Dignam v Kalaci Pty Ltd T/A Pascal Press
[1996] IRCA 325
•26 July 1996
DECISION NO: 325/96
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether Court has power to enforce negotiated compromise of claim - whether Terms of Settlement reflected negotiated compromise
Industrial Relations Act 1988, ss 460, 170 EA, 170 EHA
VonHatzfeld-Wildenburg v Alexander [1912] 1Ch 288
Purdue and AWU-FIME vBrown & Hatton Rural Pty Ltd, unreported,
Wilcox CJ, IRCA 30 June 1966, NI95/531
Stewart Upton Pty Ltd v Pindar unreported, Supreme Court of New South
Wales, 28 April 1988, 4837/87
Darling Downs Investments Pty Ltd v Ellwood [1988] 18 FCR 510
DIGNAM -v- PASCAL PRESS
NI 1376 of 1996
Before: TOMLINSON JR
Place: SYDNEY
Date: 26 JULY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NSW DISTRICT REGISTRY
NI 1376 of 1996
BETWEEN:
Cecily DIGNAM
Applicant
AND:
KALACI PTY LTD
T/As PASCAL PRESS
Respondent
MINUTES OF ORDER
26 JULY 1996 TOMLINSON JR
THE COURT ORDERS THAT:
The Motion of Kalaci Pty Ltd T/as Pascal Press be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NSW DISTRICT REGISTRY
NI 1376 of 1996
BETWEEN:
Cecily DIGNAM
Applicant
AND:
KAKACI PTY LTD
T/As PASCAL PRESS
Respondent
REASONS FOR DECISION
26 JULY 1996 TOMLINSON JR
This is an application brought by the respondent by way of Notice of Motion seeking an order that the agreement reached be the subject of an Order of this court on the basis that a compromise of the applicant’s claim had been reached. In its Notice of Motion filed 24 June 1996 the respondent sought the following orders that:
1. The Court under its accrued jurisdiction enforce the settlement reached between the applicant and the respondent on 7 March 1996 before Registrar Buchanan.
2. The applicant execute the agreed Terms of Settlement
3. That within 7 days of the applicant executing the agreed terms of settlement that the respondent pay the applicant a sum of $30000 gross.
4. That within 7 days of the applicant executing the agreed terms of settlement that the respondent provide the applicant with a statement of service.
5.That the applicant’s claim in this matter be struck out.
6. Any other orders
In its affidavit is support the respondent, by its servant Ms Lisa Halloran, stated inter alia:
1. I am a Senior Human Resources Counsellor at the Australian Chamber of Manufactures, and have been so employed since April 1992.
2. ...I represent members in industrial tribunals, ..including unfair dismissal claims
3. On 7 March I attended a second conciliation conference before Registrar Buchanan representing the respondent. Present was the applicant Ms Cecily Dignam and her legal representative Mr Gabvy Boskovitz.
4. Following discussions, an agreement was reached as to the resolution of the applicant’s claim.
5. Before Mr Boskovitz and Ms Dignam, I reduced these terms to writing and initialled those pages. I ..witnessed Mr Boskovitz initial those pages.. those pages are attached and marked “A”.
6. On 8 March I prepared “Terms of Settlement”. It had been agreed on 7 March 1996 at the conciliation conference that I do so. Later on 8 March 1996 I faxed that document to Mr Boskovitz for his client’s signature.. That document is attached and marked “B”
7. On 21 March 1996 I received a Notice of Listing which set the matter down for call over. I telephoned Mr Boskovitz to ascertain the status of the document “B” and Mr Boskovitz advised me he no longer represented Ms Dignam
8. I have been informed by the applicant that the applicant does not wish to abide by the earlier agreement and wishes to further pursue her application.
Although not marked as annexure A, the attached handwritten notes attached to that affidavit states as follows:
1. The parties agree to the following process in respect of investigation of commission payments
a) the applicant to nominate in writing exact documents required in respect of excel Gold Study and Signpest maths promotions. In addition requesting summaries of commissions paid and tax paid
b) within 3 weeks of receipt of that request, the respondent to provide that documentation
c) The parties acknowledge that should the applicant remain dissatisfied with the outcome of the process above, it is open to her to make application to the Chamber of Manufactures
d) As a result of the investigation process should the parties agree that there be any outstanding commission amounts due, these amounts to be paid within 10 days.
2. The respondent agrees to provide certified copies of the applicant’s Group Certificates for periods financial year ending June 1994, June 1995.
3. In respect of the unfair dismissal claim no U20421/95
the parties have agreed to terms which are to be reduced to a
deed of settlement, provided by the respondent to the applicant
by close of business 8 March 1996.
In brief those terms are
- $3000 payment, applicant responsible for tax
- full and final settlement of termination issues
- no admissions
- private
- upon receipt of cheque the withdrawal of application’ - 7 day time frame after signature
- not that Pascal Press does not give references.”
Although not marked with a letter B, Terms of settlement were attached to the affidavit of Ms Halloran and that document stated
The parties agree to the following:
1. The respondent shall pay and the applicant accept a sum of $3,000 gross, with the applicant accepting responsibility for tax.
2. The terms of settlement to be confidential, and not divulged by either party, except to the extent required by law.
3. These terms of settlement represent full and final satisfaction of any claims by the applicant against the respondent in respect of matters arising from the termination of her employment.
4. The respondent admits no liability.
5. The applicant to advise the Australian Industrial Relations Commission of the execution of these terms, to effect the discontinuance of her claim.
6. Within 7 days after the receipt of the applicant's signature on this doucment, the respondent shall forward to the applicant a cheque for the agreed amount.
7. The respondent to provide at the same time as the cheque, a statement of service, noting that it is against company policy to provide references.
The respondent argued that in essence what the applicant was seeking was a claim for specific performance and precedent in this court indicates that such a power is lacking. Mr Lynch on behalf of the respondent also argued that the claim made by way of Notice of Motion is one for substantive relief, and although possibly arises out of the same factual matrix as the original proceedings, such claim is not one that is delegated to a Judicial Registrar within the meaning of the Industrial Relations Act 1988 (Cth).
On behalf of the respondent to the Motion, the Court heard from the applicant who stated that she instructed a solicitor, Mr Gaby Boscovitz and that she had obtained his name from the Law Society as one who could assist her with her industrial relations legal problem. The first time she instructed that solicitor she attended his officer personally in the Eastern suburbs of Sydney. A certain course of action was agreed upon. The solicitor Boscovitz accepted instructions to attend the Conciliation Conference at the Industrial Relations Commission and negotiate on behalf of the applicant. The applicant states that on 6 March 1996, she telephoned the solicitor Boscovitz and it was agreed he was to meet her at 1.45 pm some 15 or 20 minutes before the scheduled start of the conference due to be held the following day, that day being 7 March 1996. The applicant said Mr Boscovitz was some 20 minutes late, that she was thereby deprived the opportunity of finally discussing the commission matters that were part of her claim, and that when matters were being finalised, “everything was turned around” and that she did not in fact agree with the memorandum of understanding that ended up being initialled by Mr Boscovitz and Ms Halloran.
In cross examination the applicant agreed however the matter of her commission payments had been discussed, and that she was present at the time. The applicant in the Motion before the Court sought to cross-examine Ms Dignam as to the extent of her instructions to her then solicitor regarding authority to settle her claim and it was then confessed that the solicitor at that time did have that authority.
The applicant in the Motion argued that a Judicial Registrar does have power to enforce a settlement such as the one reached by the parties in that those powers are set out in s 376 of the Industrial Relations Act. Further that the Rules in Order 74 Rule 2 provide that when a Judicial Registrar is hearing any proceedings relating to a claim that the termination of an employee’s employment was unlawful, then all the powers of the Court are delegated to each Judicial Registrar. Mr Lynch on behalf of the respondent to the Motion, the applicant in the initial proceedings, argued that annexure A as set out in the affidavit of Ms Halloran - the initialled agreement - was not enforceable on the basis of the judgment of Parker J in Von Hatzfeldt-Wildenburg v Alexander [1912] 1 Ch 288 where it was stated:
“ It appears to be well settled by the authorities that if the documents
or letters relied on as constituting a contract contemplate the execution
of a further contract between the parties, it is a question of construction
whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored.”
and that the agreement fell into the first category. The respondent argued that paragraph 3 of the Terms of Settlement as drawn up and presented to the employee by the employer was not consistent with the handwritten document. Further, it was argued, the negotiated document was not capable of reduction to a Deed as there were areas of uncertainty. For example, the phrase “no admission” was vague and unclear and the full agreement had not been reflected in the Terms of Settlement as the procedures regarding the payment of commission to Ms Dignam had not been covered. The two documents, Mr Lynch argued, were fundamentally different and should not accordingly be the subject of the Orders as sought by the employer. Essentially Mr Lynch argued the Motion was for an Order for Specific Performance of a typed document - a document which did not reflect the negotiated agreement reached between the parties and their representatives.
The applicant in the Motion argued the Court has jurisdiction to enforce an agreement as the settlement was binding on both parties and referred to the decision of Wilcox CJ in Purdue and AWU-FIME v Brown & Hatton Rural Pty Ltd, unreported a decision of Chief Justice Wilcox of 30 June 1996 NI95/531. In this case three employees and their employer reached agreement at the Conciliation Conference. The monies promised were not paid by the employer and the employees sought to have the matter relisted by the Court. Wilcox CJ at p 7 stated:
“The question I have to determine whether or not binding agreements exist, in all or some of the cases. If binding agreements exist, the parties are limited to their rights under them, irrespective whether a particular party views the terms as good or bad. The applicants would be entitled to no more than they agreed to take and the respondent would be obliged to reinstate the payments. To the extent that there are not binding agreements, the matters are not settled; and there is no reason why the original claims should not proceed to hearing in the normal way.”
In written submission the applicant in the Motion argued that point 3 of annexure A of the affidavit of Ms Halloran specifically proved that “the parties have agreed to the terms” and that those words made it clear that there was in fact agreement between the parties. Further, that the parties reduced their Agreement to writing as required by Rule 45 of the Rules of the Industrial Relations Commission. Also on behalf of the applicant to the Motion it was submitted that even if the applicant’s solicitor reached agreement on 7 March 1996, as distinct from the applicant, that such an agreement is still a valid agreement, which may be enforced by this Court. In support of that submission the applicant to the Motion cited Stewart Upton Pty Ltd v Pindar (unreported Supreme Court of New South Wales, 28 April 1988, No 4837/87) where it was stated:
“That solicitors are agents for their clients in some form is not
denied. The retainer of a solicitor, however, does not give him
ostensible authority to conclude contracts on behalf of his
client. He can, like another person, be given actual authority
by this client and this can be proved by direct evidence or by
implication.”
It was argued on behalf of the applicant to the Motion that there was no breach of the agreement reached between the parties in that a Deed was not supplied to the respondent to the Motion and that the document supplied in the form of the Terms of Settlement could be characterised as a Deed. Further, that the Terms of Settlement does satisfy both the formal and the Substantive requirements under Section 38 of the Conveyancing Act.
The applicant to the Motion also sought costs for the applicant’s non-appearance before the Court on 2 July 1996 on the basis of the power of the Court as outlined in Section 170 EHA and that the failure of Ms Dignam to attend on that day was an unreasonable omission in connection with the conduct of the proceedings.
CONCLUSION
It is established precedent that this Court has the power to enforce freely negotiated and settled compromise agreements entered into voluntarily under certain terms and conditions. In support of that proposition I cite
Darling Downs Investments Pty Ltd v Ellwood [1988] 18 FCR 510 General Division per Fisher, Pincus and Einfeld JJ a case which examined the question as to whether the Federal Court has jurisdiction to enforce agreement comprising an action and in relation thereto the Full Court looked at section 22 of the Federal Court of Australia Act 1976 (Cth) s. 22. It was conceded by the respondent to the Motion that this Court accordingly did have power to enforce freely negotiated and settled compromises.
Questions of a professional nature concerning the responsibilities of a solicitor to his client were referred to and it was determined that those matters were not relevant to the issues before the Court.
Having carefully examined the documents the subject of this application, it is a finding of this Court that the Terms of Settlement submitted by the applicant in this Motion to the employee for signature did not represent the agreement entered into as there is no reference to the payment of commission nor provision for the employer to fulfil his part of the agreement. At all times the applicant to this Motion was aware that the payment of the commission and other matters, apart from the unlawful termination proceedings simpliciter, formed an integral part of the relief sought by the applicant. Those matters to my mind do not appear to be covered by the Terms of Settlement and in that regard I agree with the submissions of Mr Lynch on behalf of Ms Dignam the two documents are fundamentally different and that no such Orders as sought by the employer should be made. Having so found it is now not necessary to deal with other matters raised by counsel in this matter referred to above.
Accordingly I dismiss the application made by way of Notice of Motion on behalf of Kalaci Pty Limited Trading as Pascal Press.
I turn now to the question of costs sought arising out of the non-appearance by the employee before this Court on 2 July 1996. There is evidence before the Court that part of the reason the Terms of Settlement were not agreed to by Ms Dignam when presented to her that she may have been in difficulties with her then legal representative. Until a Court is able to hear sworn testimony as to the chronology of events and to make a sound determination on that matter the question of costs as sought by the applicant to the Notice of Motion is reserved.
I certify that this and the eleven (11) previous pages are a true and correct copy of the reasons for decision of Judicial Registrar Tomlinson as recorded in the transcript and revised by the Judicial Registrar.
Associate: J A Liston
Date: 24 JULY 1996
Appearances
Applicant
Counsel: Mr T Lynch
Instructed by Craddock Murray & Neumann
Respondent
Representative: Australian Chamber of Manufacturers
Solicitor: Mr A Britt
Date of hearing 24 July 1996
Date of judgment 26 July 1996
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