Boyter v Tayco Pty Ltd [1998] QIRC 102 (1998) 157 QGIG 199

-- 198 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 March, 1998 20 March, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 199 ######## #########################11######################## QUEE�SLAND INDCSTRJAL RELATIONS COMMISSIO!'< WorAplace Relatwnr Act 1997 $. 218(1) -appli.ation for reinstatemen t Kay Boyter AND Tayco Pty Ltd (No. 81494 of /997) CHIEF 1/\DCSTRJAL COMMISSIONER HALL I O March I 998 Application for Rein.�a1emen 1 - