Wu v Enterprise CRM Solutions (Holdings) Pty Ltd

[2022] FedCFamC2G 731

Federal Circuit and Family Court of Australia

(DIVISION 2)

Wu v Enterprise CRM Solutions (Holdings) Pty Ltd [2022] FedCFamC2G 731

File number(s):

SYG 255 of 2022

Judgment of:

JUDGE MANOUSARIDIS

Date of judgment:

2 September 2022

Catchwords:

PRACTICE AND PROCEDURE – at the end of a mediation the parties agreed to settle a proceeding in contemplation of the parties executing a document – whether parties entered into binding agreement at the mediation and if so on what terms – binding agreement made but performance of most of its terms dependent on parties executing document.

Legislation:

Fair Work Act 2009 (Cth) s 169

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 139, 169

Superannuation Guarantee (Administration) Act 1992 (Cth) s 19

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases cited:

Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441

Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540

Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622

Construction, Forestry, Maritime, Mining and Energy Union v Abseal Pty Ltd [2021] FCA 1513

Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510

Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55

Hafertepen v Network Ten Pty Limited [2020] FCA 1456

Masters v Cameron (1954) 91 CLR 353

Otto Energy (Tanzania) Pty Ltd v Swala Energy Ltd (No.2) [2017] FCA 1180

Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555

Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310

Division:

Fair Work

Number of paragraphs:

28

Date of last submission/s:

26 August 2022

Date of hearing:

19 August 2022

Place:

Sydney

Solicitor for the Applicant:

Ms E Rowe of Slater & Gordon Lawyers

Solicitor for the Respondents:

Mr A Tees of Legal Exchange

ORDERS

SYG 255 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

HAIBIN WU

Applicant

AND:

ENTERPRISE CRM SOLUTIONS (HOLDINGS) PTY LTD ACN 632 007 866

First Respondent

BENJAMIN HORIN

Second Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	2 september 2022

THE COURT DECLARES THAT:

1.At the conclusion of a mediation that occurred on 22 April 2022 the applicant and the respondents concluded an agreement containing the following terms:

(a)Within 21 days after the applicant provides to the respondents the deed of release referred to in (b) the respondents must:

(i)pay to the applicant $13,500;

(ii)provide to the applicant pay slips;

(iii)provide to the applicant “PAYG summary/certificate for FY20-21”; and

(iv)provide to the applicant the deed of release referred to in (b) executed by each of the respondents.

(b)The applicant must provide to the respondents a deed of release executed by him which contains:

(i)terms to the effect of (a)(i), (ii), and (iii);

(ii)a standard term or terms by which the applicant, on the one hand, and the respondents, on the other, release each other of all claims they have against the other, other than in relation to statutory entitlements;

(iii)a standard term or terms by which the applicant and the respondents covenant to keep the contents of the deed of release confidential; and

(iv)a standard term or terms by which the applicant and the respondents covenant not to disparage each other.

THE COURT ORDERS THAT:

2.        The proceeding be listed for a directions hearing at 9:30 am on 23 September 2022.

3.The reasons for judgment on the basis of which the declaration is made will be published on unless by 9 September 2022 the parties request the Associate to Judge Manousaridis by email that the reasons for judgment not be published on The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

introduction

1. On 22 April 2022 the parties and their legal representatives participated in a mediation conducted by a Registrar of this Court. The mediation ended after the parties and the Registrar came to believe the parties had reached an agreement. The parties, however, are now in dispute about what they agreed and, to the extent the parties did agree on anything, whether they are bound by their agreement.

   jurisdiction

2. The Court has jurisdiction to determine whether the parties have entered into a binding agreement to settle the proceedings under s 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act),[1] which provides:

   In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either:

   (a)       absolutely; or

   (b)       on such terms and conditions as the Court thinks just;

   all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:

   (c)  all matters in controversy between the parties may be completely and finally determined; and

   (d)  all multiplicity of proceedings concerning any of those matters may be avoided.

