Stephen Baskin v Friends Resilience Pty Ltd

[2017] FWC 5410

[2017] FWC 5410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009 s.365—General protections (consent arbitration)

Stephen Baskin
v
Friends Resilience Pty Ltd
(C2017/3229)

DEPUTY PRESIDENT DEAN SYDNEY, 24 NOVEMBER 2017

Application to deal with a general protections dismissal dispute by consent arbitration – offer and acceptance - whether binding settlement reached at conciliation – application dismissed.

[1] On 6 April 2017, Mr Stephen Baskin made a general protections application pursuant to s.365 of the Fair Work Act 2009 (the Act). Mr Baskin claimed that his dismissal by Friends Resilience Pty Ltd (the Respondent) on 22 March 2017 was in contravention of sections 340, 343, 344 and 358 of the Act.

[2] A conciliation conference with a Fair Work Commission conciliator was held on 22 May 2017 by telephone. On 2 June 2017, a certificate was issued by me pursuant to s.368 of the Act to certify that the Commission was satisfied that all reasonable attempts to resolve the dispute had been, or are likely to be, unsuccessful.

[3] On 15 June 2017, the parties notified the Commission of their consent to arbitration of the general protections dispute under s.369 of the Act.

[4] The Respondent advised the Commission by email on 19 June 2017 that there was disagreement between the parties as to whether the application was settled at the conciliation conference. The parties agreed that this issue should be dealt with before the matter was heard on its merits, because the determination of the preliminary issue may avoid onerous evidentiary burdens incumbent on parties in a merits hearing. I agreed with this approach.

[5] In summary, the Respondent contended that Mr Baskin was barred from any further proceedings, and his application should be dismissed under s.587 of the Act, because of the settlement it alleged was reached during the conciliation conference. Mr Baskin contended that while a verbal agreement was reached to settle his claim, at no time was he informed by the Conciliator that the verbal agreement was to be binding. 1

[6] The matter was heard in Brisbane on 6 September 2017. At the hearing both parties were given permission to be legally represented under s.596(2) of the Act. Mr G McCartney of Simmons & McCartney appeared for Mr Baskin and Mr J Wells of King & Wood Mallesons appeared for the Respondent.

[7] During the proceedings, I indicated to the parties that the power of the Commission to dismiss a matter pursuant s.587 of the Act, on the ground that it has no reasonable prospects of success, did not extend to general protections applications because of s.587(2). However, in the context of the matters raised, I indicated further that I considered I could proceed to arbitrate the matter pursuant to s.369(2) of the Act and determine whether a binding settlement had been reached at conciliation. Both parties concurred with this view. 2

[8] There is no dispute, and I am satisfied, that I can deal with this application pursuant to section 369 of the Act, including by making an order to dismiss the application.

[9] For the reasons set out below, I am satisfied that there was a concluded agreement reached to settle Mr Baskin’s general protections application and accordingly Mr Baskin’s application will be dismissed.

Conciliation conference on 22 May 2017 and subsequent communications

[10] On 22 May 2017, a telephone conciliation conference was conducted by Ms E Priest (the Conciliator). Both parties were legally represented at the conference: Mr Baskin by Mr Wallace and the Respondent by Mr Wells and Ms Paxton-Hall.

[11] A verbal settlement was reached during the conciliation conference.

[12] It was agreed that the Conciliator would draft the terms of settlement using the Fair Work Commission ‘standard terms’. Evidence from the parties indicates that the document headed ‘Terms of Settlement’ prepared by the Conciliator was not acceptable to Mr Baskin and was subsequently not signed.

[13] The Conciliator sent an email to the parties on 26 May 2017 3 in the following terms:

‘Dear Parties

I refer to the agreement reached between the parties during the conciliation conference held on Monday 22 May 2017, and to the terms of settlement circulated by me shortly afterwards on that day.

I refer to the notification received from the Applicant’s representative that the Applicant seeks to re-open negotiations, and to the new offer submitted by the Applicant on 25 May 2017, which I have relayed to the Respondent’s representative for consideration.

