Lucas v Public Transport Corporation

[1996] IRCA 253

DECISION NO:  253/96

C A T C H W O R D S

INDUSTRIAL LAW - UNLAWFUL TERMINATION - conciliation conference - settlement - whether a binding compromise entered into - whether settlement subject to or conditional upon the execution of written terms - applicant’s failure to call evidence from former solicitor on the terms of settlement entered into on his behalf

Industrial Relations Act 1988 s.170EA
Industrial Relations Court Rules Order 45 Rule 7

SAM LUCAS  - v -  PUBLIC TRANSPORT CORPORATION

No. VI 1077 of 1996

Before:          Judicial Registrar Millane
Place:            Melbourne
Date:              4 June 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1077 of 1996

B E T W E E N :

SAM LUCAS
Applicant

AND

PUBLIC TRANSPORT CORPORATION
Respondent

MINUTES OF ORDERS

Judicial Registrar Millane  4 June 1996

THE COURT ORDERS THAT:

1. Proceeding No. VI 1077 of 1996 is struck out in accordance with the application made by the respondent in its Notice of Motion filed on 29 May 1996.

AND FURTHER ORDER BY CONSENT THAT:

1. Within 7 days of the date of making this Order the respondent pay to the applicant’s solicitors, Jack Cohen Serry & Co., the sum of $1,500.00.

NOTE:     Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1077 of 1996

B E T W E E N :

SAM LUCAS
Applicant

AND

PUBLIC TRANSPORT CORPORATION
Respondent

Before:          Judicial Registrar Millane
Place:            Melbourne
Date:              4 June 1996

REASONS FOR ORDERS

By Notice of Motion filed on 29 May 1996 and supported by an affidavit of Eugene John Quigley (Quigley) sworn on the same date, the respondent sought the following orders:

1.        That these proceedings be dismissed.

2.        In the alternative to 1, that these proceedings be struck out.

3.        That the applicant pay the respondent’s costs.

4.        Such other orders as the Court deems appropriate.

By an affidavit sworn by Samuel Lucas, the applicant, on 31 May 1996 and filed on the same date the applicant opposed the orders sought by the respondent seeking to proceed to hearing of his application on its merits.

Having read the affidavit material filed with the Court and also having heard oral submissions from Counsel representing each party I determined that the respondent’s Notice of Motion should be upheld and I proceeded to make the following orders indicating to the parties that my reasons for doing so would be published in due course:

Order that:

1.Proceeding No. VI 1077 of 1996 is struck out in accordance with the application made by the respondent in its Notice of Motion filed on 29 May 1996.

And further Order by consent that:

2.Within 7 days of the date of making this Order the respondent pay to the applicant’s solicitors, Jack Cohen Serry & Co., the sum of $1,500.00.

By an application filed with the Court on 9 January 1996 the applicant, a bus driver, sought both reinstatement and compensation alleging the unlawful termination of his employment by the respondent on 27 November 1995.  The Court file indicates that at various times the applicant was represented by different firms of solicitors on different occasions.  The solicitors on the record, until they purported to cease to act for the applicant by a notice dated 27 March 1996, were Slater and Gordon. I note in passing that the notification to the Court by that firm and the subsequent firm of solicitors, Harry Nowicki & Co. on 14 May 1996, do not comply with the requirements of Order 45 Rule 7 of the Industrial Relations Court Rules.  In any event, such failings appear to have been overtaken by a notice filed on 24 May 1996 by the firm of solicitors, Jack Cohen Serry & Co., informing the Court that it now acted for the applicant and it was that firm which filed the applicant’s affidavit material in opposition to the Notice of Motion.

Without canvassing in detail the historical matters set out in the affidavit material filed in this application, I note that it was agreed that following a conciliation conference on 12 February 1996 attended by Quigley and the applicant and the applicant’s then solicitor, Peter Lunt (Lunt) from Slater and Gordon, an offer of settlement was made to the applicant by the respondent to settle the proceeding for a sum of $1,500.00.

By paragraph 5 of his affidavit the applicant informed the Court that at the conciliation conference Lunt advised him that the respondent was offering the sum of $1,500.00 in order to settle the applicant’s proceeding.  He went on to say that, “He (Lunt) stated to me that that was the best that I could get from the Respondent at the Conciliation.  I agreed that Mr Lunt should on my behalf accept the offer but also was advised that the Agreement would be subject to Terms of Settlement being executed between the parties.  I therefore believe that the arrangement or agreement that was made was conditional upon signing a formal Deed of Release.”

In support of his view that the agreement was “conditional” upon signing what he called a formal Deed of Release, the applicant exhibited to his affidavit (see Exhibit “SL1”) a letter forwarded to him by Lunt making the following statements as well as enclosing a document entitled “Terms of Settlement”:

“We refer to the above and confirm the attendance of Peter Lunt at that conference.

It was agreed at the conference that the matter could be settled by payment of compensation of $1,500.00 to you to discontinue the action.

Please find enclosed a Deed of Release to be signed and dated by you and returned to our office for forwarding to your former employer.  We will forward to you the balance of settlement monies and our bill when the matter is finalised.

If you have any queries, please do not hesitate to contact Peter Lunt of our office.”

Because of his belief that the settlement was conditional on the execution and exchange of the document, the applicant deposed to having told Lunt on or about 18 February 1996 that “... I did not agree with the proposed Terms of the Deed of Release and therefore I would not be signing that document and I would not be proceeding with the settlement proposed in the Deed of Release.” 

Looking only at the applicant’s statement as to what occurred at settlement it is apparent that he gave instructions to his solicitor to settle for $1,500.00 but alleges that he was then advised that his settlement would be “subject” to the execution of a formal Deed of Release between the parties.

The affidavit material supports the conclusion that the applicant was not present when the agreement to settle was entered into by his agent Lunt with Quigley.  Lunt was not called to give evidence of the terms of the settlement arrived at and did not file any affidavit.

Essentially, Quigley’s affidavit deposes to an agreement being entered into where the respondent agreed to pay the applicant’s solicitors “... $1,500.00 in full and final settlement”. 

It was further agreed that on the date of the conciliation conference the applicant’s solicitors, “... would reduce the agreement to writing for execution by both parties”.  This was done by Lunt and, amongst other things, the document contained a clause, “That this payment shall be forwarded to the Applicant’s Solicitors Slater & Gordon within 7 days of execution of this document.”  It contains no statement to the effect that settlement was conditional on or subject to the execution of any document.

Quigley further deposed to being told by Lunt that he no longer acted for the applicant who had instructed Lunt that he wished to pursue his application.

In early May 1996 it appears that Quigley then received a call from a Mr Harry Nowicki (Nowicki), a solicitor purporting to represent the applicant, who asked Quigley if the settlement was still available.  Quigley replied that the respondent regarded this as a binding settlement.  I infer from that reply that he also meant that it was still available and the respondent was not relying on any failure of the applicant to execute the document such execution acting as a trigger for payment as well as the filing of a notice of discontinuance (see Exhibit “EJQ1” to Quigley’s affidavit filed in this proceeding).  By 14 May 1996 Nowicki had ceased to act and the proceedings in this Court had been reactivated by the applicant.

It should be kept in mind that the applicant’s affidavit did not challenge most of the matters raised in Quigley’s affidavit and ,as with Lunt, Nowicki did not attend Court to give evidence or file affidavit material to support the applicant’s position or contradict Quigley’s assertions.

The respondent contended that the agreement to settle was a binding one and not subject to the terms of settlement being executed.  The terms drawn by the applicant’s former solicitor do not support the applicant’s contention that the settlement was conditional upon or subject to the execution of either the terms of settlement or a formal Deed of Release.  In fact, the applicant’s own evidence does not go so far as to say that he instructed his solicitors to settle on the basis that any settlement was conditional on or subject to the execution of any document.  The most he says is that the solicitor advised him that the agreement “... would be subject to Terms of Settlement being executed between the parties”.  Any failure of the solicitor to put into effect the advice given to the applicant is not sufficient for this Court to override the uncontradicted position of the respondent that the settlement arrived at was an unconditional one and at all times the respondent has been ready and willing to meet its obligation under the agreement but has been thwarted by the applicant’s belief that he could escape a binding compromise by not signing the document drawn up by his former solicitor to reflect the matters agreed to at settlement. 

I was asked to draw an adverse inference from the failure of the applicant to call evidence from Lunt to contest the respondent’s version of the settlement and the failure to explain the absence of a competent and compellable witness in this Court.  In view of the importance of such matters as the true terms of the settlement entered into by Lunt on the applicant’s behalf, the failure is one which damages the applicant’s case. 

Accordingly, I concluded that there was a binding settlement on the terms asserted by the respondent and the matter of payment and completion has to date been precluded by the applicant’s action in attempting to resile from the settlement and introduce a term not otherwise agreed to.

I acceded to the request that there be an order striking out the applicant’s claim following an indication from the parties that they consented to a further order that the respondent pay the settlement sum to the applicant within seven days.

I certify that this and the preceding five (5) pages are a true copy of the reasons for orders of Judicial Registrar Millane.

Associate:                 
Dated:  14 June 1996

Solicitors for the Applicant:  Jack Cohen Serry & Co
Counsel for the Applicant:            Mr B. Shaw

Solicitors for the Respondent:      Mr E.J. Quigley of the PTC

Counsel for the Respondent:       Mr G. Devries

Date of hearing:  4 June 1996
Date of orders:  4 June 1996