Greenfield v Australia Catholic University - [2010] NSWADT 104

No judgment structure available for this case.

CITATION: Greenfield v Australia Catholic University [2010] NSWADT 104

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Susanna Greenfield
RESPONDENT
Australian Catholic University

FILE NUMBER: 081131

HEARING DATES: 2 December 2009

DATE OF DECISION:
30 April 2010

BEFORE: Huntsman C - Judicial Member

CATCHWORDS: Application for dismissal on grounds case settled - solicitor’s authority to settle

LEGISLATION CITED: Sections 102 Anti-Discrimination Act 1977; sections 74, 86, 86A, 88(1) and 105
Administrative Decisions Act 1977

CASES CITED: Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; Sebastian v Rail Infrastructure Corporation &Anor (EOD) [2006] NSWADTAP 44
Sebastian v Rail Infrastructure Corporation [2005] NSW ADT 281
FvC,B and State of Queensland [2007] QADT 13
Wandel & Golterman GMBH & Co v Wandel Global Services Pty Ltd [2002] FCA 1609
Harvey v Phillips [1956] HCA 27; Owners Corporation Strata Plan 62285 and Ors v Betona Corporation (NSW) Pty Ltd and Ors [2006] NSWSC 216

REPRESENTATION:
APPLICANT
S Friend, solicitor
RESPONDENT
Mr Seck, Counsel, instructed by Carroll & O’Dea solicitors

ORDERS: 1.The Complaint will be dismissed on 30 May 2010 if, before that date, the Respondent: (a) pays the settlement sum to the Applicant, and(b) provides written notification to the Applicant that the requirement to repay the student loan has been waived ( as per clause 2(b) of draft Deed of Release)
2.If the conditions in paragraph 1 are met, the Respondent is to provide the Tribunal with evidence to that effect prior to 30 May 2010.
3. If the conditions in paragraph 1 are not met, the matter is to be listed for further directions.
4.The application by the Respondent for an order that the Applicant pay the Respondent’s costs relating to the application is refused.

REASONS FOR DECISION

1.This was an application by the Respondent for various orders, including an order that the application be dismissed. The basis of the application for an order that the application be dismissed, is that the Respondent states that an agreement was reached by the parties on 11 February 2009 so that the matter was settled. The other orders sought by the Respondent include an order that the Respondent pay the Applicant a sum of money (the sum of money is in accordance with the settlement which the Respondent asserts was reached by parties); and an order that the Applicant pay the costs of the Respondent of the current proceedings.

2.The Applicant, Ms Greenfield, states that settlement was not reached and that no orders should be made by the Tribunal.

Background to the proceedings

3.On 18 February 2008 the Anti-Discrimination Board received a complaint from Ms Greenfield alleging discrimination on grounds of race in relation to her nursing studies whilst a student at Australian Catholic University. The President of the Anti-Discrimination Board referred the complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal on 9 December 2008.

4.The matter was listed for a first case conference on 11 February 2009. The Tribunal file first case conference result sheet, indicates that R.Sutton, solicitor, attended for the Applicant and that Ms Greenfield, the Applicant, was present; and C.Bateman, solicitor, attended for the Respondent. A handwritten note on the first case conference result sheet states “ matter settled - will be withdrawn. Leave for dismissal on 4/3/09. 9.30”.

5.Subsequently correspondence was received by the Registrar of the Tribunal, from Ms Sutton, solicitor for Ms Greenfield, requesting that the listing for dismissal be delayed for a further four weeks. On 16 March 2009 Ms Greenfield wrote to Registrar of the Tribunal requesting that the matter be listed for a second case conference as she did not agree to the matter being dismissed. The matter was listed for a case conference on 8 April 2009 and Ms Greenfield, Applicant, and Ms Bateman and Mr Cameron, for the Respondent, attended. At that case conference a dismissal application was listed for hearing on 17 June 2009 and a timetable for exchange of documents was set. The date for hearing of the dismissal application was vacated on three occasions and a case conference was listed on 3 November 2009. On that date the dismissal application was listed for hearing on 2 December 2009. On 2 December 2009 the application for dismissal was heard and the decision was reserved. These written Reasons for Decision are the Tribunal’s orders in relation to the Respondent’s application.

The Respondent’s application

6.The Respondent provided a written application, and Counsel for the Respondent, Mr Seck, also made oral submissions at the hearing. The Respondent relies on evidence in the form of a written statement by Mr John Cameron, the Pro-Vice-Chancellor, (Administration and resources) Australian Catholic University (“the University”). A number of documents were attached to the statement including copies of correspondence between the parties. The legal representative for the Applicant, Mr Friend, solicitor, indicated that Mr Cameron was not required for cross-examination.

7.Mr Cameron states that on 11 February 2009 the matter was listed for a case conference at the Tribunal. Mr Cameron attended the case conference with Ms Bateman, solicitor. Ms Sutton, solicitor for Ms Greenfield attended, as did Ms Greenfield. Mr Cameron states that the parties engaged in settlement discussions in the absence of the Tribunal. At the conclusion of the discussions the parties came back before the Deputy President of the Tribunal and

“ I recall that Ms Sutton said words to the following effect : a settlement has been reached by the parties. The Deputy President then said words to the following effect: I congratulate the parties reaching a settlement. I will list the matter for dismissal on 4 March 2009 at 9:30 AM . Ms Greenfield was present throughout that exchange and raised no objection.”

8.Mr Cameron then records in his statement correspondence between legal representatives for the parties to finalise a draft Deed of Release. Copies of the correspondence are attached to the statement. Mr Cameron refers to an email of 12/2/2009 from the Applicant's solicitors regarding the suggested wording of a clause to be included in the Deed of Release, and correspondence of around 13 February 2009 from the Respondent's solicitors enclosing a draft Deed of Release. On 18 February 2009 he received a copy of the letter of the 17 February 2009 from the Applicant's solicitors seeking amendments to the Deed. He provided instructions to the Respondent's lawyers to include the requested amendments. It is submitted by the Respondent's Counsel that the amendments were minor and within the spirit of the agreement. Mr Cameron states in early March he received a copy of the letter of 2 March 2009 from the Applicant's solicitors requesting additional amendments to the Deed and the Respondent was not prepared to agree to these additional amendments and that this was communicated to the Applicant’s solicitor by letter of 9 March 2009. He later received a copy of a letter dated 13 March 2009 advising that Cropper Parkhill solicitors had ceased to act for the Applicant. In his statement Mr Cameron details correspondence sent to new solicitors for the Applicant, Lolita Farmer & Associates. These solicitors subsequently ceased to act for Ms Greenfield.

9.Documents attached to Mr Cameron’s statement indicate that by letter dated 13 February 2009 the Respondent enclosed a Deed of Release which included the following provisions: payment of a sum of $5500 to Ms Greenfield; waiving the requirement to repay an interest free loan of $500 ; a clause releasing the Respondent from the current proceedings -- refer clause 3 -- ; a mutual non-disparagement clause; a confidentiality clause and a general clause. Attachment C to the statement is a letter in response, from the Applicant’s lawyers of 17 February 2009, seeking small amendments to the Deed and stating that “all other aspects of the Deed appear to be in order”. By correspondence of 19 February 2009 the Respondent's lawyers advised the Applicant's lawyer, Ms Sutton, that the Respondent agreed generally to those amendments, and enclosing the Deed of Release as amended. Attachment E to the statement is a letter of March 2009 from the Applicant’s lawyer, Ms Sutton, advising that on review of the Deed of Release the Applicant has raised “additional matters”. Those additional matters are detailed in the correspondence and include issues relating to participation in a course “Clinical Practice 6” and her academic record in relation to the course, Clinical Practice 6. A request to re-enrol in the course, Clinical Practice 7, is also detailed, and the waiver of any late enrolment fees. “Our client’s position is that she would like the above matters resolved as part of the settlement of her complaint.”