I confirm the Respondent declines to re-open the negotiations, as the matter was resolved by agreement reached at conciliation conference. The Respondent does not consider it is appropriate for a certificate to be issued pursuant to s.368(3)(a) of the Fair Work Act, as the matter has already resolved, in a forum where each party was represented at the conference and was provided opportunity to consider each offer presented. It has asked me to convey that it intends to rely upon the agreement reached for costs purposes, should the Applicant pursue endeavours to reopen the negotiations.

For the avoidance of doubt, I concur with the view that an agreement was reached during the conciliation conference.

Having now viewed the Fair Work Commission’s standard terms, the Respondent asked for an amendment to better tailor those standardised terms to the Applicant’s specific work arrangement, asking that the reference to ‘or under superannuation legislation’ in clause 3.7 be removed. Daniel [Wallace], I will await your response concerning that request.

Once that latter issue is resolved, my expectation, on the basis of the agreement reached to resolve the matter on 22 May 2017, is that the parties will execute terms to reflect the agreement reached on that date.

Kind regards,

Elizabeth Priest

Conciliator’

[14] Mr Baskin’s solicitors wrote to the Conciliator on 30 May 2017. The letter states, in part:

‘We note that while a verbal agreement was reached to settle, at no time was my client informed by the Fair Work Commissioner that a verbal agreement was to be binding.

The Terms of Settlement as provided by you are clearly at variance of what was discussed at the Conciliation and are not agreed as they are supplemental and outside the ambit of discussion.

Further, the Respondent was responsible for my client’s DSLR camera which the Respondent ‘lost’ when they unlawfully removed his possessions from premises where the Respondent boarded him and assumed responsibility for bailment. The DSLR Camera is a bailment and the Respondent is responsible for the return of or a replacement camera valued at $3,500.00.’

[15] The Respondent’s solicitors responded to Mr Baskin’s solicitors on 31 May 2017. The letter included the following:

‘As you know, we act for the Respondent and have been forwarded your correspondence with the Fair Work Commission in relation to settlement of this dispute.

We write to put you on notice that the Respondent holds the view, with which we concur, that a binding settlement was reached between the parties during the conciliation conference last week.

…..

For the record, we confirm an amount was agreed (being the Applicants number inclusive of an amount for legal fees), and the conciliation was adjourned on that basis. At no time did the Applicant reserve his position, so as to make the settlement binding only once a written agreement was signed.

Your letter, on its own terms, confirmed that the parties settled and are bound, whether or not the settlement is formally executed. In particular:

● Your letter confirms that a verbal agreement was reached. This is unanswerably correct. That the Applicant was not informed that this arrangement is binding seems to be entirely a matter between him and his advisers. As you would or should know, a verbal agreement is as binding as any other;

● The terms provided by the Commission may well not be consistent with the settlement that was reached. But that does not mean that there was no settlement. It simply means that the terms provided may require amendment to reflect the deal that was done. This is precisely what the Respondent did, by removing the superannuation carve-out. This was never discussed. If the Applicant has issues with the written terms, the correct approach is to ensure the document reflects the deal, not pretend that no deal was done;

● The basis for the Applicant’s reneging on the deal is apparent, i.e. a matter is now being advanced that was never raised in conference. The Applicant is attempting to avoid a done deal, simply because he has identified a matter he wished he had thought of earlier. That is no basis to avoid a binding settlement.’

[16] The letter prompted a further reply from Mr Baskin solicitors on 31 May 2017 in the following terms:

‘I refer to the above and your letter of even date.

We note that on Friday 26 May 2017, your client requested an amendment to the Settlement terms, specifically asking that the reference to “or under superannuation legislation” in clause 3.7 be removed.

The request to remove the superannuation clause is clear evidence that the terms of the settlement were not agreed by the Respondent.

We confirm our position that the Conciliation held on Monday 22 May 2017 was on a “without prejudice” basis and therefore was not binding unless a deed of settlement was executed.

Any agreement reached was on a ‘without prejudice’ basis and therefore not binding.

We retain our position’.

[17] There was further communication between the parties and the Conciliator, and on 1 June 2017 the Conciliator advised the parties that she would refer the matter to a Member of the Commission to assess whether or not reasonable attempts to resolve the matter had been, and were likely to be, unsuccessful.

