Marie Vic Dawson v Centre for Digestive Diseases Pty Ltd
[2025] FWCFB 50
•7 MARCH 2025
| [2025] FWCFB 50 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Marie Vic Dawson
v
Centre for Digestive Diseases Pty Ltd
(C2024/9334)
| VICE PRESIDENT GIBIAN | SYDNEY, 7 MARCH 2025 |
Appeal against an administrative decision of Commissioner Riordan at Sydney on 3 December 2024 in matter number C2024/3792 – Application under s 365 of the Fair Work Act 2009 (Cth) for Commission to deal with general protections dismissal dispute – Jurisdictional objection on the basis that the applicant was not dismissed and filed the application out of time – In-principle agreement reached during jurisdictional objection hearing – Final agreement not reached – Matter ‘administratively closed’ unilaterally by Commission – Whether decision to dismiss application – Whether open to the Commissioner to dismiss application – Permission to appeal granted and appeal allowed – Decision quashed and the matter remitted to another member of the Commission.
Introduction
Marie Vic Dawson (Ms Dawson or the appellant) seeks permission to appeal and to appeal from a decision of Commissioner Riordan of the Fair Work Commission (the Commission) to close the file in relation to her proceedings against the Centre for Digestive Diseases Pty Ltd (CDD or the respondent).
For the reasons that follow, permission to appeal should be granted, the appeal allowed, and decision of the Commissioner quashed. Ms Dawson’s application under s 365 of the Fair Work Act 2009 (Cth) (the Act) should be remitted to be dealt with by another member of the Commission.
Factual background and decision under appeal
Ms Dawson applied for the Commission to deal with a general protections dispute involving dismissal, under s 365 of the Act, on 4 June 2024. She alleged that CDD had dismissed her, and that the dismissal contravened Part 3-1 of the Act. The nature of the allegations relied upon by Ms Dawson are not presently relevant.
CDD filed a response to Ms Dawson’s application on 5 July 2024. In its response, CDD raised a jurisdictional objection to the effect that Ms Dawson had not been dismissed within the meaning given to that term by s 386 of the Act and had, in fact, resigned. It also raised a further objection that the application had been filed out of time, having regard to the limitation in s 366(1)(a) of the Act. It is also not necessary to consider the merits or substance of the jurisdictional objections for the purposes of this appeal.
After initially being allocated to another member, the matter was reallocated to the Commissioner. The Commissioner conducted a hearing in relation to the jurisdictional objections on 10 October 2024. On that day, the hearing commenced and Professor Thomas Borody, director of the CDD, started giving evidence and was cross-examined for a period of time. During Professor Borody’s cross-examination, the Commissioner called an adjournment of the hearing and asked to see counsel in chambers.
With the assistance of the Commissioner, the parties engaged in discussions in an attempt to resolve the matter. Following these discussions, the parties reached what was described as an in-principle agreement. Both parties now say that no final and binding settlement was reached on 10 October 2024 and that the in-principle agreement was subject to the finalisation of the terms of settlement and the execution of a deed of release.
As a result of an in-principle agreement having been reached, the hearing was adjourned and the cross-examination of Professor Borody did not continue. After 10 October 2024, the parties continued to negotiate the settlement terms between themselves without any further involvement by the Commissioner. Ms Dawson’s solicitors later requested a copy of the transcript of the hearing. On 21 October 2024, the Commissioner’s chambers invited CDD to be heard as to whether the transcript ought to be made available.
On 23 October 2024, CDD’s solicitors made submissions opposing the access being given to the transcript. CDD submitted as follows:
1. The matter has settled in principal & is close to settling
With the assistance of Commissioner Riordan the matter settled in principle on 10 October 2024. The hearing of the matter had commenced for a short period prior to settlement discussions occurring between the parties. There ought to be no issue with the Fair Work Commission releasing transcript of conferences or hearings that have completed, however we believe that the Fair Work Commission should be reticent to do so in circumstances where, via the assistance of Commission, the matter has settled or is on the cusp of being finalised.
