Ian Wogas v West Daly Regional Council

[2019] FWC 7207

[2019] FWC 7207

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian Wogas
v
West Daly Regional Council
(U2019/3222)

COMMISSIONER SIMPSON BRISBANE, 17 OCTOBER 2019

Application for unfair dismissal remedy - jurisdictional objection - whether matter subject to agreement to settle - whether matter barred from proceeding – Binding Agreement made - Application dismissed – Application for costs dismissed.

[1] This matter concerns an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) by Mr Ian Wogas who alleges his employment West Daly Regional Council (WDRC) was terminated unfairly. Mr Wogas had been employed by WDRC for approximately 4 years.

[2] The application was filed on 22 March 2019 by Mr Wogas’ then representative United Voice. A conciliation conference was convened on 2 May 2019 but did not resolve the dispute.

[3] The matter was allocated to Vice President Catanzariti’s Chambers. The matter was then listed for mention on 9 May 2019.

[4] On 8 May 2019, the Respondent’s representative, Mr Patrick Cozens of Cozens Johansen Lawyers, filed a Form F53 Notice of Acting. Mr Wogas was represented by the Northern Territory Branch of United Voice.

[5] The outcome of the 9 May Mention was to adjourn the matter to allow for negotiations. The matter was adjourned until 6 June 2019.

[6] Between the mention of 9 May and 30 May 2019, email correspondence was exchanged between Ms Diane Yali of United Voice and Mr Cozens. On 27 May 2019, a deed of settlement (Deed) was sent to the Respondent, by Ms Yali.

[7] Ms Yali filed a Form F54 – Notice of representative ceasing to act on behalf of United Voice on 30 May 2019.

[8] On 5 June Mr Cozens on behalf of the Respondent sent email correspondence to Mr Wogas including the following:

“……We refer to our previous correspondence with your then representatives and you and your email to Shaun Hardy dated 30 May 2019.

WDRC considers your employment claim against WDRC to have been settled pursuant to correspondence between us and your then representatives (United Voice). The commercial terms of settlement were agreed (see email from myself to Ms Yali dated 27 May 2019) and the deed provided to us by your representative on 27 May 2019 has been signed by WDRC and provided to your former representatives. Your signature on the deed would only have been a formality.

We note that this matter is set for mention again on 6 June (tomorrow). We are instructed to request that the matter be set down for jurisdictional hearing (on the basis that you cannot continue with your claim because you have settled it). If you continue to purport that the matter has not settled, we will rely on this email on the question of costs….”

[9] The matter was listed for mention/report back before Vice President Catanzariti on 28 June 2019. Mr Wogas was given seven days to decide whether he wished to pursue the matter and later on 28 June Mr Wogas sent correspondence to the Commission stating a range of things including that he was “...not prepared to accept the offer made…” and he would respond within the 7 day timeline.

[10] On 8 July 2019 an email was sent from the Chambers of Vice President Catanzariti to the effect that Mr Wogas had not advised the Commission whether he wished to pursue the matter and requesting a response by 11 July 2019. Later that day Mr Wogas responded by email saying as follows:

“Hi

Thank you for your email on the Friday 28/6/19.

I am now working on providing an outline of my initial situation from my unfair stand down to my unfair dismissal which I will provide by close of business tomorrow which is 7 working days as add vised (sic).

I did not negotiate the deed in relation to the entire situation at any time, no opportunity to do so was ever provided by Diane Yali or Pat Honan.

Regards

Ian Wogas”

[11] On 8 July 2019 Mr Cozens on behalf of the Respondent sent email correspondence to the Chambers of Vice President Catanzariti requesting that the application be dismissed on account of Mr Wogas’ failure to respond to the Commission by 5 July 2019. On 9 July Mr Wogas sent email correspondence to Mr Cozens copied to the Commission advising he understood 7 days to be ‘Working Days’. In the email Mr Wogas included what he said was a statement of claims.

[12] Mr Wogas’ statement of claim included the following:

•  that Mr Honan of United Voice had informed him that Ms Yali knew the WDRC CEO;

•  that the next thing I knew Ms Yali was representing me;

•  No negotiations on the change from my ‘Unfair Stand’ down to my ‘Unfair Dismissal’ were had and the figure of $14,000 then a phone call from Ms Yali saying she ‘got another 500’ and her mention of a box of chocolates I owed her, was a shock to me;

•  Due to the process of changes to support and negotiating persons midstream, texts, calls, emails and informal and unprofessional discussion; I feel prior insider discussions where a conflict of interest may have occurred brought about a foregone conclusion to bully me into signing a document based on discussion prior to my dismissal and I do not feel the offer covers the circumstances of my costs.

•  I do not feel that the matter has been considered in its entirety.

•  I make a claim for negotiation of the following: Identified costs to date at $35,000.00 and a further sum of $50,000 loss of income and damages in this case ref: U2019/3222;

•  Further to this, I intend to place defamation cases against Individuals with NT Courts to allow Justice to determine my outright external and longer term losses and damages.

[13] The matter was allocated to my Chambers for determination of the jurisdictional objection that the matter had been settled pursuant to a binding agreement between the parties. The matter was listed for mention on 23 July 2019 by telephone.

[14] Mr Wogas did not attend the mention on 23 July 2019. At the mention the Respondent made an application under s.399(a) of the Act to have the matter dismissed for noncompliance.

[15] On 24 July 2019, Mr Wogas sent correspondence to Vice President Catanzariti’s Chambers that was then forwarded to my Chambers advising that he was unaware the matter had been listed for mention on 23 July 2019. Mr Wogas explained he was in a remote area looking for work and had limited mobile and no internet signal. Mr Wogas further stated he had only received the email from Chambers on the night of 23 July 2019. Mr Wogas requested the matter be relisted.

[16] I dismissed the Respondent’s s.399(a) application as I was satisfied with Mr Wogas’ explanation. I issued directions for filing of material and listed the matter for hearing by telephone on 9 September 2019.

[17] The Respondent filed their material in accordance with my directions on 19 August 2019. Mr Wogas filed his material on 3 September 2019.

[18] On 4 September 2019, in response to Mr Wogas’ material, the Respondent sent correspondence to my Chambers advising they considered it necessary for Ms Dianne Yali to give evidence in the matter and requesting the matter be listed for directions. I adjourned the hearing listed for 9 September 2019 and proceeded to conduct a directions hearing instead on this date.

[19] At the directions hearing it was agreed Ms Yali’s evidence would be of assistance in the matter. I issued directions advising parties could provide further material in the matter by 11 September 2019 and listed the matter for hearing on 26 September 2019 by telephone to allow Mr Wogas and Ms Yali to attend.

[20] The Respondent provided a witness statement from Ms Yali on 9 September 2019.

[21] Mr Wogas requested an extension of 24 hours on 9 September 2019 which I granted. Mr Wogas filed further material on 10 September 2019.

[22] At the hearing on 26 September Mr Wogas represented himself. The Respondent was represented by Mr Cozens..

LEGISLATION

[23] The Respondent submitted that the Commission should exercise its discretion and dismiss the application as either being barred by the terms of a binding agreement between the parties or alternatively as the matter was frivolous and vexatious.

[24] The Act provides for the conduct of matters before the Fair Work Commission (the Commission). Relevantly to this matter s.587 provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

SUMMARY OF EVIDENCE AND SUBMISSIONS

[25] In his written submission of 12 September in response to the Respondent’s submissions Mr Wogas continued to dispute that he had ever agreed to settle the matter.

[26] The Respondent provided both written and oral submissions outlining settlement discussions between the Respondent and Ms Yali on behalf of Mr Wogas.

[27] The Respondent submitted the mention hearing before the Commission on 9 May was adjourned to allow for settlement negotiations and protracted negotiations occurred between the parties between 14 May and 27 May.

[28] Ms Yali, Industrial Officer for United Voice in the Northern Territory provided a witness statement 1 and gave oral evidence. Ms Yali said that she has been working in the area of industrial relations and human resources since 2001. Ms Yali gave evidence that she held a Masters of Laws, a Masters of Business Administration, a Bachelor of Law, a Bachelor of Arts and Graduate Diploma in Legal Practice. Ms Yali said at the United Voice Northern Territory Mr Honan mostly handles unfair dismissal conciliation conferences and that she deals with unfair dismissals once they are listed for hearing, or if the matter is complex.

2 May Conciliation Conference

[29] Ms Yali said that at the conclusion of the conciliation conference on 2 May the parties were $5000 apart from reaching settlement. During his oral evidence Mr Wogas accepted that offers and counter offers were made at the conciliation conference. He accepted that the last offer at the conciliation conference made on his behalf with Mr Honan from United Voice was $15,000.

8 May Ms Yali allocated matter

[30] Ms Yali said on 8 May 2019 she was allocated the matter and given a handover file by Mr Honan. Mr Wogas accepted during his oral evidence that he understood it was still the same union representing him and that Ms Yali had taken over the matter from Mr Honan.

9 May Mention

[31] Ms Yali said that on 9 May 2019 in the matter before Vice President Catanzariti all parties including Mr Wogas attended via phone. Ms Yali said by this stage Mr Wogas had already relocated interstate so he was contacted on a separate phone number. Ms Yali said it is her standard practice when she is allocated a matter that she will take steps to attempt to resolve the matter with the employer.

[32] Ms Yali said that she advised Vice President Catanzariti that she had unsuccessfully attempted to make preliminary contact with the Chief Executive Officer from the Council, Mr Sean Hardy, the day before and Mr Patrick Cozens, lawyer for the Respondent, returned her call. Ms Yali said other than the attempted phone call to Mr Hardy she did not know him nor had ever dealt with him.

[33] Ms Yali said Mr Cozens and herself advised the Vice President that they believed they could resolve the matter within 2 weeks because they were not that far apart at the conclusion of the conciliation conference.

[34] Ms Yali said she recalled Vice President Catanzariti asking Mr Wogas words to the effect of whether he had anything further to add and Mr Wogas advised that he did not.

[35] Ms Yali said on or around 9 May after the mention, she spoke to Mr Wogas and reconfirmed with him the status of the negotiations at the conclusion of the conciliation conference and how the parties were $5000 apart from the matter being resolved.

[36] Ms Yali said she also advised Mr Wogas that she would attempt to negotiate other favourable terms to the settlement beyond that reached at the conciliation conference. Ms Yali said that she advised Mr Wogas that she would try to negotiate at the higher end of the $5000 difference between the parties and she would be in touch accordingly.

[37] Ms Yali said in her oral evidence that on or around 9 May she first explained to Mr Wogas what a Deed of Settlement was and the terms of a deed generally. Ms Yali said she discussed this with Mr Wogas over the phone. Ms Yali said she reconfirmed with Mr Wogas that the Commission had given four weeks to try and resolve the matter and Mr Wogas indicated he was appreciative and preferred to get the matter resolved sooner rather than later.