[18] A certificate was issued by me pursuant to s.368 of the Act, on the basis that it was at that time (ie. before the parties consented to arbitration) beyond the jurisdiction of the Commission to determine the application or otherwise impose an outcome on the parties. 4

Baskin’s evidence and submissions

[19] Mr Baskin gave oral evidence and was cross examined. He had previously filed a statement dated 28 August 2017 5.

[20] Mr Baskin’s statement indicated that during the conciliation conference, he decided to accept an offer made by the Respondent on the condition that the Respondent paid his legal fees. He said that this counter offer was accepted by the Respondent.

[21] Mr Baskin’s evidence was that the Conciliator, during the conciliation conference, advised the parties that an agreement had been reached ‘pending the execution of the terms of settlement’. This was disputed by the Respondent. It was put to Mr Baskin in cross examination that the correspondence from his lawyers immediately after the conciliation conference made no assertion of any comment made by the Conciliator that the agreement was subject to a settlement document being signed. Mr Baskin accepted this proposition.

[22] Mr Baskin gave evidence that ‘at no time during the conference, did Ms Priest advise me that the verbal agreement reached was binding’ 6.

[23] Mr Baskin said in his statement that, having reviewed the terms of settlement document prepared by the Conciliator, he could not accept the terms for the following reasons:

1. The draft terms of settlement prevented him from discussing the settlement offer with third parties.

2. The terms also precluded him from making any further claims, such as his camera with an approximate value of $3,500.00 which was lost during the course of his eviction from his residence owned by the Respondent.

3. The Respondent sought to amend the terms of settlement to remove a reference to superannuation which would result in the Respondent not being required to pay his superannuation entitlements.

[24] In cross examination, Mr Baskin accepted that at no time during the conciliation conference did he raise any issue in relation to his camera. He further accepted that superannuation was not discussed during the conciliation conference.

[25] Mr Baskin conceded in cross examination that he did not take notes during the conference and that his evidence was based on his recollection of the conciliation conference.

[26] In submissions, Mr Baskin’s solicitors argued that for an enforceable contract to come into existence, four essential requirements must be satisfied. Those requirements are agreement, consideration, intention, and certainty. In relation to ‘agreement’, the submissions on behalf of Mr Baskin included that ‘it is not disputed that an agreement was reached at conciliation, rather that the Respondent sought to have the terms of the agreement varied’.

[27] Mr Baskin’s solicitors submitted that the circumstances of this matter fall within the third class of the scenarios discussed in Masters v Cameron (Masters) 7, that being that the parties did not intend to make a concluded bargain at all, unless and until they executed a formal contract.

[28] Mr Baskin relied on the decision in West v AGC (Advances) Ltd 8 where McHugh J said:

‘A contract may be unjust under the [Contracts Review] Act because its terms, consequences or effects are unjust. This is substantive injustice. Or a contract may be unjust because of the unfairness of the methods used to make it. This is procedural injustice. Most unjust contracts will be the product of both procedural and substantive injustice.’

[29] Mr Baskin said that to enforce any alleged agreement now would be unjust. He further submitted that the Respondent cannot seek to enforce an agreement where they themselves have departed from the terms of the settlement.

[30] In closing oral submissions, Mr Baskin’s solicitors said: ‘our point is that the settlement agreement provided by the conciliator after the event changed what my client thought was the terms of the settlement. Specifically there was an exclusion of any other forms of action … He did not raise the camera at that time because presumably he did not consider it was part of the employment arrangement … He wants to recover it one way or another’.

[31] Mr Baskin’s solicitors referred to correspondence by the Respondent’s lawyers in which it was suggested that the Respondent was happy for the Conciliator to draft the terms of settlement as long as they were able to review it. It was submitted that this evidenced an intention that the Respondent expected to have to approve the terms before the settlement was effected. The following exchange then took place 9:

DEPUTY PRESIDENT: But again couldn’t that be read, Mr McCartney, as simply being read to ensure that it reflects the terms of the agreement that had been reached?