10.Attachment H to the statement of Mr Cameron is a copy of a letter of 9 March 2009 from the Respondent’s lawyers to the Applicant’s lawyers which states “ what is proposed in your letter represent a significant departure from the in principle agreement that was reached by the parties at the initial listing, as well as from the subsequent discussions between the parties regarding the terms of the Deed of Release. Quite simply, the matters that your client now wishes to have included as part of the settlement are beyond the in principle agreement reached by the parties. Accordingly our client is not prepared to agree to include these matters as part of the settlement.” The correspondence goes on to note that it is a matter for Ms Greenfield whether she chooses to re-enrol and that such an application would be dealt with in accordance with the University’s usual procedures.

11.Attachment J to the statement of Mr Cameron includes a copy of a letter dated 16 March 2009 to the Registrar of the Tribunal which states “as I no longer wish to proceed with the settlement previously agreed to ...”

12.Counsel for the Respondent made detailed legal submissions which are set out below.

The Applicant's case

13.The Applicant’s solicitor, Mr Friend, made oral submissions to the Tribunal. The Applicant provided evidence by way of affidavit, and she was not required for cross-examination by the Respondent. The affidavit is retained on the Tribunal file and may be referred to, it will be briefly summarised in these Reasons for Decision. The Applicant refers to instructing Ms Sutton, solicitor, by e-mail, on 3 February 2009 for a case conference at the Tribunal on 11 February 2009. She states at no time did she communicate to Ms Sutton that she would relinquish her primary claim, for her academic record to be revised, in exchange for a financial settlement. She gives an account of what happened when she attended the case conference with Ms Sutton. She details her presence in the case conference when Deputy President Magistrate Hennessy returned to room. She states “I thought I understood her to say words to the effect that “the matter will not be finalised for three weeks”. At no time did I ever say to Ms Sutton to accept the sum of $5000 in full and final settlement of the matter.” She states that this is the reason she did not finally sign the Deed of Release, and states that Ms Sutton did not act according to her express instructions, nor did she address the primary issue in respect of her application. She refers to a letter by Ms Sutton to the Registrar of the Tribunal of 2 March 2009 which states “our client is still finalising the terms of a proposed settlement with the Respondent” and says this is an accurate representation of the situation. She states the terms of the settlement were not final at that time. She indicates that on 10 March 2009 she informed Ms Sutton that she would be seeking alternative advice.

14. The Applicant attaches e-mail correspondence to her affidavit. Attachment B is an e-mail from the Applicant to Ms Sutton referring to the forwarding of a letter from the Respondent's solicitors of 19 February 2009, and stating “ however, upon examining the Deed of Release from ACU, and finally put my signature, I realised I had two more things to ask”. She goes on to set out, in points one and two on the e-mail, matters relating to her academic record and enrolment.

The Respondent's legal submissions

15. The Respondent refers to the application for dismissal which was filed in writing. The application sets out grounds and reasons. It states that an agreement was reached by the parties on 11 February 2009, and the terms of that agreement were accurately recorded by the Deed of Release that was forwarded to the Applicant’s legal representatives by letter of 13 February 2009. In the alternative, a binding agreement was reached by the parties on 19 February 2009 when the Respondent's legal representatives, advised the Applicant’s legal representatives, that the Respondent agreed to amend the Deed as requested by the Applicant. The Respondent relies on the statement of Mr John Cameron of 6 May 2009. The Respondent “relies on further or other grounds as may appear on the hearing of the application.”

16.Mr Seck, Counsel for the Respondent, made detailed oral submissions. He stated that settlement had been reached at the case conference conducted by Deputy President Hennessy on 11 February 2009 as set out in Mr Cameron's statement. Settlement was announced to Deputy President Hennessey. The Respondent relies on section 102 of the Anti-Discrimination Act 1977 and relevant case law, as well section 74 of the Administrative Decisions Tribunal Act 1997. What was announced to the Tribunal, as set out in paragraph 4 of Mr Cameron's statement, was that agreement and settlement had been reached, which brought to an end the proceedings. It was submitted that the Tribunal had power to dismiss the substantive application and to make the orders sought by the Respondent, including an order for payment of a sum of money by the Respondent.

17.The Respondent submitted that the announcement to Deputy President Hennessey did not indicate that settlement was subject to writing or a Deed of Release being entered into. There was no indication that settlement was dependent upon any other actions to give effect to settlement, rather, settlement had been entered into. It was submitted that the settlement reached was a binding agreement, reached at the case conference, in the nature of a category one agreement as set out in the case of Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353.

18.Counsel for the Respondent stated that the attachments to Mr Cameron's statement showed actions taken in preparation of the Deed of Release. He said that evidence indicates that the Deed was in conventional terms and the response from the Applicant's solicitors, at attachment C, requested a few minor amendments and noted that in all other aspects the Deed appeared to be in order. It was submitted that this correspondence demonstrated that there was not a level of controversy between the parties. The minor amendments were agreed to by the Respondent. Subsequently, by correspondence of 2 March 2009 the Applicant raises a whole set of new issues for the first time to be included in the settlement. He notes the correspondence uses the words “she has raised some additional matters” and “she would like the above matters resolved as part of the settlement of her complaint”. The Respondent submits that the correspondence which followed the settlement agreement involved the parties setting out the settlement in writing in conventional terms. Counsel for the Respondent submitted that a Deed of Release was not a condition precedent for the dismissal which had been listed to be heard at the Tribunal on the day that settlement was achieved. The Respondent refers to the words used by the Applicant’s legal representative in correspondence to Ms Greenfield of 11 March 2009 “As you no longer wish to proceed with the settlement previously agreed to…..”.

19.The Respondent submits that in correspondence the parties have acknowledged that settlement had occurred at the case conference. The Respondent submits that such settlement was reflected in how the parties had conducted themselves subsequent to the case conference. In particular the way that the correspondence expressed the issues after the case conference, indicated that settlement had been reached at the case conference, and Deed of Release was drafted in terms of the settlement, and subsequently the Applicant expressed a wish not to proceed after her wish to include new matters in the settlement had not been agreed to.

20.Counsel for the Respondent refers to Ms Greenfield’s affidavit and noted that her complaint was against her legal representative, Ms Sutton, in relation to a lack of proper advice/ communication and not following instructions. He stated there was no complaint against the Respondent. He indicated the Applicant made serious allegations against her solicitor for not acting on instructions. He states that the Tribunal cannot go behind the solicitor’s representations to the Tribunal and the matters raised by the Applicant are matters between herself and her former solicitor. The issue for the Tribunal is whether or not, on the evidence, the parties reached agreement. It was submitted that the Tribunal can be satisfied on the basis of what happened at the case conference and considering subsequent correspondence between the parties, that settlement had been reached.

21.The Respondent submitted that various provisions of the Administrative Decisions Tribunal Act 1997 and the Anti-Discrimination Act 1977 were designed to encourage parties to seek resolution of the dispute. He stated that the current settlement was not achieved in mediation but was a settlement achieved by the parties resolving the issues in dispute in the absence of a Tribunal member, and the parties had indicated their settlement to the Tribunal. In this case there was no formal mediation process but rather informal negotiations with settlement being reached and announced to the Tribunal. He submitted the legislation should be construed in the context of a structure to encourage parties to resolve disputes.

22.He submitted that the settlement agreement was a category one agreement as referred to in the case of Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353. Initial correspondence showed that the Deed of Release contained nothing contentious and the disagreement only arose some three weeks later when the Applicant wished to change the terms of the parties’ agreement. There had been no objection raised in the preceding weeks and the Tribunal should presume that Ms Greenfield gave instructions to a solicitor as to the Deed and the small amendments to the Deed which were sought. Finality of agreement had been reached at the case conference and the Deed merely represented the re-stating of the agreement in written form. The Respondent submitted that nothing was said to the Tribunal at the case conference which indicated that settlement was subject to a Deed, instead the Tribunal was informed that settlement had been reached. This conclusion is further supported by the response of the Deputy President who congratulated the parties on their settlement.

23.The Respondent relies upon the decision of the Administrative Decisions Tribunal at first instance, and also the decision of the Appeal Panel of the Tribunal on appeal in Sebastian's case (Sebastian v Rail Infrastructure Corporation &Anor (EOD) [2006] NSWADTAP 44 and Sebastian v Rail Infrastructure Corporation [2005] NSW ADT 281. In Sebastian's case (ADT 281) it is submitted that the Tribunal found that section 102 of the Anti-Discrimination Act 1977 (the AD Act) gave the Tribunal the power of to dismiss the complaint where the parties have entered into an agreement to settle the complaint. It was submitted that the case involved a category 2 agreement as described in Masters v Cameron. The Respondent submits that in the present case the parties entered into an agreement, being a category one agreement, or in the alternative a category two agreement, as described in Masters v Cameron. It is submitted on this basis that the parties reached a final agreement and that it was not a case in which the intention of the parties was not to make concluded bargain unless and until they executed a formal contract (category three).

The Applicant's legal submissions

24.The solicitor for the Applicant, Mr Friend, made submissions as to the proper construction of relevant legislative provisions and in particular section 86 of the Administrative Decisions Tribunal Act 1977 (the Tribunal Act). Section 86 of the Tribunal Act refers to the Tribunal’s powers when proceedings are settled. The Applicant’s solicitor submits that section 86 requires that the terms of the settlement be in writing, signed by the parties, and lodged with the Tribunal. The Applicant submits that section 86 is designed to protect the parties while facilitating settlement. It is submitted that the exception is section 105 of the Act which provides for settlement arising out of a mediation session. The present case does not involve an agreement reached in a mediation session. The Applicant submits that the Tribunal does not have the power to dismiss because of the provisions of section 86 (1). It is submitted that the Tribunal does not have the power to dismiss because no agreement was signed, or lodged, on behalf of the parties. In relation to the provisions of section74 of the Tribunal Act, there is there is no evidence indicating that the case conference was a preliminary conference under that section, and therefore section 86 of the Tribunal Act still applies. It was submitted that the process of re-listing a matter for dismissal after settlement is reached, is subject to a written agreement being lodged with the Tribunal. It was submitted that if the Tribunal made an order dismissing the application on receipt by the Applicant of agreed payment by the Respondent, did this mean none of the other terms of the settlement applied.

25.The Applicant submits that Ms Sutton, solicitor, acted without actual authority in relation to the settlement. The Applicant referred to the cases of FvC,B and State of Queensland [2007] QADT 13 (case of FvC,B) ; Wandel & Golterman GMBH & Co v Wandel Global Services Pty Ltd [2002] FCA 1609, (Wandels case); and the case of Harvey v Phillips [1956] HCA 27, a case of the High Court, in support of these submissions. It is said that the evidence does not include evidence that what was in the agreement was communicated to Ms Greenfield. The Applicant submits that no agreement was reached. In relation to the case categories of agreement in Masters v Cameron the Applicant submits that the third class of agreement applies, that it is an agreement subject to formal contract.

26.In response to the Applicant’s submissions, Counsel the Respondent stated that the powers of the Tribunal under section 102 of the Act should not be read down by reference to other provisions, they are independent powers, and it depends upon the nature of the settlement. The Respondent refers to Sebastian's case, and it is submitted that the power of the Tribunal to make orders in that case was contained in section 102 of the Anti-Discrimination Act 1977 (The AD Act). In relation to the submission that Ms Sutton acted without authority, Counsel for the Respondent submits that so long as there is ostensible authority there is capacity to bind the parties. In relation to Wandel’s case there was uncontroverted evidence in that case that the solicitor acted beyond authority. Reference was made to paragraph 7 of the decision in Wandel's case. At paragraph 7 of the decision it is stated that in that case it was accepted by the court that the solicitor exceeded his authority, and acted beyond his authority and in those circumstances it would be contrary to the interests of justice to allow the court to lend its assistance to an agreement which was made without actual authority. It was noted in Wandel’s case that there was a letter of instruction indicating the lack of authority, and also that the solicitor in that case accepted that he acted beyond his authority.

27.In the present case the Respondent submits that something more than Ms Greenfield’s assertion is required.

The Tribunal's findings

What happened at the case conference?

28.The Tribunal finds that the Deputy President presiding at the case conference was advised, after the parties had discussions in her absence, that settlement had been reached. The Tribunal so finds considering the evidence in its entirety. That evidence consists of notations on the case conference sheet on the Tribunal file, the statement of Mr Cameron, and the statement of Ms Greenfield. The notations on the case conference sheet of the Tribunal file indicate that the Tribunal considered that the matter had settled and made arrangements for the case to be listed for dismissal on this basis. There is no notation on the Tribunal file to indicate that the settlement was not complete or was subject to the filing of a Deed. The statement of Mr Cameron presents his account of the case conference where he was present. He clearly states that the Deputy President was told that the parties had settled the matter and he states that the Deputy President said words congratulating the parties on reaching a settlement and that the matter would be listed for dismissal on 4 March 2009. This is consistent with the notation on the Tribunal file. Ms Greenfield by contrast states that she understood the case was to be put off for three weeks. She makes no reference to the Deputy President being advised the case had settled. For reasons further discussed below the Tribunal considers Ms Greenfield evidence on this point to be unreliable. The Tribunal accepts the evidence of Mr Cameron on this point. The Tribunal so finds because Mr Cameron's evidence is consistent with other evidence available to the Tribunal, namely the notations on the case conference sheet on the Tribunal file. Mr Cameron was not subject to cross examination and the Tribunal has no basis for rejecting his evidence as inconsistent or unreliable. This is not the case with Ms Greenfield's evidence as detailed below.

29.The Tribunal finds that Ms Greenfield evidence as detailed in her affidavit is not reliable for the following reasons. Ms Greenfield states that at the case conference there were discussions about a monetary offer. She states that she had at no time gave instructions to her lawyer, Ms Sutton, that she would “relinquish my primary claim for my academic record to be revised in exchange for a financial settlement nor did I communicate anything that could have been construed in that way”. However, the affidavit by Ms Greenfield suggests that Ms Sutton went ahead to accept a settlement and negotiate a Deed of Release based on a monetary settlement, without instructions. “At no time did I ever say to Ms Sutton to accept a sum of $5000 in full and final settlement of the matter”. A reading of the Deed of Release does not support a conclusion that Ms Sutton, without instructions, agreed to a settlement based only on a monetary payment. The Deed of Release contains terms which address Ms Greenfield’s experience as a student of the University. The Deed of Release refers to a student loan, and to releasing Ms Greenfield from repaying the loan; the Deed also refers to an amendment of Ms Greenfield’s academic transcript (refer clause 2 (c) of the initial draft of the Deed). In the mutual non-disparagement clause, clause 4, it is stated that all enquiries relating to Ms Greenfield academic record will be referred to a specified person who is to confirm her record according to her academic transcript. The Tribunal considers that these terms of the Deed suggest that Ms Greenfield’s concerns about her academic record were part of the settlement negotiations, as they are addressed in the Deed. Ms Greenfield’s affidavit does not refer to instructions given to Ms Sutton in relation to her academic record, yet the Deed of Release addresses this issue as well as an issue of a student loan. The issue of the student loan is also not referred to by Ms Greenfield in her affidavit. Ms Greenfield states at paragraph 3 that at no time did she communicate that she would relinquish her primary claim for her academic record to be revised in exchange for a financial settlement. She states at paragraph 9 of the affidavit that she subsequently made known to Ms Sutton that she had not understood the settlement was final, and that her primary concern, namely being able to become a registered nurse, had not been dealt with at all.

30.The Tribunal finds it difficult to reconcile Ms Greenfield’s version of events with what is actually contained in the first draft of the Deed. If Ms Greenfield’s version of events is accepted then it is hard to understand how the initial draft of the Deed contains provisions relating to Ms Greenfield’s academic record to the extent of providing for a consistent mechanism whereby enquiries to the University about Ms Greenfield’s academic record would be dealt with -- the Deed provides for such an enquiry to be directed to a specific person at the University. On the face of the document itself, the Deed provides for a way of addressing the issue of Ms Greenfield’s academic transcript/record. That the Deed contains such provisions does not reflect the matter as stated by Ms Greenfield in her affidavit, namely, that the solicitor accepted a monetary settlement without considering Ms Greenfield’s instructions in relation to her academic record. The Tribunal considers that what is stated by Ms Greenfield in her affidavit is not supported by what is contained in the first draft of the Deed of Release. When the Deed of Release is considered in the context of the correspondence between the parties’ solicitors, the Tribunal considers that this further supports the Tribunal's finding in this regard. In particular the letter of 17 February 2009 from Ms Sutton (attachment C to Mr Cameron's statement) which sets out minor amendments to the deed, and there are no amendments which alter the substantive agreement set out in the first draft, also states "all other aspects of the deed appear to be in order."

31.Ms Sutton, in the correspondence of 17 February 2009, refers to enclosing a letter received by Ms Greenfield from the University in relation to the student loan – the issue of the student loan had already been dealt with in the first draft of the Deed. This correspondence suggests that the Deed of Release was in accordance with the settlement agreed to between the parties, and that the settlement included such issues as the student loan and the academic record, as these are contained in the Deed of Release. As such this documentation does not support the version detailed by Ms Greenfield in her affidavit that Ms Sutton did not act on instructions and agreed to a financial settlement excluding other consideration which were important to Ms Greenfield. Given the difference in the account of Ms Greenfield about what occurred on 11 February 2009, and the details of the settlement represented by the Deed, then the Tribunal finds that the Deed and correspondence between the parties’ solicitors, does not support Ms Greenfield’s version contained in her affidavit. As Ms Greenfield’s account of what happened at the case conference is also not consistent with other evidence before the Tribunal (as detailed above) then, considering the evidence as a whole, for reasons stated above, the Tribunal finds Ms Greenfield’s account to be inconsistent with other evidence and not reliable.

32.Correspondence to the Respondent's solicitors from Ms Sutton of 2 March 2009 states "Upon review of the Deed of Release with our client she has raised some additional matters prior to entering into a Deed of Release and agreeing to settle the matter." After detailing specific matters in relation to her academic record, namely that although she was not technically enrolled in clinical practice 6 in 2007 she did in fact complete the course, and seeking that a pass mark be recorded; and expressing a wish to re-enrol in clinical practice 7 and issues surrounding this, Ms Sutton then states "our client's position is that she would like the above matters resolved as part of the settlement of her complaint”. Attached to Ms Greenfield’s affidavit is a copy of an e-mail (attachment B) to Ms Sutton which states that, on examining the Deed of Release and "finally put my signature, I realised I have two more things to ask" . Ms Greenfield goes on to detail concerns in relation to her academic record for clinical practice 6, and other issues. She refers to the need to see Ms Sutton at her office and states "As I've already mentioned to you my concerns, I would not be able to sign the Deed of Release until the Australian Catholic University have granted my important requests". A reading of this e-mail, in the context of the evidence in the case overall, does suggests that the use by Ms Greenfield of the words "two more things to ask" should be understood as being further and additional requests. Such an interpretation is consistent with other documentation which indicates that the Deed of Release was considered by the parties’ representatives to reflect the agreement reached at the case conference, the Deed reflects a matters such as academic record and a student loan, and does not contain just a monetary settlement as is suggested by Ms Greenfield. The wording of the email does suggest in the context of this evidence that Ms Greenfield subsequently wished to add more to the settlement.

33.Ms Sutton's letter to the Registrar of Tribunal (attachment C to Ms Greenfield’s affidavit) shows Ms Sutton’s clear understanding that the matter had been listed for dismissal.

34.Ms Greenfield’s evidence in her affidavit is inconsistent with the evidence of Mr Cameron, it is inconsistent with the understanding of the proceedings indicated by her solicitor in her correspondence to the Respondent and the Tribunal, and inconsistent with the notations on the Tribunal file as to settlement being achieved. Given Mr Cameron’s evidence, which was not subjected to cross examination, was consistent with the notations on the Tribunal file then the Tribunal prefers Mr Cameron’s account of what occurred before Deputy President Magistrate Hennessy on 11 February 2009. Ms Greenfield’s evidence in her affidavit was also not subjected to cross examination, but given the inconsistencies between Ms Greenfield’ account and other evidence before the Tribunal, the Tribunal found Ms Greenfield’s evidence to be unreliable. The Tribunal finds that on 11 February 2009 the Tribunal was informed that the matter was settled, and the matter was listed for dismissal. The Tribunal finds that the evidence indicates that the Deed which was subsequently drafted addresses a number of matters on behalf of the applicant and does not just contain a monetary settlement. As such, the terms of the Deed suggest some detail in the settlement considerations and the instructions which were given to Ms Sutton about settlement, and do not suggest a settlement discussion based solely on a monetary settlement as is suggested by Ms Greenfield in her affidavit.

Issue 1 – did the parties reach a final agreement?

35.As set out above the Applicant submitted that no final agreement was reached and the agreement was in the nature of a category 3 agreement in Masters v Cameron. The Respondent submits that a final agreement was reached, being a category one agreement in Masters v Cameron. A discussion in the decision of the Tribunal in Sebastian's case (Sebastian v Rail Infrastructure Corporation &Anor (EOD) [2006] NSWADTAP 44 and Sebastian v Rail Infrastructure Corporation [2005] NSW ADT 281) provides guidance.

In Sebastian v Rail Infrastructure Corporation [2005] NSW ADT 281 it was stated:

78 There is no suggestion that Mr Sebastian did not have the capacity to enter into an agreement to discontinue his litigation in exchange for the payment of a sum of money. There is no suggestion that Mr Sebastian entered into that agreement as a result of mistake, misrepresentation, duress, unconscionable dealing or other factor which would vitiate the contract. Mr Sebastian was legally represented at the time he signed this agreement on 14 December 2004. The email communication between Ms Sharp and Mr Siva indicates that Mr Siva considered himself to be representing Mr Sebastian until 11 February 2005 when he informed Ms Sharp that he was no longer retained. Mr Sebastian entered into a binding agreement to settle these complaints on 14 December 2004.

…. 94 The respondents are entitled to orders that the three complaints be dismissed because Mr Sebastian entered into a binding agreement on 14 December 2004 to discontinue his legal proceedings in return for the payment of a sum of money. According to Ms Ronalds SC the respondents are ready and willing to pay the settlement sum and they accept that any orders of the Tribunal dismissing the complaints must be contingent upon proof that the monies have been paid.

