Niland v State of New South Wales

[2001] NSWSC 793

CITATION:	Niland v State of New South Wales [2001] NSWSC 793
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	SC 3077 of 1999
HEARING DATE(S):	7 September 2001
JUDGMENT DATE:	7 September 2001
PARTIES :	Rhonda Niland (Plaintiff) State of New South Wales (Department of School Education) (Defendant)
JUDGMENT OF:	Windeyer J at 1

COUNSEL :	Mr M J Cohen (Plaintiff) Mr M Gilbert (Defendant)
SOLICITORS:	Jones Staff & Co (Plaintiff) Moray & Agnew (Defendant)
CATCHWORDS:	CONTRACT - offer and acceptance - offer to settle workers compensation claim made subject to requirement that claimant resign - offer purported to be accepted without requirement for resignation - whether binding agreement to settle the claim - no contract
LEGISLATION CITED:	Health and Other Services (Compensation) Act 1995 (Cth) Workers Compensation Act 1987 s60
DECISION:	See Paragraph 14

3

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WINDEYER J

FRIDAY 7 SEPTEMBER 2001

3077/99 RHONDA NILAND v STATE OF NSW (DEPARTMENT OF SCHOOL EDUCATION)

JUDGMENT

1    HIS HONOUR: This is an action under which the plaintiff seeks a declaration that there was a binding agreement to settle by redemption a claim which she had made against her employer, the defendant, pursuant to the Workers Compensation Act 1987.

2    It is clear that any such agreement, if made, would have been subject to the approval of the Compensation Court, but that is not a matter of any significance here because if an agreement had been entered into then the plaintiff would have been required to ask for such consent or at least to co-operate with the defendant in seeking such consent from the Judge.

3    The action in question came on for hearing before Acting Judge Bagnall in Queensland on 21 October 1998. There were negotiations for settlement which took place in the usual way with various offers and counter offers being made.

4    Mr Gotterson, of counsel, appeared for the applicant before the Court and Mr Graham, of counsel, appeared for the respondent.

5 After an original offer - which it appears to have been accepted was far too high and put on the part of the plaintiff on the basis at that stage that there was no medical evidence from the defendant - counsel for the applicant put an offer of $60,000 plus s60 expenses of $2,500.

6    Mr Gotterson says, in paragraph 3 of his affidavit sworn on 12 October 1999, that when the offer was made he said to Mr Graham, "I will get some instructions but any offer I put to you for a commutation must include a resignation".

7    Mr Neal, the solicitor instructing Mr Graham, and Mr Graham both say they did not hear that being said and, in fact, Mr Graham denies that it was said.

8    Neither counsel was cross-examined and one can understand why nobody wished to do so. There is no reason to think that each counsel is not giving his true recollection of the events. The fact is, however, that where counsel who appeared for the defendant here gives evidence of what was said, and there is no basis on which the Court should disbelieve that and accept the denial of counsel for the plaintiff, then one must find that the plaintiff's case that resignation was not a part of any settlement reached has not been made out.

9    It is, however, necessary to consider whether there are any other matters of evidence which would support the case of the plaintiff.

10    It is fair to say, I think, that the only matter which could be put forward on the plaintiff's side is the document headed "Short Minutes of Order", which was signed by counsel for both applicant and respondent in the Compensation Court. That document does not refer to any term that the plaintiff would resign from her employment with the defendant.

11    It was argued by Mr Cohen that this document was the complete agreement. The evidence is, however, that it was not. It is clear that other documents, including a Consent to Redeem and certain notices required under the Health and Other Services (Compensation) Act 1995 (Cth), had to be signed by the plaintiff. It could not be said, I think, that the Short Minutes of Order was a document encompassing all the terms of the agreement, which agreement had been reduced to writing in that one document.

12    In those circumstances, any argument about parole evidence must fail. It must fail unless it can be established that the complete terms of the agreement were incorporated in those documents.

13 In my view they were not. It follows from this that the offer by counsel for the defendant to settle for $30,000 plus $2,500 s60 expenses was subject to a resignation by the plaintiff from her employment. The offer, if you like, to accept that settlement on behalf of the plaintiff was not subject to that term. It follows from this that there was no meeting of minds and agreement as to the terms upon which settlement negotiations and finalisation took place. It follows from this that there was no binding agreement. In those circumstances, the summons must be dismissed with costs.

14    Order the summons be dismissed with costs.

15    Exhibits can be returned.

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Last Modified: 09/11/2001