MR McCARTNEY: Yes, well, that – yes, correct.

DEPUTY PRESIDENT: I’m just wondering how?

MR McCARTNEY: Yes, correct. But then there’s other terms in it that weren’t agreed or weren’t reached. They are still reserving their right to review it. Obviously my people were seeking their right to review it as well.

DEPUTY PRESIDENT: Sure. Wouldn’t both parties reserve their rights to review it to ensure that it did actually reflect the terms of the settlement that had been reached?

MR McCARTNEY: Your Honour, by implication I think that reservation is now. I mean, you’ve got Ms Priest saying, “I’ll send out the draft terms of the settlement for you to have a look at”, and surely it means for you to consider, review and agree or disagree, as it may be.

DEPUTY PRESIDENT: But again isn’t it agree or disagree, consider or review in the context of ensuring that the document reflects the agreement that’s been reached?

MR McCARTNEY: Yes.

DEPUTY PRESIDENT: Right.

MR McCARTNEY: Yes. The request does – well, our point is that it didn’t reflect it.

DEPUTY PRESIDENT: But that doesn’t mean, does it, that if it doesn’t reflect the agreement that’s reached - isn’t the work then that needs to be done to modify the document; vary, change, redraft the document so that it does reflect the settlement that was reached?

MR McCARTNEY: Well, possibly but - - -

DEPUTY PRESIDENT: As opposed to being then no settlement?

MR McCARTNEY: I don’t see those as being the options that were put forward. I think this was produced. If it had been viewed in such a way our response to it might have been quite different.

You see, Annabelle Paxton-Hall says the same thing:

‘Ms Priest asked us whether we’d want to draft terms of settlement or if we’re happy for her to draft them. Mr Wells said he was happy for her to draft the deed but as long as we had an opportunity to review it.’

It’s the same thing. It’s paragraph 8 of the statement of Annabelle Paxton-Hall. So quite clearly the respondent and the respondent’s legal team anticipate that there’s going to be a review. May be agreement, maybe disagreement. The way the deed of settlement was put to us, we consider it was untenable because of the prohibitions on other actions; superannuation. Generally I think your Honour can read into this that my client did change his mind about the settlement amount which often happens as you know, especially given that he was no longer going to be able to initiate any action in relation to the lost camera.

[32] Mr Baskin’s solicitors also accepted that they did not write to the Respondent and put to the Respondent that the terms of settlement did not, in their view, reflect the agreement reached at conciliation, nor did they propose amended wording so as to reflect the agreement.

The Respondent’s evidence and submissions

[33] Witness statements were tendered for the Respondent by Ms Linda Dick (Finance Officer of the Respondent) and Ms Annabelle Paxton-Hall (a solicitor of King & Wood Mallesons) who both had participated in the conciliation conference on 22 May 2017.

[34] The Respondent’s evidence set out in detail the events that transpired during the conciliation conference. Attached to a second statement filed by Ms Paxton-Hall were nine pages of handwritten notes which she stated were taken during the conference and upon which her recollection of the events relied.

[35] Both Ms Dick and Ms Paxton-Hall were not required for cross examination and their statements 10 were admitted into evidence without objection.

[36] Ms Dick said that the Respondent accepted Mr Baskin’s offer to settle for $5,396.50, following its counter offer being rejected. The Respondent also agreed that it would pay the settlement sum within 7 days of both parties signing the settlement document. Ms Dick said that the parties also agreed with the Conciliator’s proposed use of the phrase ‘work arrangement’, instead of employee or independent contractor, given this issue was an integral part of the dispute.

[37] In relation to the reference to superannuation in the draft terms of settlement, Ms Dick said:

‘When Ms Priest sent through the draft deed of release to the parties, it carved out Mr Baskin’s ability to make any future claims under superannuation legislation. We received advice that we should request this be removed because we had not discussed this at the conference.’

[38] As to the issue relating to Mr Baskin’s camera, Ms Dick said:

‘I was surprised by this because I had never seen this camera and this issue was not raised at the conference. I saw this as an attempt to reopen negotiations.’

[39] Ms Paxton-Hall’s statement concurred with that of Ms Dick. Ms Paxton-Hall also said:

‘Ms Priest then brought all parties into a joint session and said that we had accepted Mr Baskin’s offer. She said that she would draft the terms of settlement using the Fair Work Commission’s usual terms, which would include mutual releases, confidentiality and non-disparagement obligations. She then reiterated her proposal to use the phrase ‘work arrangement’ instead of employee or independent contractor throughout the deed. Both Mr Wallace and Mr Wells agreed with this approach. Ms Priest also said that she would circulate the deed once it had been drafted.’

[40] The Respondent relied on various authorities in support of its contention that a concluded agreement was reached between the parties during conciliation.

[41] The Respondent submitted that notwithstanding the parties never executed a document confirming terms, it is not a precondition to a settlement being concluded and binding on the parties. 11

[42] The Respondent submitted that the circumstances in which the agreement reached fall into class 1, or alternatively class 2, of the four categories discussed in Masters, that being:

Class 1 - the parties have agreed on all terms and intend to be immediately bound to perform those terms but at the same time propose to have the terms of their bargain restated in a form which will be fuller or more precise but not different in effect; or

Class 2 - the parties have agreed on all terms 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.

[43] The Respondent further submitted that the evidence of Ms Dick in her statement was that the Conciliator had confirmed the matter had settled.

[44] It argued that the responsibility for explaining the effect of the verbal agreement laid not with the Conciliator or any other person but with the applicant and his representatives, having been legally represented at the conference.

[45] The Respondent relied upon authority in Curtis v Darwin City Council 12 to support its contention that adjusting the draft terms of settlement document to ensure that the terms reflect the verbal agreement does not undermine the agreement itself. In its oral submissions, the Respondent submitted that ‘to amend a document that doesn’t match the terms agreed is not an amendment to the agreement; it’s to fix the agreement to reflect the terms. They’re quite different concepts … The Respondent never sought to have the terms of the agreement varied because the only variation that the Respondent sought was to take out the superannuation carve out … Even if we were seeking to amend that doesn’t mean the original agreement is not binding. It’s an offer to vary… If they don’t accept the changes, the deal is still there. You can’t amend the deal if the parties don’t agree’.

[46] In response to Mr Baskin’s arguments about the contractual requirements of certainty, intention and consideration, the Respondent argued that:

a. there was certainty about the terms of the settlement, as evidenced by discussions during conciliation and the correspondence between the parties following the conciliation conference;

b. Mr Baskin’s argument that the Conciliator did not inform him that any agreement reached would be binding did not support his submissions that there was no intention; and

c. it was a curious position for Mr Baskin to suggest there was no consideration simply because the Respondent had not yet paid the agreed settlement monies (noting it had confirmed it was ready, willing and able to do so).

[47] The Respondent argued that the issue of carving out superannuation contributions from the releases was not discussed at the conference and therefore did not comprise the terms of settlement. Further, it asserted that its suggestion to remove the provision was not an attempt to renegotiate or alter the agreement but to clarify the agreement as it was made at the conciliation, and that the clause was a material term in light of the parties’ dispute as to Mr Baskin’s employment status.

Legal Principles in relation to offer and acceptance of a settlement proposal

[48] In a recent decisionin Singh v Sydney Trains 13, a Full Bench of the Commission considered the legal principles applicable in dealing with the question of whether a binding settlement agreement had been reached. The legal principles set out by the Full Bench are as follows:

‘[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:

“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. 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.

● 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.

[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. A counter-offer accepted by the original offeror creates a binding agreement.

[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.

[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. However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating. 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”.

[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. 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.

[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.’ 14

[49] In Zoiti-Licastro v Australian Taxation Office (Zoiti-Licastro) 15, the Full Bench considered circumstances where a draft deed had been prepared which went beyond the terms agreed by the parties, and held that such a circumstance did not mean that the agreement reached was not binding.