2. The Applicant will not make use of the transcript for purposes connected to these proceedings
Given that the matter has settled in principle, the Applicant cannot have any need for the transcript for the conduct of this matter or in order to explore options for an Appeal. Therefore, there is no utility to the parties to these proceedings, nor is there any public interest in the release of transcript of a partial hearing that was settled. As set out below, we contend that it may in fact potentially prejudice the finalisation of a settlement.
3. It can be readily inferred that the transcript is to be used by the Applicant for purposes collateral to these proceedings or any appellate process
It is no secret that the Applicant and Professor Borody (being the sole witness partially examined) are presently involved in contested family law proceedings. The Applicant’s solicitors in these proceedings, Coleman & Grieg, also act for the Applicant in the divorce proceedings. Given the impending settlement of these proceedings, it can be readily inferred that any transcript provided by the Fair Work Commission will be used by the Applicant for the collateral purpose of her family law dispute with Professor Borody, being the only witness partially examined.
The Fair Work Commission should not exercise its discretion to provide a partial transcript in circumstances where it lacks any utility to the present proceedings, there is no public interest and it is apparent that it will be used for a collateral purpose in unconnected legal proceedings.
4. The transcript represents a part heard matter in which a witness was partially cross examined with no re-examination.
As set out above, the matter was only partially heard when an in principle settlement was reached. At the time of the settlement, Professor Borody was only partially examined and was not allowed an opportunity to correct or clarify his evidence via re-examination onto transcript. No other witnesses were examined or cross examined, including the Applicant. As such, the transcript represents only a small snap shot of the overall evidence in the matter and its release would represent an unfair and prejudicial account of the proceedings. Had the evidence in the proceedings been completed then a balanced account of the evidence would be available- that did not occur here.
5. The release of the transcript may prejudice the prospects of the matter being settled and the extent to which terms may need to be re-negotiated to address this issue
At present the parties are still negotiating the terms of a Deed that is to record the settlement. Should the Applicant press for, and succeed in access to the transcript, I would anticipate that it may prejudice the settlement due to the highly probable collateral use of the transcript for her family law dispute. The terms of settlement would likely need to be re-negotiated.
On an overall basis, the Respondent opposes the release of the transcript as there is no obvious benefit to the parties, the public interest, or the Fair Work Commission in circumstances where an otherwise settled case may become unpicked.
(errors in original)
On 24 October 2024, the Commissioner’s chambers wrote to the parties advising that after considering the submissions from CDD, the Commissioner had decided to refuse the request for a copy of the transcript. There was then no further correspondence between the Commission and the parties for a period of six weeks.
On 3 December 2024, the Commissioner’s chambers wrote to the parties in the following terms:
Dear parties,
It is noted that this matter was resolved on 10 October 2024, with the parties to deal with preparing the deed themselves.
Whilst no notice of discontinuance has been received, in light of the time that has now passed, this file is now administratively closed.
No further action is required by the parties.
On 11 December 2024, Ms Dawson’s solicitors sent a letter to the chambers of the Commissioner which contained the following:
We refer to the email sent from Ms Fea, Associate to Commissioner Riordon, on 3 December 2024. We also refer to the discussions had between the parties on 10 October 2024, when this matter was listed for hearing.
Unfortunately, there is no settlement in principle.
The Applicant now seeks to have this matter administratively relisted to address the continuation of her General Protections Application filed 4 June 2024 and any further directions that may need to be made.
(error in original)
Later that same day, 11 December 2024, the Commissioner’s chambers emailed the parties as follows:
Good afternoon,
Commissioner Riordan confirms that this matter was resolved before him on 10 October 2024. The file has been closed accordingly.
The Commission’s role in this matter has ceased.
On 23 December 2024, Ms Dawson filed a notice of appeal. The notice of appeal described the decision subject of the appeal as being that, on 3 December 2024, “the Commission decided to ‘administratively’ close the file (and not hear the jurisdictional objection filed by the Respondent or deal with the matters pursuant to s 368 of the Fair Work Act 2009 (Cth))”.
