Guy v Von Bibra Motors Gold Coast Pty Ltd

[2023] QDC 166

DISTRICT COURT OF QUEENSLAND

CITATION: 

Guy v Von Bibra Motors Gold Coast Pty Ltd [2023] QDC 166

PARTIES: 

MATTHEW JOHN GUY
(Applicant)

v

VON BIBRA MOTORS GOLD COAST PTY LTD  
(First Respondent)

AND

WORKCOVER QUEENSLAND

(Second Respondent)

FILE NO:

BD No. 2284 of 2023

DIVISION:

Civil

PROCEEDING:

Application  

ORIGINATING COURT: 

District Court in Brisbane

DELIVERED ON:

18 August 2023 (ex tempore)  

DELIVERED AT:

Brisbane

HEARING DATE: 

18 August 2023  

JUDGE:

Porter KC DCJ

ORDER:

1.       Application dismissed;

2.       The Applicant is to pay the Respondents costs on the standard basis.

CATCHWORDS:

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTURAL RELATIONS – ACCEPTANCE – GENERALLY – where the parties were undertaking pre-litigation steps under the Workers Compensation and Rehabilitation Act 2009 (Qld) – where the applicant made an offer to settle the dispute for $200,000 plus Regulation costs – where the respondent agreed to the amount of the settlement on the basis that the costs were agreed at the same time – where the parties did not subsequently agree to the amount that would be payable as costs – whether a binding agreement to settle the proceedings was formed

COUNSEL:

J Sorbello for the Applicant

S Deaves KC for the Respondent

SOLICITORS:

Shine Lawyers for the Applicant

Cooper Grace Ward for the Respondents   

1. This is an application for a declaration that a binding agreement came into existence to compromise, the Applicant, Mr Guy’s claim against his employer, von Bibra Motors and WorkCover for workplace injuries.  The application is opposed by WorkCover. 

2. The background to the issue is set out uncontroversially in paragraphs 1 to 9 of Mr Deaves’s outline.  In short, the parties were following pre-litigation procedures common to the Workers’ Compensation and Rehabilitation Act 2009 (Qld) (“WCRA”) and the Personal Injuries Proceedings Act2002 (QLD) and others. That process relevantly ended with a compulsory conference and mandatory final offers, pursuant to section 292 of the WCRA. Those offers expired on 14 November 2022. The dealings between the parties thereafter are again set out uncontroversially from paragraph 7 to 17 of Mr Deaves’s outline.

3. The case really comes down to the question of whether, looked at objectively, a binding agreement arose from five short communications between the parties. 

4. The first communication was an email of 16 December 2022, from the Applicant’s then-solicitor, Ms Goodsir, to WorkCover where she wrote with admirable brevity:

   Dear Colleagues,

   We refer to previous correspondence. 

   Should WorkCover agree to reopen its written final offer our client has instructed us to accept WorkCover’s written final offer of $200,000 plus Regulation costs to settle this matter.

5. It is a short letter, but it has words that have particular meanings to people who know the background to this case and understand the way WorkCover litigation occurs. 

   (a)The first point to note is that the written final offer to which Ms Goodsir refers is the written final offer made at the compulsory conference between the parties to which I have referred.  That offer was to settle on the basis of $200,000 plus Regulation costs.  That offer had expired. Ms Sorbello, in advancing her construction of the exchange that I am about to analyse, did refer back to an earlier offer made by WorkCover on 1 December 2022 to reopen the mandatory offer at $200,000 plus Regulation costs. In that letter, solicitors for WorkCover communicated that they would seek their client’s instructions to reopen the mandatory final offer if the Applicant was minded to resolve the matter.  I will come back to the relevance of that exchange to the objective interpretation of the key correspondence.

   (b)The second point I note is that Ms Goodsir’s letter referred to Regulation costs.  It is explained to me by Ms Sorbello that that would be understood by persons familiar with the Act and its procedures as being a reference to legal professional costs and outlays under r 135 and 137, respectively of the Workers’ Compensation and Rehabilitation Regulation 2014.  In particular, r 137(1) sets out a number of specific outlays that can be allowed and, r 137(2) places some conditions on the allowances provided for in r 137(1).  Ms Sorbello also pointed out to me that these Regulations apply to what might be called more serious injuries where the work related impairment is greater than 20 per cent. 

6. As will be seen, the debate focuses on the outlays referred to in r 137 and its statutory and procedural context.

7. The second communication comes from the solicitors for the respondents, who replied to the email in paragraph [4] above. That reply email was sent on Tuesday 22 December at 9.52am, stating:

   Morning, Lana. 

   I hope you are well. 

