Say Ng v Commonwealth Scientific and Industrial Research Organisation
[2019] FWC 6573
•20 SEPTEMBER 2019
| [2019] FWC 6573 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Say Ng
v
Commonwealth Scientific and Industrial Research Organisation
(U2019/4013)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 20 SEPTEMBER 2019 |
Application for an unfair dismissal remedy.
Introduction
[1] On 9 April 2019, Dr Say Teong Ng made an application to the Fair Work Commission (the Commission) for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).
[2] In his Form F2 – Unfair Dismissal Application (Form F2), Dr Ng stated that his employment had been terminated by Commonwealth Scientific and Industrial Research Organisation (CSIRO) on 19 March 2019, with the dismissal also taking effect the same day.
[3] The Form F2 outlined that Mr Michael Giannopoulos of Anderson Gray Lawyers Pty Ltd was representing Dr Ng.
[4] On 6 May 2019, the CSIRO filed its Form F 3 – Employer response to unfair dismissal application (Form F3) and this outlined that its representatives were Mr David Woodman and Mr Rory Jolley of Minter Ellison.
[5] In a telephone conciliation on 17 May 2019 before a Commission conciliator, the parties were unable to reach a settlement agreement.
[6] While the matter was then listed for an Arbitration Conference/Hearing and allocated to me for this purpose, it became apparent in correspondence to the Commission prior to and during a telephone Mention before me on 17 July 2019 that CSIRO maintains the parties have reached a settlement agreement and Dr Ng disputes this. At the Mention, I granted CSIRO permission to be represented by Mr Jolley, having formed the view that it would enable the matter to be dealt with more efficiently, taking into account its complexity and that I should exercise my discretion to grant permission. I also made directions that required the parties to file and serve submissions and evidence as to whether a binding settlement agreement was reached between the parties and whether the application should or should not be dismissed on the basis that it has no reasonable prospects of success.
[7] This decision therefore addresses the dispute about whether the parties have reached a settlement agreement. CSIRO submits they have while Dr Ng maintains there has been no settlement agreement reached.
Background Facts
[8] In setting out its account of the factual background, the CSIRO relies on two affidavits of Mr Jolley affirmed on 31 July 2019 and 21 August 2019 respectively. To these affidavits, Mr Jolley attaches correspondence that has passed between himself and Mr Giannopoulos, together with correspondence they both had with the Commission. Dr Ng also provided me with some copies of some correspondence in which he had been engaged. I outline the nature of the correspondence both parties have provided, below.
[9] Mr Jolley has outlined that in addition to the settlement discussions at the telephone conciliation on 17 May 2019 there were some further negotiations, including some telephone discussions, between himself and Mr Giannopoulos. These did not resolve the matters in dispute but the tenor of these negotiations, conducted between 17 May 2019 and 21 May 2019, was that Mr Giannopoulos was pursuing a settlement on behalf of Dr Ng that comprised a payment of compensation, the conversion of the dismissal to a resignation and the provision of a statement of service, whereas the CSIRO was not prepared to entertain a settlement that involved monetary compensation but would consider converting Dr Ng’s dismissal to a resignation from the date of the dismissal and provide him with a statement of service. 1
[10] The last exchange between the parties during this initial post-conciliation period was an email sent by Mr Jolley to Mr Giannopoulos at 3.02pm on 21 May 2019, which stated:
“I refer to our conversation this morning. I confirm we have sought instructions in relation to the ongoing discussions between the parties and confirm that our client’s position remains unchanged – it will not make any financial offer of settlement in relation to this matter.
In light of this, and in the context of the conciliator holding this matter open for five days, I would be grateful if you would now confirm your client’s position regarding this matter, particularly around whether he would be prepared to resolve the matter on the basis of our client’s last offer of our client’s last offer in the conference conducted last week.” 2
[11] The parties then became subject to Directions from the Commission for the filing and service of their materials, outlined in a Notice of Listing dated 29 May 2019.
[12] Dr Ng filed with the Commission a copy of an email he received from Mr Giannopoulos on 29 May 2019, 3 the text of which was:
“Dear Say,
Thank you for your time earlier today.
To confirm, the Commission has listed your claim for arbitration hearing. The Commission has directed you to file and “serve on the respondent, an outline of submissions and any witness statements and other documentary material the applicant intends to rely on in support of the application in this matter, by no later than noon on Monday, 17 June 2019.”
Attached is the Notice of Listing.
Unfortunately, this office will be tied up in tribunal matters next week. We note also that your matter is complicated and has a long history. Accordingly, we do not feel we will be in a position to direct the urgent attention to your matter that it requires in order to file documents by 17 June 2019.
Therefore we feel obliged to now refer the matter on.
To confirm, we were retained to act up only up and including the conciliation stage. So we are not retained to act at a hearing stage.
Accordingly, we would like to refer you to:
S. Steva Pajic
Destra Law
a 3/38-40 Prospect Street, Box Hill VIC 3128
t +61 3 9898 8282
And also to:
Arthur Hambas
Mcdonald Murholme
Address: 10/90 Collins t, Melbourne VIC 3000
Phone: (03) 9650 4555
We hope that assists.
We will be in contact to formally close the file in due course.
Meanwhile, please do not hesitate to contact us if you have any questions.
Kind regards,
Michael Giannopoulos” (my emphasis)
[13] Despite this email, Mr Jolley says that he had a telephone discussion with Mr Giannopoulos on 13 June 2019, from which he recorded a file note. It appears that in this conversation the matter of whether Dr Ng’s dismissal could be treated as a retirement was raised and Mr Giannopoulos also conveyed that a “modest offer of compensation” might resolve the matter. 4
[14] Mr Jolley then sent an email to Mr Giannopoulos at 9.20am on 14 June 2019, which Dr Ng refers to as the “precondition email”. This email stated:
“Further to our conversation yesterday, I confirm that our client remains prepared, for the purposes of a resolution of this matter should it be agreed, to treat your client’s dismissal as a resignation (which it is prepared to refer to as a retirement). It would do so on the basis of your client agreeing to discontinue his application and subject to the parties executing a deed of release including the usual terms. However, it’s position in relation to the offering of any financial resolution remains unchanged – it is not prepared to entertain any financial settlement of this matter.
If you have any queries, please contact me. We otherwise look forward to hearing from you…” 5
[15] At 4.03pm on 14 June 2019, Mr Giannopoulos sent Mr Jolley an email in reply. It was said to be conveyed on a “Without prejudice save as to costs” basis and stated:
“Dear Rory
Thank you for your time on 13 June 2019.
We are instructed to offer to settle this matter on the basis that:
1. The Respondent will rescind the dismissal and allow the Applicant to retire from his employment.
2. The Respondent will provide the Applicant with a Statement of Service, outlining his period of service, position, duties and confirming the retirement.
3. The parties will enter into the standard Fair Work Commission Terms of Settlement.
The offer is open for acceptance for seven (7) days from the date of this email.
Please do not hesitate to contact us if you have any questions…” 6
[16] Dr Ng also filed with the Commission a copy of an email he appeared to send to Mr Giannopoulos at 7.40pm on 14 June 2019, 7 which stated:
“Hi Michael,
Please make sure that the Fairwork Commissioner is informed of the late progress, and any postponement of the require submission from my behalf on this coming 17 June 2019 deadline be obtained from the Commissioner.
I want to be able to lodge the submission, should the settlement failed.
Please do keep me informed.” (my emphasis)
[17] The Commission received an email from Mr Giannopoulos at 9.14am on 17 June 2019, stating:
“Dear Unfair Dismissals Team,
We refer to the matter of Teong, Say v Commonwealth Scientific and Industrial Research Organisation - U2019/4013.
We refer also to the Commission’s Notice of Listing/directions of 29 May 2019 and attach a copy of the same.
We note that the parties are engaging in good faith settlement communications, with a view to resolving this matter. The Applicant anticipates that the matter may resolve in the foreseeable future.
In the circumstances, and noting that the Applicant wishes to avoid unnecessarily incurring further legal expense, the Applicant would be grateful if the Commission would allow an extension of time for the filing of his material, to allow the parties time to engage in further communications.
Accordingly, the Applicant respectfully requests that the Commission allow him an extension of time to file material until Friday, 21 June 2019, noting he would of course consent to the Respondent being granted the equivalent extension of time.
Please do not hesitate to contact us if you have any questions or require further information.
Kind regards,
Michael Giannopoulos”
[18] The Commission then made a telephone call to Dr Ng at 9.24am on 17 June 2019, which appears to have been in response to a telephone call made to the Commission by Dr Ng on 10 June 2019. The file note from the Commission’s telephone call states:
“TC to A on 0409 899 338: A inquired about whether he can represent himself. I advised he can. He is concerned about continuing the matter due to legal costs and believes the matter could also settle. I advised of option to vacate the requirements to file subs once a SIP is reached. We have received an extension request from AR and I advised we would try and get back to him about it as soon as possible to inform whether it is granted.”
[19] At 10:10 am on 17 June 2019, Mr Andrew Jewell of McDonald Murholme appears to have emailed Dr Ng 8 as follows:
“Dear Say Teong,
We have been working on the witness statements and submissions, however may not be in a position to file today. This will not be a problem as we will be able to obtain a short adjournment from the Commission.
In the meantime, please see attached first draft of the witness statement for your comment. You should review the statement for accuracy and ‘mark-up’ any amendments. We will incorporate these amendments and provide a final version before filing.
Yours
Sincerely
AndrewJewell
Principal
Lawyer”
[20] Shortly after this, at 10.22 am, Mr Jewell sent an email to the Commission stating:
“Dear Registry,
We refer to the above matter.
We have been appointed as representatives for the Applicant and accordingly attach a Form F53.
We note that our client’s material is due today at midday. Due to our recent appointment and the volume of material in this matter the Applicant will not be able to file material by midday today but anticipates being able to file by close of business on Wednesday 19 June 2019.
Accordingly, we seek an extension of time for filing material to close of business on Wednesday 19 June 2019. The Applicant consents in advance to a consequential extension for the Respondent and considers that no prejudice will be suffered as the hearing date can be maintained.
This email is also sent to the Respondent, however due to the timeframe we have not yet been able to seek consent in relation to the requested extension.
Yours sincerely,
Andrew Jewell”
[21] Mr Jewell’s email to him appears to have prompted the following email reply from Dr Ng at 1.05pm: 9
“From: Say Teong Ng [mailto:sayteong@icloud.com]
Sent: Monday, 17 June 2019 1:05 PM
To: Andrew Jewell [email protected]
Subject: Re: Yourself -and- CSIRO
Hi Andrew,
You have not been given the permission to work on my case. What you did is not correct:
1. You have not contact my previous lawyer to take over the case.
2. There has been no contact from you to the Fairwork to deal with the matter professionally, and the deadline is over.
3. You have not told me in writing you will be taking over the case either.
I was left in limbo, suffering a depression. Do you know that today is my last submission date?
The matter has been resolved. It was my previous lawyer who achieve this, and I am very bitter because of additional sacrifices.
I write to inform you that you have not been instructed to be involved since our meeting in your office.
Thank you.”
[22] This prompted Mr Jewell to send the following two emails:
• An email sent to Dr Ng at 1.11pm:
“From: Andrew Jewell [email protected]
Subject: RE: Yourself –and- CSIRO
Date: 17 June 2019 at 1.11pm
To: Say Teong Ng [email protected]
Dear Say Teong,
On 5 and 6 June 2019 I sent you emails and I had understood we had instructions to act.
Clearly I had misunderstood and accordingly will take no further action on your behalf.
Yours Sincerely
Andrew Jewell
Principal Lawyer” 10
• An email sent to the Commission at 1.15pm, stating:
“Dear Registry,
We refer to the above matter.
Please see attached Form F54.
Yours sincerely,
Andrew Jewell”
[23] At 1.53pm on 17 June 2019, Mr Jolley sent an email to Mr Giannopoulos as the next exchange in an email chain following on from the email Mr Giannopoulos had sent Mr Jolley at 4.03pm on 14 June 2019. This email stated:
“Dear Michael
I confirm that we have been instructed to accept the below offer. We will shortly provide you with terms of settlement in the usual FWC form.
Regards
Rory” 11
[24] Mr Jolley says there was a telephone conversation between him and Mr Giannopoulos at 3.58pm on 17 June 2019, during which Mr Jolley says he confirmed with Mr Giannopoulos his view that the matter had settled. 12
[25] There was then some correspondence that passed between the parties regarding the settlement terms. Mr Giannopoulos conveyed that Dr Ng was not agreeable to contracting out of his rights in relation to a misconduct claim he had made against three individuals and a freedom of information request he had made. 13 Mr Jolley sought instructions in relation to these matters before replying and advising that CSIRO was not agreeable to a “carve out” of them. He further advised that CSIRO nevertheless intended to complete its review of Dr Ng’s allegations of misconduct and would meet its statutory obligations in relation to the freedom of information request. CSIRO’s position, conveyed by Mr Jolley by email on 21 June 2019, 14 was that these matters had not formed part of the settlement discussions between the parties. Mr Jolley also attached a terms of settlement document. Mr Giannopoulos replied by email on the same day, indicating he would forward the email to Dr Ng and seek instructions in relation to the release.15
[26] There was also some other correspondence with the Commission at this time:
a) On 20 June at 4.38pm, Mr Giannopoulos sent an email 16 to the Commission stating:
“Dear Unfair Dismissals Team,
We refer to our email of 17 June 2019 and to Mr Jolley’s email of the same date.
By way of update, the parties have reached an ‘in principle’ agreement and are in the process of preparing Terms of Settlement. To that end, Mr Jolley and I have communicated by email earlier today.
Accordingly, it due course, it is likely that the Applicant will respectful request either directions providing for a further extension of time for the filing material or a vacation of the directions for the filing of material.
Meanwhile, please do not hesitate to contact us if you have any questions or require further information.
Kind regards…” (my emphasis)
b) On 21 June 2019 at 12.03pm, Mr Jolley sent an email 17 to the Commission stating:
“Dear Unfair Dismissals Team
We refer to the below email from the Applicant in this matter. We refer also to the email from the Applicant’s lawyer, Mr Michael Giannopoulos, of yesterday’s date. We confirm that, in accordance with Mr Giannopoulos’s email, the parties have (as at Monday this week) reached an in-principle agreement to settle this matter. That agreement is subject only to the parties entering into the terms of settlement referred to by Mr Giannopoulos. In that context, we confirm that we have provided terms of settlement to Mr Giannopoulos for execution by his client.
Regards…” (my emphasis)
[27] Mr Jolley then made a number of email enquiries of Mr Giannopoulos to follow up when he would receive the signed terms of settlement. Mr Giannopoulos replied by stating he would seek instructions. When the Commission sent an email to Mr Giannopoulos on 8 July 2019 seeking confirmation of a settlement in principle, Mr Jolley was copied in. Mr Jolley sent an email reply on the same date, stating:
“Dear [Name of Commission staff member]
We refer to the above matter and confirm that we act for the Respondent.
We confirm that the parties reached an agreement to settle this matter on 17 June 2019, and we are now awaiting the Applicant’s return to us of signed terms of settlement in this regard. We expect that the matter will be discontinued shortly thereafter.
In these circumstances, we note the notice of listing in this matter, also dated 17 June 2019, pursuant to which our client is ostensibly required to file and serve the material upon which it intends to rely in this matter by 12 July 2019. We confirm that, in light of the agreement reached in this matter as set out above, our client does not propose to file and serve its material on that date.
If you have any queries, please contact me…”
[28] This prompted Mr Giannopoulos to respond to both emails on 11 July 2019, stating:
“Dear [Name of Commission staff member] and Mr Jolley,
Thank you for your emails of 8 July 2019.
To confirm, we are presently having difficulties obtaining instructions.
We are scheduled to confer with our client in person tomorrow. Accordingly, we will provide you with an update by close of business tomorrow.
Kind regards…”
[29] A telephone conversation between Mr Giannopoulos and Mr Jolley at 9.36am on 12 July 2019 18 appears to have prompted Mr Jolley to send Mr Giannopoulos the following email at 10.01am that day:
“I refer to our telephone conversation this morning. I note your advice that your client has indicated that he may wish to continue to agitate his unfair dismissal claim. Relevantly, this isthe first indication we have received in this regard.
Asdiscussed, our client isfirmly of the view that there is a binding settlement agreement in this matter. In this respect, as is clear from the below, you were instructed by your client to make an offer of settlement on his behalf, which you did on 14 June 2019. On behalf of our client, we accepted that offer on 17 June 2019. We subsequently, on 21 June 2019, sent you terms of settlement in accordance with the settlement agreement.
In the meantime, both parties have corresponded with the FWC regarding the agreement reached. In all of the circumstances, there is no basis for your client to realistically argue that the settlement agreement is not binding on him. I note in this regard that we have often entered into agreements with other legal practitioners by way of an exchange of emails prior to formal terms of settlement being prepared, on the common understanding that that exchange of emails is evidence of and constitutes a binding agreement.
Given the agreement reached, our client has, understandably, not instructed us to prepare its evidence in the matter. In this respect, the settlement agreement was reached before either party was required to file and serve material in the matter. In this regard the FWC’s notice of listing provided that your client was to file and serve his material by 21 June 2019 and our client was to file and serve its material by today’s date. Were this matter to now proceed - and we are firmly of the view that the agreement between the parties means that it cannot - our client would be subject to significant prejudice.
We trust that, in all of the circumstances, your client will, following your meeting with you this morning, confirm that the matter has settled and return signed terms to us accordingly. We also trust that you will correspond accordingly with the FWC…” 19
[30] Mr Giannopoulos sent the Commission a Form F54 – Notice that lawyer or paid agent has ceased to act for a person (Form F54) at 2.30pm on 12 July 2019 and has had no apparent involvement in the matter since.
[31] The file having been allocated to me, I caused a telephone Mention to be listed for 17 July 2019. On 16 July 2019, Dr Ng telephoned my Chambers and, in a conversation with my Associate, stated that no settlement had been reached and no terms of settlement had been signed.
[32] As outlined in paragraph [6] above, in the telephone Mention before me on 17 July 2019, it was confirmed the parties disputed whether there had been a settlement agreement reached and I issued directions so that this dispute could be resolved.
Applicable Principles
[33] The legal principles in relation to offer and acceptance of a settlement proposal were outlined in by the Full Bench in Subeg Singh v Sydney Trains (Sydney Trains). 20 It is useful to reproduce them:
“[45] The central issue in this appeal requires consideration of whether the Deputy President correctly applied legal principles relevant to the question of whether a binding settlement agreement had been reached between Mr Singh and Sydney Trains.
[46] Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant principles concerning intention to create legal relations in the following way in Pavlovic v Universal Music Australia Pty Limited: 21
“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).”
[47] The present case does not involve complexities which often arise where contractual intention is inferred from behaviour, or is imputed. 22 Whether there was a legally binding settlement reached between Mr Singh and Sydney Trains involves interpretation of the express written communications between the parties’ solicitors.
[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. 23
• 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. 24
• 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. 25
• Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement. 26 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.27
• 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”. 28 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.” 29 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.30
[50] A purported acceptance which does not correspond to the offer does not necessarily reject the first offer; it is, nevertheless, a counter-offer capable of acceptance. 31 A counter-offer accepted by the original offeror creates a binding agreement.32
[51] Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract. 33
[52] 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. 34 However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating.35 In each case, “much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them”.36
[53] If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall. 37 First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms.38
[54] When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them.” 39
[34] In Masters v Cameron, 40 the High Court held that a binding agreement could come about in the following manner:
“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 each of the first two cases there is a binding contract: in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution.” 41
Submissions- CSIRO
[35] The CSIRO’s position is that the parties unambiguously entered into a binding settlement agreement immediately upon Mr Jolley’s email to Mr Giannopoulos at 1.53pm on 17 June 2019.
[36] Relying on the observations of the Full Bench in Sydney Trains, the CSIRO submits whether there is a legally binding agreement reached between the parties involves the interpretation of the express written communications between the parties’ solicitors.
[37] The CSIRO submits that Mr Giannopoulos communicated a clear offer of settlement on 14 June 2019 that was not, on its face, conditional on any particular thing occurring. The offer, it says, was clearly capable of being accepted by it and was not at any time withdrawn or amended prior to it being accepted.
[38] The CSIRO submits Mr Jolley, on its behalf, accepted that offer of settlement by way of his email to Mr Giannopoulos on 17 June 2019. It submits clear and unambiguous language was used and the acceptance was not, in any way, conditional or qualified. The CSIRO submits the acceptance corresponded precisely to the offer and did not purport to change, in any way, the terms of the offer. It constituted an unequivocal acceptance of the terms offered.
[39] The CSIRO submits it cannot be sustained that the offer made by Mr Giannopoulos was not valid as he was on the record as Dr Ng’s legal representative and had expressly stated on 14 June 2019 that he had been instructed to make the offer in question. TheCSIRO contends that in the context of litigation, a legal practitioner has ostensible authority to bind his or her client to a contract which relates to and, in particular, compromises that litigation. 42
[40] The CSIRO submits that, in all of the circumstances, the position reached between the parties as at 1.53pm on 17 June 2019 falls squarely within the first category of agreement identified in Masters v Cameron. The CSIRO submits that an objective reading of the communication between Mr Giannopoulos and Mr Jolley, when read in in light of the broader factual context, strongly supports the conclusion that the parties had, at the time the offer was accepted, reached finality in arranging all of the terms of their bargain and intended to be immediately bound to the performance of its terms, albeit that they proposed to have the terms restated in a form that would be fuller or more precise but not different in effect.
[41] The CSIRO submits that it is clear from the email communication between Mr Giannopoulos and Mr Jolley on 14 and 17 June 2019 that the parties’ agreement was not conditional on, or subject to, written terms of settlement being agreed upon and then entered into. It further submits that Mr Giannopoulos’s reference in the offer to terms of settlement in the form of the standard Commission terms of settlement (and its acceptance of the offer in those terms) supports the characterisation of the parties’ agreement. It says that reference means that there was no ambiguity in respect of exactly what was the subject matter of the parties’ agreement and what would be the written terms reflecting that agreement.
[42] The CSIRO submits this is not a case where it could be said that the parties obviously intended to negotiate further in relation to, for example, the applicable release or confidentiality restrictions and nor is this a case where there was any ‘missing term’ (one that had been foreshadowed by one party but not ultimately included in the agreement).
[43] The CSIRO further submits that the parties’ conduct following the acceptance of the offer in question is consistent with there having been an intention to enter into a binding settlement agreement. It says it stated in clear terms that it would not accept any modification to the release as appearing in the standard Commission terms of settlement when that was proposed by Mr Giannopoulos and that Mr Giannopoulos, even though he stated he would seek instructions, did not ultimately press further any amendment to the release.
[44] The CSIRO says its conduct was consistent with an understanding that there was a binding settlement agreement in the matter because following and as a result of the agreement, it did not thereafter seek to prepare its material in the proceeding. It says this was expressly communicated by Mr Jolley to Mr Giannopoulos in an email sent on 8 July 2019, 43 and Mr Giannopoulos did not subsequently assert that the CSIRO ought file and serve its material on the basis that settlement negotiations had not yet concluded in communications with Mr Jolley or the Commission.
[45] The CSIRO addressed the use of the term ‘in- principle’ by Mr Giannopoulos and Mr Jolley 44 and Mr Jolley’s statement that the agreement was ‘subject only to the parties entering into … terms of settlement’,45 in correspondence with the Commission on 20 and 21 June 2019 by submitting it was very shortly after the agreement had been concluded and their use does not warrant an alternative conclusion. The CSIRO submits Mr Jolley’s use of language did not intend to convey that the parties had not, in fact, reached a settlement agreement in the matter. In this context, it relies on Mr Jolley’s email to the Commission on 8 July 2019, which stated that the parties had reached an agreement to settle the matter.
[46] The CSIRO submits that the circumstances weigh strongly towards a conclusion that the position between the parties is one that falls within the first category identified in Masters v Cameron, particularly given the fact that the offer that was made on 14 June 2019 was unconditional and its acceptance on 17 June 2019 was unqualified. It contends the offer and acceptance precisely corresponded.
[47] Having regard to Dr Ng being unrepresented and its status as a model litigant, the CSIRO stated it accepts that there are factors that could be said to point towards a conclusion that the parties did not, by way of the email correspondence on 14 and 17 June 2019, necessarily intend to enter into a binding settlement agreement without more. These were:
• the communications by Mr Giannopoulos with the Commission on and after 17 June 2019 did not expressly state that the matter had settled and could potentially be considered to suggest that he was of the view that the agreement was an in-principle agreement to be finalised upon the execution of written terms of settlement;
• there was no express stipulation as to when, for example, the statement of service would be provided to Dr Ng; and
• the CSIRO did not immediately (and in the circumstances has still not) provided Dr Ng with a statement of service as agreed.
[48] The CSIRO submits that these above factors are significantly outweighed by its earlier submissions which tend the other way. However, it says that if the Commission were to determine that, on the basis of the factors set out immediately above or for any other reason, that the position between the parties does not fall within the first category identified in Masters v Cameron, the only other conclusion that can be reached in all of the circumstances is that the position falls within the second category in Masters v Cameron. 46
[49] Nonetheless, the CSIRO submits that in circumstances where there was an unconditional offer and an unqualified acceptance of that offer (with a reference to terms of settlement in the form of the Commission’s standard terms of settlement), it cannot possibly be said that the parties did not intend to make a concluded bargain at all unless and until a formal contract was executed in relation to the matter.
Submissions – Dr Ng
[50] On 16 July 2019, Dr Ng sent an email to my Chambers, the contents of which included:
“…With respect to the attached email of Mr Rory Jolley (the respondent’s lawyer) dated Friday 12 July 2019, please note that the matter is still a long way from being settled, as I have not signed any document or agreement to that effect. Neither did the respondent, I believed.
Further, I have not seen any of the fine terms and conditions (or documents) lawyers from both parties were working on. I last understood from Mr Michael Giannopoulos that there have not been any common ground agreeable worth telling me. This is particularly in relation to various unsettling issues and additional issues spawned from details that need further addressing, related to items stipulated in the email from him to Mr Rory Jolley dated Thursday 20th June 2019 10:21am:
“…Meanwhile, we would like to confirm that our client’s internal misconduct complaint, which we understand is against three named individuals and not against the Respondent, and also his freedom of information request, are seperate matters from the unfair dismissal claim. To confirm, our client is therefore not agreeable to purporting to contract out of those matters…”
My understanding from Mr Michael Giannopoulos, as confirmed in his email to both the Unfair Dismissal Commission and Mr Rory Jolley dated Thursday 20th June 2019 4:30pm that, I quote:
“...By way of update, the parties have reached an ‘in principle’ agreement and are in the process of preparing Terms of Settlement…”
I was assured that until all the fine terms are sorted out satisfactorily and mutually acceptable by both parties, and most importantly until the agreement are endorsed, negotiated terms are only tentative and remained non-binding. This is the basis of agreement in principle. This agreement in principle is also confirmed by Mr Rory Jolley, in his email dated Friday 21st June 2019 12:30pm, I quote:
“…We confirm that, in accordance with Mr Giannopoulos’s email, the parties have (as at Monday this week) reached an in-principle agreement to settle this matter…we confirm that we have provided terms of settlement to Mr Giannopoulos for execution by his client…”
My recent understanding was that the negotiation has drifted apart due to unexpected additional terms being deviated from reality. I remained keen in getting back to work. The negotiation had stalled…”
[51] In response to my directions made on 17 July 2019, Dr Ng submitted extensive material addressing whether agreement was reached. I have attempted to summarise it in the paragraphs that follow.
[52] As foreshadowed above at [14], Dr Ng advanced the proposition that prior to the email sent by Mr Giannopoulos to Mr Jolley at 4.03pm on 14 June 2019 and the email sent by Mr Jolley to Mr Giannopoulos at 1.53pm on 17 June 2019, there was the “precondition email” sent by Mr Jolley to Mr Giannopoulos at 9.20am on 14 June 2019. It is useful to again outline the contents of the “precondition email”:
“Further to our conversation yesterday, I confirm that our client remains prepared, for the purposes of a resolution of this matter should it be agreed, to treat your client’s dismissal as a resignation (which it is prepared to refer to as a retirement). It would do so on the basis of your client agreeing to discontinue his application and subject to the parties executing a deed of release including the usual terms. However, it’s position in relation to the offering if any financial resolution remains unchanged – it is not prepared to entertain any financial settlement of this matter.
If you have any queries, please contact me. We otherwise look forward to hearing from you…” 47
[53] Dr Ng’s contention is that this email formed the basis of the CSIRO’s demands and that these demands (or conditions) were never accepted nor agreed upon by him up until 21 June 2019, when both parties had “independently and unanimously conceded and reported” to the Commission that there was only an “Agreement in Principle” reached.
[54] Dr Ng contends that the CSIRO had failed to acknowledge that prior conditions in the “precondition email” had imposed “legal implications” on him when it accepted his “non-binding” offer.
[55] Dr Ng submits that the precondition email had effectively transformed the CSIRO’s acceptance into a “conditional acceptance”. In the alternative, he says a “hidden” conditional acceptance is to be implied. Dr Ng’s submission is that without his “affirmative acceptance” of the conditions associated with the conditional acceptance from the CSIRO, it is difficult to see that the email sent by Mr Giannopoulos to Mr Jolley at 4.03pm on 14 June 2019 and the email sent by Mr Jolley to Mr Giannopoulos at 1.53pm on 17 June 2019 formed the basis of binding agreement.
[56] Dr Ng appears to submit the “precondition email” constitutes a counter offer. 48 He does so by referring to the email exchange between Mr Giannopoulos and Mr Jolley outlined above at [25] and contending that the email sent by Mr Jolley at 9.10am on 21 June 201949 constituted a counter offer. Dr Ng says this counter offer was unacceptable to him.
[57] Dr Ng’s submissions suggest he was concerned over the scope of the release sought by the CSIRO and he held the view that the CSIRO had failed to deal with his allegations of bullying, together with his freedom of information request. 50
[58] Dr Ng outlines a number of matters related to the solicitor client relationship existing between himself and Anderson Gray:
• that Mr Giannopoulos had made the offer in writing to Mr Jolley on the understanding that the terms in the “precondition email” were to be the subject of negotiation, should an “Agreement in Principle be initiated”; 51
• that Mr Giannopoulos was aware of Dr Ng’s objection to the counter offer made by the CSIRO, although the exact terms of the written settlement was not disclosed to him; 52 and
• that he contacted Mr Giannopoulos after the telephone mention on 17 July 2019 which resulted in Mr Giannopoulos sending him “a collection of emails”, 53 from which he discovered the “precondition email”.
[59] Dr Ng also submitted “it would be very unprofessional of Mr Giannopoulos, if not silly or irresponsible of him, to issue an offer without conditional clauses protecting his client – given that he was already aware of the deteriorating depression I was combating”.
[60] In his Reply Submissions, Dr Ng outlined the nature of his dealings with Mr Jewell:
“When I first met Mr Jewell, I have made it very clear that I will decide over which new lawyer I will ultimately engaged from the list provided by Mr Giannopoulos. I told him of the need to have a written contract over the engagement first. I have also told him that I expect to be informed of any critical email correspondence. But most of all I ask him to contact Mr Giannopoulos first.
I met Mr Jewell in his office a few days after I received the formal dismissal email from Mr Giannopoulos. The meeting cost me $250/=.
After a week later, I called Mr Jewell several times, but there seemed no keenness of engaging. I have not been able to follow up with what he had done because of my state of restlessness. I did not receive any call from him. Instead, I was emailed a renew estimated of potential legal cost, double the original estimate amount.
I did manage to leave Mr Jewell a few telephone messages regarding the urgent matter I need to know, particularly in relation to settling down to a suitable lawyer while trying to bring the cost down. My last message to Mr Jewell’s receptionist was that the renew estimated cost was outside my expectation. During that period, I suffer mood swings because of the anxieties and uncertainties.
What hit me on the 17 June 2019 morning is all of the sudden I receive the email from Mr Jewell about his engagement, with merely just a drafted witness statement. I was furious over his lack of duty of care (see Difficulties.pdf). I was furious because I have no prior knowledge of him contacting FWC – this was the least I expect because there was no signed agreement on his engagement yet.
I found out through Mr Giannopoulos that Mr Jewell had not contacted him either. As you can see in Difficulties.pdf, Mr Jewell admitted his misunderstanding…”
[61] Dr Ng seeks to explain the comment “The matter has been resolved. It was my previous lawyer who achieve this, and I am very bitter because of additional sacrifices” in his email to Mr Jewell on 17 June 2019, stating:
“About a week before the 17 June 2019, I have told Mr Giannopoulos about the difficulties I am facing, particularly in relation to the cost involved in engaging a new lawyer to represent me. I told him about the expected additional cost due to time to be spent by the new lawyer while going through my documents again.
Mr Giannopoulos assisted me by advising me that I could handle my application alone if I wish to do so.
All I need to do is review and reorganise those statements he has filled in the Unfair Dismissal Application F2 form and turned them into the Outline document. He told me that Fair Work permitted self-representation. Additional work will only be the extra work in writing up the witness statement. That was several days before the deadline of 17 June 2019.
As you can see in item 15 of Rory previous Affidavit, Mr Giannopoulos has also helped me by requesting the time extension for me to do that, despite his contract with me had already ended.
It is hard to explain why I felt bitter that day, probably related to the mood swings I have lost control then. I felt bitter could probably be due to the uncertainty and looking for someone to blame to vent my anguish.
Despite of Mr Giannopoulos assistant outside his formal engagement, I was still hopeful of getting a right lawyer to act on my behalf. But because of the extra cost, I have to soberly accept the reality that I am not going to be able to afford a legal representative ultimately in the long run.
The statement “The matter has been resolved” sent to Mr Jewell was in relation to the fact that I have already settle on what to do with the legal engagement if the worst happens.
It was to Mr Giannopoulos credit that I felt better. He helped me to see through the woods. I believe Mr Jewell understood what I meant. He was aware of depression and my original expectation from him. I now felt that he has truly misunderstood.
The statement “The matter has been resolved” to Mr Jewell has nothing to do the disputed binding-agreement.” (my emphasis)
[62] As outlined above, Mr Giannopoulos continued to both exchange correspondence and conversation with Mr Jolley and send correspondence to the Commission up until the time he filed the Form F54 on 12 July 2019.
[63] Dr Ng submits that at the point at which he himself filed and served his materials on 21 June 2019, only agreement in principle had been reached. For this he relies on the emails sent to the Commission by both Mr Giannopoulos and Mr Jolley on 20 and 21 June 2019, referred to above at [26]. Dr Ng relies on the fact that the email of Mr Jolley dated 21 June 2019 was sent after he had filed and served his material, together with what he describes as the parties asserting the “Agreement in Principle” unanimously and independently to submit it is clear that both parties did not want to be bound until a formal document was completed, endorsed and signed.
[64] In summary, Dr Ng disputes that the email exchange between Mr Giannopoulos and Mr Jolley on 14 June 2019 and 17 June 2019 formed the basis of a binding agreement. Dr Ng characterises Mr Jolley’s email sent on 17 June 2019 as conditional acceptance only and maintains his understanding was that nothing would be binding until a final written agreement was endorsed and signed by both parties. Dr Ng also asserts that negotiations moved on, with the email sent by Mr Jolley at 9.10am on 21 June 2019 54 constituting a further counter offer.
Consideration
[65] While Dr Ng has also made various assertions with regard to his alleged unfair dismissal in the material he has filed, the issue for me to determine is whether a binding settlement agreement has been reached between Dr Ng and the CSIRO and it is his material he has filed addressing this issue that I have considered.
[66] The first matter I wish to address is the solicitor client relationship between Dr Ng and Anderson Gray Lawyers Pty Ltd. The Fair Work Commission Rules 2013 require a person who commences to act as a lawyer and a person who ceases to act as a lawyer for a person to give notice to the Commission. 55 When a lawyer commences to act, this can be done by the lawyer inserting their details into the section on representation in the Form F2 or by completing a Form F53 – Notice that lawyer or paid agent acts for a person (Form F53). When a lawyer ceases to act, notice can be given by lodging a Form F54 and the Commission’s expectation is that this should be done as soon as practicable after the lawyer ceases acting for the person.56 In this matter, from the filing of Dr Ng’s Form F2 on 9 April 2019 until the filing of the Form F54 on 12 July 2019, the Commission and then the CSIRO were on notice that Anderson Gray Lawyers Pty Ltd and in particular, Mr Giannopoulos, was acting as the lawyer for Dr Ng in his unfair dismissal application.
[67] The Commission’s Lawyers and paid agents practice note outlines, a lawyer “acts for” a person in relation to a matter before the Commission if they provide their professional services to the person in relation to the matter in:
• lodging documents with the Commission;
• sending letters or emails to the Commission, another party or another lawyer; and
• negotiating a settlement or compromise of the matter. 57
[68] Based on the material before me, the Commission was on notice that Mr Giannopoulos was acting for Dr Ng from the time the Form F2 was lodged until receipt of the Form F54. There was also a three hour period on 17 June 2019 when the Commission was also on notice that Mr Jewell of McDonald Murholme was acting for Dr Ng. However, the correspondence Dr Ng has provided the Commission indicates the understanding he and Mr Jewell had of McDonald Murholme’s role was completely different.
[69] As far as the CSIRO and Mr Jolley are concerned, they were only ever on notice that Mr Giannopoulos was acting for Dr Ng from the time they received the Form F2 until receipt of the Form F54.
[70] Notwithstanding the email he had sent Dr Ng on 29 May 2019, Mr Giannopoulos continued to represent to the Commission, the CSIRO and Mr Jolley that he was acting on Dr Ng’s behalf. In particular, Mr Giannopoulos appears to initiated the resumption of dialogue with Mr Jolley on 13 June 2019 and made an offer of settlement conveyed in his email to Mr Jolley sent at 4.03pm on 14 June 2019, which included the words “We are instructed to offer to settle this matter…”. Mr Giannopoulos also continued to send correspondence on Dr Ng’s behalf to the Commission and Mr Jolley that at no time stated the he was no longer acting for Dr Ng. In correspondence to the Commission, an extension of time for the filing of material was sought and the term “our client” was used. From the material provided by Dr Ng, I am satisfied he continued to give Mr Giannopoulos instructions and it appears these instructions were acted upon.
[71] In particular, I am satisfied Dr Ng instructed Mr Giannopoulos to make the offer sent to the CSIRO at 4.03pm on 14 June 2019 and that it was an offer to settle the matter. I consider his email, sent at 7.40pm on 14 June 2019, confirms this:
“Hi Michael,
Please make sure that the Fairwork Commissioner is informed of the late progress, and any postponement of the require submission from my behalf on this coming 17 June 2019 deadline be obtained from the Commissioner.
I want to be able to lodge the submission, should the settlement failed.
Please do keep me informed.”
[72] I am also satisfied that Mr Giannopoulos was acting on instructions when requesting an extension of time for the filing of Dr Ng’s materials, in the email he sent to the Commission at 9.14am on 17 June 2019.
[73] In Pavlovic v Universal Music Australia Pty Limited, 58it was accepted that a lawyer has authority to contract on a client’s behalf in the context of litigation, with the Court of Appeal adopting the enunciation of that principle in Lucke v Cleary:
“60. As a general proposition, a solicitor does not have ostensible authority to bind his or her client to a contract.
61. That general proposition, however, is subject to the qualification that, in the context of litigation, a legal practitioner has ostensible authority to bind his or her client to a contract which relates to and, in particular, compromises that litigation. In CIC Insurance Ltd v Bankstown Football Club Ltd, Kirby P drew a clear distinction between ostensible authority in litigious and non-litigious matters:
It is not unreasonable for the appellant to view the conduct of the club, in apparently instructing its solicitor to pursue the subject insurance claim, as including all necessary authority to give effect to those instructions. Incidental to those instructions, it can be inferred, was the power to deal with the issue of the purported cancellation of the contract. Indeed, I should have thought that the instruction of a solicitor to pursue a matter such as a controversial insurance claim would leave a third party dealing with the solicitor with the impression that that solicitor, having been retained for his or her legal expertise, would have all necessary authority to deal with all issues which reasonably and foreseeably arose in the pursuit of that claim. It is not a situation akin to the instruction of a solicitor to pursue non-litigious business where the nature and extent of the solicitor’s authority is not so easily inferred to be so widely encompassing.
62. Even so, in the context of litigation the practitioner’s authority to bind his or her client to a contract is confined to a contract that actually and genuinely relates to the litigation.” 59 (references omitted)
[74] Having regard to these authorities, I am satisfied that Mr Giannopoulos had authority to bind Dr Ng to a contract relating to his unfair dismissal application and which settled his unfair dismissal application.
[75] It is worth outlining again the offer Mr Giannopoulos put to Mr Jolley in the email sent at 4.03pm on 14 June 2019:
“Dear Rory
Thank you for your time on 13 June 2019.
We are instructed to offer to settle this matter on the basis that:
1. The Respondent will rescind the dismissal and allow the Applicant to retire from his employment.
2. The Respondent will provide the Applicant with a Statement of Service, outlining his period of service, position, duties and confirming the retirement.
3. The parties will enter into the standard Fair Work Commission Terms of Settlement.
The offer is open for acceptance for seven (7) days from the date of this email.
Please do not hesitate to contact us if you have any questions…” 60
[76] I have had regard to the submissions made by Dr Ng that in this offer there were prior conditions due to the “precondition email”, which imposed “legal implications” on him when the CSIRO accepted his “non-binding” offer or that the precondition email had effectively transformed the CSIRO’s acceptance on 17 June 2019 into a “conditional acceptance”. I do not accept them.
[77] I am not persuaded the email Mr Jolley sent Mr Giannopoulos at 9.20am on 14 June 2019 had the effect Dr Ng suggests. The consistent position of the CSIRO from 21 May 2019 onwards was that it was not prepared to make any financial offer of settlement in relation to this matter. I consider the email Mr Jolley sent Mr Giannopoulos at 9.20am on 14 June 2019 simply confirmed that the CSIRO was not prepared to entertain any financial settlement of the matter but would entertain treating Dr Ng’s dismissal as a resignation (to be referred to as a retirement) if Dr Ng agreed to discontinue his unfair dismissal application and execute a deed of release “including the usual terms”. Further, I consider the offer conveyed later that day indicates that Mr Giannopoulos understood the basis upon which the CSIRO would be prepared to settle the matter.
[78] The terms of the offer conveyed by Mr Giannopoulos were clear. Further, the acceptance conveyed by Mr Jolley in the email he sent to Mr Giannopoulos at 1.53pm on 17 June 2019 corresponded to the offer. It did not deviate or depart for the terms of the offer. It was an unequivocal. I am satisfied a “reasonable recipient of the acceptance would have regarded it as corresponding to the offer.” 61 I am satisfied the language used by Mr Jolley in the acceptance of the offer was such as would convey to a reasonable person in the position of the Dr Ng a clear and definite decision by the CSIRO to be bound by the terms of the offer, leaving nothing further to be negotiated.62
[79] I have noted the submission Dr Ng made in his email dated 16 July 2019 that he had been assured that “until all the fine terms are sorted out satisfactorily and mutually acceptable by both parties, and most importantly until the agreement are endorsed, negotiated terms are only tentative and remained non-binding”. However, I am not persuaded by the submission of Dr Ng that the settlement proposal conveyed by Mr Giannopoulos was such that there would not be agreement reached until there was a signed settlement agreement. This was not a term of the offer conveyed by Mr Giannopoulos. The question to be determined in this case is what was agreed on 17 June 2019 when Mr Jolly sent the email to Mr Giannopoulos at 1.53pm and I am satisfied a completed agreement was reached and that it was not conditional in any sense on an agreement being signed, noting this was the question considered by the Full Bench in Zoiti-Licastro v Australian Taxation Office. 63 If Mr Giannopoulos did not act in accordance with Dr Ng’s instructions when making the offer on 14 June 2019, this is a matter Dr Ng will need to take up with Mr Giannopoulos.
[80] I have had regard to the email correspondence sent to the Commission by Mr Giannopoulos on 20 June 2019 and Mr Jolley on 21 June 2019, both of which included a reference to the parties having reached “in-principle agreement” and in the case of Mr Jolley’s the statement that the agreement “is subject only to the parties entering into the terms of settlement”. Although I consider that both Mr Giannopoulos and Mr Jolley were not precise in the language they employed, I have had regard to the statement of the Full Bench in Sydney Trains:
“…such words must be construed in the context in which they appear and the commercial setting in which the parties were operating. 64 In each case, “much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them”.65
[81] In the circumstances of this matter, the words “in-principle agreement” and “is subject only to the parties entering into the terms of settlement” were used after the unequivocal acceptance by the CSIRO on 17 June 2019 of the offer conveyed by Mr Giannopoulos on 14 June 2019. On the facts before me, I am not persuaded the parties had agreed to any deviation from the agreed outcome during the period between the acceptance on 17 June 2019 and the email correspondence to the Commission on 20 and 21 June 2019.
[82] I have considered the submissions of the parties in relation to the statement contained in Dr Ng’s email to Mr Jewell at 1.05pm on 17 June 2019 “The matter has been resolved.” Considering it in context and having regard to Dr Ng’s explanation I do not consider it conveys that Dr Ng considered at that time that settlement had been reached with the CSIRO. It was sent prior to the CSIRO’s acceptance of the offer that had been conveyed by Mr Giannopoulos on 14 June 2019.
[83] I am therefore satisfied that Dr Ng and the CSIRO reached agreement having regard to the intention disclosed by the language Mr Giannopoulos and Mr Jolley employed in their email correspondence on 14 and 17 June 2019. The agreement reached was:
• The CSIRO would rescind the dismissal and allow Dr Ng to retire from his employment;
• The CSIRO would provide Dr Ng with a Statement of Service, outlining his period of service, position, duties and confirming the retirement;
• The parties would enter into the standard Fair Work Commission Terms of Settlement.
[84] I am satisfied the agreement fell within either the first or second category described in Masters v Cameron and, in either case, that there was a binding contract. The agreement was immediately binding. Dr Ng is entitled to insist that the CSIRO rescind the dismissal, allow him to retire and provide him with a Statement of Service, outlining his period of service, position, duties and confirming his retirement. The parties are otherwise entitled to the benefit of the terms in the standard Fair Work Commission Terms of Settlement.
[85] In Australia Postal Corporation v Gorman 66, Besanko J held that the existence of a binding settlement or “accord and satisfaction” extinguishes the existing cause of action and replaces it with a new cause of action based on the agreement.67
[86] His Honour stated:
“[33] There is nothing in the Act which suggests that an accord and satisfaction should not be recognised. At a general level the object of Chapter 3 Part 3-2 and the general statements of the manner in which FWA is to perform its functions and the matters to which it is to have regard are consistent with the recognition of an accord and satisfaction. Furthermore, the words of subsection 587(1) are wide enough to include the recognition of an accord and satisfaction. As I have said, 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.” 68
[87] As can be seen from Australia Postal Corporation v Gorman, if there is a binding agreement between the parties, the Commission has the power under s.587(1) of the Act to dismiss an application on the basis that it has no reasonable prospects of success.
[88] Section 587(1) of the Act provides as follows:
“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.”
[89] As I have found that the parties reached agreement and I am satisfied that the agreement was of the first or second type discussed in Masters v Cameron, I am persuaded that I should exercise my power under s.587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success. The settlement agreement that was made is a complete answer to Dr Ng’s claim that he was unfairly dismissed.
[90] For the reasons outlined above, I find that Dr Ng entered into a binding settlement of his claim and therefore, his application for unfair dismissal remedy is dismissed. An Order to this effect will be issued in conjunction with this Decision.
DEPUTY PRESIDENT
Appearances:
Dr Say Teong Ng on his own behalf
Mr Rory Jolley, solicitor, for the Respondent
Hearing details:
2019
Melbourne:
30 August 2019
Printed by authority of the Commonwealth Government Printer
<PR712624>
1 Affidavit of Rory Emmett Jolley affirmed 21 August 2019 at paragraphs (13)-(24).
2 Ibid at paragraph (23) and Exhibit REJ-18.
3 Attachment described as “Service Termination”, attached to the Submissions sent to the Commission by Dr Ng on 14 August 2019
4 Affidavit of Rory Emmett Jolley affirmed 21 August 2019 at paragraphs (26)-(28) and Exhibit REJ-19.
5 Attachment described as “CSIRO_conditions”, attached to the Submissions of Dr Ng sent to the Commission on 14 August 2019 and referred to by him as the “precondition email”.
6 Exhibit REJ-1 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
7 Attachment described as “iphoneInstruction”, attached to the Submissions in Reply sent to the Commission by Dr Ng on 23 August 2019.
8 Attachment described as “Difficulties”, attached to the Submissions of Dr Ng sent to the Commission on 14 August 2019.
9 Ibid.
10 Ibid
11 Exhibit REJ-3 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
12 Exhibit REJ-4 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
13 Exhibit REJ-5 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
14 Exhibit REJ-7 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
15 Ibid- see email chain of correspondence.
16 Exhibit REJ-6 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
17 Exhibit REJ-8 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
18 Exhibit REJ-12 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019
19 Exhibit REJ-13 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019
20 [2017] FWCFB 4562.
21 [2015] NSWCA 313 (Pavlovic) at [15]
22 See, for example, Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 (Brambles)
23 Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 (Redowood) at [84]
24 Boreland v Docker [2007] NSWCA (Boreland) at [76]-[78]
25 Boreland at [76]; Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 at 26-27
26 Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130 (Brookfield) at [34]
27 Brookfield at [30]-[31]
28 Brookfield at [35], applying Howe v Connell [1997] NSWSC 432 and Stevenson v McLean (1880) 5 QBD 346
29 Redowood at [76], applying Carter v Hyde (1923) 33 CLR 115
30 Redowood at [84]
31 Capital Securities No. 1 Pty Ltd v Saliba [2016] NSWSC 1093 (Saliba) at [77]
32 Evans Deakin Industries Ltd v Queensland Electricity Generating Board (1984) 1 BCL 334
33 Saliba at [53]-[54], applying B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 per Glass JA
34 Stephenson v Dwyer [2006] NSWSC 1439 at [37]
35 Donaldson Coal Pty Ltd v Pacific National (NSW) Pty Ltd [2007] NSWSC 1446 (Donaldson Coal) at [91]
36 DonaldsonCoal at [91]
37 Masters v Cameron [1954] 91 CLR 353.
38 Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 (Baulkham Hills)
39 Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432
40 [1954] 91 CLR 353
41 Ibid at 360.
42 Citing the discussion in Pavlovic v Universal Music Australia Pty Limited [2015] NSWCA 313at [150], in which the Court adopted the statement of principle in Lucke v Cleary (2011) 111 SASR 134 at [60]-[62].
43 Exhibit REJ-10 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
44 Exhibits REJ-6 and REJ-8 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
45 Exhibit REJ-8 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
46 Where the parties completely agree upon all of 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.
47 Attachment described as “CSIRO_conditions”, attached to the Submissions of Dr Ng sent to the Commission on 14 August 2019.
48 Attachment described as “NgCSIRO_REMEDY”, attached to the Submissions of Dr Ng sent to the Commission on 14 August 2019 at paragraph (9).
49 Exhibit REJ-7 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019
50 Attachment described as “NgCSIRO_REMEDY”, attached to the Submissions of Dr Ng sent to the Commission on 14 August 2019 at paragraph (10).
51 Ibid at paragraph (17).
52 Ibid at paragraph (40).
53 Attachment described as “Anderson”, attached to the Submissions of Dr Ng sent to the Commission on 14 August 2019.
54 Exhibit REJ-7 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
55 Fair Work Commission Rules 2013- Rules 11(1) and 11(3).
56 Lawyers and paid agents practice note, paragraph 21.
57 Ibid, at paragraph 13.
58 [2015] NSWCA 313at [150].
59 (2011) 111 SASR 134 at [60]-[62].
60 Exhibit REJ-1 to the Affidavit of Rory Emmett Jolley affirmed 31 July 2019.
61 Redowood at [76], applying Carter v Hyde (1923) 33 CLR 115
62 Per Redowood at [84]
63 Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [12].
64 Donaldson Coal Pty Ltd v Pacific National (NSW) Pty Ltd [2007] NSWSC 1446 (Donaldson Coal) at [91]
65 [2017] FWCFB 4562at [52], citing DonaldsonCoal at [91]
66 [2011] FCA 975.
67 Ibid at paragraph [31].
68 Ibid at paragraph [33].
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