   [1] See in relation to equivalent provisions Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510; Otto Energy (Tanzania) Pty Ltd v Swala Energy Ltd (No.2) [2017] FCA 1180; Hafertepen v Network Ten Pty Limited [2020] FCA 1456; Construction, Forestry, Maritime, Mining and Energy Union v Abseal Pty Ltd [2021] FCA 1513; Roberts v Gippsland Agricultural and Earth Moving Contracting Co Pty Ltd [1956] VLR 555

   facts

3. The applicant, Mr Wu, commenced a proceeding in this Court for relief under the Fair Work Act 2009 (Cth) (FW Act). Mr Wu claimed he had been an employee of the first respondent (ECRM); ECRM failed to pay Mr Wu wages and accrued but untaken annual leave; contrary to s 19 of the Superannuation Guarantee (Administration) Act 1992 (Cth), ECRM failed to pay to Mr Wu’s nominated superannuation fund amounts equivalent to 9.5% of Mr Wu’s ordinary time earnings no less frequently than once per quarter; and ECRM failed to provide pay slips to Mr Wu, contrary to s 536(1) of the FW Act.

4. On 16 March 2022, when the proceeding came before me for a first court date, I ordered the respondents to file and serve their defence, and that, pursuant to s 169 of the FCFC Act, the matter be referred to a Registrar for mediation. The respondents filed a response in which they denied Mr Wu’s claims, and in which ECRM claimed that Mr Wu pay it $257,608.42. ECRM alleged that this amount represented the sum of overpayments ECRM made to Mr Wu “as detailed in paragraph 11 of the Affidavit of Claire Krzyzanowski”.

5. The mediation was conducted on 22 April 2022 via Microsoft Teams. Six people participated in addition to the Registrar - Mr Wu and his partner, Mr Wu’s lawyer (Ms Leverington), the second respondent, Mr Horan, and the respondents’ lawyers (Mr Tees and Dr Petersen). After the parties’ legal representatives made their opening statements, the parties and their representatives went into a “private session”. Each party communicated offers to the Registrar who in turn communicated the offers to the other party. This continued until the stage at which the parties and the Registrar believed an agreement had been reached.

6. There are a number of items of evidence that are relevant to determining whether the parties agreed, and what they agreed. The first are notes Ms Leverington made in the course of the mediation, and these include the following:

   [Registrar] back 1:36 – 1:39

   EL: [Mr Wu] will agree to $13,500 gross

   -     Payslips, certificate and payment to be provided within 14 days of execution of Deed by [Mr Wu] (might take a week or more for me to draft deed and have it agreed, no reason they can’t start preparing to meet their obligations now)

   -     Applicant's solicitor to draft Deed

   After mediation, please email parties confirming terms of agreement.

   [Mr Wu] and [Mr Wu’s partner] 1:39pm – 1:58pm

   . . . .

   Message from [Registrar] – 1:54pm – will [Mr Wu] agree to 21-day timeframe?

   EL response: yes we are comfortable.

   [Registrar] back 1:58pm – 1:59pm

   [Registrar]: To confirm, we have reached an agreement:

   1.        $13,500 (gross) – 21 days

   2.        Payslips – 21 days

   3.        Certificate – 21 days

   4. Deed prepared by EL with mutual release (carve outs for statutory entitlements)/confidentiality/non-disparagement

   [Registrar] to send email this afternoon confirming with parties. To let judge know.

7. The second item of evidence are the following passages from Ms Leverington’s affidavit:[2]

   I clearly recall saying to [the Registrar], in the context of making an offer of settlement to be put to the Respondents, words to the effect “The Deed will include terms for mutual confidentiality and non-disparagement and a mutual release with carve outs for legislative entitlements to workers’ compensation and superannuation”.

   When [the Registrar] returned from speaking to the Respondents, I clearly recall that he said to me words to the effect “They will agree to mutual confidentiality, mutual non-disparagement and a mutual release with statutory carve outs”.

   [2] Affidavit of E Leverington 3.06.2022, [14], [15]

8. The third item of evidence is that which Mr Horan gives in his affidavit. Mr Horan says that throughout the mediation he took notes “of what was said by the parties and [the Registrar]”. Mr Horan’s notes are in evidence.[3] The notes, however, do not appear to attempt to set out what was said by the Registrar, or by Mr Wu, or by Ms Leverington. In particular, Mr Horan’s notes do not record the substance of any offer or counter offer the Registrar communicated to Mr Horan or his lawyers Mr Wu had made; or of any offer or counter offer Mr Horan or his lawyers communicated to the Registrar. In large part, Mr Horan’s notes are a commentary on what occurred:

   •Wow, back and forth negotiating for [Mr Wu]. Looks like they don’t want to entertain paying $257,000. How about less to clear this matter up? Unlikely they will accept anything to pay.