36.The Appeal Panel in Sebastian’s case [2006] NSWADTAP 44) found in relation to the findings based on Masters v Cameron:

Ground 1 – misapplication of the decision in Masters v Cameron

17 The Tribunal rejected Ms Beck’s submission that the Agreement was not binding by applying the High Court’s decision in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353. The Tribunal said at [77] that:

The second argument advanced by Ms Beck was that no binding agreement was reached on 14 December 2004 because the document headed ‘Principles of Agreement’ was an agreement in principle rather than a binding agreement. There is no merit to this argument. We accept the submission by Ms Ronalds SC that the settlement agreement in this case was an agreement within the second class of agreements described by the High Court in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360. This was "a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal contract". In these circumstances "there is a binding contract" ((1954) [1954] HCA 72; 91 CLR 353 at 360).

18 Ms Beck submitted that the Agreement came within the third class of agreements described by the High Court in Masters v Cameron, and not the second class of agreements. The High Court identified three categories of cases where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the subject matter of their negotiation shall be dealt with by a formal contract. The first two categories result in a binding agreement, the third category does not. The three categories identified by the High Court were:

(1) A case in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect;

(2) A case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document.

(3) A case in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

19 An example of a contract which came within the first category arose in Owners Corporation Strata Plan 62285 & Ors v Betona Corporation (NSW) Pty Ltd & Ors [2006] NSWSC 216. In that case Gzell J held that following a conciliation conference where finality had been reached in relation to all the terms of the bargain, the parties became bound by the terms of that bargain.

20 Ms Beck submitted that the Agreement came within the third category because the terms of the Agreement were not intended to have, and therefore did not have, any binding effect. Despite the parties having settled on the terms of their bargain, Ms Beck says that she believed that Mr Sebastian had a right to withdraw from the bargain at any time prior to the execution of the deed of release.

21 We agree with the Tribunal’s conclusion that the circumstances of this case fall squarely within the second category of cases identified by the High Court in Masters v Cameron. The parties signed an agreement setting out all the terms of their bargain, but made the payment of the settlement monies conditional on the execution of a deed. This is not a case of mere agreement in principle to compromise the matter. (Cf Locnere Pty Ltd v Jakk’s Bagel & Bread Co Pty Ltd [2003] NSWSC 1123.)

Masters v Cameron

50 In Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360-361 the High Court, in an often quoted passage, identified three different situations in which parties in negotiation reach agreement that the terms of their negotiation should be dealt with by a formal contract:

“It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

In each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution... Cases of the third class are fundamentally different. They are cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own.”

51 In Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628, McClelland J suggested a fourth class additional to the three mentioned in Masters as recognised in Sinclair Scott & Co Ltd v Naughton [1929] HCA 34; (1929) 43 CLR 310 at 317:

“One in which the parties are content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms.”

52 Betona submitted that the case fell within the third category. Locnere Pty Ltd v Jakk’s Bagel & Bread Co Pty Ltd [2003] NSWSC 1123 was cited. …

53 In my view the contrary is the case in the instant circumstances. The terms of the marked up deed had been agreed by the Owners Corporation and residents subject to the variation with respect to the Gleeson fees. The conversation between Mr Sachs and Mr Russo, which was not challenged in cross-examination, made it clear, not only that as between the Owners Corporation, the residents and Betona, finality had been reached in agreeing upon all the terms of the bargain, but also that those terms were accurately stated in the deed of settlement and release when the two further amendments were made to it.

54 In my view, on 21 October 2005, Betona became bound by the terms of the deed of settlement and release as further amended on that day regardless of whether it executed that document.

37.For reasons discussed above the Tribunal finds that on 11 February 2009 the parties reached a final agreement. The evidence does not support a conclusion that the settlement was subject to any further requirement such as being reduced to writing. At the case conference it was indicated that the matter had settled and the matter was listed for dismissal. For reasons discussed above the Tribunal finds that a binding agreement, in the nature of a category one agreement, as referred to in Masters v Cameron was made by the parties. The Deed represented the attempt by the parties to translate the agreed terms into writing, the agreement itself was not subject to a further requirement such as that the agreement be in writing.

Issue 2 – is the agreement binding upon Ms Greenfield considering the evidence as to the authority of her solicitor?

38.The Applicant submitted that the settlement was made by her solicitor without authority and is not binding on the applicant on this basis. The Tribunal has considered the submissions of the Applicant in relation to whether her solicitor, Ms Sutton, had authority to settle the proceedings and has considered the cases cited. In Wandel’s case the court found that there was a concluded agreement which was the within the legal representative’s ostensible authority. The court considered whether the court could refuse to give effect to the concluded agreement, and noted that the court could do so where an action is settled by a legal adviser contrary to his instructions even though the lack of authority is not known to the other side. The court noted that the leading case is Harvey v Phillips. The court found that the legal representative exceeded his authority and did not follow, in settling the matter, the express instructions of his client in a letter of instruction. The court found that it would be contrary to the interests of justice to allow the court to lend its assistance to an agreement which was made without authority. Wandel’s case involved evidence of recent instructions, set out in a letter by the client to the legal representative, which were not followed.

39.The case of FvB,C may be distinguished from the present case on its facts. In that case the Court found that after a reconciliation conference a legal representative wrote to the other party offering to settle the client's claim on certain terms, and subsequently the other party agreed to the terms with the legal representative and prepared a Deed. The facts of the case were that the legal representative made an offer, which was not made on instructions, and which was subsequently accepted by the other side leading to preparation of the Deed. In that case the client was not present when the offer was made and accepted, and gave evidence that it was all done without his instructions, it was found by the court in that case that the legal representative had no actual authority. In paragraph 20 of the judgement it is clear that the court found that the legal representative had no actual authority. The court also found in that case that there was no binding agreement between the parties (paragraph 26 of the judgement).

40.In Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 evidence was presented to the court and accepted, that Counsel had subjected the plaintiff to considerable pressure to settle. The evidence accepted was that she continued to refuse the pressure, and continued to indicate that she would not settle. It was found that despite her determination not to settle, she was temporarily overborne by the extreme pressure exerted by her Counsel, and others, and was induced when she understood that the Counsel had refused to continue to conduct her case, to express what proved to be a short-lived consent to accept a compromise. The court found that the conduct which the plaintiff complained about was the conduct of those representing her, not the conduct of the other party. It was noted that her Counsel when he signed the terms of settlement acted in accordance with the authority which she gave in the manner described. The Court stated:

10. The difficulty in the present case lies in the very unwilling and ephemeral character of the consent which the plaintiff was led to give. But it is enough if she expressed a real intention to consent, even if experience might have suggested that it was an attitude she was not likely to maintain. In the circumstances one might have expected that she would be asked to sign a written authority. But that was not done. However the finding of the Supreme Court, supported as it is by evidence, suffices to establish that she definitely did give her authority, however reluctant it may have been. It is impossible to regard the authority she thus gave as insufficient to support the compromise. The issue is one which must be considered from the defendants' point of view as well as from hers. When the defendants accepted the compromise requiring them to pay 4,000 pounds they believed that thereby they were putting an end to the litigation. They acted upon the statement made by her counsel that the compromise was made with the authority of the plaintiff. Once it appears that the plaintiff did in fact give an assent which had not been withdrawn up to the moment when the terms of settlement were signed, it can be nothing to the point to say afterwards to the defendants that it was the result of her real desires or her judgment being overborne by her advisers, whatever may have been the degree of moral pressure that she felt. (at p244)

41.The court found in that case that the plaintiff definitely did give her authority, however reluctant it may have been. Because the compromise, or settlement, was made by Counsel with actual authority the Court found that it, in those circumstances, did not have discretion to set aside the compromise or intercept the formal entry of judgement.

