Doyle v Oil Basins Limited
[2017] FCCA 2758
•14 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOYLE v OIL BASINS LIMITED | [2017] FCCA 2758 |
| Catchwords: INDUSTRIAL LAW – Allegations of contraventions of Fair Work Act 2009 – proceedings commenced almost 10 months after applicant signed Deed of Release – whether Deed binding – whether Deed bar to proceedings – summary dismissal application – whether no reasonable prospect of success. |
| Legislation: Fair Work Act 2009 (Cth), ss.44, 90(2), 323 Federal Circuit Court of Australia Act 1999 (Cth), s.17A |
| Cases cited: Spencer v Commonwealth of Australia (2010) 241 CLR 118 Seidler v The University of New South Wales [2011] FCA 640 |
| Applicant: | NEIL FRANCIS JAMES DOYLE |
| Respondent: | OIL BASINS LIMITED (ACN 006 024 764) |
| File Number: | MLG 2174 of 2017 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 30 October 2017 |
| Date of Last Submission: | 30 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms A. Robertson |
| Solicitors for the Applicant: | Hall & Wilcox |
| Counsel for the Respondent: | Mr A. Broadfoot QC Mr T. Dowling |
| Solicitors for the Respondent: | Hopgood Ganim Lawyers |
ORDERS
Pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 and r.13.10(a) of the Federal Circuit Court Rules 2001 there be judgment for the respondent and the applicant’s application and statement of claim filed 10 October 2017 be summarily dismissed.
Any application for costs along with brief written submissions (no more than 4 pages) be filed and served within 14 days of this order.
Any response to an application for costs along with brief written submissions (no more than 4 pages) be filed and served 14 days thereafter.
AND THE COURT NOTES:
A.Any application for costs will be determined on the papers unless otherwise requested in submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2174 of 2017
| NEIL FRANCIS JAMES DOYLE |
Applicant
And
| OIL BASINS LIMITED (ACN 006 024 764) |
Respondent
REASONS FOR JUDGMENT
(as corrected)
On 10 October 2017 Neil Francis James Doyle (“the applicant”) commenced proceedings in the Fair Work Division of the Court against Oil Basins Limited (ACN 006 024 764 (“the respondent”).
The applicant’s solicitors filed an initiating application supported by a statement of claim on 10 October 2017. The proceedings were given a first Court date of 3 November 2017.
On 16 October 2017 a response accompanied by a defence to the statement of claim was filed on behalf of the respondent.
The following day, 17 October 2017 the respondent’s solicitors filed an application in a case supported by an affidavit of Mr Carl Francis Dumbrell who is a chartered accountant and non-executive director of the respondent.
The respondent’s solicitors sent correspondence to the Court, copied to the applicant’s solicitors, seeking the application in a case be listed urgently and “heard and determined” on 19 October 2017.
The parties were advised, through their solicitors, the proceedings would be listed for mention on 19 October 2017. On that occasion Ms Robertson of Counsel appeared on behalf of the applicant. Mr Broadfoot QC and Mr Dowling of Counsel appeared on behalf of the respondent.
Senior Counsel for the respondent sought that the Court list the respondent’s application in a case for summary dismissal of the initiating application urgently. The Court was advised the respondent was in the middle of capital raising and rights issue, which had been extended to 27 October 2017. Senior Counsel for the respondent, by reference to the material in Mr Dumbrell’s affidavit submitted these proceedings were affecting the respondent’s capital raising and future capital raises and therefore the ongoing viability of the respondent.
The parties were advised the earliest available date for the hearing of the respondents’ summary dismissal application was, because of existing case load and the need for at least some affidavit evidence from the applicant, 30 October 2017. After hearing from the parties orders were made listing the respondent’s summary dismissal application for hearing on 30 October 2017 providing for the applicant to file and serve any response and affidavit and for the parties to file an outline of submissions.
Background
The respondent, which is listed on the Australian and Port Moresby Security Exchanges was established in Papua New Guinea (“PNG”) in 1929. The respondent operates oil fields in PNG, holds an interest in a liquefied natural gas project and has an extensive appraisal and exploration portfolio. The applicant was a director of the respondent from 2006 to 2016 and also employed as an executive director of the respondent from November 2010 until late 2016 when his association with the respondent ended in controversial circumstances.
The applicant’s employment as an executive director with the respondent was pursuant to an Executive Services Agreements (“ESA”) dated 30 November 2010. It isn’t in dispute that the applicant’s employment was also governed by the Fair Work Act 2009 (Cth) (“the FW Act”).
Whilst on the pleadings filed by the parties there are disputes about inter alia the ESA, the applicant’s entitlements under the ESA and to directors fees following a shareholder vote in 2015 and what happened between then and May 2016 it is not controversial the respondent, following a board resolution, gave the applicant six months’ notice of termination of employment on 27 May 2016.
It is also not controversial that following a further board resolution, in September 2016 the shareholders of the respondent voted to remove the applicant as a director.
Whilst there were disputes on the pleadings about the exact date of the termination of the applicant’s employment and whether there were breaches of the FW Act it also was not controversial that the parties and their respective solicitors had been exchanging correspondence since September 2016, attended a mediation in November 2016 and that the applicant and the respondent entered into a Deed of Release (“the Deed”) in December 2016 which saw the respondent make all the payments under the Deed to the applicant which were required under that Deed.
Whilst the applicant did not dispute that he had signed the Deed of Release, the applicant in the statement of claim filed in this Court claimed it had no binding effect on him as, inter alia, the respondent had failed to exchange and provide a valid counterpart of the Deed.
The respondent denies this and says it executed the Deed caused a unexecuted copy to be posted to the applicant, who was paid the monies and given the shares pursuant to the Deed and alternatively, the clause relied on by the applicant has no legal consequence. Accordingly, the respondent maintained the applicant’s statement of claim should be summarily dismissed by reason of, inter alia, the release in the respondent’s favour by the applicant of the matters in the Deed.
Respondent’s summary dismissal application
In the application in a case filed 17 October 2017, the respondent sought the following orders:
1.The proceedings be dismissed pursuant to Rule 13.10 of the Federal Circuit Court Rules 2001 (Cth) (the Rules).
2.The Applicant pay the Respondent’s costs of and incidental to the proceeding on an indemnity basis, alternatively on a solicitor and own client basis.
3.Alternatively to order 2, the Applicant pay the Respondent’s costs of the proceeding, such costs to be taxed in default of agreement.
...”
In support of those orders the respondent relied on the affidavit of Mr Dumbrell sworn 17 October 2017 and the submissions filed 27 October 2017 to which I will return.
Applicant’s response to application in a case
In the response to the application in a case filed 26 October 2017 the “Grounds of Opposition” to the respondent’s application in a case were:
“1. The Applicant opposes the application in a case of the Respondent dated 17 October 2017 and seeks an order that the application in a case of the Respondent dated 17 October 2017 be dismissed on the following basis:
(a) That he does have reasonable prospects of success prosecuting the proceedings.
(b) The claim for relief is not frivolous or vexatious;
(c) The claim for relief is not an abuse of the process of the Court.
(d) That the Statement of Claim does disclose a cause of action.
2. The Applicant’s grounds of opposition are supported by:
(a) the Statement of Claim filed with the Court dated 10 October 2017; and
(b) the Affidavit of Neil Francis James Doyle sworn 26 October 2017 and exhibits thereto.
3. In the event the Applicant is successful in his opposition to this application, the Applicant seeks an order for the Respondent to pay the Applicant’s costs of and incidental to the application on a party-party basis.”
In support of those orders the applicant relied on his affidavit sworn 26 October 2017 and submissions filed 27 October 2017 to which it will also be necessary to return.
Hearing 30 October 2017
At the hearing on 30 October 2017 Senior Counsel for the respondent relied on the material referred to earlier and, tendered by consent, two exhibits. Counsel for the applicant also relied on the material filed on behalf of her client referred to earlier.
The Deed
It was uncontroversial the applicant signed a Deed of Release on 23 December 2016 which provided inter alia:
RECITAL
A.Mr Doyle and OBL are parties to a document titled Executive Services Agreement dated 30 November 2010 (the ESA).
B.Mr Doyle is a former director of OBL.
C.Mr Doyle’s employment arrangements and agreements and employment with OBL was terminated on 3 November 2016.
D.A dispute has arisen between Mr Doyle and OBL concerning, amongst other things:
(i)Asserted Claims by Mr Doyle with respect to his right in respect of the ESA and any Claims he may have in respect of the termination of his employment with OBL or former directorship of OBL;
(ii)Asserted Claims by OBL concerning Mr Doyle’s employment with OBL and his former directorship of OBL, the enforceability of the ESA, and Mr Doyle’s conduct as a former employee and/or director of OBL and in respect of which OBL asserts it has suffered Loss (as defined in this Deed) as a consequence;
(iii)The matters raised by each of Mr Doyle and OBL in their confidential and without prejudice position papers at a mediation at which Mr Doyle and OBL attended on 23 November 2016.