[38] Ms Yali said she reconfirmed with Mr Wogas where the parties had landed at the end of the conciliation conference, being that the parties were $5000 dollars apart with the Respondent’s last offer being $10,000 and Mr Wogas’ last offer was $15,000. Ms Yali said she explained to Mr Wogas that in the circumstances it is not unreasonable to expect and understand that the parties will settle somewhere between those positions.

[39] Ms Yali said that she explained to Mr Wogas that she would do her best to negotiate close to the $15,000 and it would be over and above the five weeks wages Mr Wogas had already been paid. Ms Yali said she asked Mr Wogas if he was happy for her to negotiate as hard as she could and not bother him with any preliminary offers from the employer that were around $10,000, and as far as she could recall Mr Wogas said words to the effect that he was happy to be contacted when the offer was closer to the $15,000.

[40] Ms Yali said that other than the monetary settlement, she also recommended to Mr Wogas at the first phone call that she would ordinarily try to negotiate a right to resign along with confidentiality and non-disparagement clauses and Ms Yali said to Mr Wogas that they are standard clauses but sometimes the employer balks at those clauses. Ms Yali said as far as she could recall Mr Wogas was happy for her to try and negotiate those clauses as well.

[41] Ms Yali said that the last thing she explained to Mr Wogas was that the template the Union uses for a Deed of Settlement is plain and simple but legally binding, and is only a couple of pages long, and she went through the contents of the template with Mr Wogas including the names of the parties, no admission, when and how the money will be paid, that the Deed will not exclude workers compensation and superannuation, and the Deed is bound by Northern Territory laws.

[42] Ms Yali gave some oral evidence which appeared to pertain to a latter point of the negotiations when she said she told Mr Wogas a couple of offers were made by the employer which she considered to be about half way. Ms Yali said she explained everything again to him as offers were made back and forth. Ms Yali said that she advised Mr Wogas that the Union reserved the right to no longer represent him if he rejected what the Union believed was a reasonable offer. Ms Yali said she also reminded him that if he refused a reasonable offer that it could be used against him at a later stage in hearings.

[43] Ms Yali said as Mr Wogas had moved interstate she tried to explain using plain English as much as possible. Ms Yali said United Voice has a lot of members who come from non-English speaking backgrounds and have different levels of understanding of the Commission process.

[44] Ms Yali said in discussing the matters with Mr Wogas it was clear to her that he understood what she was saying and she recalled him saying words to the effect that he had all this explained to him already before the conciliation conference and again when discussing where to next after the conciliation conference ended, and she recalled saying something along the lines of, okay I’m glad you understand but I just wanted to hear it from you.

14 May Letter of Offer

[45] The Respondent submitted that on 14 May 2019, a Letter of Offer to Settle was sent to Ms Yali from Mr Cozens on behalf of the Respondent. This letter attached to the Respondent’s submissions includes a subheading “without prejudice save as to costs” above the contents of the offer. The letter included the following:

“In order to minimise costs for both parties by settling this matter prior to it proceeding to hearing, WDRC have instructed us to make the following offer of settlement in good faith:

1. Parties enter into a standard deed of settlement (with terms such as confidentiality and non-disparagement);

2. WDRC pay your client $11,000 (as an eligible termination payment) within 7 days of the date of the deed of settlement; and

3. Your client agrees to release WDRC from this claim and all claims relating to his employment at WDRC (excluding worker’s compensation claims).

This offer is based on each party paying its own costs in respect of your Clients Application, including any deed of settlement.”

This offer will lapse at 5:00pm CST on Friday 17 May 2019.

………………….”

[46] A series of emails were exchanged between Mr Cozens Ms Yali between 14 May and 17 May which are unnecessary to set out in detail.

15 May 2019

[47] Ms Yali said that on 15 May at 5.57pm she texted Mr Wogas as follows:

“Hi Ian. Please call me for an update on negotiations. Thanks Di Yali (UV)”

20 May 2019

[48] On 20 May 2019 Mr Cozens sent an email to Ms Yali including the following:

“In order to minimise costs for both parties by settling this matter prior to it proceeding to hearing, West Daly Regional Council (WDRC) have instructed us to make the following offer of settlement in good faith:

1. Parties enter into a standard deed of settlement (with terms such as confidentiality and non-disparagement);

2. WDRC pay your client $12,500 (as an eligible termination payment) within 7 days of the date of the deed of settlement; and

3. Your client agrees to release WDRC from this claim and all claims relating to his employment at WDRC (excluding worker’s compensation claims).

This offer is based on each party paying its own costs in respect of your Clients Application, including any deed of settlement.

This offer will lapse at 5:00pm CST on Wednesday 22 May 2019.

…………….”

[49] Ms Yali described in her oral evidence that she viewed this offer as about the half way mark.

21 May 2019

[50] Ms Yali said on 21 May at 10:10am, she texted Mr Wogas again as follows:

“Please call me. There is a new offer”.

[51] Ms Yali said that on 21 May 2019 at 1.41pm she missed a call from Mr Wogas and the message he left was:

“Hi, its Ian you rang me three minutes three hours ago. I don’t know who it is. Thank you.”

[52] Ms Yali said she called Mr Wogas back and gave him an update on the new offer and that negotiations were ongoing. In her oral evidence Ms Yali said that she took Mr Wogas through each part of the offer step by step and Mr Wogas agreed to everything except the monetary part of the offer.

[53] Ms Yali said she was of the view that they could counter offer and her next email to Mr Cozens confirmed all the terms except the monetary offer.

[54] Ms Amelia Craig provided a Statutory Declaration in support of Mr Wogas which was marked as an exhibit 2 and she also gave oral evidence. Ms Craig said in her oral evidence that she was Mr Wogas partner and had known him for about a year. Ms Craig said that she witnessed a phone conversation between Mr Wogas and Ms Yali on 21 May around 14:30. Ms Craig said that Mr Wogas phoned Ms Yali attempting to clarify with Ms Yali questions about his case.