   •Ohh they want us to pay first? . . . .

   •This hearing is back and forth, [Mr Wu] won’t get what he wants and Slater and Gordon won’t get what they want and likely we won’t get what we want.

   •What is the go with these individuals? Do they have a comprehension problem? I have stipulated at least 3 weeks to provide payslips not within 3 weeks? . . . . .

   •This will be an interesting future chat with [Dr Peterson] and [Mr Tees] and Slater and Gordon after this session. No one is getting what they want here.

   [3] Exhibit A, but referred to in Mr Horan’s affidavit as annexure “BH-1”

9. In his affidavit, on the other hand, Mr Horan deposes that throughout the mediation a number of offers were exchanged between the parties and conveyed by the Registrar, noting that while the amount the respondents proposed be paid to Mr Wu changed with each offer, as did the timeframe for the performance of obligations, “each offer made by the Applicant included the stipulation that any agreement between the parties would be captured in a Deed of Settlement and Release which would bar all future claims by each party against each other including the cross claim included in our filed Response” (emphasis in original). Mr Horan also deposes that he understood that when an “in principle” agreement had been reached, as conveyed by the Registrar, Mr Wu’s lawyers would prepare a deed of settlement and release which would become binding once each party agreed on its precise terms.

   Once in terms of what I understood to be an in principle agreement had been reached, as conveyed between the parties by [the Registrar], I understood that the Applicants’ Solicitors would prepare the Deed of Settlement and Release which would become binding once each party agreed on its precise terms capturing the terms of settlement. I understood the terms were as follows:

   a. that at least 21 days after the Applicant providing an executed copy of the Deed of Settlement and Release to the Respondents' solicitor, the First Respondent was to:

   pay a settlement sum of $13,500.00 (gross) to the Applicant; and

   ii. provide the Applicant with all payslips in respect of his employment with the First Respondent; and

   iii. provide the Applicant with the PAYG Certificate for the 2020-21 financial year, in respect of his employment with the First Respondent; and

   b.the Deed of Settlement and Release was to contain provisions for mutual release which would bar all future claims by each party against each other with, mutual confidentiality and mutual non-disparagement.

   I also understood that the parties had agreed that the Respondents' timeframe for performance was to begin once a copy of the Deed of Settlement and Release had been agreed and signed by the Applicant and the Respondents…

10. The fourth item of evidence is the following email the Registrar sent to the parties’ legal representatives at 2:14 pm on 22 April 2022:

    I refer to our meeting today in relation to the mediation of the above matter.

    I confirm my understanding that the parties reached an in principle agreement to resolve this dispute upon the following bases:

    1. Respondents pay to the Applicant the settlement amount of $13,500 gross;

    2. Second Respondent to provide the Applicant with all payslips throughout his employment;

    3. Second Respondent to provide the Applicant with his 2020/2021 PAYG Certificate; and

    4. Settlement be subject to the execution of an appropriate Deed of Release (which shall contain usual clauses with respect to mutual releases - save for statutory carve-outs; mutual confidentiality; and mutual non-disparagement).

    NB: 1, 2 and 3 above to be paid/provided by the Respondents/Second Respondent within 21 days after being provided with a Deed of Release executed by the Applicant.

    As advised at the conclusion of our meeting, I will advise the judge that the parties have reached an in principle agreement to resolve the dispute and subject to the execution of an appropriate Deed the proceedings will be finalised in due course. I will now formally conclude the mediation.

    Congratulations to achieving this settlement and thank you for your assistance during the mediation.

11. At 4:37 pm on 22 April 2022 Ms Leverington sent the following email to Mr Tees and to Dr Petersen:

    I refer to the above matter.

    Thank you for your participation in the mediation today.