E.Mr Doyle and OBL have agreed to fully finally and forever resolve all disputes that may have arisen, have arisen or may arise in the future as set out and as contemplated by this Deed.
NOW IT IS WITNESSED AND AGREED IN CONSIDERATION OF THE RESPECTIVE PROMISES OF THE PARTIES:
1. Definitions and Interpretation
1.1. Definitions
Claim or Claims means any claim, action, proceeding or demand however arising and whether present or future, fixed or unascertained, actual or contingent;
…
Employment means the employment by OBL to Mr Doyle as set out in contemplated by the Recitals.
…
Payment means any amount payable under or in connection with this Deed including, without limitation, the purchase price and any amount payable by way of indemnity, reimbursement damages, compensation or otherwise and includes the provision of any non-monetary consideration.
…
Released Matters means all matters, acts, omissions or things in relation to, or connected with:
(a)the Dispute (as referred to in as contemplated by the Recitals) or the Employment;
(b)any conduct or agreement by the parties concerning the Dispute or the Employment or any fact or thing concerning the Dispute or the Employment; or
(c)the circumstances or allegations referred to in the Recitals, or the business and affairs of OBL.
…
2. Release and Indemnity
(i)Subject to this Deed and this clause, and clause 5, in consideration of the Settlement Consideration given to Mr Doyle by OBL as referred to in clause 3, Mr Doyle:
(a)hereby releases each of OBL and each OBL Related Person, from all Claims he had, has, or may in the future have in respect of the Released Matters;
(b)agrees that he will not make any Claims or complaints against OBL and any OBL Related Person, to any court, tribunal or Government Agency concerning the Released matters (whether or not such Claims or complaints might ultimately be determined to be adverse to OBL and/or any OBL Related Person);
(c)agrees, and warrants and represents to OBL, and each OBL Related Person as an inducement to OBL to enter into this Deed, that he has not prior to the date of this Deed made any Claims or complaints against OBL and/or any OBL Related Person , to any court, tribunal or Government Agency concerning the Released Matters (whether or not such Claims or complaints might be ultimately be determined to be adverse to OBL and/or any OBL Related Person); and
(d)will not make any Claims that are adverse to OBL and any OBL Related Person to any court, tribunal or Government Agency concerning the Released Matters except where any such Claim us made involuntarily and under compulsion of law.
(ii) Subject to this Deed and this clause, and clause 5, in consideration of the Settlement Consideration given to Mr Doyle by OBL as referred to in clause 3, OBL:
(a)hereby releases Mr Doyle, from all Claims it had, has, or may in the future have in respect of the Released Matters;
(b)agrees that it will not make any Claims or complaints against Mr Doyle to any court, tribunal or Government Agency concerning the Released Matters; and
(c)agrees, and warrants and represents to Mr Doyle as an inducement to Mr Doyle to enter into this Deed, that it has not prior to the date of this Deed made any Claims or complaints against Mr Doyle to any court, tribunal or Government Agency concerning the Released Matters;
…
3. Settlement Consideration
(i)Without admission OBL will, within two Business Days of the date of this Deed:
(a)pay $20,000 (the Settlement Payment) to Mr Doyle; and
(b)will issue 5 million Ordinary OBL Shares (the Settlement Shares) to Mr Doyle (estimate trading price of 0.4 cents per share0;
(c)assign all rights in a laptop computer of OBL in the possession to Mr Doyle.
(the Settlement Consideration)
(ii)Mr Doyle will within two days of the date of this Deed, advise OBL of the details of the complying superannuation fund, of which is a member, OBL will pay $3,800 to that complying superannuation fund nominated by Mr Doyle within seven days of Mr Doyle nominating the details of that complying superannuation fund.
4. Further acknowledgments, agreements and representations by Mr Doyle to OBL
(i)Mr Doyle warrants and represents to OBL and each OBL Related Person as an inducement to OBL to enter into this Deed, that:
(a)his employment with OBL commenced on 30 November 2010 and ceased on 3 November 2016;
(b)he has taken all accrued and other related annual leave with respect to the period of his employment with OBL and that as at the date of this Deed he has no accrued or other Claims as against OBL with respect to any annual leave.
(ii)Mr Doyle further acknowledges and agrees with OBL that the total value of the Settlement Consideration is estimated at $40,000 and that the giving of the Settlement Consideration by OBL to Mr Doyle is inclusive of all amounts with respect to any annual leave or long service leave (if any) and any other rights or entitlements however arising, with respect to Mr Doyle’s employment with OBL.
(iii)Mr Doyle authorises and directs OBL to update its internal registers to reflect the period of employment of Mr Doyle with OBL as contemplated by this clause and to reflect that Mr Doyle has used and/or been paid all annual leave and other entitlements related to his employment with OBL as at the date of this Deed.
5. Deed is a bar to proceedings
The Parties covenant, acknowledge and agree that:
(i)they enter this Deed fully and voluntarily on their own information and investigation and with the benefit of legal advice or on the basis that they had the opportunity to obtain legal advice prior to entering into this Deed and elected not to obtain such advice.
(ii)they are aware that they or their advisers, agents or lawyers may discover facts different from or in addition to the facts that they now know or believe to be true with respect to the subject matter of this Deed, that subject to sub clause (iii), it is their intention to fully, finally, absolutely and forever settle according to the provisions of this Deed and all Claims arising from the Released Matters;
(iii)for the avoidance of doubt, the Parties agree that any Party may make Claims against any other Party alleging a breach, or for the purposes of enforcement of, the terms of this Deed and shall not operate as bar or defence to any such claims AND SUBJECT TO THE FOREGOING, this Deed may otherwise be pleaded and tendered by Mr Doyle, OBL and any OBL Related Person as an absolute bar and defence to any Claim brought or made by OBL or Mr Doyle as the case may be to any court, tribunal or Government Agency in respect of any Released Matters.
…
12. Acknowledgement – Final Settlement
The Parties acknowledge that it is their intention to and they do fully, finally, absolutely and forever settle according to the provisions of this Deed all Claims which now exist, or may in the future arise or exist or have ever existed between them, relating in any way to the Released Matters.
…
18. Other
The provisions of the Other Provisions Schedule apply to this Deed.
…
Other provisions Schedule
…
(vi) This Deed:
(a)may be executed in any number of counterparts and any counterparts may be delivered by electronic means;
(b)all such counterparts taken together will be deemed to constitute one instrument executed as a Deed; and
(c)has no binding effect on a Party unless and until each counterpart has been exchanged and provided to each other party (and for this purpose, a copy of any such counterpart is effective for this purpose where that party agrees to accept such a copy).
…” (emphasis added)
Respondent’s submissions
In submissions filed 27 October 2017 in support of its application in a case the respondent’s position was:
“…
2. OBL’s application is made in circumstances where it is common ground that following a mediation in which Mr Doyle participated on 23 November 2016 “in an attempt to resolve the subject of this claim”,[1] he signed a Deed of Settlement and Release on 23 December 2016 (Deed).[2] As submitted below, the releases and bars against bringing proceedings that are contained in the Deed cover the claims that are presently made. Notwithstanding having signed the Deed, and then demanding and receiving the payments and other consideration contemplated by it in exchange for the releases,[3] Mr Doyle now claims that the settlement is not binding on him because the “counterpart” clause of the Deed entitled him to act by “withdrawing his signature and approval to the Deed and its terms on 30 June 2017”[4] in circumstances where he claims not to have received a copy of the Deed executed by OBL.
3. As developed in detail below, it is submitted that there are no reasonable prospects of Mr Doyle successfully prosecuting the claims he makes, for three reasons:
(a) as a matter of construction, the “counterpart” clause in the Deed upon which Mr Doyle relies to avoid its effect, does not have the meaning for which Mr Doyle contends: see paras 0 to 0 below;
(b) the objective facts demonstrate that even if the Deed did not give rise to binding obligations, the parties otherwise reached an agreement for the settlement of the matters the subject of the present dispute and for the release by Mr Doyle of his claims. OBL’s obligations under that agreement have been performed, and Mr Doyle’s claims satisfied by reason of that performance: see paras 0 to 0 below;
(c) the objective facts also demonstrate that Mr Doyle waived any entitlement to rely on the alleged non-receipt of a counterpart of the Deed executed by OBL, or alternatively it is established that Mr Doyle is estopped from denying the existence and effect of the Deed: see paras 54 to 65 below.”
[1] Paragraph 31 of the Statement of Claim filed on 10 October 2017 (SOC), which is admitted in the Defence at para 31.
[2] SOC para 32, which is also admitted.
[3] As discussed further below, and in the Dumbrell Affidavit at para 14.
[4] SOC paras 33-35.
Then having referred to the “Principles – summary dismissal”, “Background facts and nature of the claims” and “Terms of the Deed” the respondent’s submissions were:
There is no reason why the claims could not be released
28. In this proceeding, Mr Doyle relies on cl (vi)(c), in order to contend that the he is not bound by the Deed. There is no pleaded allegation that the Deed could not be effective, by reason of it releasing claims that depend on him establishing contraventions of the FWA. Nevertheless, in circumstances where the decision of White J in Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 (Atkins Freight) was referred to by the Court at the hearing on 19 October 2017, OBL submits for the following reasons that there is no reason why the claims made in the circumstances of this case could not have been made the subject of releases and bars to the bringing of proceedings.