Grounds of Appeal
The notice of appeal contains three grounds. Ground 1 alleges that the Commissioner erred in administratively closing the file, because he did so on the incorrect basis that the matter had resolved on 10 October 2024. The particulars of ground 1 assert that an in-principle settlement had been reached between the parties on 10 October 2024, but this was subject to the terms of a deed being agreed to and to Ms Dawson obtaining taxation advice. Ms Dawson submits that there was never a final and binding settlement of the matter.
Ground 2 alleges that the Commissioner erred by administratively closing the file because, even if a binding agreement had been reached on 10 October 2024, the agreement had subsequently been terminated and ceased to bind the parties, such that Ms Dawson was entitled for the matter to be dealt with pursuant to s 368 of the Act. Ms Dawson contends that, if there had been a binding settlement agreement, the agreement has been repudiated by the parties and the repudiation has been accepted such that the agreement no longer binds the parties.
Ground 3 makes a procedural fairness complaint, namely, that the Commissioner erred in administratively closing the file because he did not hear the parties as to whether he should take that step or not. Ms Dawson’s written submission notes that the Commissioner did not provide any notice that he proposed to “administratively close” the file and the parties had no opportunity to provide evidence or submissions. Ms Dawson’s initial written submissions foreshadowed a further complaint that the Commissioner had not provided adequate reasons.
Ms Dawson filed supplementary submissions shortly before the hearing of the appeal. The supplementary submissions raised two further points. First, she submitted that the Commissioner ought not to have conciliated the matter before determining the jurisdictional objections and, in doing so, exceeded his jurisdiction. Second, Ms Dawson raised an alternative argument that, if the Commissioner had not made a “decision” for the purposes of s 604(1) of the Act on 3 December 2024, he did so on 11 December 2024 when he concluded the matter had settled. That second decision is said to have been made in error because there was no settlement, the parties were again denied procedural fairness and because the alleged resolution “before me [the Commissioner]” occurred when the Commissioner was acting outside his powers under the Act.
CDD agrees that there had been no binding settlement reached between the parties on 10 October 2024 or at any other time. CDD submits that no more than an in-principle agreement was reached on 10 October 2024 which was subject to agreement of the terms of a deed of release. It submits that the settlement falls within category three as described in Masters v Cameron (1954) 91 CLR 163.
Nonetheless, CDD submits that it had been “open to the Commissioner to exercise his discretion to close the file and dismiss the Appellant’s Application on the Commission’s own initiative under section 587(3)(a) of the FW Act”. CDD says that the Commissioner’s decision to dismiss the application may have been made due to “the time elapsed from the partial hearing on 10 October 2024; and the Appellant’s failure to communicate the status of the matter with Commissioner Riordan’s chambers for over 2 months,” but described this as speculation about the reasons for the dismissal.
CDD went on to submit that the Commission has an obligation to balance the interests of the parties and “ensure that proceedings are conducted efficiently and costs are kept to a minimum,” relying on the Commission’s practice note as to Fair Hearings. It submits that “given the unexplained delay in communication with the Fair Work Commission, it was not unreasonable for Commissioner Riordan, seeking to act efficiently, to exercise the discretion to dismiss the proceedings”.
Permission to appeal and further evidence
A person aggrieved by a decision of the Commission may only appeal with permission under s 604(1) of the Act. Permission to appeal should be granted in this matter. It is appropriate to do so because the Commissioner erred in dismissing the application on the basis that a binding settlement had been reached in circumstances in which the parties agree that had not occurred. The Commissioner also failed to afford the parties procedural fairness as to whether the application should be dismissed. Ms Dawson suffered a substantial injustice as a result. She was not able to have the Commission determine the jurisdictional objections and, if she was successful in relation to the jurisdictional issues, deal with the dispute under s 368 of the Act, including, if warranted, by issuing a certificate under s 368(3). As a further consequence, the possibility of the dispute being determined by a court under s 370 (or arbitrated, with consent, under s 369) was lost.
