions to the Court, counsel for the respondent, Ms Nomchong SC, contended that there was no binding agreement to settle the proceeding in the terms of the Offer.

14. Counsel for the respondent accurately summarised the relevant legal principles in relation to the issue before the Court as follows:

    “5. First, a condition of valid acceptance is that it must correspond with the offer. This is a foundational element of contract formation – consensus ad idem – minds must meet. This is a strict rule determined by objective standard.[1]

    6. Second, and most significantly for the purposes of this case, acceptance in contract law is an unqualified assent to the terms of an offer.[2] Thus, a purported acceptance that departs from or adds to the original offer invalidates acceptance.[3] A communication with an additional or varied term is taken to be a counter offer.

    7. There can be no binding agreement if it depends on further agreement between the parties. A purported acceptance that agrees to the offer in general terms, but looks to qualify certain provisions, is not unequivocal and there is no meeting of the minds.[4] Indeed, the addition of any term or a conditional acceptance is no acceptance at all.[5] The variation or condition sought need not be material or substantial. Whether the added term has such an effect is a question of construction.[6]

    8. Third, in determining whether there is a binding agreement, the Court is required to make a determination of the intention of the parties. That determination is to be made objectively by reference to the terms of the offer and purported acceptance as well as all of the surrounding circumstances. This includes the previous dealings between the parties. Regard may also be had to the subsequent conduct of the parties. These principles were recently confirmed by the NSW Court of Appeal in Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313 at [69]-[72].

    9. Fourth, a counter-offer is not only a rejection of the original offer, it will also extinguish that original offer.[7]

    [1] Ermogenous v Greek Orthodox Community of SA Inc. (2002) 209 CLR 95 at [25] per Gaudron, McHugh, Hayne and Callinan JJ; Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313 (Pavlovic) at [69]

    [2] Quadling v Robinson (1976) 137 CLR 192, Gibbs J at 201

    [3] Mooney v Williams (1905) 3 CLR 1, 7; Grainger v Vindin (1865) 4 SCR (NSW) (L) 32; Lang v James Morrison & Co Ltd (1911) 13 CLR 1, Griffith CJ at 6, Barton J at 12-13; RA Brierley Investments Ltd v Landmark Corp Ltd (1966) 120 CLR 224, Barwick CJ, Kitto and Windeyer JJ at 233-234

    [4] Mooney v Williams (1905) 3 CLR 1; 11 ALR 437; Bastard v Mccallum [1924] VLR 9

    [5] Bastard v Mccallum [1924] VLR 9; Ex parte Fealey (1897) 18 LR (NSW) L 282. See also the ticket cases: MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125 at 137-9 per Stephen J; cf Vertzyas v Singapore Airlines Ltd (2000) 50 NSWLR 1at16 per Knight DCJ

    [6] Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, 163 per Heydon JA at [27]; Quadling v Robinson (1976) 137 CLR 192, per Gibbs J at 201

    [7] Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, 176 per Heydon JA at [71]

15. Counsel for the applicant, Mr Howell, relevantly expanded on those principles in written submissions as follows:

    “16. The basic principles surrounding an analysis of whether parties have reached a binding contract are well settled, and have been helpfully summarized by Sackville AJA, with whom Gleeson JA and Macfarlan JA agreed in Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1 at [59] – [64]. It is only the first of his Honour’s summary of principles that warrant consideration in this case (my emphasis):

    First, in Australia the “objective” theory of contract has been accepted: see, most recently, Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640 at [35]. Consequently, in determining whether a binding contract has been concluded, the law is concerned not with the parties’ subjective intentions, but with “the outward manifestations of these intentions”: Taylor v Johnson [1983] HCA 5; 151 CLR 422 at 428 (Mason ACJ, Murphy and Deane JJ). Thus 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: Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] (per curiam); Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; 219 CLR 165 at [40]-[41] (per curiam). In a case where the ordinary process of offer and acceptance has taken place, the court inquires as to what a reasonable person would infer or deduce from observing the exchanges between the parties: NC Seddon, RA Bigwood and MP Ellinghaus, Cheshire & Fifoot Law of Contract (10th Aust ed 2012, LexisNexis Butterworths) at [3.4].

    A general summary of principle can also be seen in the judgment of Kirby P in Prudential Assurance v Health Minders (1987) 9 NSWLR 673 at 677.

    17. … In those circumstances, as Isaacs J had said in Carter v Hyde (1923) 33 CLR 115 at 123 “it is unquestionable law that the bargain of two parties must always be ascertained by reference to the words those particular individuals have themselves selected”. As Gibbs J stated in Quadling v Robinson (1976) 137 CLR 192 at 201 “It must of course depend upon the proper construction of the document by which the grantee purports to exercise an option whether it amounts to an absolute and unqualified acceptance of the rights and liabilities conditionally created by the option”.

    18. As McHugh JA observed in Prudential Assurance[8] (at 684) by reference to the observations of Gibbs J in Quadling v Robinson (1976) 137 CLR 192 at 201:

    “A distinction must be drawn between the case of a person purporting to exercise an option while attempting to vary its terms and the case of a person intending to exercise an option in accordance with its terms but who, in describing the terms of the option, mis-states them. In the first case the purported exercise is ineffective. In the second case the purported exercise will be valid unless the grantee purports to exercise “the option” as misdescribed.”

    19. As Gibbs J observed in the passage from Quadling to which Kirby P had referred, “although a notice misstates the terms of the option which it purports to exercise, it may nevertheless amount to an unqualified and unconditional exercise of the option”.[9] A misdescription of what was required in the performance of a contract does not evidence an intention to make a counter offer:[10] “the acceptance of that offer must be treated as an acceptance of the offer properly construed, although the offeree in accepting might have thought it had a different meaning.”[11]As Williams J observed in Ballas v Theophilos (No.2)[12]:

    “If the intention to exercise an option is sufficiently clear, it matters not that the optionee at the same time wrongly asserts that the purchase price is £x whereas the true purchase price is £x + £y. By exercising the option he contracts to pay the price whatever it may be”.”

    [8] Prudential Assurance v Health Minders (1987) 9 NSWLR 673; embraced by Sheller J (with whom Mason P and Stein JJA agreed) in Mendel v Benjamin [1997] NSWCA 200

    [9] Quadling at 201 per Gibbs J 

    [10] Carter v Hyde (1923) 33 CLR 115 at 122 per Knox CJ; Quadling at 197 per Barwick CJ; to a similar effect see Gibbs J at p.201 

    [11] Sheller J (with whom Mason P and Stein JJA agreed) in Mendel v Benjamin [1997] NSWCA 200 (BC9707133 at 22)

    [12] (1957) 98 CLR 193 at 209

16. In contending that there was no binding agreement between the parties on 23 June 2015, arising from the email sent at 12.25pm on 23 June 2015 by the applicant’s solicitors to the respondent’s solicitors, the respondent’s submissions may be summarised as follows:

    a)The offer made by the applicant was an offer to settle on a “without admissions” basis in the same terms as the Offer.

    b)The respondent did not re-issue a notice of offer to compromise.

    c)The Offer was a simple offer of settlement and the rules in relation to notices of offer to compromise are not relevant.

    d)The applicant, through her solicitors, made a counter offer seeking to accept the settlement payment plus costs, but adding a condition that the settlement is not to be “without admissions”, and not to be subject to a Deed of Release.

    e)By email sent at 3:00pm on 23 June 2015, the respondent rejected the applicant’s counter offer and noted that the Offer had been withdrawn.

    f)The applicant introduced two new terms in its email of 12.25pm on 23 June 2015. The first was that the settlement not be “without admissions”. The second was that the settlement not be effected by way of Deed of Release (this second “new term” was not pressed by Ms Nomchong at the hearing and the respondent conceded that applicant’s reference to the Deed of Release was no more than commentary).

    g)The addition of the words “We note that the offer was not put on a “without admissions” basis” was not a typographical error.

    h)A reasonable person would conclude that the paragraph stating “We note that the offer was not put on a “without admissions” basis, and was not conditioned by the completion of a Deed of Release” had work to do.