29. OBL accepts that in general, a party is not permitted to “contract out” of its statutory obligations. Thus, for example, it is well established that exclusion clauses in a contract cannot defeat the operation of the statutory prohibition on misleading or deceptive conduct contained in s 52 of the Trade Practices Act (now s 18 of The Australian Consumer Law): see e.g. Henjo Investments v Collins Marrickville (No. 1) (1988) 39 FCR 546 at 561 per Lockhart J. And in an industrial relations context, White J in Atkins Freight at [49] described as “well established”, the principle that it is not possible for employers and employees to contract out of the minimum entitlements established by awards. At [52] and [54] the principle was again articulated in terms that make clear that it is applicable to award obligations.
30. Notwithstanding that well established principle, his Honour noted that it had been accepted by the respondent in that case, that the general principle does not preclude parties from comprising bona fide current and contemplated litigation.
…
33. There are, apart from the fact that Mr Doyle has not pleaded a claim that the Deed was incapable of extinguishing his rights, at least two further reasons why it should not be concluded that the claims that he makes are unable to be the subject of a settlement agreement of the kind embodied in the Deed in this case.
34. First, it is self-evident that it is desirable and in the public interest that disputes should be settled: cf the observations of the Victorian Court of Appeal in Regent Holdings Pty Ltd v State of Victoria [2012] VSCA 221; (2012) 36 VR 424 at 429 [20]. The FCCA Act expressly recognises this, with the entirety of Part 4 being devoted to dispute resolution processes, i.e. procedures and services for the resolution of disputes otherwise than by way of the exercise of the judicial power of the Commonwealth. Just as parties are free to agree contractually for terms and conditions of employment that are above award entitlements, they ought to be free to agree privately to settle disputes about their contractual arrangements.
35 Secondly, and insofar as Mr Doyle may rely on the decision in Atkins Freight, the facts of the present case are very different from the circumstances considered by White J in that decision. That case concerned, insofar as is presently relevant, claims brought by the Fair Work Ombudsman (the FWO) in respect of eight employees (or former employees) of Atkins Freight Services Pty Ltd, including a Mr Freckleton and a Mr Gedling. It was alleged by the FWO that the employer had failed to pay entitlements applicable under the relevant award, to eight employees in total, including Mr Freckleton and Mr Gedling: Atkins Freight at [3]. Mr Freckleton and Mr Gedling had entered into deeds of settlement with their employer: Atkins Freight at [12]-[16]. The employer, which was the respondent to the proceeding brought by the FWO, claimed that the deeds of settlement precluded the FWO from bringing her claims, notwithstanding the fact that she was not a party to them.
36 In concluding (at [31]-[32]) that the deeds in that case did not prevent the FWO’s claims, White J relied on the fact that the FWO was exercising her own statutory function, and was not representing the employees. Moreover the deeds could not give rise to any limitation on the jurisdiction or power of the FWO and as she was not a party to them, they were not binding upon her and there could be no estoppel.
37. In dealing with a further submission from the employer that by reason of the deeds, relief should be refused as a matter of discretion,[5] White J went on to recognise, and referred approvingly to, the principle as articulated in Kowalski that bona fide current and contemplated litigation can be settled: see Atkins Freight at [49]. However his Honour concluded that the circumstances of the case before him were different from the circumstances in Kowalski. The conclusion that the circumstances before White J did not bring the case within the Kowalski principle appears at paragraph [54]:
[5] The submission is recorded in Atkins Freight at [37].
“In my opinion, the present case has not been shown to be within the Kowalski principle. Instead, the Deeds contravene the principle that it is not open to parties to contract out of award obligations.”
38. It is apparent from the facts set out above that this case arises in a very different factual context from that considered by White J; the principle in that decision is confined to ensuring that award entitlements are protected. There is no suggestion that Mr Doyle has not been paid any entitlements owing to him under an award, or that the effect of the Deed is to contract out of award entitlements. The claims are brought by a former senior executive in respect of alleged rights to director’s fees, salary and annual leave payments, the source of which is contractual. There was a dispute in which he was legally represented. Following that, the Deed of Settlement was entered into and executed by Mr Doyle personally. It is Mr Doyle (and not the FWO) that presses the present claims. The principle that minimum safety net entitlements that arise under awards cannot be contracted out of is submitted to have no application. Rather, the principle that follows from Kowalski is applicable. That principle is that parties to bona fide disputes about the content of an employee’s entitlements, can settle their dispute.
…
Construction of the Deed
40. It is submitted that as a matter of construction, cl (vi)(c) of the Other Provisions Schedule (as set out at para 27 above) does not have the effect that Mr Doyle could unilaterally withdraw from the Deed. Two grounds are advanced in support of this.
41. First, the clause contemplates that counterparts will be “exchanged and provided”. That occurred in this case. Mr Doyle’s copy was emailed to OBL on 23 December 2016: Dumbrell Affidavit at [11]. OBL’s copy was posted to Mr Doyle on the same day: Dumbrell Affidavit at [12]. The deeds were exchanged by this means. As to the requirement that they be “provided”, the term “provide” is defined in the Macquarie Dictionary as follows:
“1. to furnish or supply. 2. to afford or yield. 3. Law to arrange for or stipulate beforehand, as by a provision or proviso.”
42. Here the evidence of Mr Dumbrell supports the conclusion that OBL furnished or supplied the Deed to Mr Doyle by posting it. Mr Doyle states in his affidavit at [33] that he did not receive it by post. However, on the evidence, the requirement to provide the Deed to him was satisfied regardless of whether he in fact received it, as it was furnished or supplied by means of having been posted. The Deed, in using the term “provided”, does not say or require that the counterpart must be received. It would have been easy to use that language, if that had been the meaning intended to be conveyed. In any event, Mr Doyle has now received an executed copy of it: as he explains in his affidavit at [47], he received a copy by email from OBL’s lawyers on 11 July 2017 – even on his construction of cl (vi)(c) of the Other Provisions Schedule, which requires reading “provided” as “received”, contrary to the text, this has the consequence that the obligations in the Deed are binding. No provision in the Deed entitles him unilaterally to withdraw his signature to it, prior to receiving a counterpart signed by OBL. Accordingly, the issue of whether or not Mr Doyle in fact received the Deed in the post, is not one that needs to be determined. Mr Doyle himself had requested an email copy of the deed, referring to the issue as one of “housekeeping”: see para 48(j) below.
43. Secondly, and regardless of the conclusion reached in relation to the meaning of the word “provided” as used in the Deed, the clause is one that deals with the mechanical aspects of the transaction, in circumstances where the parties contemplated execution by counterparts. In that context, the references to “a Party” and “each other party” in the clause are significant. Properly construed, the clause does not result in a conclusion that there are no obligations at all until all parties have received a copy. Rather the effect of the clause is that the Deed is not effective as against a Party (here, Mr Doyle) unless and until that party has provided a copy to the other parties. The words in parentheses confirm this, by contemplating that the provision of copies is sufficient, if the other parties agree.
44. Consequently, the Deed was not enforceable against OBL (and thus Mr Doyle could not have sued for payment under it) until OBL had provided a signed counterpart (or a copy thereof) to Mr Doyle. And it was not enforceable as against Mr Doyle until he had provided a signed counterpart (which he did). The purpose of the clause is submitted to have been to ensure that neither party could have the Deed enforced against it, unless it had provided a signed counterpart, and to ensure that neither party could enforce the Deed unless it had obtained a signed counterpart from the other side. Thus, the sensible commercial outcome achieved by the clause is that a party who seeks to rely on the Deed must have been provided with a copy of the Deed. The clause does not say, and should not be construed as saying, that the Deed is of no effect whatsoever against either party until all parties have received executed copies, and that pending such receipt either party could unilaterally withdraw. That is the construction for which Mr Doyle contends but such a construction would give rise to commercial inconvenience, which should be avoided: see Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 at 116-7 per French CJ, Nettle and Gordon JJ. Commercial inconvenience would arise if Mr Doyle’s construction is correct, because it would mean that either party could delay indefinitely the coming into existence of any obligations even after executing the document, simply by failing to provide a signed counterpart. Such a construction would also be inconsistent with the critical operative provisions and in particular clause 3, which required steps to be taken within two business days of the date of the Deed, and clause 8 which required each party to take all steps reasonably required by the other, to give effect to the obligations. Commercial inconvenience would also arise if either party could unilaterally withdraw, despite having received the Settlement Consideration, prior to receiving a signed counterpart.
45. In this instance, cl (vi)(c) is not engaged, because Mr Doyle is not seeking to enforce the Deed and, to the extent that OBL seeks to do so, it is common ground that it was provided with a signed copy of the Deed by Mr Doyle. No question arises as to Mr Doyle needing to enforce the Deed against OBL because, as explained below, OBL has performed the obligations required of it.
46. Thus, in circumstances where Mr Doyle has provided a signed copy of the Deed to OBL, it is submitted that a proper construction of cl (vi)(c) of the Other Provisions Schedule does not affect the conclusion that the Deed was effective as against Mr Doyle. Such an approach to construction is consistent with the well-established principle that where an instrument or contract can be construed so as to preserve the validity of the bargain it should be so construed. As the Full Federal Court recently said in Lewski v Commissioner of Taxation [2017] FCAFC 145 at [151]:
“In circumstances where there are two open constructions, one of which results in validity and one of which results in invalidity, it is in accordance with established principle to prefer the construction that preserves validity: Langston v Langston [1834] EngR 190; (1834) 2 Cl & Fin 194 at 243; [1834] EngR 190; 6 ER 1128 per Lord Brougham LC, approved in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 at 275 per Isaacs J; Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571 at 589 per Mason J; see also In re Baden’s Deed Trusts [1969] 2 Ch 388 at 400, 402; Inland Revenue Commissioners v McMullen [1980] UKHL 3;[1981] AC 1 at 14.”
47. Adopting the construction for which Mr Doyle contends would be contrary to that principle, would promote commercial inconvenience, and would be unjust where OBL has performed its obligations.
The parties agreed to settle the dispute
48. Alternatively, it is submitted that the conduct of the parties demonstrates that quite apart from the Deed the parties agreed to settle the dispute and Mr Doyle is precluded from bringing the claims that he now seeks to advance. In particular:
(a) Mr Doyle signed the Deed, as did OBL;
(b) OBL paid $20,000 to Mr Doyle on 23 December 2016 as contemplated by the Deed: Dumbrell Affidavit at [14(a)] and Exhibit CFD-8;
(c) by email of 29 December 2016 sent at 7.49am Mr Doyle asked for the share registry to be advised of the entities that he wanted to receive the shares, “to complete settlement”: Exhibit CFD-10 page 86;
(d) by further email of 29 December 2016 sent at 7.56am, Mr Doyle sent an email regarding his superannuation payment and requested that it be finalised “as per the agreement”: Dumbrell Affidavit at [14(b)] and Exhibit CFD-9, page 83. It is apparent from that email, that Mr Doyle had nominated a Macquarie Superannuation Fund Cash Management Account, to which the superannuation payment was to be made. Mr Doyle’s conduct in sending two emails of 29 December is consistent only with the parties having reached an agreement for his claims to be settled and in circumstances where as he said, payment was required “as per the agreement” between the parties;
(e) OBL made the superannuation payment, as contemplated by the Deed and Mr Doyle’s request, on 29 December 2016: Dumbrell Affidavit at [14(b)] and Exhibit CFD-8, page 80;
(f) on 4 January 2017, Mr Doyle sent a further email (Dumbrell Affidavit at [14(c)] and Exhibit CFD-10, page 86) forwarding his 29 December 2016 7.49am email and alleging that “OBL is now in default” in circumstances where he had not yet received the shares identified as Settlement Consideration, and pointing out that his entitlement to the shares was to be satisfied in two business days “as agreed in the Deed of Separation finalised between myself and [OBL’s representative]”. Again, this conduct is consistent only with the parties having reached agreement for the settlement of the claims, and Mr Doyle acting in accordance with that agreement;
(g) on 10 January 2017 Mr Doyle again complained about the delay in receiving the shares, alleging that “OBL remains in clear breach/default of its binding undertakings as agreed on 23 Dec 2016”: affidavit of Mr Doyle at [37] and exhibit NFD-5, page 18. Mr Doyle’s affidavit at [37] misstates what the email exhibited at NFD-5 in fact said. He did not as the affidavit suggests, say that if OBL did not comply with its obligations, he would regard any money paid to him as a down payment on what was owed to me. Rather he asked, “should I then immediately regard the $20K paid as merely a non refundable downpayment”. This query, read with the allegation that OBL was in breach, and the subsequent requests for the shares, demonstrates that Mr Doyle was seeking to enforce the agreement, rather than contending that it was not binding, and demonstrates that he was in fact affirming the agreement by his conduct;
(h) Mr Doyle and Mr Dumbrell had a conversation on 12 January, during which Mr Dumbrell said that OBL could comply with its obligations under the Deed by way of a transfer of existing shares: affidavit of Mr Doyle at [38];
(i) an email was sent by Mr Doyle on 12 January 2017 at 3.22pm, attaching share transfer forms signed by him and enquiring as to when the shares would appear on his HIN (Holder Identification Number), “so as to complete the executed binding Settlement of Severance Deed dated 23 December 2016”: Dumbrell Affidavit at [14(d)] and Exhibit CFD-11, page 89. It is apparent that by sending transfer forms, Mr Doyle was content to receive his shares by way of transfer rather than as a consequence of a new issue of shares;
(j) later that day, on 12 January 2017 at 5.38pm Mr Doyle sent an email to Mr Mouchacca (OBL’s accountant) requesting an executed copy of the Deed, which he said he had not yet received: affidavit of Mr Doyle at [27] and [39], and exhibit NFD-6, page 20. Rather than attaching significance to the fact that he claimed not to have received a signed copy, Mr Doyle’s email identified the requirement for a signed copy as a matter of “Housekeepong” [sic];
(k) a follow up email was sent by Mr Doyle on 13 January 2017 at 9.13am requesting the “scanned executed unconditional Deed agreement”: affidavit of Mr Doyle at [40] and exhibit NFD-7, page 22. His description was accurate: the deed was an unconditional agreement and moreover he was seeking to enforce it;
(l) later that day, at 10.46am, he sent a further email complaining about the delay in receiving the shares, seeking “an immediate and harmonious settlement today of the outstanding settlement consideration”, referring to the terms as “clearly unconditional”: affidavit of Mr Doyle at [41] and exhibit NFD-8, pages 24-25. He expressed the irrelevant legal opinion that the Deed was “potentially null and void” but did not seek to terminate or rescind it. His affidavit at [42] misstates what the email said, insofar as it suggests that he stated without qualification that he was in fact treating the payment of 23 December as a down payment, with his action against the respondent resuming. Rather, he alluded to this possibility as a potential possible outcome and said “I don’t believe that course is in either Parties interest when the overall $amount has been agreed”: thereby evidencing an intention to affirm the contract and accepting the ongoing existence of the agreement. He made a request for the the Deed to be “modified/amended” so as to provide for a cash payment of $20,000 in lieu of his entitlement to shares, but, as matters transpired, this did not occur and he received the shares that he was seeking on 17 January 2017;
(m) Mr Doyle made 21 calls to Mr Dumbrell in the period to 16 January 2016, “in an attempt to have the Respondent comply with its obligations”, and “for the transfer of the shares to be made as required by the Deed”: affidavit of Mr Doyle at [36]. Mr Doyle was evidently frustrated by the delay in receiving the shares – but he continued to press for them up until the day before he received them, and whether they were conferred by transfer or an issue of new shares was of no consequence;
(n) on 17 January 2017, Mr Doyle received a transfer of 5 million shares, as he acknowledges in his affidavit at [43] and as identified by the Holding Statements appearing at Exhibit CFD-12 (pages 92-93) (and see Dumbrell Affidavit at [14(e)]). The Holding Statements demonstrate that he sold the shares almost immediately. There was and is no complaint made about the fact that the shares were received by way of transfer rather than by having been issued afresh to him.[6]
[6] If anything, Mr Doyle was better off by the transfer rather than an issue of new shares, which would have diluted the equity value of all of the shares on issue.
49. It is well established that it is permissible to look at post-contractual conduct to determine whether an agreement exists, as opposed to determining the terms of an agreement if it is understood that there was in fact an agreement reached.[7] The approach identified by Lord Denning to ascertaining whether an agreement was reached in Port Sudan Cotton Co v Govindaswamy Chettiar & Sons [1977] 2 Lloyds’ Rep 5 at 10 was to:
[7] Although some English authorities suggest that post-contractual conduct can also be looked at to determine the terms of an agreement, the position in Australia is different: but this is not a case where OBL seeks to rely on post-contractual conduct to identify terms.
“[E]xamine the whole of the documents in the case and decide from them whether the parties did reach an agreement upon all material terms in such circumstances that the proper inference is that they agreed to be bound by those terms from that time onward.”
50. He went on to say at 11 that:
“[I]t seems to me that if a party, by words or conduct, admits at a later date that a contract was concluded between him and the other … then that admission is receivable in evidence and be given such weight as the Court thinks proper. Likewise the subsequent conduct of the parties is admissible to show that the contract was made …”
51. In Australia, Kennedy J, in the Full Court of the Western Australia Supreme Court dealt with the issue as follows, in Terrex Resources v Magnet Petroleum Pty Ltd (1988) 1 WAR 144 at 160 and said:
“It is accepted that the conduct of the parties subsequent to the alleged making of a contract may be regarded for the purposes of ascertaining whether or not there was a completed contract: see Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 78 and Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647, in argument (at 663).
In the present case, the subject matter of the agreement and the consideration were defined, and the fact that both parties claimed that there was a concluded agreement cannot be totally disregarded, notwithstanding that they differed as to its terms. The conduct of the parties subsequent to the December agreement appeared clearly to proceed on the basis that there was a concluded contract …”
52. In this case, in addition to the parties’ conduct in signing the Deeds, and the repeated demands for payment made by Mr Doyle that are evidence of the existence of an agreement for settlement of the dispute, there is the fact of his failure to suggest in any way prior to 30 June 2017, that there had not been an agreement reached to settle the claims in exchange for the payments and shares that he received. Mr Doyle was clearly frustrated by the delay in receiving the shares but at no point did he seek to terminate the agreement: to the contrary, as he states in his affidavit at [36], he made 21 phone calls “for the transfer of the shares to be made as required by the Deed” following which he received the shares on 17 January. The proper inference from the parties’ conduct in these circumstances is submitted to be that an agreement was reached between the parties for the dispute to be settled. There is in these circumstances submitted to be no reasonable prospect of Mr Doyle’s claim being successful.
Waiver, or estoppel
53. As the High Court said in Craine v Colonial Mutual Fire Insurance Company Ltd [1920] HCA 64; (1920) 28 CLR 305 (Craine) at 326-7, the facts of a given case are often open to the application of either the doctrine of waiver or that of estoppel. This is such a case.
Waiver
54. If, contrary to the submission advanced above about the proper construction of the “counterpart” clause, it were to be concluded that the effect of that clause is that the Deed is not effective to bind Mr Doyle, on the assumption that he did not in fact receive a signed counterpart, it is submitted that his claim still has no reasonable prospect of success on the basis that he waived any entitlement to receive a signed counterpart. This conclusion is reached even if the above submission that the parties agreed extraneously from the Deed to settle the dispute is not accepted.
55. In Craine at 326, the High Court said that waiver requires an intentional act with knowledge and that the requirement of intention must be:
“[S]uch as either expressly or by imputation of law indicates intention to treat the matter as if the condition did not exist or as if the forfeiture or breach of condition had not occurred.”
56. The concept of waiver has also been described as involving “an abandonment of a right by acting in a manner inconsistent with the continued existence of the right”: per Latham CJ in Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 (Grundt v Great Boulder) at 658.
57. Mr Doyle in fact signed the Deed. As such, he is taken to be aware of its terms (including cl (vi)(c) of the Other Provisions Schedule referring to exchange and provision of counterparts): see Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] FCA 52; (2004) 219 CLR 165 at 182 [57]. By requesting the payments and the shares on the basis that OBL was obliged to perform its obligations with respect to those matters despite (on his version of events) not having received a signed counterpart, it is submitted that Mr Doyle clearly indicated an intention not to rely on cl (vi)(c) and waived any rights entitling him to contend that the Deed was not binding until he received a counterpart. He acted “as if the condition did not exist”. The waiver is confirmed by the fact that Mr Doyle has retained the payments, and sold the shares. There is submitted to be a clear waiver.
58. Although the Deed provides (in cl (ii) of the Other Provisions Schedule) that waiver requires writing signed by the party to be bound, the email requests for payment and the signing by Mr Doyle of the transfers in respect of the shares satisfy this requirement. Alternatively, it is submitted that Mr Doyle in fact waived the requirement for writing if the emails are considered not to satisfy the requirements for writing.
Estoppel by convention
59. Estoppel by convention is a species of a class of estoppels, described collectively as estoppel in pais. As explained by Mason and Dean JJ in Legione v Hateley [1983] HCA 11; (1983) 152 CLR 406 at 430:
“Estoppel in pais includes both the common law estoppel which precludes a person from denying an assumption which formed the conventional basis of a relationship between himself and another or which he has adopted against another by assertion of a right based on it and estoppel by representation which was of later development with origins in Chancery.”
60. In Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507 at 547, Dixon J referred to estoppel in pais as follows:
“The object of estoppel in pais is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other’s detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party. He may be required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment; or because he has exercised against the other party rights which would only exist if the assumption were correct …”.
Applicant’s submissions
In written submissions filed 27 October 2017 the applicant’s position was, inter alia, the application raised “important legal” and “factual issues” which ought not to be determined summarily.
The applicant’s written submissions, inter alia, were:
POWER TO SUMMARILY DISMISS OUGHT NOT TO BE EXERCISED
43. In this case, the power to summarily dismiss should not be exercised in favour of the Respondent, because the Respondent cannot establish that there is no reasonable prospect of the Applicant’s claim succeeding. This is so because:
(a) there are clear legal issues in dispute which need to be fully ventilated including the principal issue: whether by executing a Deed of Settlement and Release relating to his former employment, the Applicant is thereby precluded from commencing legal proceedings in which he seeks, amongst other things, compensation and pecuniary penalties under the FW Act, damages at common law.
(b) there are some factual issues in relation to the true purpose of the Deed and its execution and exchange.
Disputed Legal Issues
44. The principal legal issue in contention is whether by executing a purported Deed of Settlement and Release, the Applicant is thereby precluded from commencing legal proceedings in relation to his former employment in which he seeks, amongst other things, compensation and pecuniary penalties under the FW Act, and damages at common law.
45. While it is well established that disputed questions of fact should be determined at trial, not on an application for summary disposal, the position is not so clear in relation to questions of law.
46. In Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd[8]Gordon J considered that if in a case there is no relevant factual dispute, the court can determine the disputed legal issues without the necessity for a trial.[9] The other two members of the court in Jefferson Ford, Finkelstein J and Rares J, however, considered that a judge had a discretion not to embark on the resolution of disputed questions of law, but to allow them also to go to trial.
[8] (2008) 167 FCR 372
[9] At [131]
47. The issue was addressed by the Full Court in Kowalski v MMAL Staff Superannuation Fund Pty Ltd[10]. In a joint judgment the Court noting the use of the word “may” in s 31A of the Federal Court Act disagreed with Gordon J in Jefferson Ford and held that the judge hearing an application for summary disposal under s 31A did have a discretion not to decide difficult questions of law but to allow them to proceed to be determined at trial (at [28], [31]).
[10] (2009) 178 FCR 401
48. The Applicant submits that this is the preferable view.
49. This is so because the effect of s 61 FW Act is to impose minimum standards that apply to the employment of employees which cannot be displaced by contract. An employer must not contravene a provision of the National Employment Standards (NES);[11] a safety net of legislated minimum standards designed to protect workers’ rights.
[11] FW Act, s 44(1).
50. Under the NES, there is an obligation to pay annual leave in accordance with s 90(2) FW Act. Four weeks annual leave is provided for each year’s service by a NES employee,[12] and such an entitlement accrues progressively.[13] If at the end of an employee’s employment, the employee has a period of untaken paid annual leave then the employer must pay to the employee that amount which otherwise would have been payable to the employee, as if the employee had taken that period of leave.[14] Money owing can only be calculated by reference to the date when the employment “ends.”[15]
[12] FW Act, s 87(1).
[13] FW Act, s 87(2).
[14] FW Act, s 90(2).
[15] Section 90(2) FW Act.
51. Section 61 of the FW Act sets minimum statutory standards. As a general rule, such standards cannot be waived or compromised.[16] Parties cannot contract out of a statutory obligation other than to confer additional benefits,[17] and an estoppel cannot defeat a statutory guarantee.[18] Employers and employees for instance, are not at liberty to contract out of their statutory obligation under s 87, other than to confer additional benefits.[19] Principles of equitable estoppels do not operate against employees in relation to rights and benefits conferred on them under awards and industrial legislation.[20] Because the Deed is inconsistent with such minimum standards, it cannot be enforced according to its terms.
[16] Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18 at [17]
[17] Regional Express Holdings v Clark (2007) 165 IR 251 at [44] (and the cases cited therein), Metropolitan Health Services Board v Australia Nurses Federation (2000) 99 FCR 95 at [20]–[24]), Textile, Clothing and Footwear Union v Givoni (2002) 12 IR 250 at [23]–[33].
[18] Williams v Macmahon Mining Services Pty Ltd [2009] FMCA 511 citing McLennan v Surveillance Australia Pty Ltd (2005) 142 FCR 105; Regional Express Holdings Ltd v Clarke (2007) 165 IR 251 ; [2007] FCA 957; Givoni; Metropolitan Health Service Board v Australian Nursing Federation (2000) 99 FCR 95 ; [2000] FCA 784.
[19] McLennan v Surveillance Australia Pty Ltd(2005) 142 FCR 105 ; [2005] FCAFC 46; Regional Express Holdings Ltd v Clarke(2007) 165 IR 251 ; [2007] FCA 957; Textile, Clothing and Footwear Union of Australia v Givoni Pty Ltd(2002) 121 IR 250 ; [2002] FCA 1406 (“Givoni“); Metropolitan Health Service Board v Australian Nursing Federation(2000) 99 FCR 95 ; [2000] FCA 784.
[20] CEPU of Australia v CJ Manfield Pty Ltd [2011] FMCA 374 citing Metropolitan Health Service Board (2000) 99 FCR 95 at 104–106 per French J; [2000] FCA 784 FCR at paras 20–22 per French J and Givoni at 256–259 per Goldberg J.
52. To the extent it is submitted that the Deed extinguishes any rights the Applicant may have had to pursue legal proceedings against the Respondent, an agreement which purports to resolve all statutory rights an employee may have is not an agreement which is expressly permitted under Chapter 2, Part 2-3 of the FW Act.[21] The NES standards as they apply to the Applicant are not therefore subject to the Deed.
[21] FW Act, s 128.
53. Section 128 of the FW Act provides that:
128 The National Employment Standards have effect subject to:
(a) an agreement between an employer and an award/agreement free employee or a requirement made by an employer of an award/agreement free employee, that is expressly permitted by a provision of this Part; or
(b) an agreement between an employer and an award/agreement free employee that is expressly permitted by regulations made for the purpose of section 129.
54. Section 128 FW Act, is intended to make clear that the NES have effect subject to any agreement or requirement that is permitted by the terms of the NES itself or by regulations made under s 129.[22] This type of agreement is not permitted by the terms of the NES itself. For that reason it is “not expressly permitted by a provision of this Part.”
[22] Explanatory Memorandum to the Fair Work Bill 2009
55. Insofar as the Respondent submits that the dispute between the Applicant and the Respondent was a “bona fide” dispute and in reliance upon Kowalski v Trustee, Mitsubishi Motors Australia Limited Staff Superannuation Pty Ltd[23]the Applicant is now precluded from commencing new proceedings, the Applicant submits that Kowalski does not assist the Respondent.
[23] [2003] FCAFC18 (Kowalski) at [19].
56. In Kowalski the employee commenced legal proceedings against the employer in the Australian Industrial Relations Commission claiming that his termination of employment was harsh, unjust or unreasonable or discriminatory. The employee and the employer participated in a private mediation which resulted in a mediation agreement (Heads of Agreement) signed by both parties.
57. The employee commenced proceedings against the employer in the AIRC arguing that the Heads of Agreement had not been entered into by the employer in good faith. The Commission dismissed the application; concluding that the Heads of Agreement bound the applicant not to bring proceedings.
58. An appeal from the decision was dismissed by the Full Commission on the basis that it was beyond the jurisdiction of the AIRC.[24]
[24] Section 170CE of the Workplace Relations Act (under which the application was brought) was operative from 30 March 1994 and applied to terminations occurring after that date. A finding was made that the termination had occurred on 16 March 1994.
59. In further proceedings issued in the Federal Court by the employee, Mansfield J held that the effect of the finding by the Full Commission was that the employee was estopped from challenging its findings in the Federal Court proceedings.
60. On appeal, the Full Federal Court was not prepared to adopt that position. It held that no issue estoppel arose in respect of the determinations of a Commonwealth administrative body (as opposed to a court or tribunal with the capacity to make final and binding decisions).
61. The Full Federal Court then considered whether the independent conclusion reached by Mansfield J that the agreement in the Heads of Agreement estopped the employee from alleging that his employment had subsisted beyond 16 March 1994, could be sustained. The Full Federal Court held that:[25]
[25] Kowalski at [17].
“to view the Heads of Agreement as simply involving some diminution of the appellant’s statutory rights is to misunderstand the agreement reached. Plainly, the appellant and the second respondent had litigation outstanding. Plainly enough each party was putting a particular position in that litigation. There were risks to each. True it is that statutory public rights cannot be waived or compromised. However, this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation. See eg Lieberman v Morris (1944) 69 CLR 69 at 80. That is clearly what occurred in this case. Indeed the consideration received by the appellant would seem to be something over $250,000 if costs forgone are included. Having regard to the ordinary exigencies of litigation, and the particular risks that the appellant’s arguments involved, many might think that the agreement was reasonably generous to him.”
62. Their Honours then referred to the comments by Mansfield J that “if the termination of his employment at that time gave rise to any rights on his part, the evidence indicates that those rights were merged into the rights which he acquired under the Heads of Agreement….”. And found that they agreed with that conclusion.
63. The principle contended for by the Respondent in this case is that the general principle that parties cannot contract out of minimum statutory entitlements does not apply to compromises of bona fide disputes.
64. The Applicant submits that Kowalski is not authority for the proposition contended for by the Respondent. It is only authority for a much narrower and more confined principle: the general principle that parties cannot contract out of minimum statutory entitlements does not apply to compromises reached where litigation is on foot and in contemplation but not otherwise. Agreements reached before litigation is contemplated or commenced do not preclude later proceedings being commenced.
65. Support for this position is found in the purpose of the FW Act and also in the decision of Atkins Freight Services Pty Ltd v Fair Work Ombudsman[26] (Atkins). That case considered an appeal by an employer from a decision of the Industrial Relations Court of South Australia in which it had been found that the employer was liable in respect of payments for award and statutory entitlements under s 565 of the FW Act. White J considered whether the Industrial Magistrate should have declined to exercise discretion and should have found that Deeds of Settlement entered into by two employees had the effect that the employer was no longer liable to pay any amount for underpayment of wages.[27]
[26] [2017] FCA 1134.
[27] Kowalski at [20]-[36].
66. Counsel for the employer argued that the general principle that parties cannot contract out of the minimum entitlement imposed by an award does not apply to compromises of bona fide disputes concerning the underpayment of wages. It relied upon Kowalski as support for that proposition.
67. White J considered that as the respondent in that case was the Fair Work Ombudsman, it was not bound by the Deeds and the Deeds could not give rise to an estoppel binding upon it.[28]
[28] Kowalski at [32].
68. His Honour next considered the alternative submission, whether the Court by reason of the Deeds entered into between the employees and the employer, should have declined to exercise discretion to make an order in favour of the employees. There was no evidence before the Court about the employees’ execution of the Deeds. The only evidence was the Deeds.
69. The Fair Work Ombudsman submitted that the Deeds should not be given effect to because it was not possible for employers and employees to contract out of the minimum entitlements established by awards. The FWO accepted that the general principle did not preclude parties from compromising bona fide current and contemplated litigation.[29] However, it submitted that the principle had no application to that case because there was no evidence that there had been any contemplated litigation or even a dispute between the employees and the employer. White J held that the circumstances of that case were “very different from those considered by the Full Court in Kowalski.”[30]
[29] Atkins at [49]
[30] Atkins at [51]
70. His Honour went further though, and observed that:[31]
[31] Atkins at [52].
“The principle acknowledged in Kowalski should be carefully confined in its application. Were it otherwise, the general principle that parties cannot contract out of award obligations may be easily subverted.”
71. It is submitted that while the circumstances in this case are not identical to those in Atkins, there are sound reasons why this Court should be very cautious in extending the application of the principle in Kowalski. It should be particularly careful in taking such a step on an application for summary dismissal. The Applicant submits that it should not do so.
72. The principle in Kowalski is inapplicable in this case because:
(a) Kowalski arose under different legislation and in the context of an employee and employer having contracted out of award, as opposed to statutory, entitlements.
(b) It is confined to precluding parties from pursuing litigation in relation to compromises reached when litigation was on foot and in contemplation. That is not this case. Unlike Kowalski, here there is no bona fide current and contemplated litigation.
(c) White J in Atkins says that the principle in Kowalski should be carefully confined in its application because, as His Honour noted, “Were it otherwise, the general principle that parties cannot contract out of award obligations may be easily subverted.”[32]
[32] Ibid.
73. Here while there was a dispute between the parties (unlike Atkins), litigation was not on foot. On the evidence of Mr Doyle, litigation was not in his contemplation[33] (unlike Kowalski). His focus was on being paid something to enable him to meet his financial commitments.[34] He had received some legal advice for the purposes of mediation, but he has deposed that he had no legal advice in relation to the Deed[35] and that negotiations in relation to the Deed were his own, not his lawyers. There is no authority which precludes Mr Doyle pursuing legal proceedings where a deed of settlement is entered into at a time when litigation is not on foot or in contemplation.
[33] Doyle Affidavit, 19.
[34] Doyle Affidavit, 16-17, 19.
[35] Doyle Affidavit, 30.
74. The legal issue raised in this case is novel. There are no decided cases directly on point. The legal issue raises for consideration matters of public interest: should an employer be entitled to compromise a worker’s statutory rights and entitlements in the face of legislation to the contrary when litigation has not been commenced? Recourse must be had to the underlying purposes of the FW Act.[36] It is submitted that if an employer is able to contravene the fundamental entitlements under the FW Act, this undermines the workplace relations regime as a whole and displays a disregard for the Respondent’s statutory obligations.
[36] See for example Explanatory Memorandum to the Fair Work Bill 2009.
75. The fact that there is a real and significant legal issue in dispute is sufficient reason why the Respondent’s application to summarily dismiss the Applicant’s claim should be dismissed.
Disputed factual issues
76. If the Court is of the view that the above legal issue has no reasonable prospect of success, or that it deals only with part of the Applicant’s claim, the Applicant submits that reference to the Deed itself demonstrates that there are factual issues in dispute which are required to be resolved at trial.