Further, it is in the public interest to grant permission for the purposes of s 604(2) of the Act, so we must do so. The matter raises issues of general importance and application that requires guidance from a Full Bench. The Commission deals with a large number of applications made under s 365 of the Act. It is expressly precluded from dismissing such applications pursuant to s 587(1)(b) and (c) of the Act. A question arises as to how such applications should be dealt with in situations in which the Commission is satisfied that the dispute has been resolved and so cannot issue a certificate to the opposite effect, but where the applicant does not discontinue the proceedings.
Ms Dawson seeks to rely on further evidence that was not before the Commission at first instance in the form of a witness statement made by Karina Ralston, a solicitor instructed by Ms Dawson. Ms Ralston’s witness statement describes the events which resulted in the adjournment of the hearing on 10 October 2024 and the settlement discussions involving her client and the Commissioner, and then separately CDD and the Commissioner. It also describes her client’s understanding that agreement was reached in principle only, subject to the parties entering a deed of release.
Subsection 607(2) of the Act confers a discretion on a Full Bench hearing an appeal to admit further evidence and take into account any other information or evidence. The content of Ms Ralston’s witness statement is relevant to the appeal. It goes to the issue of whether there was a binding settlement, not to the substance of the jurisdictional objections, so considerations of the type referred to in Akins v National Australia Bank (1994) 34 NSWLR 155 and Toni Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2013] FWCFB 4960 are not apposite.[1]
In matters such as this, where it is an issue as to whether a concluded settlement agreement has already been reached, the Commission may need to, and can, have regard to events that transpired in private conference.[2] Self-evidently, the relevant discussions will have been engaged in for the purpose of attempting to reach a settlement, but “without prejudice” privilege does not prevent the admission into evidence of what one or both of the parties said or wrote when the issue is whether the communications have resulted in a concluded compromise.[3] Given the issues raised on appeal, it is necessary for the Commission to receive evidence as to what occurred between the parties which resulted in the file being “administratively closed” by the Commissioner.
In light of the foregoing, and pursuant to s 607(2) of the Act, the Full Bench decided to admit and take into account the further evidence.
Consideration
Power to dismiss Ms Dawson’s application
The primary role of the Commission in relation to an application under s 365 of the Act is to assist the parties to resolve the dispute. Section 368(1) provides that, if an application is made under s 365, the Commission must deal with the dispute (other than by arbitration). The Commission may deal with the dispute by mediation or conciliation or making a recommendation or expressing an opinion.[4] If the Commission is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, it must issue a certificate to that effect.[5] Once the certificate has been issued the applicant can take their dispute to court or, with consent of the parties, the dispute can be arbitrated by the Commission.[6]
Although the role of the Commission is primarily to facilitate the resolution of general protections disputes, the Full Court of the Federal Court has determined that, where there is a dispute as to whether an applicant had been dismissed or whether the application was made within time, the Commission must resolve that antecedent dispute before the powers conferred by s 368 can be exercised.[7] The Commission is required to determine a jurisdictional objection of that type prior to attempting to resolve the dispute.
Where the parties resolve the dispute, the applicant will generally discontinue the application. There have been cases in which an applicant has failed to discontinue the proceedings in circumstances where the Commission considers the parties have resolved their dispute or there is a dispute as to whether the matter has been resolved or subject to a binding settlement. A question arises as to what course is open to the Commission in those circumstances.
In most proceedings, the Commission will a power have available to it to dismiss an application where there has been a binding agreement to settle the proceedings. Often, that can be done on a ground expressly identified in s 587 of the Act. Section 587 deals with dismissing applications and 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, 536LU or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.
The express grounds in s 587(1)(b) and (c) are relevant,[8] as “a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexatious or without reasonable prospects of success.”[9] However, s 587(2) prevents the Commission from dismissing an application made under s 365 of the Act on the ground that the application is frivolous or vexatious or has no reasonable prospects of success.