    i)Neither of those two matters was in the Offer and the inclusion of that paragraph by the applicant’s solicitor in her email of 12:35pm on 23 June 2015 was not a “mere slip” and was intended to reflect new terms.

    j)The words “We note that the offer was not put on a “without admissions” basis” constituted a counter offer, thereby vitiating purported acceptance.

    k)The inclusion of the words “We note that the offer was not put on a “without admissions” basis” was not a mere mis-description given that the applicant attached the former (and lapsed) Offer of Notice to Compromise, thereby confusing matters further.

    l)A reasonable person would infer that there was confusion and the parties had not settled on all of the relevant and significant terms of the agreement.

    m)This inference was supported by the past dealings between the parties.

    n)This inference was also supported by the subsequent conduct of the applicant in the applicant’s repeated refusal to agree to a settlement on a “without admissions” basis.

    o)The “without admissions” in the Offer was clearly an important term to both parties and the failure to ensure certainty on that issue had the effect that there was no meeting of the minds between the parties.

    p)The applicant had insisted in past negotiations that the respondent admit liability, or at least not deny liability.

    q)The respondent had made a number of offers to resolve the applicant’s claim over the course of the dispute between the parties, which have been ongoing since 2007, none of which had been accepted by the applicant.

    r)The applicant’s proposal to include a new term that the settlement was not to be “without admissions” was consistent with the applicant’s refusal of past offers made by the respondent to the applicant. The respondent’s past offers have always been on a “without admissions” basis.

    s)By email sent at 3:00pm on 23 June 2015, the respondent immediately rejected the applicant’s counter offer made at 12:25pm on 23 June 2015.

    t)The respondent made a further offer increasing the monetary amount but requiring that the settlement be “without admissions” and effected by a Deed of Release. The respondent had always made it clear that it was not interested in a settlement of the claim that involved the respondent making admissions as to liability. The failure of the applicant to accept the respondent’s later offer (even though for a greater monetary amount) indicated that the insistence of the settlement being not “without admissions” and effected without a Deed of Release were important terms to the applicant.

1. The respondent submitted that, in all the circumstances, there was no meeting of the minds and no intention to be bound by an agreement on any objective basis.

2. However, I do not find any of the submissions of the respondent to be compelling.

3. It is common ground that the oral Offer made by the respondent’s counsel on 23 June 2015 was in terms of the Notice of Offer to Compromise, although not made on that formal basis. The applicant’s solicitors’ email of 12:25pm on 23 June 2015 clearly stated that a copy of the Notice of Offer to Compromise was attached for convenience and that the applicant accepted the settlement proposed in terms of the attached Notice of Offer to Compromise.

4. It is common ground that the terms reflected in the Offer were the terms upon which the respondent was offering to settle. They were accepted by the applicant on that basis in clear, unambiguous terms, mainly, “Our client accepts the settlement proposed in terms of the attached Notice”.

5. At 3:00pm on 23 June 2015, the respondent responded to the applicant’s solicitors’ email of 12:25pm on 23 June 2015,  noting that the applicant had “stipulated” that she did not accept the settlement proposal on the basis that the offer was not put on a “without admissions” basis and that in the circumstances, the applicant’s response constituted a counter offer.

6. At 4.58pm on 23 June 2015, the applicant responded to the respondent’s email of 3:00pm of the same date. The response from the applicant’s solicitors asserted that the words “We note the offer was not put on a “without admissions” basis” was a typographical error and that plainly, the applicant’s acceptance was in terms of the Offer, which was clearly on a “without admissions” basis.

7. I accept the submissions of counsel for the applicant that the relevant paragraph “We note the offer was not put on a “without admissions” basis and was not conditioned by the completion of a Deed of Release” was no more than commentary that had no effect on the clear acceptance by the applicant of the respondent’s offer. It was not a counter offer.