Construction of Deed
77. The general principle identified in Grant v John Grant & Sons Pty Ltd[37] is that the general words in a release are limited to that thing or those things which were especially in contemplation of the parties at the time when the release was given.
[37] (1954) 91 CLR 112 (“Grant”)
78. In Rinehart v Rinehart[38] at [70], Jacobson J said:
[38] [2014] FCA 1241.
The general words of a release are to be restrained by the particular occasion which is the subject of the agreement and the scope of a general release is to be determined from the nature of the instrument and the circumstances in which it was made including the state of knowledge of the parties concerning the character of the liability in question: [Grant] at 123, 129–130.
79. It is immediately apparent the importance of determining the “true purpose of the transaction”.[39]
[39] Grant at 129–130 (Dixon CJ, Fullagar and Kitto JJ).
80. To determine the true purpose of the transaction, the Court will be required to consider not only the terms of the Deed, but also the circumstances in which it was made. This will require evidence. On an application such as this, it is for the Respondent to demonstrate that there is no reasonable prospect that the Applicant’s claim will succeed. It is not for the Applicant to prove otherwise.
81. With that in mind, although the Applicant executed the purported Deed of Settlement, and the express terms of the Deed appear to suggest that a compromise was reached between the parties, there is a clear dispute about the nature of that compromise and when it was in fact reached.[40]
[40] Doyle Affidavit, 35-47.
82. In relation to the nature of the compromise, it is unclear exactly what was intended to be released.
83. ‘Released Matters’ is defined to mean[41]:
[41] Dumbrell Affidavit, CFD-7 at pg 3.
all matters, acts, omissions or things in relation to or connected with: (a) the Dispute (as referred to in as contemplated by the Recitals) or the Employment; (b) any conduct or agreement by the parties concerning the Dispute or the Employment or any fact, matter or thing concerning the Dispute or the Employment; or (c) the circumstances or allegations referred to in the Recitals; of the business and affairs of the Respondent.
84. Both ‘Dispute’ and ‘Employment’ are defined by reference to the Recitals.
85. ‘Dispute’ means:
The dispute as referred to in as contemplated by the Recitals.
86. ‘Employment’ means:
The employment by OBL of Mr Doyle as set out in contemplated by the Recitals.
87. The Recitals do not define what is meant by ‘Employment’. Hence there is a factual dispute in relation to this issue. Further, what was intended to be captured by the description of the dispute in the Recitals is far from clear. What were the ‘asserted claims by Mr Doyle with respect to his rights in respect of the ESA’ at that time, given that the current proceedings had not then been issued? What were the claims he had made in respect of the termination of his employment or his directorship? These are factual matters about which evidence will need to be led in order to determine the true purpose of entry into the Deed.
88. Mr Doyle did not have legal advice about the Deed.
89. In relation to the date of execution, the Applicant admits he signed a Deed on 23 December 2016. He does not accept that the Deed exhibited to the Dumbrell Affidavit is the document he signed in its entirety (although for present purposes, the pertinent terms are the same). The only evidence before the Court in relation to execution by the Respondent is hearsay evidence and is inadmissible on that basis.[42] There is therefore a clear factual dispute in relation to when the Deed was executed.
[42] Dumbrell Affidavit, [10].
90. Assuming that the Court accepts that there is a preliminary factual dispute in relation to the nature of the compromise reached and also the circumstances of execution of the Deed, it is submitted that there are several other factual disputes about which evidence will undoubtedly need to be led at trial. These include:
(a) Was the ESA in existence at the date of termination?
(b) If not, what agreement or arrangement was the Applicant working under?
(c) What were its terms?
(d) When was the agreement terminated?
(e) Was the Applicant entitled to receive director’s fees after the resolutions were made at the 9 June 2015 shareholders’ meeting?
(f) What is the effect of each of the Board resolutions?
CONCLUSION
91. The Applicant submits that the Respondent cannot discharge the onus it bears to establish that the Applicant’s claim has no reasonable prospects of success.
(a) the settlement was reached in circumstances where there was no bona fide current or contemplated litigation. Kowalski does not assist the Respondent.
(b) the terms of the Deed are unfair and displace both the Applicant’s statutory entitlements and what he is properly entitled to claim at common law contrary to the purpose of the FW Act.
(c) the Applicant’s claim is not frivolous or vexatious and it is not an abuse of process. The matters raised by the Applicant’s claim give rise to substantive legal issues which have not previously been considered and which should be properly ventilated.
…”
Submissions before the Court
In submissions before the Court supplementing the written submissions filed by his client, Senior Counsel for the respondent noted there had been no amended statement of claim or application for leave to file same made by the applicant. Senior Counsel for the respondent noted that contrary to the case raised in the applicant’s written submissions the statement of claim (and therefore his pleaded case) aside from the allegations of breach of the Fair Work Act 2009 (Cth) provided:
“…
32. A document titled ‘Dead (sic) of Settlement and Release’ was signed by the Applicant on 23 December 2016 (Deed).
33. It was a term of the Deed that it has no binding effect on a party unless and until each counterpart has been exchanged and provided to each other party (exchange term).
PARTICULARS
The exchange term is set out in the ‘Other Provisions Schedule’ of the Deed at subclause (vi)(c).
34. The respondent failed to exchange and provide a valid counterpart of the Deed with/to the Applicant prior to the Applicant withdrawing his signature and approval to the Deed and its terms on 30 June 2017 (Withdrawal) or at all.
PARTICULARS
The Withdrawal is evidenced by an email from the Applicant to the Mr Dumbrell of the Respondent on 30 June 2017.
35. By virtue of the exchange term and the Withdrawal, the Deed is of no binding effect on the Applicant.
…”
Senior Counsel for the respondent in submissions before the Court traversed the written submissions his client relied on and noted, inter alia¸ that in the affidavit material on the Court file it was clear the applicant had not only signed the Deed, received the money and the shares, but on 7 occasions after signing the Deed indicated it was “binding and unconditional”.
Given the evidence before the Court (and Exhibits R1 and R2 which evidenced the situation between the parties before the Deed was signed) it was submitted there could not be a clearer example of parties intending to settle litigation that was in contemplation.
In submissions before the Court Counsel for the applicant accepted the written submissions filed on behalf of her client travelled well beyond the pleaded case. Counsel for the applicant also acknowledged there had been no amended statement of claim nor had any application been made for leave to file same.
Counsel for the applicant suggested the submissions made on behalf of the respondent in relation to the decision in Kowalski (supra) and its import for her client’s case were misplaced. Whilst accepting the evidence before the Court, relied on by the respondent in Exhibits R1 and R2, Counsel for the applicant said there was a real legal issue as to whether the Deed could allow the parties to settle a dispute regarding the applicant’s salary and entitlements.
In reply Senior Counsel for the respondent noted the concession made on behalf of the applicant that he was bound by his pleaded case. Senior Counsel for the respondent noted the terms of the Deed, and what was agreed, as well as the absence of evidence from the applicant regarding a different estimation of “entitlements”.
Senior Counsel for the respondent submitted this was a clear example where the applicant could not succeed with his pleaded case on the facts. Given the terms of the Deed, and the evidence before the Court that at the time it was signed litigation was in contemplation, it was submitted the construction the applicant placed on the decision in Kowalski (supra) was “absurd” and should be rejected.
Consideration
Given the order sought by the respondent, it is appropriate to note that the Federal Circuit Court’s power of summary dismissal is governed by section 17A of the Federal Circuit Court of Australia Act 1999 (“the FCCA Act”) and rule 13.10 of the Federal Circuit Court Rules 2001 (“the Rules”).
Section 17A of the FCCA Act states:
Summary judgment
(1)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Federal Circuit Court of Australia has apart from this section.
The test to be applied where the respondent’s application, a summary dismissal application, is whether or not an application has a reasonable prospect of success, not whether the application is “doomed to fail”. That is made clear by section 17A(3) as set out above.
Rule 13.10 of the Rules provides:
Disposal by summary dismissal
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or
(b)the proceeding or claim for relief is frivolous or vexatious; or
(c)the proceeding or claim for relief is an abuse of the process of the Court.
Note: For additional powers of the Court in relation to family law proceedings that are frivolous or vexatious, see sections 102QB and 118 of the Family Law Act.
The relevant provision of the Rules of this Court follow those sections of the FCCA Act which are in the same terms as section 31A of the Federal Court of Australia Act 1976 (“the Federal Court Act”). The approach taken in cases dealing with section 31A of the Federal Court Act are generally seen as apposite in dealing with cases under section 17A of the FCCA Act.
In Spencer v Commonwealth of Australia (2010) 241 CLR 118, what was required by section 31A of the Federal Court Act was set out by their Honours Hayne, Crennan, Keifel and Bell JJ, as follows:
…The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
The enquiry, according to section 17A of the FCCA Act and Rule 13.10 of the Rules is whether the applicant has no reasonable prospect of successfully prosecuting the claim/s against the respondent.
What is required is a critical examination of the material advanced in support of the application to determine whether there is a real question of fact or law to be determined at trial, the onus being on, in this case the respondent.