A number of previous Full Bench decisions have taken the view that there is a general power to dismiss applications arising under the introductory words of subs 587(1) rather than under one of the three limbs expressly set out in that subsection.[10] That approach has been applied in circumstances in which the Commission has formed the view that a binding settlement has been reached with respect to a dispute which is the subject of an application under s 365 of the Act.[11] On the other hand, a Full Bench has recently suggested there is room for doubt as to whether such a general power to dismiss proceedings can be discerned from the introductory words of subs 587(1).[12]
It is not necessary for us to decide whether a general power exists to dismiss an application under s 365 of the Act in this appeal. It is sufficient to record that we consider the better view to be that once a general protections dispute has been resolved, it is no longer within the Commission’s jurisdiction to deal with it. The dispute that the Commission must deal with (other than by arbitration) under s 368 is the dispute “agitated by the allegation” that the applicant made in their s 365 application,[13] in this case that she was dismissed in contravention of Part 3-1 of the Act. If the dispute agitated by that allegation has been resolved, there is no longer a dispute for the purposes of s 368 and the Commission no longer has jurisdiction to deal with the dispute under that section. It follows that, if the Commission finds that there has been a binding settlement between the parties, it can dismiss the application for want of jurisdiction.[14]
That was, in a general sense, the approach adopted by the Full Bench in Rahman v Owna Corp Pty Ltd [2023] FWCFB 128 where it was observed:[15]
Upon recognition that the dispute the subject of the s 365 application has been resolved, the Commission’s jurisdiction to deal with the matter is ostensibly at an end. This is so because the conditions in s 368(3)(a) could never be satisfied and a certificate could never issue. Further, the common law concept of accord and satisfaction may arise whereby the current cause of action is “extinguished” and replaced with a new cause of action based on the agreement. In both cases, an interrogation of the existence of the settlement agreement and the satisfaction of a claim by the provision of the consideration set out in the accord will often be necessary.
(footnotes omitted)
The Commission is authorised to dismiss an application where it lacks jurisdiction. The Federal Court has expressed the view is that “it is not necessary to identify an express power in the FWC to decline to act upon an application on the basis that it fails for want of jurisdiction”.[16] If a member of the Commission erroneously finds that a dispute subject of an application under s 365 has been resolved, the decision can be corrected on appeal to the Full Bench under s 604 of the Act, or on judicial review on grounds the Commission has erroneously declined to exercise its jurisdiction.[17]
For those reasons, it was open to the Commissioner to dismiss Ms Dawson’s application if a binding settlement of the dispute had been reached between the parties. The question is whether that is what the Commissioner in fact did and, if he did dismiss Ms Dawson’s application, whether he erred in doing so.
Whether a decision, and whether a decision to dismiss, was made?
The parties both submit that the email from the chambers of the Commissioner on 3 December 2024 constituted a “decision” for the purposes of ss 604 and 598(1) of the Act. The parties submit that this is the relevant decision for the purposes of the appeal. Counsel for Ms Dawson submits, in the alternative, that the email from Commission Riordan’s chambers of 11 December 2024 was a decision for the purposes of s 604. Notwithstanding the common position of the parties, it is a matter that requires examination.
The email from the Commissioner’s chambers dated 3 December 2024 stated that the file “is now administratively closed”. An administrative act of closing a file in accordance with the file management systems utilised by the Commission from time to time is of no legal significance at all. Administratively “closing” a file, if nothing further is done, does not bring a proceeding to an end or prevent the Commission from further dealing with the matter. The powers of the Commission to determine an application before it, or bring a proceeding to an end at a preliminary stage, must be found in the Act.
However, in the particular circumstances of this matter, we accept the common position of the parties that, although the decision was expressed in terms that the file had been “administratively closed”, it was a decision to dismiss the application. It is apparent from the email dated 3 December 2024 that the Commissioner regarded the matter as having been resolved and that the act of administratively closing the file was intended to permanently bring the proceedings to an end. This is also clear from the Commissioner’s subsequent email of 11 December 2024 in which the Commissioner confirms that he considered the matter was resolved and that “[t]he Commission’s role in this matter has ceased”. In circumstances in which the application had not been discontinued, the jurisdictional objections had not been determined, and no certificate had been issued under s 368(3), the only reasonable interpretation of what the Commissioner had done was that he had dismissed the application.
