Ms Susan Leslie-Briggs v Moree Local Aboriginal Land Council

[2018] FWC 1011

[2018] FWC 1011

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Ms Susan Leslie-Briggs
v
Moree Local Aboriginal Land Council
(U2017/8263)

DEPUTY PRESIDENT SAMS SYDNEY, 6 MARCH 2018

Termination of employment – application for an unfair dismissal remedy – CEO of Aboriginal Land Council – serious misconduct – counter claims of bullying, intimidation and harassment – applicant’s medical condition – negotiations to settle unfair dismissal claim – applicant’s dissatisfaction with representative – applicant’s agent ceases to act – whether agreed terms of settlement binding on parties – no signed agreement – applicant disputes agreed settlement – principles to be applied – offer and acceptance must ‘precisely correspond’ – no agreed settlement – further proceedings to be programmed when applicant is medically fit to proceed.

BACKGROUND

[1] On 1 August 2017, Ms Susan Leslie-Briggs (Ms Leslie-Briggs or the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which she seeks compensation (and the opportunity to purchase an employer provided vehicle) following her alleged unfair dismissal by Moree Local Aboriginal Land Council (the ‘respondent’ or Moree LALC), on 27 July 2017.

[2] Ms Leslie-Briggs commenced employment with the Moree LALC on 14 November 2013 and at least from 1 July 2015 she was the Chief Executive Officer (‘CEO’) responsible to the Board, and reporting to the Chairperson, Mr Harold French. She was the only employee of the Board. At the time of her dismissal, she was paid $75,000 p/a plus an employer provided motor vehicle and mobile phone. For the purposes of this decision, it is not strictly necessary to set out in any great detail, the background to the applicant’s dismissal, suffice to note that she was dismissed for serious misconduct in that it was alleged she had:

•  made unauthorised withdrawals from Moree LALC's bank account;

•  inserted unapproved motions into Board meeting minutes;

•  engaged a consultant without Board approval;

•  failed to follow Board directions;

•  failed to perform her duties;

•  provided false authorisations for salary to be paid from the rental account; and

•  potential contraventions.

[3] Ms Leslie-Briggs strongly contests these allegations and contends they arise purely from her own allegations of bullying, harassment and intimidation by the Chairperson, Mr French against her. She has subsequently been on workers’ compensation and was off work from 19 April 2017 to her dismissal. At this point, I note Ms Leslie-Briggs named Ms K McGregor as her representative in her F2 application.

[4] In accordance with my usual practice, I listed a telephone conference with the parties and issued directions for the filing and service of witness statements and outlines of submissions. As the applicant’s dismissal was due to serious misconduct, the onus is on the employer to prove the allegations, on the balance of probabilities (Briginshaw v Briginshaw (1938) 60 CLR 336), to the satisfaction of the Commission. This means the evidentiary onus shifts from the applicant to the employer; see: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 71. Of course, the onus reverts to the applicant to demonstrate if the dismissal was ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. For this reason, I directed the respondent to file its material first, followed by the applicant and then the respondent in reply. In other cases, not based on misconduct, it would usually be expected the order of directions would be reversed.

[5] The telephone conference on 4 October 2017 did not proceed as Ms Leslie Briggs could not be contacted. As a result, I directed my Chambers advise Ms Leslie Briggs as follows:

I refer to the teleconference that was due to take play at 10am today (4 October 2017). I made several attempts to contact you but was unsuccessful. Deputy President Sams now seeks an explanation from you and your legal representative as to why you both did not appear at today’s conference. You must provide an explanation by no later 5pm on Monday 9 October 2017. As you were unable to appear in today’s conference, a second teleconference before His Honour will be scheduled at 10am on Wednesday 18 October 2017.

During the teleconference, His Honour issued new directions as to when each party must file its material by. The applicant’s material is now due on 10 November 2017. Please find the directions attached to this email. Please also be aware that the hearing date has changed and it will now be heard in Dubbo. The expected dates are 12-14 December 2017, subject to courtroom availability.

[6] On 9 October 2017, the Commission received a Notice of Representative Commencing to Act for Ms Leslie Briggs from Mr P Rochfort, of Rochfort Associates Pty Ltd t/a Rochforts Workplace Solutions. On 12 October 2017, Ms K Lopez, Solicitor for the Moree LALC filed an objection to the application in which it claimed it was a small business (which was undoubtedly correct) and that in dismissing Ms Leslie Briggs, it had complied with the Small Business Fair Dismissal Code (the ‘Code’).

[7] At a second telephone conference on 18 October 2017, Mr Rochfort expressed brimming optimism that the matter could be resolved, and notwithstanding there was a silly argument about where the parties might conveniently meet face to face, I adjourned the matter by consent to allow negotiations to proceed directly between the parties. The matter was listed for mention on 10 November 2017. However, on that day, Ms Leslie-Briggs sent an email to the Moree LALC’s solicitor, Ms Messing in which she:

•  requested that any further meetings or proceedings, not include Mr French;

•  criticised Ms Messing and Mr French for laughing at her during their meeting on 24 October 2017;

•  had expected the meeting would consider her reinstatement or resignation; and

•  advised two Board members had made written complaints in regard to improperly convened meetings and Mr French’s inappropriate behaviour.

[8] Given that the email came directly from Ms Leslie-Briggs, it seemed Mr Rochfort assumed he was no longer representing her. He subsequently filed a Notion of Representative Ceasing to Act. Just prior to the mention, the Commission received the following email from Ms Leslie-Briggs’ sister:

Good Afternoon

I apologise for the late notice but I have only just been contacted by Lisa Tighe, Aboriginal Health Worker who has told me that Susan Leslie-Briggs, my sister had some kind of panic attack and has received a medical certificate from her GP to not attend the phone conference at 3pm this afternoon.

I contacted Peter Rochfort however he told me he doesnt care about what the Aboriginal Health Worker said because Susan needs to pull herself together and attend because it was a direction from the court. Peter said Susan abused him earlier today and that he no longer wants anything to do with it and that if she doesnt pay him he will take her to court to make her pay.

I am therefore letting you know that Susan will not be attending the Fair Work Phone Conference at 3pm today . Please see a copy of Medical Certificate attached which states Susan is unfit for phone conference on 10/11/2017.

Donna Briggs-Ford

[9] The mention proceeded in Ms Leslie-Briggs’ absence and Ms Messing indicated the Moree LALC would be making an application to have the Commission dismiss the substantive application, pursuant to s 399A of the Act; specifically, subsection 399A(1)(c), in that the applicant failed to discontinue the application after a settlement agreement had been concluded. The parties were advised that unless there was a request to the contrary, the s 399A application would be ‘determined on the papers’. No request was received and I will proceed to determine the matter on that basis.

[10] At this point, I record that given Mr Rochfort’s central involvement in the negotiations for a settlement of the applicant’s claim, I provided him with both parties’ submissions and invited him to respond, if he chose to. Mr Rochfort made no submission.

SUBMISSIONS

For Moree LALC

[11] After setting out the factual background to Ms Leslie Brigg’s dismissal, the respondent’s solicitor, submitted that on 30 October 2017, the parties agreed to settle the matter on the basis that Moree LALC pay Ms Leslie Briggs six weeks salary. On 6 November 2017, the parties agreed to, and concluded all terms within a settlement deed. However, on 8 November 2017, the applicant advised the Commission that she would not settle the matter. It was put that at all material times, the applicant was represented by Mr Rochfort and he had settled the matter on the applicant’s behalf.

[12] The respondent outlined a chronology of events leading to the alleged concluded settlement deed:

18 October 2017 A conference was conducted by Deputy President Sams of the FWC. During that conference, the applicant requested the parties meet to discuss the allegations made against her in respect of her employment termination.

24 October 2017 The parties convened so that the applicant could respond to the allegations against her. The applicant and respondent attended via teleconference link, while Mr Rochfort and Ms Messing met in person.

26 October 2017 Mr Rochfort telephoned Ms Messing to advise that the applicant offered to settle for 3 months' salary, plus the termination being recorded as a resignation.

30 October 2017 The respondent counter offered with 6 weeks' salary and no to recording the termination as a resignation. Given the length of time which this matter had already progressed, the termination was already broadly public knowledge within the Moree area Aboriginal community.

30 October 2017 Mr Rochfort rang to confirm that the applicant had accepted the offer of 6 weeks’ salary

31 October 2017 Ms Messing drafted and sent a settlement deed to Mr Rochfort

2 November 2017 Mr Rochfort sent Ms Messing the deed back, with some requested revisions to include a mutual release for all future claims, which the Respondent agreed to.

2 November 2017 Mr Rochfort sent a further email directing that a mutual non­ disparagement clause was most important. Ms Messing responded stating that clauses 3(a)(ii) and 4(e) already contained in the settlement deed were effectively mutual non-disparagement clauses. This point was not pushed further.

2 November 2017 Ms Messing sent Mr Rochfort a further revised settlement deed, accepting Mr Rochfort's revisions as to the mutual release but inserting a carve out in the release at clause 5.3, for matters arising out of the investigation still to be completed. The terms of this carve out were also mutual.

3 November 2017 Mr Rochfort telephoned Ms Messing requesting further amendments to paragraph D of the Background in the settlement deed, to insert the italicised part to this paragraph:

"The Employer lodged a response on 5 September 2017.

The Employee denied the allegations in the Application."

The respondent agreed to and inserted those amendments, and sent the revised settlement deed to Mr Rochfort the same day- on 3 November 2017.

3 November 2017 Mr Rochfort notified the FWC that the matter was settled in principle, with reference to a settlement deed which had been agreed in form.

8 November 2017 Mr Rochfort left a voicemail on Ms Messing's telephone confirming that he anticipated having the settlement deed signed by the applicant and delivered to CBP by the end of the week.

8 November 2017 Five days after the settlement deed had been agreed, the respondent received correspondence from the Applicant (via the FWC) to the effect that she would not sign the Deed.

10 November 2017 DP Sams held a conference via telephone during which Mr Rochfort confirmed that a settlement deed had been agreed between the parties.

13 November 2017 The applicant signed the settlement deed and sent it to Ms Messing (via Mr Rochfort).

However, the Applicant had inserted additional amendments into the settlement deed regarding a common law work injury damages claim without notifying the Respondent that that insertion had been made.

13 November 2017 Ms Messing emailed Mr Rochfort attaching:

(a) the settlement deed which the parties had agreed to; and

(b) the settlement deed as varied by the Applicant without notice.

14 November 2017 Mr Rochfort telephoned Ms Messing to ask for the respondent to agree to the settlement deed as varied by the Applicant.

17 November 2017 Ms Messing telephoned Mr Rochfort to confirm the respondent's instructions not to accept the applicant's further amendments to the settlement deed. The respondent considered settlement to have been reached 30 October 2017, with all terms of the settlement deed having been agreed and finalised as at 3 November 2017.

[13] The respondent relied on Curtis v Darwin City Council [2012] FWAFB 8021 (‘Curtis v Darwin City Council’) in which the Full Bench of the Commission refused permission to appeal an unfair dismissal decision on the basis a settlement deed had been reached, despite the applicant in that case not having signed the settlement deed; see also: Masters v Cameron [1954] HCA 72; 91 CLR 353 (‘Masters v Cameron’). It was put that this matter falls within either the first, or second class of cases identified in Masters v Cameron as a binding settlement had been reached. More about Masters v Cameron later.

[14] It was said that by seeking to add the words ‘common law for workers’ compensation claim, work injury damage claim’ the applicant was attempting to dishonestly alter the concluded agreement. Because the applicant had signed her unilaterally altered version of the deed, settlement of her claim had been reached.

[15] The respondent’s solicitor put that the respondent had acted in accordance with the objects of the Act to provide ‘quick, flexible and informal procedures’ for dealing with unfair dismissal matters. To the contrary, the applicant has continued to stymie the process by reneging on the settlement deed. The respondent continues to incur legal costs after the applicant’s unreasonable behaviour. Finally, the principle of a ‘fair go all round’ should prevail, with the Commission dismissing the application after her failure to discontinue her claim after a settlement agreement had been concluded.

For the applicant

[16] Much of Ms Leslie-Briggs submission dealt with her merit arguments in respect to her unfair dismissal claim and are not directly relevant for the purposes of this decision.

[17] As to the specific s 399A application, Ms Leslie-Briggs put that she had told Mr Rochfort on 26 October 2017 that she preferred to go to court to prove the allegations against her were untrue and her dismissal was unfair. Mr Rochford proposed a deed which would include resignation and no further action in respect to the allegations and compensation. She claimed to have told Mr Rochford that she would only accept a deed which included a provision ‘clearing her name’. However, she proposed that she would consider terms that included:

•  a resignation;

•  the allegations being withdrawn, with no further action or investigation; and

•  three months wages.

[18] Ms Leslie-Briggs submitted that when she received the proposed deed on 31 October 2017, sent by Mr Rochfort, but prepared by Ms Messing, it did not include any of the above terms she had discussed with Mr Rochfort. She later questioned Mr Rochfort as to him not preparing the deed and leaving it to Ms Messing. He had said, to save costs for her, it was irrelevant which side prepared the deed.

[19] On 2 November 2017, the applicant told Mr Rochfort she was uncomfortable signing the deed and she did not fully understand it. She wanted to clear her name and include an assurance about her workers’ compensation claim being unaffected. Mr Rochford told her the deed could not contract out her rights to workers’ compensation. On 3 November 2017, a revised deed was exchanged and sent to her by Mr Rochfort as an agreed position with the added words ‘The Employer denied the allegations in the application.’ Ms Leslie Briggs said she felt pressured to sign the deed. She requested time over the weekend to consider it and would let Mr Rochfort know on Monday 6 November 2017. On that day, Ms Leslie-Briggs advised Mr Rochford she was still waiting for advice from her workers’ compensation solicitor before signing the deed.

[20] The next day Mr Rochfort informed her that as he had given her until 3pm the day before, he would no longer be able to represent her and would be filing a Notice of Representative Ceasing to Act. Ms Leslie-Briggs claimed that as she was unaware Mr Rochford had agreed to the deed in principle, she had not reneged on any agreement.

[21] On 10 November 2017, Ms Leslie-Briggs sent a request to Ms Messing and the Commission that on doctor’s advice she was to have no further contact with Mr French, she did not appreciate being laughed at and told to get a ‘reality check’ and that she had doubts as to the validity of the deed in any event; see: [7] above.

[22] It was Ms Leslie-Brigg’s submission that while she had considered signing the deed, she never did so and believed negotiations on its terms were continuing. Her final position included a reference to any workers’ compensation or work injury claim, because she wanted the deed to be transparent.

[23] Ms Leslie-Briggs asked that her mental health issues (anxiety and depression since April 2017) be taken into account, as it impaired her ability to understand information and make sound decisions. She was certified unfit from 9 April 2017 to 27 January 2018.

[24] Ms Leslie-Briggs referred to her self representation (assisted by her sister) and that she had, at all times, acted reasonably and transparently. She submitted that there was no concluded settlement of her claim and that she did not renege on any agreement, when there was no agreement. She wished her application to proceed to hearing when she is medically fit to do so.

CONSIDERATION

[25] The Commission’s power to dismiss an application are set out generally at s 587 of the Act and specifically in respect to unfair dismissal applications under s 399A. I set out both sections below:

SECTION 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.

SECTION 399A

Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant's failure causes the other party to the matter to incur costs (see section 400A).

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[26] The power to dismiss a substantive application should only be exercised cautiously; see: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at para [8]. This is so because it results in the extinguishment of a party’s application, which has been made in order to seek some form of relief, from a beneficial statutory provision. In other words, the application is dismissed before an applicant has had his/her ‘day in court’.

[27] That said, s 587 of the Act does not limit the grounds on which the Commission, of its own motion, may dismiss an application. The respondent’s s 399A application to dismiss Ms Leslie-Briggs substantive application arises from s 399A(1)(c) of the Act – a failure to discontinue her application after a settlement agreement had been concluded. Given this discrete ground, the question to be determined in this case is whether there was a binding settlement agreement between the parties; namely, Ms Leslie-Briggs and Moree LALC, which resolved Ms Leslie-Briggs’s claim of unfair dismissal against her former employer. The most recent Full Bench guidance on the principles to be applied in such matters is that found in Singh v Sydney Trains [2017] FWCFB 4562 (‘Singh’).

[28] As this decision is a binding authority on me, it is useful to refer in some detail to extracts from the Full Bench’s decision, bearing in mind also that consideration in that case also focussed on the well known High Court authority Masters v Cameron and Curtis vDarwin City Council on which the respondent relied.

[29] In Masters v Cameron the High Court identified three classes of cases which demonstrate whether a binding agreement is reached between parties to a contract and their negotiations shall be dealt with by a formal contract. These are described at page 360:

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.

[30] In Singh, the Full Bench summarised the principles to be applied as follows:

‘[48] An offer and acceptance must precisely correspond. The following principles are relevant to this requirement:

• An acceptance corresponds to an offer if it is an unequivocal acceptance of the terms offered.

• An acceptance is not an unequivocal acceptance of the terms offered if it deviates from the offer, even if that deviation is not material or important. However, as a qualification to this principle, if a new term is included in a purported acceptance of an offer and the new term is solely for the benefit of the offeror, then this can constitute a valid acceptance.

• An acceptance will be effective if it does not depart from the terms of the offer, but simply repeats in the offeree’s own words the effect of the offer.

• Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement. For example, an offer may contemplate that, were it to be accepted, a document would be prepared to record its terms. In proposing that a deed be prepared as part of an acceptance of such an offer, the offeree would be stating that which would be implied by law arising from the terms of the offer, namely, that it would be documented in some formal manner.

• Similarly, if a purported acceptance of an offer merely includes the “machinery of working out what was meant by the offer, it is on the same plight as a request for information”. Such a request for information does not revoke the offer and may constitute acceptance of the offer.

[49] Ultimately the question is whether a “reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter-offer or, at any rate, not an unconditional acceptance of what was originally offered.” Put another way, the language used by the offeree in their acceptance of the offer must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated.’[footnotes omitted]

[31] In Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313, Bathurst CJ said at [15]:

‘15. It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72; 91 CLR 353 at 362. In cases such as the present, which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communications between the parties in their context and the parties’ dealings over the time leading up to the making of the alleged contract. This involves consideration of the subject matter of the communications: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, that includes consideration of what the parties said or wrote (at 334, 337).’ (my emphasis)

[32] In deciding this matter it is necessary to focus on the communications from around 30 October to 17 November 2017 between Mr Rochford and Ms Messenger on the one hand and Mr Rochfort and Ms Leslie-Briggs on the other.

[33] These exchanges are set out in the respondent’s submissions and the applicant’s discussions with Mr Rochford are set out her submissions. Relevantly, there were no direct communications of any kind between the applicant and Ms Messing. This infers no criticism at all of Ms Messing,as she was entitled to believe that Mr Rochford was, at all times, acting for, and on behalf of the applicant. However, in my view, that was not the case at all.