    I confirm that the parties have agreed to resolve this matter on the following basis:

    1. The Respondents will, within 21 days of receiving an electronic copy of the Deed of Release executed by the Applicant:

    o         pay to the Applicant $13,500.00 (gross);

    o provide to the Applicant all payslips reflecting payments made to him throughout his employment, in the required form; and

    o provide to the Applicant his 2020-21 PAYG Certificate.

    (collectively, the Benefits)

    2. The Deed of Release is to contain clauses providing mutual release (with carve outs for statutory entitlements to superannuation and workers compensation), mutual confidentiality and mutual non-disparagement.

    3. The Applicant will discontinue these proceedings following receipt of the Benefits provided in the Deed.

    I will prepare and provide to you a Deed of Release for review early next week.

12. It is at around this point that a dispute arose about what had been agreed at the mediation. In an email sent to Ms Leverington at 8:24 am on 23 April 2022 Dr Petersen referred to Ms Leverington having stated in her email of 22 April 2022 that the deed of release was to contain clauses providing mutual releases with carve outs for statutory entitlements to superannuation and workers compensation. Dr Petersen said that workers compensation was never discussed, let alone agreed upon. Dr Petersen said that the respondents would not object to carving out workers compensation provided the deed of settlement would include a term to the effect that Mr Wu has not been injured in the course of his employment with ECRM and would, therefore, not be entitled to workers compensation.

13. Further communications followed between the parties, but it is unnecessary to set these out.

    principles

14. The relevant set of principles the dispute between the parties engage are those that deal with the formation of contracts, particularly where, as is the case here, the parties have concluded an agreement after oral negotiations but contemplated that their agreement would be recorded in a document to be signed by both parties. Also relevant are the principles for construing words of terms the parties have, or may have agreed.

15. I begin with the principles concerning the formation of contracts. Whether a contract has come into being will depend, in many cases, on whether there has been an offer made by one party that has been accepted without qualification by the other party. Whether an offer has been made and accepted is determined objectively. The “legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions”.[4] What this means in the context of a contract for sale, and which can be applied to all contracts that are claimed to arise after a series of offers and counter offers have been made, was explained by Lord Diplock in Ashington Piggeries Ltd v Christopher Hill Ltd:[5]

    In each of the instant appeals the dispute is as to what the seller promised to the buyer by the words which he used in the contract itself and by his conduct in the course of the negotiations which led up to the contract. What he promised is determined by ascertaining what his words and conduct would have led the buyer reasonably to believe that he was promising. That is what is meant in the English law of contract by the common intention of the parties. The test is impersonal. It does not depend upon what the seller himself thought he was promising, if the words and conduct by which he communicated his intention to the seller would have led a reasonable man in the position of the buyer to a different belief as to the promise; nor does it depend upon the actual belief of the buyer himself as to what the seller's promise was, unless that belief would have been shared by a reasonable man in the position of the buyer. The result of the application of this test to the words themselves used in the contract is ‘the construction of the contract’.

    [4] Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55, at [34]

    [5] Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441, at page 502, quoted by Gleeson CJ in Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, at page 549

16. The principles of offer and acceptance apply to the circumstances of this case. The mediation largely consisted of one party initiating negotiations by making an offer, those negotiations continuing by the parties making counter offers, and the negotiations concluding by one party accepting without qualification a counter offer. The offer, counter offers, and acceptance were conveyed through the medium of the Registrar, who may be taken to have acted as the agent of the parties for the purpose of conveying to a party the initial offer, each of the succeeding counter offers, and the unqualified acceptance of the last counter offer.

1. The next set of principles are those that apply where parties who have reached an agreement contemplate that they will record it in a document. The starting, and usually the end, point of identifying these principles is the judgment of the High Court in Masters v Cameron.[6] The question in that case was whether a written agreement setting out the essential terms of an agreement for the sale of a property, but expressed to be “subject to the preparation of a formal contract of sale which shall be acceptable to [the vendor’s] solicitors”, constituted a binding contract for sale.[7] The High Court identified three classes of case in which the parties agree on the essential terms of an agreement and yet contemplate their signing a further document:[8]

   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.