   We are agreeable to reopening the offer of $200,000 clear plus Regulation costs on the basis that the costs are agreed at the same time.

   I note that based on the Regulations your client is entitled to an amount of $2240 for legal professional costs.  Could you please provide your list of outlays for our consideration.

8. There are some points to note. 

   (a)First, it reopens the mandatory final offer, but on different terms from the mandatory final offer and in different terms from the request to reopen the offer made by Ms Goodsir.  In this case, the words “on the basis that the costs are agreed at the same time” were added.

   (b)Next, the reference to the Regulations (and I think it is common ground) should, again, be read objectively (given the statutory context) as a reference to r 135 for legal professional costs and r 137 for outlays. 

   (c)Finally, there is a request for a list of outlays “for our consideration”.  To my mind, that is another significant departure from the previous offer to take $200,000 plus Regulation costs.  That reinforces, to my mind, the objective meaning of that email which was in effect, “we will settle on $200,000 plus Regulation costs but only if we also agree what the number will be for the whole of the Regulation costs”.

9. The third communication was the reply from Ms Goodsir sent Thursday 22 December at 1.15pm.  After salutations she says:

   The following outlays have been incurred in this matter:

   1.   Barrister fees – Mr Andrew Harris: $3,850.00

   2.   Medico-Legal Report – Professor Iulian Nusem: $1,815.00

   3.   Medico-Legal Report – Ms Emily Howard: $2,928.75

   4.   Medical Records – Pindara Physiotherapy: $55.00

   5.   Medical Records – Gold Coast Brain and Spine Surgeon: $110.00

   6.   Medical Records – Active Hand and Upper Limb Therapy: $220.00

   7.   Medical Records – Dr Ezekial Tan: $60.00

   TOTAL = $9,038.75

10. I make these observations:

    (a)First, Ms Goodsir does not cavil with the proposed entitlement to $2,240 for legal professional costs and I think looked at objectively, she would be taken by that conduct to have accepted that amount for legal professional costs. 

    (b)Next, Ms Goodsir has provided a list of outlays as requested, and I think it fair to assume that a reasonable person in the position of parties with their respective knowledge of the way the Act applies would interpret them as being costs that are sought under r 137.  I note, however, that Ms Goodsir asserted an entitlement to barristers’ fees for the Applicants’ barrister of $3,850 and it does not appear that such outlays are recoverable under r 137. 

11. The fourth communication, is the response of the respondents’ solicitor’s just over two hours later, at 3:41pm on 22 December 2022, which says:

    We confirm the parties are willing to resolve this claim for $200,000 plus Regulation costs.  Your offer of $9,038.75 to settle costs is rejected.

12. That email goes on to identify the costs that the respondents would allow and explains why other costs are rejected.  In particular, the email states that one of the occupational therapy reports is not a medical report under r 137, and that r 137 does not permit the recovery of counsel’s fees.  It offers to settle on the basis of outlays totalling $4,500. It then adds:

    Assuming your client agrees with our client’s assessment of costs please have him execute the attached release and discharge.

    We look forward to hearing from you as soon as possible.  It would be good to request the clearances prior to the Christmas break if that is possible.

13. There was no response to that email before Christmas. 

14. The fifth communication is an email sent on Tuesday 3 January 2023 at 7.21am by Mr Murphy from the respondents’ solicitors, who wrote:

    Hi, Lana, 

    All offers in this matter have been made subject to the issue of costs being agreed.  Given costs have not been agreed there is no settlement.  Given the 60 days your client had to commence proceedings has expired and settlement has not been achieved we must formally withdraw our offer to resolve the claim for $200,000 plus Regulation costs of $4500. 

    Please advise what your client intends to do in the circumstances.

15. Ms Goodsir did not respond for another six days but, when she did, she seemingly endeavoured to minimise the problems flowing from withdrawal of the offer on 3 January 2023 by saying that she would arrange for the signing of the release immediately.  On 9 January 2023 at 11.17am Mr Murphy emailed back confirming that the offer was withdrawn prior to the purported acceptance on 9 January, articulating that the respondents take the view that, as proceedings were not commenced within 60 days, they are statute barred, and invited an articulation of any contrary view.  After that email the parties positions started to harden and the subsequent correspondence does not much assist in resolving the application.

16. In my respectful view, reading the correspondence from 16 to 22 December inclusive, the objective meaning of the offer made on 22 December at 9.52 am was to settle on $200,000 plus Regulation costs on the basis that there was also agreement as to the amount of those costs.  I cannot see anything that passed subsequently that would lead to a different conclusion. 