8. I accept the summary of the circumstances in which the offer was made as accurately reflected in the submissions of counsel for the applicant as follows:

   “21. The circumstances in which the Offer was made and in which the Acceptance was communicated known to both parties can be shortly summarised:

   a) The Applicant and Respondent were in the relationship of employer and employee, and were engaged in litigation before the Federal Court in relation to certain conduct of the Respondent towards the Applicant in the course of that employment (as Mr Woolard described in later correspondence, the Applicant’s claim in the Proceedings “is limited to the period between January and April 2012.”

   b) The Respondent had recently (on or around the same day as the Offer was communicated) served its evidence.

   c) The Offer was made orally in a conversation between counsel for the parties briefed in the Proceedings, and communicated as a proposed resolution of the Proceedings.

   d) The Offer, whilst communicated orally, repeated terms of settlement that were recorded in an earlier written document (the Notice of Offer of Compromise dated 5 September 2013), being an offer which had lapsed without response.”

9. I accept the applicant’s submission that the acceptance by the applicant as reflected in the 12:25pm email of 23 June 2015 was clearly stated to be “in terms of the attached Notice”. The “attached Notice” had a clear statement of “without admissions”.

10. I do not accept the submission of counsel for the respondent that a reasonable person in the position of the respondent would have read the applicant’s acceptance of the respondent’s offer as containing a stipulation that the applicant would only be prepared to accept the Offer if the respondent was prepared to remove the term “without admissions”.

11. I do not accept that the mere notation containing a mis-description is in any way intended to part from the clear statement of acceptance of the settlement proposed in terms of the Offer that was attached to the applicant’s email sent at 12:25pm on 23 June 2015. I do not accept that the notation is in any way a counter offer. It was incorrect of the respondent in the email sent at 3:00pm on 23 June 2015 to state that the applicant had “stipulated” that the settlement proposal would only be on a not “without admissions” basis.

12. The applicant’s acceptance did mischaracterise the terms of the offer reflected in the Notice of Offer to Compromise. However, a reasonable person would not understand those words to be a qualification to the clear acceptance of the settlement proposal in terms of the Notice of Offer to Compromise. The words were in a separate paragraph, and were no more than a mis-description of an offer which was otherwise clearly identifiable and identified, and which was accepted, although in one respect was mis-described (see Carter v Hyde (1923) 33 CLR 115 at [133] per Higgins J).

13. In the circumstances, I am satisfied that as at 12:25pm on 23 June 2015, the parties had a concluded settlement of the proceeding before this Court and, without admissions, the parties consented to Orders whereby the respondent would pay the amount of $8,000.00 to the applicant in respect of the claim; and the proceeding would be otherwise dismissed. Costs were to be calculated in accordance with Schedule 1 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). The amount of the offer was to be paid within 28 days after acceptance of the offer, and the offer was made without prejudice.

14. It was common ground that all the terms of the Notice of Offer to Compromise were reflected in the oral Offer made between counsel for the parties. No issue was taken by the respondent to the contrary. As stated above, both parties agreed that the oral Offer made between counsel on 11 June 2015, whilst made in terms of the Notice of Offer to Compromise, was not intended to be an offer of compromise under the Rules of the Court. However, in terms of the period for which the Offer was open, it was not suggested that the Offer was open to be accepted for any period other than the fourteen days, and that the costs to be paid by the respondent were to be in accordance with Schedule 1 of the Rules. No issue was taken by the respondent that the Offer was not open for acceptance by the applicant on 23 June 2015.

15. In the circumstances, I would be prepared to make a declaration to the effect that there was a binding and concluded agreement on 23 June 2015 at 12:25pm between the parties to settle the proceeding before this Court on the following terms:

    “By consent and without admissions:

    1. The respondent pay the amount of $8000.00 to the applicant within 28 days.

    2. The respondent to pay the applicant’s costs of the proceeding calculated in accordance with Schedule 1 of the Federal Circuit Court Rules (2001) (Cth).

    3. The proceeding otherwise be dismissed.”

16. I note that the orders sought by the applicant in the applicant’s Application in a Case filed on 8 July 2015 do not seek orders in terms of the concluded agreement reached. Further, there is no provision for any further order that the Court may see fit to make. However, when I raised this issue with counsel for the applicant, Mr Howell, he said that if necessary he would seek leave to amend the orders sought.

17. In light of the conclusion I have reached, unless opposed, the applicant should file an Amended Application and the parties should bring in Short Minutes of Order to give effect to my conclusion.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  12 November 2015