[55] Ms Craig said that Ms Yali was extremely rude over the phone yelling at Mr Wogas and swearing at him when he stated that he did not understand what was said and he asked to have it explained again. Ms Craig said Ms Yali did not explain and was very abrupt in her tone to Mr Wogas yelling down the line, seemed rushed and did not have the time to explain things. Ms Craig said Ms Yali cut Mr Wogas off when he spoke and said she was shocked and in disbelief at how Mr Wogas was spoken to.

[56] Ms Craig was asked if she listened to every word that was said and she said yes. Ms Craig appeared to indicate she listened to a number of different conversations but not all, and accepted that she only made specific reference to two conversations in her Statutory Declaration because she wanted to bring specific attention to those. Ms Craig said that she saw all of the text messages.

[57] Ms Craig gave further oral evidence to the effect that Ms Yali was not acting professionally in how she conducted the telephone conversation of 21 May. Ms Craig claimed that Ms Yali would cut off Mr Wogas and yelled and swore at him.

[58] At 2.14pm on 21 May Ms Yali sent an email to Mr Cozens that included the following:

“…………….

Ian Wogas accepts points 1 and 3 below in your email.

In relation to point 2, we put a counter offer of $14,750 to West Daly Regional Council (WDRC). We accept the payment being made within 7 days of the Deed being signed by both parties.

I also believe that during the Conference, WRDC agreed to Ian’s proposal of the right to resign. Please confirm that is still on the table.

We look forward to your response by 23 May 2019.”

[59] At 5.08pm on 21 May Mr Cozens sent email correspondence to Ms Yali including the following without prejudice counter offer:

“West Daly Regional Council (WDRC) have instructed us to make the following offer of settlement in good faith:

1. Parties enter into a standard deed of settlement (with terms such as confidentiality and non-disparagement);

2. WDRC pay your client $13,500 (as an eligible termination payment) within 7 days of the date of the deed of settlement;

3. WDRC agrees to change the record to reflect that the reason for cessation of employment was resignation; and

4. Your client agrees to release WDRC from this claim and all claims relating to his employment at WDRC (excluding worker’s compensation claims).

This offer is based on each party paying its own costs in respect of your Clients Application, including any deed of settlement.

This offer will lapse at 5:00pm CST on Thursday 23 May 2019.

…………….”

22 May 2019

[60] At 9:48am on 22 May 2019 Ms Yali sent a without prejudice counter offer by email to Mr Cozens. Ms Yali said this counter offer was based on her previous discussions with Mr Wogas on the 21 May and was as follows:

“Hi Patrick

Paragraphs 1,3 and 4 (also needs to exclude superannuation claims), of your below offer is accepted. As is the 7 days for payment of settlement sum at paragraph 2 below.

In relation to paragraph 2 relating to the settlement sum of $13,500, that is rejected, and we counter offer $14,500.

I have taken the liberty to draft the attached Deed of Settlement as we discussed on 08 May 2019 that I would. Also as discussed, I use the FWC template which is written in plain English and easy for all the parties to clearly understand their legal obligations.

Please note that I have highlighted the settlement sum in the Deed because that is not agreed yet between the parties.

Though not requested by you, I have also taken the liberty to add in the Deed the standard “no admission of liability” clause at paragraph 4.

We look forward to your response by 23 May 2019.”

[61] Mr Wogas provided a Statutory Declaration which was marked as an exhibit 3 and also gave oral evidence. Mr Wogas said in his Statutory Declaration that on 22 May 2019 at 12.02pm he messaged Ms Yali explaining that he was seeking other legal advice.

[62] Ms Yali said that on 22 May 2019 at 1.33pm, Mr Wogas texted her as follows:

“Hi Di

I am looking at speaking to a lawyer to get further advice. I’ll contact you as soon as I get a bit more information.

Kind regards Ian.”

[63] Ms Yali said she immediately responded:

“Thanks Ian. If you are seeking advice from a lawyer we have the right to withdraw our representation. Please can you advise if you wish for United Voice to continue representing you by 9am tomorrow (23/05/19) as I need to advise our Branch Secretary as we are currently still advocating on your behalf. Thankyou”.

[64] On the same day at 3.26pm Mr Wogas texted Ms Yali as follows:

“Hi Di

I wish to still have United voice still representing me. However I will require to have 24hrs more time to discuss my other options.

Kind regards

Ian”

[65] In Mr Wogas’ written submissions he said his text on 22 May at 1.56pm showed negotiations were on hold. Mr Wogas described in his submission of 12 September a number of events that were occurring at this time including threats and accusations being made about him to police. It was put to Mr Wogas that his text message of 3.26pm did not say that negotiations were on hold. He appeared to accept that.

[66] It was put to Mr Wogas that he knew negotiations were ongoing because he had a conversation to that effect with Ms Yali the previous day.

24 May 2019

[67] Ms Yali said that on 24 May 2019 at 2:08pm she texted Mr Wogas as follows:

“Hi Ian. As per your last text message, we need you to urgent advise by 5pm today whether you still wish United Voice to represent you. We also note that you are also not a financial member.”

[68] Ms Yali said that at 4:10pm on 24 May Mr Wogas texted her as follows:

“Hi Di

I still wish to be represented by United Voice. Pat explained to me that whilst I am out of employment I am still covered”.

[69] Ms Yali said she responded as follows:

“Thanks. Can you please confirm you nor nobody else on your behalf, have made contact with WRDC in the last few days?”

“Please confirm ASAP.”

[70] Ms Yali said that Mr Wogas replied:

“Thanks Di

Can confirm have not made any contact with WDRC”.

[71] Ms Yali said she replied “Noted”.

[72] At 4.26pm on 24 May Ms Yali sent an email to Mr Cozens as follows:

“Hi Patrick

Just doing a chaser to our email below in which we requested a response by 23 May 2019.

Please take heed and be respectful of requested response dates. If you need an extension, just ask.

Kind regards”

[73] At 4.47pm on 24 May Mr Cozens sent the following without prejudice response by email:

“Dianne

“West Daly Regional Council (WDRC) have instructed us to make the following final offer of settlement in good faith:

5. Parties enter into a standard deed of settlement (with terms such as confidentiality and non-disparagement);

6. WDRC pay your client $14,000 (as an eligible termination payment) within 7 days of the date of the deed of settlement;

7. WDRC agrees to change the record to reflect that the reason for cessation of employment was resignation; and

8. Your client agrees to release WDRC from this claim and all claims relating to his employment at WDRC (excluding worker’s compensation claims).

This offer is based on each party paying its own costs in respect of your Clients Application, including any deed of settlement.

This offer will lapse at 5:00pm CST on Tuesday 28 May 2019.

…………….”

[74] At 4.50pm on 24 May 2019 Ms Yali sent a without prejudice counter offer by email as follows:

“Hi Patrick

Finally counter offer $14,500. Everything else okay.

Please respond by 27 May 2019.

Kind regards.”

[75] Ms Yali said that at 6.03pm on 24 May 2019 she texted Mr Wogas as follows:

“I’ve got some great news – they have offered 14K (paid within 7 days of signing the Deed) and giving you right to resign (as well as confidentiality and non-disparagement clauses). I’ve emailed them back to see if we can get an extra $500”.

[76] Ms Yali said that at 8.18pm on 24 May 2019 Mr Wogas texted her back as follows:

“That’s great news!. I am pleased to hear that my name will be cleared and I have the right to resign. That would be great if I can get the 500 as well and a box of favourites choclates (sic) �� Have been through so much mentally with all this huge stress.

Cheers Ian”.

[77] Ms Yali said that she immediately replied:

“I was literally just thinking about you!! I’ve been trying as much as I can. I’ve even drafted the Deed for them!! I’ve asked them to get back to me by Monday. I’ll let you know how it goes”.

[78] Ms Yali said that Mr Wogas immediately replied:

“That’s wonderful news!. I appreciate your efforts on my behalf. Hear from you soon then”.

[79] Ms Yali said that she interpreted Mr Wogas’ text as acceptance of the offer and the extra $500 she was seeking was merely “icing on the cake”.

[80] Mr Wogas said in his submission of 12 September that Ms Yali called him in May when he was visiting family in Queensland and talked of wanting a box of chocolates for raising the figure by $500. He said he had his phone on speaker and had other witnesses to the conversation. He said he had several concerns about the process used and after hours texts on a Friday evening. Mr Wogas’ submission then described a much larger counter claim he would be seeking.

[81] Mr Wogas’ Statutory Declaration does not address the period between 22 May and 27 May. It was put to him that the text message he sent on 24 May showed he was accepting the offer. Mr Wogas did not accept that.

27 May 2019

[82] Mr Wogas said in his Statutory Declaration that on Monday 27 May at 1.36pm he phoned Ms Yali regarding the discontinuance of her representation on his behalf and in this conversation there was a third party taking minutes. No minutes were produced by Mr Wogas as part of his case.

[83] Mr Wogas said he chose to discontinue Ms Yali’s representation as there was a conflict of interest with Ms Yali knowing the CEO of West Daly and when his representation was passed from Mr Honan to Ms Yali he felt mislead regarding how Ms Yali was going about representing him.

[84] Mr Wogas claimed that in this conversation he explained to Ms Yali that he no longer wished to be represented by United Voice. Mr Wogas said he has never accepted a settlement offer.

[85] It was put to Mr Wogas that during this phone call he did not request that Ms Yali withdraw previous offers made. Mr Wogas responded that there was no offer. He said he was not a lawyer and did not know these things. It was his view that when he told Ms Yali he no longer needed United Voice to represent him that was it.

[86] Ms Craig said in her statutory declaration that she was a witness to the telephone conversation between Mr Wogas and Ms Yali at 1.36pm on 27 May 2019.

[87] Ms Craig said that Mr Wogas explained to Ms Yali in the conversation that he no longer wished to be represented by United Voice. Ms Craig also made a general statement that at no time did Mr Wogas accept an offer by Ms Yali.

[88] Mr Wogas did not seek to challenge Ms Yali about her evidence that she did not know the CEO of the West Daly Regional Council.

[89] At 2.39pm on 27 May Mr Cozens sent the following email to Ms Yali:

“Dianne

West Daly Regional Council (WRDC) have instructed us to accept the counter offer of $14,500.

Please provide an updated deed for review.

WDRC will not be bound until they execute and we exchange the deed.

Regards”

[90] Ms Yali said that at 2.40pm on 27 May 2019 she texted Mr Wogas and said:

“Pls call me”.

[91] Ms Yali said that as the Respondent accepted the counter offer of payment of the extra $500, on that basis she amended the draft Deed of Settlement and emailed it to them for their approval and for Mr Wogas to sign.

[92] At 2.42pm on 27 May 2019 Ms Yali responded to Mr Cozens as follows:

“Hi Patrick

Excellent. Please find attached revised Deed of Settlement. Please confirm you are happy with it and I’ll delete the draft.

Kind regards”

[93] At 2.47pm on 27 May 2019 Mr Cozens responded to Ms Yali as follows:

“Please provide an executed version.

WDRC will not be bound until they execute and as exchange.

Regards”

[94] At 2.50pm on 27 May Ms Yali responded to Mr Cozens as follows:

“Hi Patrick

Yes I will of course. But I just need you to confirm first that you are good with the Deed please (I’ve deleted draft Deed and re-attached). I will then forward to Ian to sign.

Kind regards’

[95] Ms Yali said that Mr Wogas called her straight back (after her text of 2.40pm) and she advised Mr Wogas that the Respondent had accepted the further counter offer to that already accepted by Mr Wogas on 24 May 2019 via text message.

[96] Ms Yali said that she had thus negotiated an extra $4500 (of the $5000) to that which the Respondent was prepared to pay at the conclusion of the conciliation conference.

[97] Ms Yali said that it was only when she finished advising Mr Wogas of that and recapping on the already negotiated terms of settlement, and advising him that the Deed of Settlement was now ready for signing, that Mr Wogas advised her that he no longer sought to be represented by United Voice.

[98] Ms Yali said that immediately after the phone call finished she texted Mr Wogas as follows:

“I write to confirm that you have just advised me that you no longer seek to be represented by United Voice. Please be advised that failing contrary advice, we are filing a Form F54 “notice of representative ceasing to act” at 4.30pm today.”

[99] Ms Yali said that Mr Wogas did not contact her again.

[100] Mr Wogas submitted that there was a third party who took minutes on 27 May 2019 in regards to the phone conversation between himself and Ms Yali. Mr Wogas said the minutes were not provided as the third party was not contactable due to personal matters and can be brought forward at a later date if required. This was foreshadowed by Mr Wogas in his further submissions to my Chambers on 3 September 2019. I caused my Associate to send correspondence to Mr Wogas on 3 September advising that if he sought to rely on evidence in relation to this third party, they must be available to give evidence at the hearing on 9 September 2019 and provide a witness statement per the directions issued. This was confirmed by my Associate in a telephone call to my Chambers from Mr Wogas on 4 September. I further advised Mr Wogas during the hearing that the hearing was the opportunity to call evidence.

[101] At 3.04pm on 27 May Mr Cozens forwarded an email to Ms Rebecca Purser at the West Daly Regional Council that said as follows:

“Hi Rebecca

Deed is on standard terms.

If you are ok with it, please get WDRC to execute and scan and email back to me.

Kind regards”

Ms Yali said that at 4.45pm on 27 May United Voice filed a Form F54.

28 May 2019

[102] On 28 May 2019 at 2.44pm Ms Purser sent an email to Mr Cozens attaching the executed Deed of Settlement that read as follows:

“Hi Patrick

Please see attached executed Deed of Settlement.

Thank you.”

[103] On 28 May 2019 at 3.37pm Mr Cozens sent an email to Mr Wogas and copied to the WDRC and Ms Yali as follows:

“Dear Ian

We act for West Daly Regional Council in relation to this matter.

We assume that United Voice are no longer acting for you as we received an F54 yesterday afternoon. We have not been notified as to whether you have new representation or not.

Out of an abundance of caution I have CCed in Ms Yali. Please let us know if you have new representation and if so what their contact details are.

We understand that this matter has now settled. Please find attached the settlement deed on terms agreed by the parties signed by West Daly Regional Council. Please sign the deed and sent it back to us ASAP.

Kind regards”

[104] Mr Wogas was asked during oral evidence if he received this email and he replied “not that I know of”, and then said “I don’t know”.

Claims regarding the conduct of Ms Yali

[105] Mr Wogas claimed communication was minimal and poor between Ms Yali and himself and this did not give him a clear understanding of what was being discussed on his behalf.

[106] Mr Wogas claimed that he felt very rushed when he did seek to ask questions on the phone to Ms Yali about the correspondence between Ms Cozens and Ms Yali. He said his queries were dismissed and he was left confused with very little information. He said therefore he has never accepted any offer due to his not being fully informed on his case.

[107] Mr Wogas put to Ms Yali when she gave oral evidence that he felt attacked by Ms Yali rather than that Ms Yali was helping him. Ms Yali said he would not have treated Mr Wogas any differently to how she treats other members.

[108] Mr Wogas said he did not get emails from Ms Yali and only got phone calls or text messages. Mr Wogas had some difficulty cross examining Ms Yali and I sought to assist him by directing him to the statement of Ms Yali and identifying parts of the statement Mr Wogas did not agree with. Mr Wogas indicated he did not have the statement in front of him and was having difficulty with the internet because of his remote location.

[109] Ms Yali gave evidence that it is her practice to ask members their preferred method of communication and on 9 May she asked Mr Wogas about that and he responded text message or phone calls.

[110] In the circumstances I decided to grant a short adjournment to allow Mr Wogas some time to gather his thoughts and focus on matters in dispute. Mr Wogas requested that Ms Craig return to the hearing but I indicated she should not listen to the evidence of Ms Yali. I indicated to Mr Wogas I was content for Ms Craig to assist him with the computer during the adjournment.

[111] After the adjournment and Mr Wogas having access to Ms Yali’s statement he put to Ms Yali that his text message (of 24 May) did not agree, and it was praising her work. Ms Yali responded that agreement was reached, particularly given the only outstanding issue was the monetary amount and Mr Wogas understood the parameters of amounts from earlier discussions.