In considering the respondent’s summary dismissal application I have had regard to the material the parties relied on and their written and oral submissions mindful that the power sought to be invoked should be approached with caution.
Moreover, in considering the respondent’s summary dismissal application and expressing a view of the evidence in somewhat aggregated terms at the moment, given the stage of the proceedings it is important to note the Court is not fact finding. Instead the Court is evaluating the evidence of the applicant from the perspective of the reasonable prospects of success.
In Seidler v The University of New South Wales [2011] FCA 640 Cowdroy J dealt with an application for summary dismissal where proceedings had been instituted following a Deed of Release signed by the applicant. In that decision the Court considered the authorities on approaches to a Deed of Release at inter alia [57] to [62] and then said:
“67.The threshold issue to the respondents’ motion is whether the Deed of Release operates to bar the applicant’s proceedings. Effect must be given to the intention of the parties, expressed by the words in the Deed of Release.”
The applicant agrees he received a settlement offer on 20 December 2016. The applicant agrees he signed a document, which save for the Governing Law clause, was the same as the Deed. The applicant accepts that he retained the monies and the shares provided for in the Deed.
The respondent’s position is that the Deeds constitutes a binding settlement with respect to all potential claims referred to therein. The respondent’s position is that the Deed is a bar to proceedings and otherwise the principles of estoppel and/or waiver operate and in light of the pleadings the application and statement of claims should be summarily dismissed.
In opposing the orders sought by the respondent the applicant’s submissions was inter alia:
“6. This Respondent’s Applicant in a Case raises the important legal issue of whether an employee who has executed a Deed of Settlement with his or her employer following termination of employment, but before litigation is in contemplation or commenced, ostensibly contracting out of minimum statutory and other entitlements, is entitled to subsequently prosecute legal proceedings against the employer in respect of salary and entitlements alleged to be owed to the employee. It also raises factual issues in relation to construction of the Deed of Settlement, and related factual issues arising in relation to the Applicant’s employment and termination of employment.
7. The issues raised are substantive issues which ought not be determined summarily. They should be properly ventilated at trial.”
However, with respect, that submission passes over the Deed and what the parties did after it was signed. I accept the Deed contemplated “counterparts would be “exchanged and provided” and not that it be received.
I accept the respondent’s submissions on the approach to the decision of the Full Court of the Federal Court in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Fund Pty Ltd [2003] FCAFC 18.
The decision in Atkins Freight Services Pty Ltd v Fair Work Ombudsman [2017] FCA 1134 referred to in submissions concerned a different situation to this case. In that case what was at issue was, inter alia, whether the parties to a Deed could contract out of award entitlements where they had not appropriately been identified. That is not this case.
The decision of Seidler v The University of New South Wales [2011] FCA 640, which was referred to earlier, is given the submissions made on behalf of the applicant, of relevance. In that case it was said:
“…
57. In Grant v John Grant & Sons Proprietary Limited[1954] HCA 23; (1954) 91 CLR 112 the majority of the High Court of Australia (Dixon CJ, Fullagar, Kitto, Taylor JJ) considered the correct approach to the interpretation of a deed of release. Having considered numerous authorities, both at common law and in equity at 124-129, the majority of the High Court said at 129-130:
From the authorities which have already been cited it will be seen that equity proceeded upon the principle that a releasee must not use the general words of a release as a means of escaping the fulfilment of obligations falling outside the true purpose of the transaction as ascertained from the nature of the instrument and the surrounding circumstances including the state of knowledge of the respective parties concerning the existence, character and extent of the liability in question and the actual intention of the releasor.
58. The Court recognised that cases existed in which a party could not rely upon a release in certain circumstances which the majority of the High Court stated at 130:
It may at once be conceded that there may be cases where the reasons for precluding the defendants from relying upon the release go to validity of the contract or where it would not be in accordance with the principles of equity to deny to the defendant his legal right under the release except as part of a rescission of the whole transaction. But they are cases depending on mistake, failure in a duty of disclosure, misrepresentation or other ground of avoidance. They are not cases depending on the equity to have the general words of a release confined to the true purpose of the transaction ascertained from the scope of the instrument and the external circumstances.
59. The majority then stated the following proposition at 131:
The question is whether upon a proper interpretation of the deed the general release clause should be restrained to matters in dispute within the meaning of these recitals. The question depends primarily on the application of the prima facie canon of construction qualifying the general words of a release by reference to particular matters which recitals show to be the occasion of the instrument. But it is also affected by the general tenor of the deed. It is unnecessary to say more about the canon of construction or to discuss further the contents of the deed. As to the first all that remains is to apply the principle that prima facie the release should be read as confined to the matters forming the subject of the disputes which the deed recites. As to the second, such indications as can be found in the provisions of the deed point rather in the same direction. The detailed character of the terms of settlement, the careful readjustment of rights, the specific reference to the debt of H. C. Grant and his wife and its discharge and the particularity of the allocation of things and contracts between the companies do not favour the view that a general release was intended going outside the actual area of dispute.
60 Observations to similar effect were made by the High Court more recently in Toll (FGCT) Pty Limited v Alphapharm Pty Limited and Others (2004) 219 CLR 165 at [40] in which the Court said:
It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. 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. [Footnotes omitted]
61. The New South Wales Court of Appeal in Marinchek v Cabport Pty Ltd[2010] NSWCA 334 referred at [37] of its decision to the observations of Gleeson CJ in International Air Transport Association v Ansett Australia Holdings Limited and Others [2008] HCA 3; (2008) 234 CLR 151 at [8] where his Honour said:
In giving a commercial contract a businesslike interpretation, it is necessary to consider the language used by the parties, the circumstances addressed by the contract, and the objects which it is intended to secure. An appreciation of the commercial purpose of a contract calls for an understanding of the genesis of the transaction, the background, and the market. This is a case in which the Court’s general understanding of background and purpose is supplemented by specific information as to the genesis of the transaction. The Agreement has a history; and that history is part of the context in which the contract takes its meaning. Before considering that history, it is necessary to explain, by reference to the text, how the issue of construction arises. [Footnotes omitted]
62. Further, in Commonwealth Development Bank of Australia Ltd v Kok[2003] FCA 90, Beaumont J succinctly stated at [34]:
In the first place, it is a settled principle of interpretation that general words in an instrument of release are limited always to that thing, or those things, which were specially in the contemplation of the parties at the time when the release was given.
…”
In Aitkins (supra), which Counsel for the applicant accepted was not on point with this case, the Deeds in question were disregarded for reasons including that the one of the parties was not a party to the Deed and the appellant had not met the onus of proof regarding operation of the Deed.
In this case the terms of the Deed are important. There was by the applicant’s conduct unequivocal acceptance of the terms offered in the Deed.[43] Any reasonable person given what the applicant agrees he did would have been in no doubt the applicant accepted the offer unconditionally and agreed to be bound by the Deed.[44]
[43] See Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 at [84]
[44] Ibid at [76]
In relation to the applicant’s other assertions in submissions, in order for the Deed to be voided the applicant would have to show some element of duress in what occurred before the Deed was signed. Even taken at the very highest the claims he now makes do not involve duress of a kind liable to vitiate the Deed by reason of a negating of choice or the application of pressure by unlawful, illegitimate, or inconsumable means.[45]
[45] See Fair Work Ombudsman v National Jet Systems Pty Ltd [2012] FCA 243 and the authority discussed at [13]-[41] per Buchanan J).
The scope and terms of the Deed have been referred to earlier. The applicant’s focus in submissions on not being able to contract out of statutory entitlements misses the important point that the Deed was a compromise of the dispute between the parties. The scope of the Deed clearly covers the matters the subject of the allegations in the statement of claim.
In Kowalski (supra) at [17] it was said:
“True it is that statutory public rights cannot be waived or compromised. However, this does not prevent the parties from compromising litigation on foot and in contemplation, having regard to the various risks to the parties in that litigation. See e.g. Lieberman v Morris[1944] HCA 13; (1944) 69 CLR 69 at 80. That is clearly what occurred in this case.”
Conclusion
In the circumstances I am satisfied that:
·the parties to these proceedings have executed a Deed settling matters between them;
·the Deed records the terms of full and final settlement of all matters between them;
·the respondent has complied in full with its obligations to the applicant in full and final settlement of all claims the applicant may have had;
·the applicant acted on the basis that the Deed was effective;
·the applicant accepted from the respondent the benefits of the Deed and by so accepting the benefits was bound to perform his obligations under the Deed including his obligation under the release provisions;
·the respondent is entitled to take the benefit of the Deed including the release provisions because it has performed all its obligations under the Deed as though it was bound by it.
It follows that the respondent is entitled to enforce the Deed as a party against the applicant. Consequently the effect of the release provisions and the Deed are a complete bar to the applicant’s claim.
Accordingly, I am satisfied the applicant has no reasonable prospect of successfully prosecuting the claim/s against the respondent and the application and statement of claim should be summarily dismissed. I so order.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Associate:
Date: 14 November 2017
Correction
Paragraph 15: the word “unexcited” was changed to “unexecuted”
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