Mathison v Stewart
[2011] QCAT 76
•15 March 2011
| CITATION: | Mathison v Stewart [2011] QCAT 76 |
| PARTIES: | Sarah Maree Mathison |
| v | |
| Neville Stewart |
| APPLICATION NUMBER: | ADL055-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 15 March 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 15 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The tribunal has no jurisdiction to make further orders as the complaint by Sarah Maree Mathison has been dismissed. |
| CATCHWORDS : | JURISDICTION – compromise – accord and satisfaction – where complaint settled – whether tribunal can make further orders |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties.
REASONS FOR DECISION
On 26 July 2010 a complaint by Sarah Maree Mathison against Neville Stewart was referred to the tribunal. Ms Mathison complained that her employment had been terminated unlawfully because she was pregnant.
On 13 September 2010 a direction was made that the parties were to attend a compulsory conference on 5 November 2010. The parties attended the conference as directed and reached agreement. The terms of the agreement were put into writing and signed by the parties.
As one of the terms of the agreement was a non disclosure term, it would be inappropriate to set out in full in these reasons the terms of the agreement. However by way of summary the respondent agreed to make a payment to the applicant and the parties consented to an order that the proceeding be dismissed.
The respondent made a payment to Ms Mathison on 23 November 2010 of 73% of the agreed settlement amount and paid the remaining 27% of the agreed settlement amount to the Australian Taxation Office and to Ms Mathison’s superannuation fund on her behalf. Ms Mathison objected to the payment of part of the agreed settlement sum to these entities on her behalf and seeks payment in full to her of the agreed settlement amount.
Mr Stewart submitted that he has complied with the terms of settlement. He submits that he sought advice from the Australian Taxation Office as to the manner in which the settlement amount was to be paid. He submits that he received advice that the payment would be considered an eligible termination payment as it was compensation for the loss of employment. As such deductions were required to be made to comply with the law.
It is not disputed that the parties at the conference did not discuss how the agreed settlement amount was to be paid. Ms Mathison and Mr Stewart did not discuss the treatment of the settlement amount for taxation purposes. The question to be determined is whether the proceeding came to an end on 5 November 2010 with the compromise of the complaint or whether the tribunal has any jurisdiction to make further orders in the proceeding.
In Lightfoot & Anor v Temple[1] the tribunal considered whether a compromise of a claim took away jurisdiction from the tribunal to deal further with the claim in circumstances where the parties were in dispute about the completion of the terms of settlement. The learned member considered relevant leading case authorities and concluded that the mere presence of an alleged compromise in the matrix of facts and issues before the tribunal does not automatically strip it of jurisdiction to deal with the matter. What was central to establishing jurisdiction was whether the categorisation of the terms of settlement permitted the parties to continue the dispute in the tribunal or whether their remedy was restricted to a claim for breach of the compromise agreement in the courts.
[1] [2010] QCAT 124.
In legal terms, did the terms of settlement constitute an accord and satisfaction, an accord executory or an accord and conditional satisfaction? The distinction between those categories of compromise was discussed by the Victorian Court of Appeal in Osburn v McDermott[2] in the following terms:
"First, there is the mere accord executory which, on the authorities, does not constitute a contract and which is altogether unenforceable, giving rise to no new rights and obligations pending performance and under which, when there is performance (but only when there is performance), the plaintiff's existing cause of action is discharged. Secondly, at the other end of the scale is the accord and satisfaction, under which there is an immediate and enforceable agreement once the compromise is agreed upon, the parties agreeing that the plaintiff takes in satisfaction of his existing claim against the defendant the new promise by the defendant in substitution for any existing obligation. Somewhere between the two, there is the accord and conditional satisfaction, which exists were the compromise amounts to an existing and enforceable agreement between the parties for performance according to its tenor but which does not operate to discharge any existing cause of action unless and until there has been performance.”
[2] [1998] 3 VR 1.
Ms Mathison had agreed to her complaint being dismissed as a result of the agreement by Mr Stewart to make a payment to her. The dismissal was not stated to take effect once the payment in full had been made. The dismissal took immediate effect. It is clear that the agreement in this case comes within the accord and satisfaction category under which there was an immediate and enforceable agreement once the compromise was agreed on. Ms Mathison at law is taken to have accepted in satisfaction of her existing complaint the promise made by Mr Stewart to pay the settlement amount in substitution for any existing obligation.
10. If Ms Mathison contends that the settlement has not been performed by Mr Stewart her remedy is to enforce the agreement in the courts. This tribunal has no enforcement jurisdiction and in any event, the proceeding was dismissed on 5 November 2010 as a result of the agreement reached between the parties.
11. The tribunal cannot provide the relief sought by Ms Mathison as her proceeding has been finalised.
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