   [6] Masters v Cameron (1954) 91 CLR 353

   [7] Masters v Cameron (1954) 91 CLR 353, at page 359

   [8] Masters v Cameron (1954) 91 CLR 353, at page 360

2. In Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd,[9] McLelland J noted that the judgment of the High Court in Sinclair, Scott & Co Ltd v Naughton recognised an additional category of case where parties who have reached an agreement contemplate a further document to be signed; and that is where “the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms”.[10]

   [9] Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622, at page 628

   [10] Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310, at page 317

   parties’ submissions

3. Mr Wu submits that the parties reached an agreement at the mediation; and they intended to be bound by that agreement, even though the parties contemplated that the terms of their agreement would be reduced to writing which each party would sign. Mr Wu, therefore, submits that the parties’ agreement falls within the first class of case identified in Masters v Cameron. Mr Wu further submits that the parties explicitly agreed on the mutual releases excluding “statutory workers compensation claims”, noting that the exclusion of such claims and superannuation are standard terms in agreements to settle claims made by employees.

4. The respondents, on the other hand, submit that the exclusion of statutory claims for workers compensation from releases given in settlement of employee’s claims under the FW Act are not standard terms; and the issue of workers compensation was “not directly discussed or canvassed at the mediation”.[11] The respondents accept that in his email of 22 April 2022 the Registrar referred to the parties executing a deed of release containing “usual clauses with respect to mutual releases – save for statutory carve-outs”; but the respondents submit the parties had no common understanding of the expression “statutory carve-outs”. The respondents rely on the communications between the parties after the Registrar sent his email which, the respondents submit, show there has been no certain agreement between the parties about exclusion to mutual release. The respondents further submit that the agreement the parties reached at the mediation fell within the third class of case in Masters v Cameron.

   [11] Submissions on Behalf of the [respondents], [19] (emphasis in original)

   whaT was agreed?

5. This is to be answered, not by reference to the parties’ understanding or beliefs of what had been agreed, but by reference to evidence of communications to and from the Registrar during the mediation. There is evidence of the communications between Ms Leverington and the Registrar, first, in the form of the notes she took during the course of the mediation and, second, of her recollection of some of those communications. Of particular relevance is the extract from the notes I have reproduced in paragraph 6 of these reasons. According to those notes, the last counter offer was made by the respondents; and it related to whether Mr Wu would accept payment of the $13,500 within 21 days. Mr Wu, through Ms Leverington, accepted the counter offer, and Ms Leverington requested the Registrar communicate that acceptance by communicating that the parties had reached an agreement on the following terms:

   1.        $13,500 (gross) – 21 days

   2.        Payslips – 21 days

   3.        Certificate – 21 days

   4. Deed prepared by EL with mutual release (carve outs for statutory entitlements)/confidentiality/non-disparagement

6. Although Mr Horan has given evidence of his understanding that the mediation ended with an agreement, and he sets out in his affidavit his understanding of what was agreed, Mr Horan does not depose to the matters on which he relies for that understanding. In particular, Mr Horan does not depose to the substance of words the Registrar spoke in relation to the terms on which Mr Wu was prepared to agree or did agree to settle his claims. Further, Mr Horan does not address whether the Registrar communicated words to the effect that there would be a mutual release with a carve out of statutory entitlements. Additionally, neither Mr Tees nor Dr Petersen has given evidence. In those circumstances, I am satisfied that the Registrar communicated to the respondents Ms Leverington’s statement that the parties had reached the agreement on the terms Ms Leverington communicated to the Registrar; and on the Registrar’s so doing all parties assented to those terms.

7. Further, although Ms Leverington in her affidavit deposes she recalls using the words “workers compensation” in her communications with the Registrar, this is not recorded in the notes Ms Leverington made of Mr Wu’s acceptance of the respondents’ last counter offer. Ms Leverington’s notes refer to “carve outs for statutory entitlements” without referring to “workers compensation”; and the probabilities are that the Registrar communicated to the respondents the effect of Mr Wu’s acceptance of the respondents’ last counter offer without using the words “workers compensation”. I am therefore satisfied that the parties did not expressly agree that there would be a carve out for workers compensation entitlements. That, however, does not mean that the parties did not agree that the mutual releases that were to be included in the deed of release would contain a carve out for “statutory entitlements”; the parties did so agree.