In Rahman v Owna Corp Pty Ltd, the Full Bench said:[18]
Where a settlement is reached by way of a private agreement between parties to a dispute, the recognition by the Commission that the matter is finalised is not immediately a “decision.” It is a mere administrative step bearing more similarity to the receipt of a notice of discontinuance than the operative exercise of a power, with legal force or effect.
In our view, though, if the Commission decides to not only acknowledge or “recognise” that settlement has been reached, but to find as much and takes action to bring the proceedings to an end on that basis, or to refuse a request to issue a certificate under s 368, that is a decision susceptible to appeal if permission is granted.
Reason for the application being dismissed
Both of the relevant emails, dated 3 and 11 December 2024, stated that the matter had been resolved before the Commissioner, and that was the basis on which the file was closed. We understand this to mean that the Commissioner had made, implicitly at least, a finding of fact that a binding agreement to resolve the matter had been made between the parties and dismissed Ms Dawson’s application on that basis.
CDD submits that it was open to the Commissioner to close the file and dismiss Ms Dawson’s application on the Commission’s own initiative under s 587(3)(a) of the Act. CDD speculated that the decision to dismiss the application may have been made due to the time which had elapsed since the hearing on 10 October 2024 and the failure of Ms Dawson’s representatives to communicate the status of the matter with the Commissioner’s chambers for over two months. CDD submits that it was not unreasonable for the Commissioner to dismiss the application to ensure that the proceedings were conducted efficiently.
We do not accept that submission. The suggestion that the Commissioner dismissed the application as a result of the passage of time or the failure of Ms Dawson’s representatives to communicate with his chambers finds no support in the text of the emails of 3 December and 11 December 2024. Although the email of 3 December refers to “the time that has now passed”, the proper inference to be drawn from the content of the email is that the reason for closing the matter was the Commissioner’s perception that the matter had resolved on 10 October 2024. That was confirmed in the email of 11 December 2024.
Whether a binding settlement was reached?
In Masters v Cameron (1954) 91 CLR 353, Dixon CJ, McTiernan and Kitto JJ described three categories of cases in which parties settle a matter, with the agreement to be subsequently recorded in a formal document:[19]
Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
In the first two situations, but not in the third, parties are taken to be immediately bound by the agreement. Whilst the categories of cases identified in Masters v Cameron may provide a useful guide, the ultimate question is whether, objectively assessed, the evidence demonstrates that the parties intended to be immediately bound.[20]
In this matter, both parties agree that no binding agreement was reached on 10 October 2024 or subsequently. The basis upon which the Commissioner appears to have believed that the matter was resolved is unclear and not explained in the Commissioner’s communications with the parties. The only source of information before the Full Bench about the basis upon which the matter was left on 10 October 2024 is contained in the witness statement of Ms Ralston which records:
Following those discussions, the parties reached an in-principle agreement that was subject to the execution of a formal Deed of Release. On that basis Commissioner Riordan adjourned the hearing to await lodgement by the Application of a Notice of Discontinuance.
The parties’ description of their agreement as “in-principle” is not determinative, although the phrase “in principle” agreement or similar is often used when negotiating the settlement of litigation and generally indicates that there is no intention yet to enter into a binding contract.[21] Furthermore, the fact that the parties anticipated that a formal deed of release would be executed often suggests that the parties do not intend to be immediately bound. In Farrell v Super Retail Group Ltd [2024] FCA 1515, Lee J said:[22]
… the expression “subject to contract” or “subject to deed”, in its natural meaning, generally creates an overriding condition that what has been agreed is the intended basis for a future contract and not as constituting a contract itself (Masters v Cameron (at 362–363)). It has been said that the inclusion of such a formula creates a presumption no contract was intended to be formed: Geebung (at 14,562). Each case turns on its facts but interestingly, Ms Farrell was unable to point to any example where these words have been used and a binding agreement was found to have been immediately struck.
The subsequent conduct of the parties, such as that they continued to negotiate, may indicate that they did not intend to be bound until the other issues between them were resolved in a formal document.[23] In this matter, Ms Ralston’s statement indicates that the parties continued to engage in settlement discussions following 10 October 2024. That is consistent with the position conveyed in the correspondence from CDD’s solicitors dated 23 October 2024 opposing release of the transcript of the hearing. That correspondence noted that the parties were continuing negotiations.