42.The Tribunal has considered further guidance provided by the Supreme Court, in a decision of Justice Gzell, Owners Corporation Strata Plan 62285 and Ors v Betona Corporation (NSW) Pty Ltd and Ors [2006] NSWSC 216 (5 April 2006). In that case it was stated:

Solicitor’s Authority

45 Bernard Geoghegan was the sole director of Betona. He swore in an affidavit that at no time did he instruct his lawyers to agree to undertake any rectification work to the unit 13 patio, and at no time did Betona agree to undertake any rectification work to unit 13. The marked up deed required Betona to carry out that work.

46 Mr Russo signed consent orders on 25 August 2005 in which it was noted that matters that were not resolved at the mediation had since been resolved. Mr Geoghegan said he would not say that Mr Russo lacked instructions to sign that document.

47 In Donellan v Watson (1990) 21 NSWLR 335 at 342, Handley JA noted that a solicitor retained to conduct litigation ordinarily had both implied and ostensible authority to bind the client to a comprise of those proceedings, and any instruction from the client that restricted the solicitor’s authority to comprise the proceedings would only affect the other party if on notice of that restriction. There was no suggestion that Mr Sachs or anyone else on behalf of the Owners Corporation and the residents were aware of any restriction on Mr Russo’s ability to compromise the proceedings.

48 Betona sought to rely upon Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243 where the High Court contrasted the situation before it with a case where a comprise had been agreed upon by counsel acting only in pursuance of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client’s instructions or in excess of some limitation that had been expressly placed on his authority. In such a case, in all events until the judgment or order embodying comprise had been perfected, authority existed in the court to refuse to give effect to, or act upon the compromise and, perhaps, to set it aside.

49 But Mr Russo did not give evidence and no basis was established for any mistake on his part. I see no reason to depart from the ordinary rule that Mr Russo had the ostensible authority to bind Betona to the agreement.

43.As noted above, the Tribunal found that the evidence of Ms Greenfield as to what happened at the case conference to be unreliable, as that evidence was inconsistent with other evidence before the Tribunal. As noted above the evidence of Mr Cameron was consistent with other evidence before the Tribunal such as the notation on the Tribunal file. Ms Greenfield’s evidence about her discussions with Ms Sutton at the case conference were, as detailed above, not consistent with the Deed which was produced shortly after the case conference. The Tribunal does not accept on the evidence presented that Ms Greenfield had set a limitation on Ms Sutton’s actual authority, or that Ms Sutton exceeded her actual authority, to enter into the settlement at the case conference. As the Tribunal is not satisfied that Ms Greenfield’s solicitor exceeded her authority, the Tribunal is satisfied that the solicitor had actual and ostensible authority, to enter into settlement binding upon her client. Having considered the matters set out in Harvey v Phillips the Tribunal would have no basis, on the evidence in the present case, for setting aside the compromise. As discussed above, the Tribunal was satisfied that the Deed of Release reflects the parties’ agreement entered into at the case conference.

Issue 3 – Does the Tribunal have the power to make the orders sought?

44.The Applicant submitted that the Tribunal does not have the power to make the orders sought in this case. As set out above the Applicant made submissions in respect of the requirements of s86 of the Tribunal Act. The Respondent submitted that the Tribunal can make the orders pursuant to s102 of the AD Act.

Legislative provisions

Anti-Discrimination Act 1977 (the AD Act)

74 Preliminary conferences

86 Powers when proceedings settled

86A Matters that may be taken into account when exercising settlement powers

45.The Tribunal finds in the present case that the case conference was not a preliminary conference in terms of s74 of the Tribunal Act. Section 74 provides for informal involvement by the Tribunal, for the purpose of conferring with the parties and making a determination with respect to the proceedings as agreed to by the parties. Section 74 also provides for referral to a member or assessor, and for agreement by the parties to a determination during that process. In the current case the Tribunal did not confer informally during a preliminary conference with the parties and the provisions of section 74 do not apply.

46.In the Tribunal’s view s86 of the Tribunal Act is a provision which makes clear that the Tribunal has powers to make orders to give effect to the parties’ agreement. This interpretation is supported by a reading of s86A which refers to “settlement powers” and refers to the powers of the Tribunal to make orders to give effect to settlements reached pursuant to the processes of s74, s86 and s105. These sections do not in the Tribunal’s view restrict the order making powers vested in the Tribunal by s 102 of the AD Act. In this respect the Tribunal has considered the provisions of s102 of the Anti-Discrimination Act and agrees with the reasoning in Sebastian’s case. In that case it was stated:

3 Six issues arise for consideration in this case. They are: (1) the jurisdiction of the Tribunal to determine whether a complaint should not be permitted to proceed to hearing because it has been compromised or settled, (2) the breadth of s 102 of the Anti-Discrimination Act 1977 (the Act) which permits the Tribunal to dismiss a complaint without proceeding to a hearing, (3) the admissibility into evidence of the document headed ‘Principles of Agreement’ signed at the conclusion of the mediation session conducted on 14 December 2004, (4) the meaning and effect of that document if it is admissible in evidence, (5) the merits of the respondents’ applications that the complaints be dismissed, and (6) the orders which should be made if those applications are determined in favour of the respondents……..
…….32 The respondents sought orders that all three complaints be dismissed because they had been settled on 14 December 2004. In the alternative, the respondents sought orders pursuant to s 105 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) to give effect to the settlement reached on 14 December 2004……..
…….43 Whilst the Equal Opportunity Tribunal has been abolished, and the AD Act has been substantially amended since Qantas Airways Ltd v Gubbins was decided, a similar analysis of the current statutory regime concerning complaints of unlawful jurisdiction to that undertaken by Gleeson CJ and Handley JA in Qantas Airways Ltd v Gubbins leads to the conclusion that the Tribunal must possess the jurisdiction to determine whether it should decline to hear a complaint, or to dismiss it, because it has been settled. That analysis follows.
44 The Tribunal was established by s 11 of the Tribunal Act. Section 36 of the Tribunal Act stipulates that the Tribunal may make "original decisions" and "reviewable decisions". Those terms are defined in ss 7 and 8 respectively. It is clear that the decisions sought by the respondents in this case are "original decisions".
45 Section 37 of the Tribunal Act provides, in effect, that another Act may give the Tribunal jurisdiction to make an original decision. Section 45 provides that when making an original decision the Tribunal has the functions which are conferred upon it by the Act which grants the Tribunal jurisdiction to make an original decision. Section 19 of the Tribunal Act declares that the Tribunal must exercise its functions in the Divisions specified in Schedule 1. One of the Divisions referred to in Schedule 1 is the Equal Opportunity Division. Section 20(2) of the Tribunal Act stipulates that a Division of the Tribunal is to exercise the functions of the Tribunal allocated to that Division by Schedule 2. Clause 2 of Part 2 of Schedule 2 stipulates that the Equal Opportunity Division is to exercise the functions allocated to the Tribunal under the Anti-Discrimination Act 1977.
46 Various functions are allocated to the Tribunal under the Anti-Discrimination Act 1977 (the AD Act). The principal functions are those referred to in s 95 of the Act. The Tribunal is required to determine complaints of unlawful discrimination referred to it by the President of the ADB or the Minister. Section 95(3) provides that the referral of a complaint to the Tribunal is taken to be an application for an original decision under the Tribunal Act.
47 When determining complaints of unlawful discrimination the Equal Opportunity Division of the Tribunal may exercise the procedural powers set out in Chapter 6 of the Tribunal Act and the powers set out in Division 3 of Part 9 of the AD Act. Section 116 of the AD Act provides, in effect, that the Tribunal may exercise the powers granted under both Acts but, in the event that there is conflict, the terms of the AD Act must prevail. Section 108 of the AD Act gives the Tribunal the power to dismiss a complaint or to find it substantiated. If a complaint is substantiated the Tribunal may order one or more of the remedies set out in s 108(2). Those remedies include ordering the respondent to pay damages not exceeding $40,000 (s 108(2)(a)) and making injunctive-style orders (s 108(2)(b) and (c)).
48 There is no capacity to directly institute proceedings in any court or tribunal in order to enforce the legal rights and obligations created by the AD Act. The only mechanism which is provided to enforce those legal rights and obligations is a complaint to the President of the ADB and, ultimately, a hearing before this Tribunal. Except for the powers vested in the Minister by s 95(2) of the AD Act, only the President of the ADB can invoke the jurisdiction of the Tribunal by referring a complaint to it for determination.
49 Both the Tribunal Act and the AD Act encourage the settlement of complaints. Section 3(c) of the Tribunal Act provides that one of the objects of that Act is "to enable proceedings before the Tribunal to be determined in an informal and expeditious manner". Section 102 of the Tribunal permits the Tribunal to refer a matter to mediation or neutral evaluation whilst s 105 permits the Tribunal to make orders to give effect to any agreement reached at mediation. Section 91A of the AD Act permits the President of the ADB to attempt to resolve a complaint by conciliation. This statutory regime clearly permits a person who has lodged a complaint of unlawful discrimination to enter into an agreement to settle that complaint on terms agreed upon by the relevant parties.
50 When all of these statutory provisions are viewed together they lead to the same conclusion as that reached by Gleeson CJ and Handley JA in Qantas Airways v Gubbins when they considered the issue before us at a time when the Administrative Decisions Tribunal did not exist. This Tribunal, like the former Equal Opportunity Tribunal, has the jurisdiction to determine whether it should decline to hear a complaint, or dismiss it, because it has been settled. When exercising this jurisdiction the Tribunal has the power to determine the effect of any deed, or other document in which the terms of any settlement have been recorded, and it has the power to determine whether any deed or agreement should be set aside, or rendered unenforceable, as a result of matters such as duress or fraud. It is unnecessary to determine the precise limits of the Tribunal’s jurisdiction to deal with challenges to the enforceability of any agreement in order to deal with the matters which have been raised in this case.
The breadth of s 102 of the Anti-Discrimination Act 1977
51 The second issue which arises for consideration is related to the question of the Tribunal’s jurisdiction to give effect to an agreement to settle a complaint. The respondents have sought orders that the Tribunal exercise it's powers under s 102 of the AD Act to dismiss the three complaints. The respondents have sought orders that the three complaints be dismissed summarily without any investigation of the merits of those complaints because the complaints were settled on 14 December 2004. This issue is not the same as the question of jurisdiction because that issue involved consideration of the Tribunal’s powers to consider the meaning of a settlement agreement and to consider arguments that full force and effect should not be given to the terms of that agreement because of matters such as fraud or duress. The current issue simply concerns the power given to the Tribunal in s 102 of the AD act to dismiss a complaint in certain circumstances.
52 Section 102 was inserted into the Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004. It replaced the former s 111 which permitted the Tribunal to summarily dismiss a complaint on various grounds. Section 102 reads as follows:
The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i) or (ii) or (b).
53 The relevant powers of the President of the ADB in s 92(1)(a)(i) or (ii) or (b) are as follows:
(a)(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance
(a)(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint.
54 Section 102 of the AD Act is at least as broad as, and probably broader than, the former s 111. Like the former s 111, s 102 permits the Tribunal to dismiss a complaint "at any stage in proceedings". The grounds upon which this power may be exercised are broad. The operative provision in this case is the cross-reference to s 92(1)(b) which has the effect of permitting the Tribunal to dismiss all or part of a complaint if "satisfied that for any other reason no further action should be taken in respect of the complaint". This ground is clearly broad enough to permit the Tribunal to dismiss a complaint because the parties have entered into an agreement to settle that complaint if, as we have already determined, the Tribunal has the jurisdiction to decline to hear a complaint because the parties have entered an agreement to settle that complaint.
55 The power to dismiss a complaint "for any other reason" was also included in the former s 111 of the AD Act. In United Bonded Fabrics Pty Ltd v Roseman [2000] NSWADTAP 13 an Appeal Panel of the Tribunal proceeded on the basis that the former s 111 permitted the Tribunal to dismiss a complaint because it had been released by deed. ……..
95 Section 85 of the Tribunal Act permits the Tribunal to make an order "subject to such conditions (including exemptions) as the Tribunal specifies when making the order". We propose to exercise that power in this case. Before the complaints are actually dismissed the respondents must satisfy the Tribunal that they have paid the settlement sum to Mr Sebastian. The method by which payment is made and the evidence of payment which is placed before the Tribunal is a matter for the respondents. An affidavit sworn by a solicitor or an employee of the respondents indicating that payment was made by bank cheque personally delivered to Mr Sebastian is likely to constitute sufficient proof of payment…

47.The case was considered by the Appeal Panel of the Administrative Decisions Tribunal (Sebastian v Rail Infrastructure Corporation &Anor (EOD) [2006] NSWADTAP 44) in relation to various matters asserted on appeal, and the reasoning in relation to s102 of the AD Act was not affected by the appeal.

48.The Tribunal agrees with the reasoning of the Tribunal in Sebastian's case (NSW ADT 281) that the Tribunal has the power under section 102 of the Act to dismiss an application where the parties have agreed to a settlement.

Issue 4 – what orders should be made?

49.As noted above the Tribunal is satisfied that it has the power under s102 of the AD Act to dismiss an application where the parties have agreed to a settlement. The Tribunal has found, as discussed above, that in the present matter the parties did reach a final agreement at the case conference and the matter was settled. On the evidence, as discussed above, the Tribunal is satisfied that an order should be made for dismissal.

50.The Tribunal considers that a further order should be made in similar terms to the orders made in Sebastian’s case. Pursuant to s85 of the Tribunal Act, the Tribunal may make an order "subject to such conditions (including exemptions) as the Tribunal specifies when making the order". The Tribunal proposes to exercise that power in this case. Before the complaint is actually dismissed the Respondent must satisfy the Tribunal that the Respondent has paid the settlement sum to Ms Greenfield, and that the Respondent has confirmed in writing to the Applicant that the repayment of the student loan is waived. The method by which payment of the settlement sum is made and the evidence of payment which is placed before the Tribunal, is a matter for the Respondent. An affidavit sworn by a solicitor or an employee of the Respondent indicating that payment was made by bank cheque personally delivered to Ms Greenfield or to her legal representative is likely to constitute sufficient proof of payment; and such affidavit may also refer to written notification being delivered to Ms Greenfield in relation to waiver of the requirement to repay the student loan.

51.The Tribunal considers that any other terms of the settlement between the parties, as reflected in the draft Deed of Release, should be complied with as being terms of a legally binding agreement between the parties.

Issue 5 – should any order be made as to costs?

52.The Respondent applies for costs. The Applicant did not specifically address this issue. The Tribunal file indicates that a number of adjournments of the dismissal application were caused before the matter was heard on 2 December 2009, and a reading of the file indicates that the adjournments were caused due to delays in the applicant obtaining legal representation. In particular the Applicant had made an application for Legal Aid, and an appeal to the Legal Aid Review Committee, and adjournments were caused while these processes were completed. A copy of a letter to Ms Greenfield from the Legal Aid Commission of NSW, of 11 June 2009, contained on the Tribunal file, refers to an application for legal aid received on 28 April 2009. The correspondence in the Tribunal file indicates that there was subsequently an appeal to the Legal Aid Review Committee and adjournments were sought on this basis. Copies of correspondence on the Tribunal file indicate that it was anticipated that the appeal in relation to the application for legal aid would conclude on 28 October 2008.