[34] It is clear that Mr Rochfort was becoming increasingly frustrated with the applicant’s failure to engage with him and respond to his requests to agree with the substantive terms of agreement, as he had understood them, as at 3 November 2017. This of course is the point – the substantive terms – not the complete terms. In response to his frustration, Mr Rochford on Tuesday 7 November 2017 informed Ms Leslie-Briggs that unless she responded by 3pm that day, he could no longer represent her and he would be filing a Notice of Representative Ceasing to Act, which he did. On one view, it might be said that Mr Rochfort had ‘given up on the applicant’ – but again this is not the point.

[35] On 8 November 2017, Ms Leslie-Briggs advisedthe Commission that Mr Rochfort was ceasing to act for her because she would not sign the deed and she requested an extension of time to find another representative. She claimed Mr Rochfort had not told her that he had agreed ‘in principle’ with Ms Messing;much less than she had agreed to the deed.

[36] Of course what is just as clear is that there is no document signed by both parties – much less a final one which reflected their complete agreement as contemplated by the principles set out by Singh. Of course, Curtis v Darwin City Council is Commission authority for the proposition that a signed document is not necessarily conclusive as to whether there is agreement between parties. This is consistent with Masters v Cameron, where it was made clear that in determining where parties reach agreement on terms of a contractual nature and agree the negotiations will be dealt with to finality by a formal contract, that the first two categories of agreement described in Masters v Cameron will be binding, despite the absence of a signed deed.

[37] The applicant’s final draft document contained an exclusion clause for ‘common law for worker’s compensation claim, work injury damage claim’ This was not accepted by the respondent. Its final position was the draft it sent to Mr Rochfort on 3 November 2017. This was plainly rejected by the applicant by her insistence on the above inclusion.

[38] True it is that the final amendments sought by both parties might be said to be peripheral or inconsequential (even cosmetic) to the substantive terms hitherto agreed by the parties and consistent with the first class of cases in Masters v Cameron. However,this is not sufficient to overcome the strict hurdle set out in Singh that the ‘offer and acceptance (or settlement) must precisely correspond.’

[39] That said, I do not accept that the applicant’s insistence of a reference to an exclusion of worker’s compensation or work injury claim injury was, as contended for by the respondent, ‘an attempt to dishonestly alter a concluded agreement’. Such an exclusionary provision is invariably, perhaps universally, included in terms of settlement or deeds of release involving employment matters. It did no more than state the correct legal position and was hardly put in as an attempt to dishonestly alter an agreement. To suggest it had some sinister mala fide intent is ‘to draw a very long bow’ indeed.

[40] On the other hand, the applicant claimed that the inclusion of the words ‘The employer denied the allegations in the application’ amounted to the MLAC dishonestly altering an agreement. Similarly, this is an exaggeration. It is a standard no admission of liability term. What is plainly going on here is an exchange of wording in which neither party was prepared to accept the other’s proposal, even when they were both innocuous provisions commonly found in deeds of settlement. As was said in Zoiti - Licastro v Australian Taxation Office PR967544 [2006] AIRC 45, ‘[t]erms relating to mutual releases and confidentiality, could hardly be said to be unusual.’

[41] In any event, for the aforementioned reasons, I am not satisfied that there was ever a binding agreement between the parties. It follows that the respondent’s application to dismiss this matter under s 399A(1)(c) of the Act is dismissed.

[42] The applicant is to advise my Chambers within one week of this decision whether she is now medically fit to proceed with the hearing. If she is not, she is to provide medical evidence advising when she is likely to be able to do so and whether any medical condition prevents her from preparing her case by the compliance with directions to file and serve witness statements and an outline of submissions. Until this is done, I shall not issue further directions in this matter.

DEPUTY PRESIDENT

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