In circumstances in which the position reached on 10 October 2024 was described as only an in-principle agreement, the parties contemplated the preparation of a formal deed of release and the subsequent conduct of the parties is inconsistent with a binding agreement having been reached on that day, we accept the submissions of the parties that there was not a concluded settlement. The Commissioner was wrong to assume, and find, that the matter was resolved.
Ground 1 of the appeal is made out. It is unnecessary to consider ground 2, which was put in the alternative to ground 1. It is also unnecessary to consider Ms Dawson’s contention that the Commissioner acted in a manner not authorised by the Act by engaging in conciliation prior to determining CDD’s jurisdictional objections. Even if that is so, if the parties reached a concluded agreement on 10 October 2024, they would be bound by it. As no final agreement was reached, the issue falls away.
Was there a denial of procedural fairness?
In addition, the parties were denied procedural fairness. The Commission is required to act judicially, and the principles of natural justice are applicable to proceedings before the Commission.[24] Procedural fairness was not afforded to the parties because the Commissioner did not provide them with an opportunity to be heard on the question of whether the application should be dismissed on the ground that the matter had been resolved. Ground 3 of the appeal is also made out.
Should the application be remitted to the Commissioner?
For those reasons, the Commissioner erred in regarding the proceedings as having been resolved and, in so doing, denied the parties procedural fairness. The appeal must be allowed and the decision of the Commissioner quashed. The jurisdictional objections made by CDD remain to be determined. A question arises as to whether the matter should be remitted to the Commissioner or another member of the Commission.
CDD submits that, if the appeal is allowed, the matter should be remitted to the Commissioner, as the jurisdictional objections are part-heard. It says that there will be savings in hearing time, and in expense for the parties, if the Commissioner continues with the hearing. Ms Dawson submits that the matter should be remitted to a different member of the Commission. In her witness statement, Ms Ralston gave the following evidence:
6. Following speaking to the parties' counsel in chambers, Commissioner Riordan spoke with each of the parties privately and separately with the purpose of facilitating a resolution between them.
7. ln the course of doing so, insofar as the discussions my client and myself had with
Commissioner Riordan in a room separate to the Respondent, we discussed with him:a.his views as to the strengths and weakness of my client’s case, and
b.the proposed settlement discussions.
8. Commissioner Riordan further facilitated negotiations by travelling from the separate rooms of each party to communicate offers of settlement.
Private meetings and shuttling between the parties’ rooms are routine and unsurprising features of conciliation. It is unnecessary for the Full Bench to make findings about the extent or content of those private discussions. It is sufficient to say that, in circumstances in which the Commissioner has participated in separate and private discussions with the parties with the apparent objective of assisting the parties to resolve their dispute, it is prudent to remit the matter to a different member of the Commission.
We are sympathetic to CDD’s desire to limit further cost and inconvenience associated with the proceedings. However, as we understand it, the hearing of the jurisdictional objections was listed for one day of hearing before the Commissioner. It is likely that at least one further day of hearing will be required whether the matter is remitted to the Commissioner or another member of the Commission. It does not seem likely that any significant saving in time or expense will be achieved by remitting the matter to the Commissioner.
We consider that the application should be remitted to a different member of the Commission, to determine the jurisdictional objections and, if necessary, deal with the dispute under s 368 of the Act.
Conclusion and Disposition
Permission to appeal should be granted, the appeal allowed, the decision of the Commissioner quashed and Ms Dawson’s application under s 365 of the Act remitted to another member of the Commission.
The Full Bench makes the following orders:
(a)Permission to appeal is granted;
(b)The appeal is allowed;
(c)The decision of Commissioner Riordan in Matter No. C2024/3792 made on 3 December 2024 is quashed; and
(d)The application in Matter No. C2024/3792 is remitted to a different member of the Commission.
VICE PRESIDENT
Appearances:
M Foran, of counsel, instructed by Coleman Greig Lawyers for the Appellant.
M Robinson, solicitor, of Citation Legal for the Respondent.
Hearing details:
Sydney (in-person):
12 February 2025.
[1] Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2013] FWCFB 4960 at [12] undisturbed on judicial review in Reihana v Mastercare Highrise Cleaning Services Pty Ltd [2014] FCA 353 at [26].
[2] Gomma v WSP Australia Pty Ltd [2021] FCCA 353 at [8]. For a recent example see Mattner v Designer Gardens Pty Ltd t/a Trendscape Landscape Professionals[2023] FWC 633 at [30]-[53].
[3] Gomma v WSP Australia Pty Ltd [2021] FCCA 353 at [8], referring to subsection 131(2) of the Evidence Act 1995 (Cth); for the equivalent position at common law see Baskerville v Baskerville & Ors [2021] QSC 292 at [27], citing Robert Walker LJ in Unilever Plc v Proctor & Gamble Co [2000] 1 WLR 2436 at 2444-2445. For an example where the Commission considered the parties’ negotiations outside of a conciliation conference, see Mr John Sullivan v Australia Post Group T/A Australia Post Corporation[2024] FWC 3480 at [6]-[16].
[4] Fair Work Act 2009 (Cth), ss 368(1) and 595(2).
[5] Fair Work Act 2009 (Cth), s 368(3).
[6] Fair Work Act 2009 (Cth), ss 369-370.
[7] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [67].
[8] Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 196 FCR 126 at [33]; McMahon v Ventura Bus Lines Pty Ltd[2020] FWCFB 4853 at [26].
[9] Australian Postal Corporation v Gorman [2011] FCA 975; (2011) 196 FCR 126 at [33].
[10] Priestly v Blackfisch Films Pty Ltd [2025] FWCFB 40 at [25] and the decisions there referred to.
[11] See, for example, Lewer v Australian Postal Corporation[2023] FWCFB 56 at [55]; Rahman v Owna Corp Pty Ltd [2023] FWCFB 128 at [37].
[12] Priestly v Blackfisch Films Pty Ltd [2025] FWCFB 40 at [25]. See also Bosworth v Coles Supermarket Beechboro [2022] FWCFB 153 at [49].
[13] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [64].
[14] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [68]. See also Gussen v Swinburne University of Technology[2025] FWCFB 17 at [13], in which Full Bench dismissed an application for permission to appeal against a decision upholding a jurisdictional objection that the applicant was not dismissed, and in the course of doing so it observed that a binding settlement had been reached which had extinguished the former employee’s general protections application and had replaced it with a new cause of action based on the deed. Enforcing the deed was not within the Commission’s jurisdiction; the former employee no longer had a valid claim under the general protections provisions of the Act that could be pursued in the Commission.
[15] Rahman v Owna Corp Pty Ltd [2023] FWCFB 128 at [37]; referring to, as examples, MacFarlane v AECOM Australia Pty Ltd[2021] FWCFB 1343; Mccaffrey v Transdev Melbourne[2015] FWC 3400; Naorin v Nationwide News Pty Ltd[2018] FWC 6996.
[16] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591 at [69].
[17] See, for example, Damevski v Guidice [2003] FCAFC 252; (2003) 133 FCR 438 at [115].
[18] [2023] FWCFB 128 at [34].
[19] Masters v Cameron (1954) 91 CLR 353 at 360.
[20] G R Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634; Radovanovic v Stekovic [2024] NSWCA 129 at [22].
[21] Singh v Sydney Trains[2017] FWCFB 4562; (2017) 271 IR 1 at [52], and the cases cited therein.
[22] Farrell v Super Retail Group Ltd [2024] FCA 1515 at [19].
[23] Sagacious Procurement Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [101] and [113]; Farrell v Super Retail Group Ltd [2024] FCA 1515 at [18] and [20].
[24] R v Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552; Enterprise Flexibility Agreements Test Case (1995) 59 IR 430 at 444; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [25]; Hot Wok Food Makers Pty Ltd v United Workers Union (No 3) [2024] FCAFC 51; (2024) 304 FCR 136 at [71].
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