53.Section 88 of the Tribunal Act provides as follows:

54.These legislative provisions have been subject of discussion in recent Tribunal decisions. In the case Potier v Department of Corrective Services [2009] NSWADT 143 (16 June 2009) the following was stated:

55.In the case of Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302 there the following observations were made by the Tribunal:

“5 The main provision relating to costs in the Tribunal is section 88 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

6 Pursuant to the ADT Act, the general rule has always been that each party bears its own costs. The previous section 88 of the ADT Act permitted the Tribunal to make an order that one party pay the costs of another party but only if "special circumstances" existed. The question of what constituted "special circumstances" justifying an order for costs was the subject of a number of previous decisions at first instance and upon appeal, which need not be recited here.

7 Since January 2009, the newly amended section 88 (1A) of the ADT Act has provided that the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is "fair to do so" having regard to five defined factors which may permit an order for costs:
a. the manner in which a party has conducted the proceedings
b. whether a party has been responsible for unreasonably prolonging the time taken to complete the proceedings
c. the relevant strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law
d. the nature and complexity of the proceedings, and
e. any other matter that the Tribunal considers relevant.

8 The Tribunal’s Practice Note 22 contains guidelines concerning costs. Paragraph 5 of this Practice Note recites the terms of section 88(1A) and confirms that many of those matters now listed in this section are similar to the "special circumstances" previously identified by the Tribunal as justifying an award of costs under the old provisions.

9 Unless there is some particular circumstance falling within the ambit of section 88(1A) of the ADT Act, each party should bear its own costs.

10 Generally, the previous approach of the Tribunal toward what constituted "special circumstances" was that such circumstances had to be exceptional, or out of the ordinary. Following the subject amendments to the ADT Act, a factor or circumstance which renders the awarding of costs "fair" under section 88(1A)need not necessarily be exceptional or out of the ordinary.

11 The decision as to whether or not costs should be awarded, does not simply involve a balancing exercise to determine what is fair. To reiterate, section 88 provides that each party is to bear its own costs unless there is some particular circumstance which makes it fair to order a party to pay the costs of another party and, if such circumstance exists, the Tribunal may then order costs but only if it considers in its discretion that it is appropriate to do so.”………..

18 The Applicant has drawn my attention to the decision of Judicial Member Molloy in Salon Today Pty Ltd v MMIR Pty Ltd [2009] NSWADT 71 in which the provisions of section 88(1A) were considered and a costs order made. That decision of course turns largely upon its own facts, and particularly upon the findings of the Tribunal that the respondent in that case had unreasonably persisted with its resistance to the applicant’s claim and that it had failed to accept reasonable settlement offers. Such circumstances do not exist in the present matter.

19 The Applicant has also sought to reply upon the decision of the Tribunal in Zeaiter Corporate Holdings Pty Ltd v Satchithanantham (No.2) [2009] NSWADT 70 as providing support for a costs order in its favour. The issue of costs in that matter was eventually decided on appeal in Satchithanantham v Zeaiter Holdings Pty Ltd[2009] NSWADTAP 53 and, after consideration of the provisions of section 88 (1A), the Appeal Panel ordered the appellant to pay the respondent’s costs because she had herself, and through her husband as legal representative, engaged in conduct specifically falling within the provisions of the section by causing delay through mainly irrelevant and repetitive cross examination, by failing to obey directions from the Tribunal, and by significantly delaying resolution of the dispute due to the filing of a separate and unmeritorious application seeking damages from the respondent on grounds connected to the respondent’s procedural conduct before the Tribunal. No such circumstances exist in the present proceedings and there is no evidence of conduct by the Respondent which would justify exercise of the discretion to order costs.
20 For the above reasons, the order I make is that each party is to pay its own costs of the proceedings.

56.The Tribunal notes also decision of Kyriacou v Chief Commissioner of State Revenue [2009] NSWADT 175, a decision of Deputy President Handley, where it was stated that the new section 88 confers a broad discretion on the Tribunal in terms of the relevant matters it may take into account in the exercise of its power to award costs if satisfied that it is fair to do so. “Nevertheless it must be borne in mind that the primary principle stated in section 88(1) is that each party to the proceedings before the Tribunal should bear that party’s own costs. It therefore remains the normal expectation that the parties in the Tribunal proceedings should bear their own costs.”

57.The decisions as to whether costs should be ordered in all of the abovementioned cases turned on the facts of each particular case as considered in the context of the Tribunal’s discretion to order costs pursuant to s88 of the Tribunal Act. This Tribunal takes the same approach – noting the primary principle in s88(1) of the Act that each party bear its own costs, and then assessing whether to exercise the Tribunal’s discretion to award costs by deciding whether there are circumstances in the case which make it fair to order that one party pay another party’s costs. This assessment is made in the context of the considerations set out in s88 of the Tribunal Act, which it is noted, provide a broad discretion. Applying these considerations to the current application for costs the Tribunal has made the following findings.

58.Adjournments of the hearing of the application for dismissal were caused, however, a primary reason for the adjournments, as indicated by a reading of the correspondence on the Tribunal file, was that Ms Greenfield had applied for legal aid for the proceedings and adjournments were sought while that application was being determined (including while an appeal was to be heard by the Legal Aid Review Committee). Given this primary reason for the adjournments, the Tribunal is not satisfied that Ms Greenfield was responsible for unreasonably prolonging the proceedings so that it would be fair to order that she pay the Respondent’s costs. Further, the Tribunal is not satisfied, considering the matter as a whole, and considering all the matters set out in s88 of the Tribunal Act, that it would be fair for the Tribunal to depart from the usual rule that each party bear their own costs.

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Citations

Greenfield v Australia Catholic University [2010] NSWADT 104

Cases Citing This Decision

0

Cases Cited

18

Statutory Material Cited

2

Masters v Cameron [1954] HCA 72

Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5

Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44

CITATION:	Greenfield v Australia Catholic University [2010] NSWADT 104
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Susanna Greenfield RESPONDENT Australian Catholic University
FILE NUMBER:	081131
HEARING DATES:	2 December 2009
DATE OF DECISION:	30 April 2010
BEFORE:	Huntsman C - Judicial Member
CATCHWORDS:	Application for dismissal on grounds case settled - solicitor’s authority to settle
LEGISLATION CITED:	Sections 102 Anti-Discrimination Act 1977; sections 74, 86, 86A, 88(1) and 105 Administrative Decisions Act 1977
CASES CITED:	Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; Sebastian v Rail Infrastructure Corporation &Anor (EOD) [2006] NSWADTAP 44 Sebastian v Rail Infrastructure Corporation [2005] NSW ADT 281 FvC,B and State of Queensland [2007] QADT 13 Wandel & Golterman GMBH & Co v Wandel Global Services Pty Ltd [2002] FCA 1609 Harvey v Phillips [1956] HCA 27; Owners Corporation Strata Plan 62285 and Ors v Betona Corporation (NSW) Pty Ltd and Ors [2006] NSWSC 216
REPRESENTATION:	APPLICANT S Friend, solicitor RESPONDENT Mr Seck, Counsel, instructed by Carroll & O’Dea solicitors
ORDERS:	1.The Complaint will be dismissed on 30 May 2010 if, before that date, the Respondent: (a) pays the settlement sum to the Applicant, and(b) provides written notification to the Applicant that the requirement to repay the student loan has been waived ( as per clause 2(b) of draft Deed of Release) 2.If the conditions in paragraph 1 are met, the Respondent is to provide the Tribunal with evidence to that effect prior to 30 May 2010. 3. If the conditions in paragraph 1 are not met, the matter is to be listed for further directions. 4.The application by the Respondent for an order that the Applicant pay the Respondent’s costs relating to the application is refused.