[112] Ms Yali said that at no stage were the phone calls on speaker nor did Mr Wogas ever mention a third party listening in on the phone calls. Ms Yali said that at all times she acted professionally and respectfully towards Mr Wogas. Ms Yali also gave oral evidence that her conversations with Mr Wogas ran smoothly and were polite and civil.

[113] Ms Yali said that upon her commencement of dealing with this matter, she confirmed the bargaining parameters with Mr Wogas in relation to the parties being $5000 apart from each other in reaching settlement at the conciliation conference and other favourable terms and then kept them updated as Ms Yali had updated information to give to Mr Wogas.

[114] Mr Wogas was critical of Ms Yali. Mr Wogas said in submissions that Ms Yali was brief on the phone, talked up how good an offer was, and wanted the matter to be settled as soon as possible. Mr Wogas claimed he was aware of how poor the offer was and referred to damages, expenses he had paid plus loss of income and speaking with lawyers these losses will never be covered by the WDRC offer.

[115] Mr Wogas submitted that on “several occasions” he said to Ms Yali he wanted this to go further which angered her. Mr Wogas submitted that Ms Yali replied who is going to pay for this and United Voice will not support you if you go to court.

[116] Mr Wogas said in his evidence that he had never signed anything. That argument does not necessarily assist him as it is well established binding agreements do not need to be in writing. Mr Wogas also gave evidence that there are significant issues he needs to get out and he did not agree to the matter being shut down. Mr Wogas said he was asked to sign something that he does not agree with. He also said he never agreed to a figure of settlement other than $15,000 that was never reached.

[117] Mr Wogas claimed that he didn’t understand the language used and nowhere in the text messages did he say that he agreed. Mr Wogas said he was out of phone range at the time of the text messages, and when he got back into phone range he rang Ms Yali to tell her that he did not want her to represent him.

Other submissions

[118] The Respondent submitted that the correspondence concerning the settled terms of the Deed between Mr Cozens and Ms Yali, and later with Mr Wogas, comprises a binding settlement agreement (even though the Deed was not executed by the Applicant), citing the Full Bench decision in Curtis v Darwin City Council (2012) 224 IR 174 where it was found that a binding settlement agreement was found to exist even though the parties had not executed the deed of settlement.

[119] The Respondent submitted it is well settled law that a binding agreement forms where the parties have completely agreed upon all the terms of the bargain and intend no departure from or addition to those terms, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document referring to the High Court decision in Masters v Cameron. 4 The Respondent submitted that the facts of this case fell within the first or second category in Masters v Cameron and probably the second.

[120] The Respondent submitted that there are a number of cases where a similar exchange of emails has been found to be a binding settlement agreement, including the case of Stellard Pty Ltd v North Queensland Fuel Pty Ltd 5.

[121] The Respondent submitted that as per the principles of the principal-agent relationship, Ms Yali’s acceptance of the terms of the Deed is sufficient confirmation that Mr Wogas approved the settlement terms under the Deed and any further confirmation from Mr Wogas that the terms of the Deed were accepted was not required as this was adequately provided by his agent, Ms Yali.

[122] The Respondent submitted that the assessment of whether an agreement had been reached was an objective assessment, and the subjective intention of Mr Wogas was not relevant. The Respondent rejected the claim of Mr Wogas that he was not fully informed of the terms of settlement. The Respondent submitted that the parties were corresponding on the basis of offers and counter offers as opposed to expressions of interest or proposals.

[123] Finally the Respondent submitted that Ms Yali was the nominated representative at all relevant times. It was submitted that under the law of agency an agent who works within the scope of authority given by their principal, binds the principal in the obligations they create. The Respondent referred to three categories of authority, namely actual authority, ostensible or apparent authority, and ratified authority. The Respondents submits Ms Yali had actual authority to settle the matter for $14,500 or in the alternative Ms Yali had ostensible or apparent authority.

[124] The Respondent submitted there was no suggestion that Mr Wogas did not have legal capacity, or that there was fraud on the part of Ms Yali, and there was no assertion of mistake and there was no evidence of undue influence or duress.

CONSIDERATION

[125] Mr Wogas confirmed during his oral evidence that he did not dispute the accuracy of the reproduction of the content of the text messages as presented in the written statement of Ms Yali, and he also accepted that was all of the text messages. Ms Craig also agreed the texts as reproduced by Ms Yali in her statement constituted a full and accurate record of the texts.

[126] Mr Wogas said at the conclusion of his cross examination of Ms Yali that it was really about the way Ms Yali spoke to him and that the text message (referring to 24 May) was interpreted wrongly. Ms Craig in her oral evidence indicated an opinion that the texts did not represent an agreement because they were too informal. Ms Craig accepted she was not an expert on the matter.

[127] I have weighed the competing evidence about the nature of the interactions between Ms Yali and Mr Wogas over the telephone on 21 May and more generally. Ms Yali’s evidence was clear, consistent and forthright. Ms Yali is an experienced industrial practitioner with many years of experience in the jurisdiction. Mr Wogas evidence was less certain and somewhat vague and general. The evidence of his partner Ms Craig who was not a direct party to the conversations but claims to have overheard them was also quite general, lacking in particularity with the exception of her version of the telephone conversation in 21 May which struck me as somewhat extreme and unlikely to be an accurate account.

[128] The claims of Mr Wogas and Ms Craig about the conduct alleged against Ms Yali are also inconsistent with the language and tone of subsequent text messages exchanged between Mr Wogas and Ms Yali. On balance I prefer Ms Yali’s evidence where there are disputes in the evidence over these matters. It seems improbable that Ms Yali would have engaged in such behaviour.

[129] Whilst it was not expressly argued it could perhaps be inferred from Mr Wogas that he felt under duress. On the evidence I am satisfied Ms Yali did not place Mr Wogas under duress. I am also satisfied from the evidence that Ms Yali went to some lengths to explain the specific terms of the various offers and counter offers and Mr Wogas understood those terms including the terms and effect of the counter offer he endorsed on 24 May.

[130] Ms Yali gave evidence that she believed a binding agreement was made when Mr Wogas indicated acceptance of the offer made by the Respondent at 4.47pm on the afternoon of 24 May. I am not inclined to agree with Ms Yali on this point. The Respondent referred to Mr Wogas’ email response at 8.18pm which was as follows:

“That’s great news!. I am pleased to hear that my name will be cleared and I have the right to resign. That would be great if I can get the 500 as well and a box of favourites choclates �� Have been through so much mentally with all this huge stress.

Cheers Ian”.

[131] The Respondent submitted Mr Wogas’ response could be taken to be authorisation to Ms Yali to accept the offer. The Respondent also submitted that it was also authority to make a counter offer.

[132] It is my view that Ms Yali, acting as Mr Wogas’ representative, made a counter offer at 4.50pm on 24 May and did so on the basis that she was making a counter offer within the ambit of her instructions.

[133] Ms Yali made the counter offer at 4.50pm before consulting with Mr Wogas about the 4.47pm offer. I am doubtful that the text communications between Ms Yali and Mr Wogas on the evening of 24 May amounted to Mr Wogas accepting the Respondent’s 4.47pm offer because a counter offer had already been made on his behalf and acceptance of the 4.47pm offer was never communicated to the Respondent.

[134] However I am satisfied Mr Wogas confirmed endorsement and authorisation of Ms Yali’s earlier actions in making the counter offer at 4.50pm on 24 May 2019. If Mr Wogas disagreed with Ms Yali’s actions as his representative in making the counter offer on the evening of 24 May or decided that he wished to withdraw from the counter offer at anytime prior to the Respondent’s acceptance of the offer, he should have made that clear and instructed Ms Yali to seek to withdraw from the counter offer made by Ms Yali as his representative. The text messages are clear evidence that Ms Yali’s actions in making the offer on his behalf had his authority.

[135] The 2.39pm email on 27 May from Mr Cozens to Ms Yali amounted to an acceptance of the counter offer made at 4.50pm on 24 May. It is apparent from the evidence that Mr Wogas did not advise Ms Yali that he no longer sought to be represented by United Voice until approximately some 2 and a half days after he had endorsed his representative’s actions in making the counter offer, and after the Respondent had accepted that counter offer.

[136] I am also satisfied that even after the Respondent accepted the 24 May counter offer at 2.39pm on 27 May, and after Mr Wogas subsequently advised Ms Yali that he no longer wished United Voice to act for him, he did not take any immediate steps to seek to withdraw from the arrangement before the Deed signed by the Respondent was sent to him on 30 May. Ultimately it does not make a difference whether the effect of the communication on the evening on 24 May amounted to Mr Wogas accepting the Respondent’s offer, or as I have found the Respondent accepted Mr Wogas’ counter offer on 27 May, because either way an agreement was reached.

[137] The final sentence in the acceptance email from the Respondent to Ms Yali at 2.39pm includes the words “WDRC will not be bound until they execute and we exchange the deed”. Having considered all of the evidence I am satisfied that whilst this language is arguably ambiguous, when viewed in context and objectively it was not intended to have the effect of a “subject to contract” clause but was instead intended to operate as contemplated in the second category described in Masters v Cameron that the performance of one or more of the terms are conditional upon the execution of a formal document.

[138] This interpretation is consistent with the fact that at no earlier stage had either party indicated that the negotiations were proceeding on the basis that they were “subject to contract”, and it is logical given the language found at clause 6 of the drafts of the Deed exchanged between the parties describes a requirement for each party to hold a copy of the Deed signed by the other party to execute the Deed, and the 7 day period for the payment of the settlement sum being contingent upon execution.

[139] For the reasons set out above I am satisfied that the matter has no reasonable prospects of success because the parties have entered into a Settlement Agreement and the parties should give effect to the terms of the Agreement. On that basis the application is dismissed.

[140] On a separate matter the Respondent has said in its submissions that it seeks an order for costs against Mr Wogas under s.611 because following on from other cases, the application was vexatious or without reasonable cause or had no reasonable prospect because Mr Wogas had previously agreed to be bound by the Deed under which he agreed not to make any claim against the Respondent in relation to his employment.

[141] I am not satisfied of any of the matters set out in s.611(2)(a) or s.611(2)(b). In accordance with the Full Bench decision in Church v Eastern Health 6 the power to order costs under s.611(2)(a) should only be exercised with caution and where the case is clear. Just because Mr Wogas did not succeed in his argument does not mean he was without reasonable cause. This case involved the requirement for witness evidence in order to clarify matters in dispute.

[142] In regard to s.611(2)(b) I similarly am not satisfied that it should have been reasonably apparent to Mr Wogas that the application had no reasonable prospects of success. It could not be said that his case was manifestly untenable or groundless. The application for costs is also dismissed.

COMMISSIONER

Appearances:

Mr Ian Wogas appearing on behalf of himself

Mr Patrick Cozens (Cozens Johansen Lawyers) appearing on behalf of the Respondent

Hearing details:

2019

26 September

Brisbane

Printed by authority of the Commonwealth Government Printer

<PR713475>

 1   Exhibit 1

 2   Exhibit 3

 3   Exhibit 2

 4   Masters v Cameron (1954) 91 CLR 353.

 5 [2015] QSC 119

 6   [2014] FWCFB 810