DEAN v Cumberland Newspaper Group - [2003] FMCA 561

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEAN v CUMBERLAND NEWSPAPER GROUP

[2003] FMCA 561

HUMAN RIGHTS – Racial discrimination – disability discrimination – Applicant’s complaint to HREOC made out of time – where applicant claims his former employer is liable for alleged discriminatory actions of its employees – where applicant and respondent entered into deed of release - whether deed was intended to be a release in respect of actions for personal injury only.

EVIDENCE – Parole Evidence Rule – whether evidence of parties intentions on entering into the deed could be admitted.

Racial Discrimination Act 1975
Disability Discrimination Act 1992

Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 41 ALR 367
Qantas Airways Limited v Gubbins (1992) 28 NSWLR 26

Applicant:

DAUD KAHI-RUD DEAN

Respondent:

CUMBERLAND NEWSPAPER GROUP

A DIVISION OF NATIONWIDE NEWS PTY LTD

File No:

SZ 1318 of 2003

Delivered on:

18 November 2003

Delivered at:

Sydney

Hearing date:

18 November 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Ms A Healey

Solicitors for the Applicant:

Maxwell Berghouse & Ives

Counsel for the Respondent:

Mr K Eastman

Solicitors for the Respondent:

Minter Ellison

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1318 of 2003

DAUD KAHI-RUD DEAN

Applicant

And

CUMBERLAND NEWSPAPER GROUP A DIVISION OF NATIONWIDE NEWS PTY LTD

Respondent

REASONS FOR JUDGMENT

These proceedings are brought by the applicant claiming that the respondent has breached the Racial Discrimination Act 1975 and the Disability Discrimination Act 1992 during the time it employed him as a printer. The alleged acts of discrimination are best set out in the applicant's complaint to the Human Rights and Equal Opportunity Commission. That complaint was terminated on the ground that the actions of the respondent took place more than 12 months prior to the making of the claim and the Commission was not satisfied that it should exercise its discretion to allow the claim to be made out of time.
The applicant has made an application to this court, which he is entitled to do, following receipt of a notice of termination and the respondent has brought this notice of motion seeking orders dismissing the claim. There are a number of grounds under which such orders are sought. The first relates to the completion by the applicant of a Deed of Release with the respondent that the respondent says covers the matters in dispute before this court.
It is common ground that the Deed of Release, which is found annexed to an affidavit of Deborah Yates dated 21 October 2003 at page 33, was signed at the completion of negotiations over a worker’s compensation claim on 29 January 2002. At the same time as the deed was entered into the applicant signed a document entitled "Resignation" effecting the termination of his employment with the respondent. This document is found at page 32 of the same affidavit. In addition the applicant entered into various documents which were required in order to commute his workers compensation claim and these are found at pages 66 to 70.
At the commencement of the proceedings I determined that the way in which I should deal with this application was to consider first the documents as they now stood in order to decide whether or not there was any need to call extrinsic evidence. I am mindful of the dicta of the High Court in Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1982) 41 ALR 367, where at 371 Steven J said:
“The broad purpose of the parole evidence rule is to exclude extrinsic evidence (except as to surrounding circumstances), including direct statements of intention (except in cases of latent ambiguity) and antecedent negotiations, to subtract from, add to, vary or contradict the language of a written instrument. Goss v Lord Nugent (1833) 5 B & Ad 58 at 64-5.”
His Honour's judgment continues with expressions of modification of that apparently hard and fast rule, but at 375 he says, in relation to evidence of intentions:
“Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except insofar as they are expressed in the contract, but to the objective for framework of facts within which the contract came into existence, and to the parties presumed intention in this setting. We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding, as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.”
The evidence sought to be called by both the applicant and the respondent goes to those intentions. I therefore believe that I am right in seeing whether or not the presumed intentions of the parties can be construed from the wording of the contractual documents themselves.
The deed which the applicant signed was in consideration for the payment of some $40,000. In the recitals he had noted that the applicant had been employed by the respondent for a period of time and alleged certain injuries and as a consequence had lodged a claim for worker’s compensation benefits. It also noted that the worker had voluntarily resigned the employment and that the employer had accepted the voluntary resignation and that the worker and the employer wish to record the agreement between them in relation to the termination.
In the effective part of the deed there are contained two clauses. The first is in the following form:
“(2)The worker hereby releases and forever discharges the employer and [here the words appear to me to read “the i r” but after discussion with the parties it seems to me to have been generally accepted that the other word was “the insurer”] from all action suits, demands claims proceedings whatsoever relating to, arising out of or in the course of:
(2.1)the employment, excluding any rights under any applicable workers compensation legislation;
(2.2)the termination;
(2.3)any other matter hereinbefore recited.”
The second clause is in the following form:
(3)The worker hereby releases and forever discharges the employer from all actions, suits, demands, claims, proceedings whatsoever relating to, arising out of or in the course of:
(3.1)the employment;
(3.2)the termination;
(3.3)any other matter herein before recited.
(3)AThis deed does not affect the worker’s right to pursue an industrial deafness and ...” [I believe the missing word is claim].
The respondent points out that the resignation document clearly notes that the applicant is signing after receiving legal advice. This is confirmed in the other two documents relating to the commutation. The respondent argues that the release is not a release of a general nature, it is specific to claims arising out of the applicant's employment. Ms Eastman points out that the type of claim here being brought under the Disability Discrimination Act can only be a claim relating to employment because under that Act disability discrimination is not mandated generally but only in relation to specific areas of life, such as the provision of services or employment. It is true that this is not the case with the Racial Discrimination Act under which some claims are being made but she argues those claims arise out of events during the course of the applicant's employment. Thus she argues that the words used in paragraph 2 of the Deed of Release recited above clearly intend to exclude the type of claims which are being brought before this court.
Ms Eastman argues that the fact that clause 3(a) has been inserted into the agreement shows the imputed intention of the parties to exclude particular claims and that therefore an intention must be imputed to the applicant not to wish to have excluded the very claims that are brought. She says that the deed should not be read down as if it was the type of general release discussed in Qantas Airways Limited v Gubbins (1992) 28 NSWLR 26.
The applicant maintains that the Deed of Release was entered into as a result of negotiations concluding the workers compensation claim and that the Deed of Release is clearly intended to be only a release in respect of actions for personal injury arising out of the employment particularly the injuries recited. Ms Healey argues that the exclusion of the industrial deafness claim in paragraph 3A does no more than indicate that the parties were turning their intentions to workers compensation matters generally. She points out that the deed makes it clear that the payment is being made by the insurance company and that it is not reasonable to impute an intention on the part of an insurer to assist its insured to obtain release from other claims outside the scope of those then being litigated.
In reply Ms Eastman noted that the applicant by his claim in this court is seeking damages inter alia for a psychological condition that arises out of his employment by virtue of the alleged discrimination.
Although it is true that this deed was entered into in the context of negotiations for settlement of a workers compensation claim, those negotiations went further. They included negotiations for the resignation of the applicant from the respondent. That is a matter with which the insurer would not normally be in anyway concerned. It is therefore not correct to say, as Ms Healey implied, that this was really a deed just with the insurer. Furthermore, the fact of resignation is referred to in the recitals to the Deed of Release. Under Recital J the purpose of the deed is expressed to be the recording of the agreement between the parties in relation to the termination.
Once it is clear the deed covered more than the workers compensation claim then it is possible to give the words their natural and proper meaning within that context. Paragraph (2) clearly releases the employer from all actions etc whatsoever arising in the course of the applicant's employment. In fact the deed specifically excludes any rights under applicable worker’s compensation legislation because it is statutorarily required so to do. The deed is intended to protect the employer from other claims. Such other claims would, to my mind, include those claims which are brought before this court. The only context in which those claims arise are in the context of employment. They are brought against the employer. They hold the employer vicariously liable for the alleged discriminatory actions of its employees who were workmates of the applicant. The claim is infused with the context of employment.
Having made these findings both parties agree that there is no necessity for me to further consider any of the matters in the present application. I must dismiss the application brought by the applicant on the ground that it is barred by paragraph (4) of the deed. I order that the applicant pay the respondent's costs.
I take into account the existence of the letter of 3 October. Under Schedule 1, costs would seem to be approximately $3,830 plus some disbursements. In view of the existence of the letter I am prepared to assess the costs in the sum of $4,500 and $500 disbursements, making a total of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: