DEBRA ISERMANN (appellant) v PROFESSIONAL PROPERTY INSPECTIONS PTY LTD
(first respondent) AND KAREN HANCOCK (second respondent) AND NOEL HANCOCK (third respondent)
FILE NO:
C/2025/4
PROCEEDING:
Appeal
DELIVERED ON:
19 June 2025
DELIVERED AT:
Brisbane
HEARING DATE:
12 June 2025
MEMBER:
Davis J, President
ORDER:
Appeal dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDING OF FACT – where the appellant brought a claim for compensation against the respondents under the Anti-Discrimination Act 1991 – where the respondents made an offer to resolve the appellant’s claim at a conciliation conference – where the appellant indicated their agreement to the respondents’ offer to settle the claim in an email to the Queensland Industrial Relations Commission Registry – where the terms of the agreement were to be drafted into a formal deed and later executed by the parties – where, before the deed was executed by the parties, the appellant retracted their agreement to the respondents’ offer in a further email to the Commission Registry – where the appellant sought to continue her claim against the respondents – where the respondents brought an application to prevent the appellant from pursuing her claim in light of her agreement to the offer to settle the proceedings – where the Commission found that the appellant was bound by her agreement to settle the proceedings – where the Commission dismissed the appellant’s claim – whether the appellant was bound by their agreement to the respondent’s offer to settle the proceedings – whether the Commission erred in dismissing the appellant’s claim
The appellant appeared on her own behalf The respondents were represented by the second and third respondents
The appellant, Debra Isermann, appeals a decision made by the Queensland Industrial Relations Commission[1] to summarily dismiss her application for compensation for an alleged breach of the Anti-Discrimination Act 1991.
Professional Property Inspections Pty Ltd, the first respondent (which I will call “the Company”) conducts a business of inspecting houses and providing reports for use in the real estate industry. Karen Hancock (the second respondent) and Noel Hancock (the third respondent) control the Company.
Ms…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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In the case of Isermann v Professional Property Inspections Pty Ltd, Debra Isermann appealed a decision made by the Queensland Industrial Relations Commission (QIRC) to summarily dismiss her application for compensation for alleged breaches of the Anti-Discrimination Act 1991. Isermann had claimed that during her employment with the first respondent, Professional Property Inspections Pty Ltd, she was subjected to discriminatory and harassing conduct by Mr. Hancock, who controlled the company along with his wife. During conciliation proceedings, the respondents made an offer to settle the matter, which Isermann agreed to within the stipulated timeframe. However, before the settlement was formalised, Isermann retracted her agreement and sought to continue her claim.
The legal issues before the court were whether Isermann was bound by her agreement to settle the proceedings and whether the Commission erred in dismissing her claim. The court examined the principles of contract formation, particularly the classical offer and acceptance analysis, and whether the parties had the intention to be legally bound by the terms of the agreement at the time of acceptance.