8. Thus, the agreement the parties made at the conclusion of the mediation is as follows:

   (a)The respondents must pay to Mr Wu $13,500. The respondents must do so within 21 days after Mr Wu provides to the respondents a signed deed of release that contains the terms of the agreement. That the respondents’ payment was agreed to be made after Mr Wu signs and submits a deed of release is apparent from the earlier counter offers made during the mediation.

   (b)The respondents must deliver to Mr Wu pay slips in relation to his employment. The respondents must do so within 21 days after Mr Wu provides to the respondents a signed deed of release that contains the terms of the agreement.

   (c)The respondents must deliver to Mr Wu a “certificate” within 21 days after Mr Wu provides to the respondents a signed deed of release that contains the terms of the agreement. “Certificate” means the “PAYG summary/certificate for FY20-21” identified in the counter offer Ms Leverington, on behalf of Mr Wu, communicated to the Registrar at 1:03 pm to 1:10 pm.

   (d)Mr Wu through his lawyers must draft and provide to the respondents a deed of release executed by Mr Wu reflecting the terms in (a), (b), and (c), and incorporating standard clauses by which Mr Wu and the respondents agree:

   (i)to release each other of all claims, other than “statutory entitlements”;

   (ii)to keep the terms of their settlement confidential; and

   (iii)not to disparage each other.

   (e)By no later than 21 days after Mr Wu provides to the respondents an executed deed of release, the respondents must execute and provide it to Mr Wu.

9. These terms do not make self-evident the meaning of “statutory entitlements”. In my opinion, however, it is reasonably clear that reasonable persons in the position of the parties, acting with legal assistance, would have understood “statutory entitlements” to be entitlements provided by or pursuant to any statute that cannot be excluded by contract. There is a dispute between the parties whether rights conferred by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) can be excluded by contract, and the parties, pursuant to leave I granted at the hearing, provided written submissions addressing that question. It is unnecessary to determine that question because I am satisfied that, viewed objectively, the evidence supports the finding, and I find, that the parties had a common understanding of the expression “statutory entitlements”, that understanding being entitlements provided by or pursuant to a statute that cannot be excluded by contract.

   is the agreement binding?

10. In my opinion the agreement I have found the parties made falls within the second class of case identified in Masters v Cameron. The respondents’ obligations to pay to Mr Wu the $13,500, and to deliver to Mr Wu payslips, the certificate, and a deed of release executed by the respondents, is to accrue 21 days after Mr Wu provides to the respondents a deed of release executed by him. In other words, the agreement contemplates that its operative provisions have been agreed, but they would all take effect on the parties executing a deed of release in the form contemplated by the agreement.

    disposition

11. I propose to make a declaration to the effect that at the conclusion of the mediation the parties entered into an agreement to the effect of the agreement I found they made, and list the proceeding for a directions hearing at 9:30 am on 23 September 2022. This will give Mr Wu’s lawyers an opportunity to submit to the respondents a deed of release that reflects the agreement I have found the parties made, and gives the respondents an opportunity to consider whether the deed does reflect such agreement. I anticipate that, before 23 September 2022, the parties will have agreed to, and executed, a form of deed of release, and they will have provided to my associate’s inbox proposed consent orders to finalise the proceeding. If, however, the parties will be in dispute about whether the deed of release Mr Wu provides does not reflect the agreement I have found the parties made, Mr Wu should, at the directions hearing on 23 September 2022, be in a position to produce the form of the deed of release he submits reflects the agreement, and apply to have the proceeding set down to determine whether an order for specific performance of the agreement I have found the parties made should be made, or whether some other relief should be granted.

12. Finally, no party at the hearing applied for a non-publication order in relation to the terms of the agreement the parties reached at the end of the mediation, even though one of the terms of the agreement is that it be kept confidential between the parties. In those circumstances, I will reserve to the parties liberty to send an email to my Associate by 9 September 2022 requesting that these reasons for judgment not be published on If the parties do not so request, these reasons for judgment will be published on after 9 September 2022.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.

Associate:

Dated:       2 September 2022