Welfare v Birdon and Sands Pty Ltd

[1996] IRCA 489

DECISION NO:489/96

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - PRACTICE AND PROCEDURE - whether agreement to compromise proceedings.

Industrial Relations Act 1988 ss179, 170DE.





 Howes v Miller [1970] VR 522;
Paynter v Willems [1983] 2 VR 377;
Purdue and Ors. v Brown & Hatton Rural Pty Ltd and Ors. (1995) 60 IR 451.









WELFARE v BIRDON & SANDS PTY LTD
DI95/1222

Before:  MURPHY JR
Place:  DARWIN
Date of hearing:       13 SEPTEMBER 1996
Date of judgment:    13 SEPTEMBER 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

DI95/1222

BETWEEN:

ROBERT JAMES WELFARE
Applicant

AND

BIRDON & SANDS PTY LTD
Respondent

BEFORE:     MURPHY JR
PLACE:       DARWIN
DATE:          13 SEPTEMBER 1996

MINUTES OF ORDERS

THE COURT ORDERS AND DECLARES THAT:

1. These proceedings have been settled between the applicant and the respondent on terms that the respondent pay to the applicant the sum of $4,000.00 to be paid to the applicant within seven days of 6 June 1996 and that the parties execute a deed of release.

1. The proceedings are dismissed.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY

DI95/1222

BETWEEN:

ROBERT JAMES WELFARE
Applicant

AND

BIRDON & SANDS PTY LTD
Respondent

BEFORE:     MURPHY JR
PLACE:       DARWIN
DATE:          13 SEPTEMBER 1996

REASONS FOR DECISION

Delivered ex tempore - revised from the transcript

The respondent, by notice of motion filed 5 July 1996, seeks a declaration that these proceedings have been settled between the applicant and the respondent on terms of settlement annexed to the affidavit of Russell Craig Byrnes, sworn 28 June 1996. 

The evidence on the motion came only from Russell Craig Byrnes in the form of the said affidavit. The applicant did not cross-examine Mr Byrnes although he was available for cross-examination by video-link. In his affidavit, Mr Byrnes swears to an agreement to compromise the proceedings. The agreement was entered between himself, on behalf of the respondent, and Mr Tom Roberts, a solicitor, employed by a trade union, the CFMEU. The applicant signed the original application in these proceedings which alleged unlawful termination of employment. On the Court file is an application under s178 of the Industrial Relations Act (“the Act”) on behalf of Mr Welfare, signed by Mr Tom Roberts, solicitor. Mr Byrnes deposes that the proceedings were settled on 6 June 1996 between himself and Mr Roberts on the basis of a payment of $4,000.00 to the applicant within seven days with a release to be signed. Annexed to the affidavit were Terms of Settlement which Mr Byrnes said, except in relation to paragraph 3 thereof, were orally agreed between himself and Mr Roberts the following morning, 7 June.

Mr Byrnes deposes that later that day, the applicant denied that the proceedings had been resolved and there the matter remains.  It was not put to Mr Byrnes that the respondent had not, pursuant to the terms of the agreement, offered to the applicant the $4,000.00 agreed settlement sum.  The applicant argued that there had been no agreement.  He argued that he had not signed any deed of release nor received the $4,000.00 settlement amount.  He relied on Howes v Miller [1970] VR 522 to argue that there had been no satisfaction here.

I am satisfied that there was an agreement between the parties as evidenced in paragraph 14 of the affidavit of Mr Byrnes.  Mr Roberts had authority to make that agreement on behalf of the applicant and he has not been called to deny that it was made.  The decision in Howes v Miller (above) is distinguishable because there was no allegation that the agreed amount had not been tendered.  The position is thus similar to Paynter v Willems [1983] 2 VR 377.

The matter is also somewhat similar to Purdue and Ors. v Brown & Hatton Rural Pty Ltd and Ors., (1995) 60 IR 451, where it was held that there had been an agreement to compromise proceedings at a conciliation conference. Wilcox CJ held, however, on the facts in that case, that the agreement had not been met and that the applicants were entitled to reinstate their case. The important point is that he held that there had been an oral agreement to compromise those proceedings. That is the position here. It follows that I reject the arguments of Mr Welfare and am prepared to make a declaration as sought by the counsel for the respondent.

The declaration that I make is that these proceedings have been settled between the applicant and the respondent on terms that the respondent pay to the applicant the sum of $4,000.00, to be paid to the applicant within seven days of 6 June 1996, and that the parties execute a deed of release. 

I certify that this and the preceding two (2) pages
are a true copy of the reasons for decision of
Judicial Registrar Murphy as recorded in the transcript
and revised by the Judicial Registrar.


Associate:      KAREN HALSE
Dated:           13 September 1996


APPEARANCES

Applicant in person
Counsel appearing for the respondent:	MR M SPARGO
Solicitors for the respondent:	CRIDLANDS
Date of hearing:	13 SEPTEMBER 1996
Date of Judgment:	13 SEPTEMBER 1996