The court found that at the conciliation conference, the parties clearly understood that Isermann could accept the offer within four days, which would conclude the claim. Objectively, the intention of the parties was that acceptance by Isermann would compromise her claim, with the terms of the agreement to be later documented. Since Isermann accepted the offer, her claim was compromised, and her rights merged into the settlement. Consequently, the Commission was correct in summarily dismissing Isermann’s claim, and the appeal was dismissed accordingly. The court ordered that the appeal be dismissed, affirming the Commission’s decision.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
The appellant, Debra Isermann, appeals a decision made by the Queensland Industrial Relations Commission[1] to summarily dismiss her application for compensation for an alleged breach of the Anti-Discrimination Act 1991.[1] Isermann v Professional Property Inspections Pty Ltd & Anor [2025] QIRC 63.Background Professional Property Inspections Pty Ltd, the first respondent (which I will call “the Company”) conducts a business of inspecting houses and providing reports for use in the real estate industry. Karen Hancock (the second respondent) and Noel Hancock (the third respondent) control the Company. Ms Isermann commenced her employment with the company on 7 June 2023. After doing some training work with another inspector employed by the Company, Ms Isermann met with Mr Hancock at a shopping centre at Mount Cotton. Ms Isermann alleged that during her meeting with Mr Hancock, he said and did things which constituted discrimination on the basis of sex and sexual harassment. In due course, the matter came to be conciliated in the Commission. During the conciliation conference, the respondents produced footage taken by CCTV cameras within the shopping centre. It is common ground that the persons depicted in the footage are Ms Isermann and Mr Hancock, and that the occasion depicted in the footage is the meeting where the improper conduct allegedly occurred. The footage, which was produced does not show any improper conduct, but the footage only shows small parts of the meeting. At the conference, which occurred on 15 August 2024, the respondents made an offer to Ms Isermann to settle the complaint. The Commissioner conducting the conference adjourned, giving Ms Isermann four days to consider the offer. Consistently with usual practice, those parts of the conference which were not regarded as “private”, and where all parties were present with the Commissioner in the conference room, were recorded. When the parties separated into private conference areas, there was no recording. During the private sessions, the offer was made and it was agreed that the offer would be open for acceptance for four days. Before the conference concluded, this exchange occurred:“COMMISSIONER: Okay. Well, we’ve resumed the recording. Thank you, parties, for your time in participating in these two conferences. Fortunately, we’ve been able to resolve the matter by agreement at this point, however, the respondents have made an offer for the consideration of the complainant and have agreed that the complainant can have until 4 o’clock on Monday next week to consider whether she will or won’t accept the offer to resolve the matter by agreement. In the event that the complainant does accept the offer to resolve the matter by agreement, and what will occur is the respondents’ representative will draft a deed of agreement in the usual terms which, as we’ve discussed, includes confidentiality, non-disparagement, full and final settlement of all matters, and a payment of a financial amount to the complainant upon both parties executing or signing the agreement, okay?MS ISERMANN: Okay.COMMISSIONER: And if that’s a course that the parties adopt, then it’s useful, Ms Isermann, if you provide your bank account details, current as of now, to the respondents’ legal representative, so that there can be no quibble about the monies going into your correctly nominated account, okay?MS ISERMANN: Okay.COMMISSIONER: Now, in the event that you decline to accept the offer, as I’ve relayed to you, the respondents made clear that they would be raising that matter if this issue went all the way to a hearing and you lost, okay? I will look into the Form 29[2] issues that were, you know, let drift a little, so I’ll follow those up, and I’ll likely issue an order that they – that those two notices be complied with, as they weren’t objected to within the requisite timeframe - - - MS ISERMANN: Okay.COMMISSIONER: - - - okay? Now, in the event that the complainant decides not to accept the offer, then as I mentioned, you’ll let the Industrial Registry know that the matter’s to be allocated to someone else to hear and decide - - - MS ISERMANN: Okay.COMMISSIONER: - - - all right?MS ISERMANN: Yep.COMMISSIONER: Okay. All right. I think that’s it. Thanks very much, everyone.” (emphasis added)[2]Notice of non-party disclosure.
Evidence
Evidence Before The Court
Rule 139 of the Industrial Relations (Tribunals) Rules 2011 required Ms Isermann’s application to appeal to state “concise grounds of the appeal”.[17] Ground 1 of Ms Isermann’s appeal was in these terms:“1. Unfair and prejudicial evidence allowed into a conciliatory process.·QIRC fundamental rules of evidence-·Relevance: evidence must be relevant to the issue in the issue to be admissible.·Inadmissible evidence: evidence that is not relevant or reliable or is not legally obtained is considered inadmissible and cannot be presented in a court.·Procedural Fairness: the right to procedural fairness ensures that all parties will be given a reasonable opportunity to present their case.”[17]Rule 139(2)(c). What follows is a series of allegations as to the way in which the Commissioner conducted the conciliation conference. Most of these matters were not before the Commission on the hearing of the strike-out application. There was no application to adduce fresh evidence or to rely on fresh grounds on appeal. Ground 2 is expressed in this way:“Ground 2. Ineffective Deed of Release.” What follows is a number of complaints about the form and content of the deed. Ground 2 can be ignored. The question is whether there was an agreement to compromise the claim. If there was, then the terms of the draft deed are of no significance. Ground 1, as articulated in the application to appeal, is also all but irrelevant. However, on the hearing of the appeal the real question was litigated, namely, whether an agreement was reached as a result of the acceptance of the offer made at the conciliation conference, and so it is appropriate to review the Commissioner’s judgment on that issue. The application before the Commissioner was to summarily dismiss Ms Isermann’s claim. Although the Commissioner did not specifically record that she had referred to the well-known principle that summary dismissal is only ordered in the clearest of circumstances,[18] the Commissioner made a positive finding that Ms Isermann had compromised her claim by accepting the offer made. [18]Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130. In King Tide Company Pty Ltd v Arawak Holdings Pty Ltd,[19] Bond J (as his Honour then was) neatly summarised the contractual principles relevant to this appeal as follows:“[12] The appellant’s case below principally sought to prove that a contract had been formed by the application of a classical offer and acceptance analysis. [13]The application of the classical theory of contract formation requires a consideration of the terms of an alleged offer and the terms of the alleged acceptance. If the acceptance corresponds with the offer, then so long as the other requisite elements exist (namely intention to be legally bound, consideration and certainty[20]), then a legally binding contract will, generally speaking, have been formed. [14]A complication which sometimes arises is that the offer and acceptance analysis reveals that the parties contemplated a subsequent formal document, hence the Masters v Cameron[21] classes of case. In such cases, the decisive consideration is an objective assessment of whether, as at the time in question, the parties intended to bind themselves to the terms of a particular contract, in advance of the creation of the formal document.[22][15]It remains to note that it is not controversial that conduct occurring after the date a contract was allegedly formed by acceptance of an offer is admissible on the question of whether a contract has been formed as alleged.”[23][19][2017] QCA 251.[20]N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot’s Law of Contract (2012, 10th Australian edition, LexisNexis Butterworths) at [1.16].[21] (1954) 91 CLR 353.[22]Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313 per Bathurst CJ at [15], per Beazley P (with whom Meagher JA agreed) at [64]-[65]; Feldman v GNM Australia Ltd [2017] NSWCA 107 per Beazley P (with whom McColl and Macfarlan JJA agreed) at [68].[23]Feldman v GNM Australia Ltd [2017] NSWCA 107 per Beazley P (with whom McColl and Macfarlan JJA agreed) at [90]-[91].
Decision
Reasons for decision
When the respondents brought their application to strike out her claim, Ms Isermann, as already observed, filed a written submission.[24] There, she did not cavil with the notion that the claim had been settled, but, by paragraph [1] of her submission, thought it should “be continued, in light of the new evidence received”. She followed that assertion by accepting that she “did agree to take a token amount of $500 offered at the last conciliation process” in paragraph [2]. After admitting that agreement, she then explained why she decided to take it. In paragraph [12] she said, “I accepted the offer”. In paragraph [13] she explained that she “decided against accepting the offer I had already said… I’d accept”. She said in paragraph [22] that she had “changed my mind due to new evidence”. A similar comment was made in paragraph [21].[24]Reproduced at paragraph [28] of these reasons.Conclusions and orders At the conciliation conference the parties understood that Ms Isermann could accept the offer made at the conference, provided she did so within four days. The intention of the parties, objectively ascertained from the evidence to which I have referred, was that acceptance by Ms Isermann would conclude the claim, but the terms of the agreement would be later documented. Ms Isermann accepted the offer and her claim was compromised. Her claim ceased to have any prospect of success once she accepted the offer. From that point, her rights merged into the settlement. The Commissioner was right to dismiss Ms Isermann’s claim summarily, and it is appropriate to order that the appeal be dismissed. It is ordered:1. Appeal dismissed.