Consideration

[50] To the extent that there is a dispute between the Respondent and Mr Baskin as to what occurred during the conciliation conference, I prefer the version of events put forward by the Respondent for the following reasons. First, the two statements of Ms Paxton-Hall included her handwritten notes, taken during the conciliation conference. Her notes support the version of events contended by the Respondent, in particular that an offer made by Mr Baskin had been accepted by the Respondent, and that it was agreed that the Conciliator would draft the terms of settlement using the Fair Work Commission’s usual terms, which would include mutual releases, confidentiality and non-disparagement obligations. Second, the Respondent’s witnesses were not required for cross examination. Third, unlike the Respondent’s witnesses, Mr Baskin did not take notes during the conference. As a result, I prefer the Respondent’s recollection of events. Fourth, it is clear from the correspondence that the Conciliator concurred with the view that a binding agreement was reached during the conciliation conference.

[51] As noted above, it is common ground that the conciliation conference resulted in verbal agreement being reached. It is generally accepted by the Commission and the Courts that a binding agreement does not have to be reduced to writing, and can be reached entirely by spoken words or conduct engaged by the parties 16. The issue that arises here is whether the parties intended to be bound immediately, or to be bound only when written terms were executed.

[52] I consider that the parties intended to be bound immediately for the following reasons.

[53] The evidence demonstrates that the offer and acceptance correspond precisely, and there was an unequivocal acceptance of the terms offered. There is no suggestion that the agreement reached during the conciliation conference was ‘in principle’.

[54] The evidence of the Respondent (which I prefer to the extent it differs from that of Mr Baskin), the written correspondence between the parties set out earlier, and the view of the Conciliator, all evidence an agreement between the parties was in fact reached. There is no evidence to support a finding that the agreement was subject to written terms, as asserted by Mr Baskin.

[55] I accept that the terms of settlement drafted by the Conciliator may not have accurately reflected the agreement reached between the parties. However as was held in Zoiti-Licastro, the fact that a document is prepared which goes beyond the terms of settlement reached does not mean that the agreement is not binding. The same principle applies in this case. It is clear from the evidence that at no time did Mr Baskin’s lawyers propose a form of words which in their view accurately reflected the terms of the settlement reached.

[56] The evidence, in my view supports a finding that subsequent to the conciliation conference, Mr Baskin changed his mind about the settlement agreement. This view is supported by the submissions made by Mr Baskin’s lawyer, set out earlier, in which it was stated ‘I think your Honour can read into this that my client did change his mind about the settlement amount …’. Further, Mr Baskin gave evidence that he did not accept the terms of settlement drafted by the Conciliator, not because it did not accurately reflect the terms of settlement, but because of the reasons set out in paragraph 23 above.

[57] There is no suggestion that Mr Baskin was subject to any duress in accepting the settlement offer. In fact, it was Mr Baskin’s offer that was accepted by the Respondent. Mr Baskin was legally represented during the conference, and there is no evidence that he was at any disadvantage.

[58] I am satisfied that the parties had ‘reached finality in arranging all the terms of their bargain and intended to be immediately bound to the performance of those terms, but at the same time proposed to have the terms restated in a form which will be fuller or more precise, but not different in effect’ (i.e. class 1 of Masters).

[59] I find that in reaching an agreement which included a mutual release, Mr Baskin has forfeited his rights to any further action against the Respondent. It follows that Mr Baskin’s claim has no standing and must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Grant McCartney for the Applicant

Mr Jamie Wells for the Respondent.

Hearing details:

2017.

Brisbane:

September 6.

 1   See letter from Applicant’s lawyers to Conciliator – SB3 in Exhibit 4.

 2   See Transcript PNs326-359.

 3   See Attachment LD-1 to Exhibit 1.

 4   See Delwyn Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321.

 5   Exhibit 4.

 6   Transcript PN22.

 7 (1954) 91 CLR 353.

 8 (1986) 5 NSWLR 610.

 9   Transcript PNs 389-405.

 10   Exhibits 1, 2 and 3.

 11   See Csontos v QT Hotels & Resorts[2016] FWC 3632 (Csontos).

 12   [2012] FWAFB 8021. (NB UD claim not caught by s587(2))

 13   [2017] FWCFB 4562.

 14   Ibid at [45] to [54].

 15   [2006] AIRCFB 45.

 16   See Csontos.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR596930>