17. The solicitors for the respondents proposed an amount for legal costs under what both parties would have known to be r 135.  The solicitor for the applicant responded with various amounts she sought as outlays and the solicitors for the respondents responded, allowing some, rejecting others, and proposing an agreed figure totalling $4500.

18. To my mind, the final 22 December email, setting outlays at $4,500 with the release and discharge attached was an offer capable of being accepted consistent with the position adopted on 16 December.  It just was not accepted until after its withdrawal. 

19. The Applicant’s case is that the agreement that was reached, looked at objectively, was the payment of $200,000 plus Regulation costs.  Ms Sorbello submitted that because it was known what Regulation costs were and by what mechanism they were calculated the contract would not have been uncertain in those terms and, objectively I should conclude, that that was the agreement that was reached.

20. I agree with her first point but not with her second point.  It seems to me that an agreement of $200,000 plus Regulation costs is an agreement which is not uncertain.  It is possible for a Court in the absence of agreement to determine by reference to the statutory provisions what disputed amounts fell within or without the scope of those provisions. That could be, it seems to me, a contract which was certain but of course it would not be binding unless, looked at objectively, the parties had agreed to a contract in those terms.

21. Here, looked at objectively it seems to me, what Cooper Grace Ward were trying to achieve for their client was to get ahead of any dispute about the proper calculation of Regulation costs by express agreement on the total amount of money that was to be paid.  Experience of counsel suggested that that was not regularly a point of dispute but, of course, we do have an example where it was in dispute in this exact case as articulated in Cooper Grace Ward’s letter of 22 December 2022. 

22. I should say I am not assuming that their decision, for example, not to allow Ms Howard’s amounts as an occupational therapist was one which was correct or incorrect.  What it showed was the capacity for disagreement about the amount of Regulation costs and therefore, looked at objectively, one understands why the offer was made in the terms it was made.

23. Ms Sorbello for the Applicant sought to persuade me that it did not affect the certainty of the settlement that the terms of the release and discharge had not been expressly agreed.  I did not hear from Mr Deaves, so he did not get a chance to comment on that, but Ms Sorbello’s proposition was that the release was usually provided early.  I suspect that that by itself would not be a reason why a consensus had not been reached, although if fully explored there might have been a further point to be raised there. 

24. Ms Sorbello also directed my attention to the earlier exchanges where where the respondents were willing to settle on the terms of the contract which I thought would be valid and not uncertain, that is, $200,000 plus Regulation costs to be determined against the statute.

25. The difficulty with that is that the offer made on 16 December was, in the context of the correspondence, a deliberate decision by the respondents to make a different kind of offer to try and get, it might be thought, everything tidied up at once.  Ms Sorbello also pointed to this fact: she submitted that it was known, or it would be taken to be known by the parties involved in litigation of this kind that if proceedings were not commenced within 60 days of the compulsory conference that the proceedings would be statute barred (assuming that none of the final offers made were accepted in that time).  She advanced the argument that the circumstances gave rise to an estoppel.  The estoppel was said to arise because the Respondents did not articulate, that the Regulation costs had to be agreed by the expiry of the notoriously known limitation period and therefore they impliedly represented there was a presently binding agreement. That is because, if there was not, they should have articulated that the Regulations costs had to be agreed before the expiry of the limitation period.

26. I asked if there was any evidence of reliance on such a representation of fact, notwithstanding that it was never expressly made.  I was directed to an affidavit of Ms Goodsir’s.  It seemed to me that Ms Goodsir believed that there was a binding contract.  However, she did not hold that belief based on any assumption that, in the absence of a representation that the deal had to be done before the expiry of the 60 days, the respondents would be taken to have offered to settle on $200,000 plus Regulation costs without the amount being agreed.

27. Nothing in her evidence suggests that she made any assumption arising from what I am willing to assume is a notorious extrinsic fact relevant in this case.  In any event, it does not seem to me to be relevant to the proper construction of the express words in the key email exchange.  Indeed, the last exchange which calls upon the respondents to respond as soon as possible, and attempting to request clearances before the Christmas break, is a communication indicating some urgency about having a response.

28. I can understand why this application has been brought but, in my respectful view, it turns on the objective meaning of the key exchanges and for the above reasons, those communications gave rise to no binding agreement.  The respondents were entitled to want certainty about costs; indeed, their caution was shown to have had some basis to it given that they disagreed with the proposed quantification of outlays.  They made a clear offer in terms of their initial 16 December offer to fix the amount.  That offer was never accepted until after the it was withdrawn and, once that happened, the respondents had no obligation to make it again.  So, I order that the originating application be dismissed.

29. I order that the applicant pay the respondents’ costs of the application on a standard basis.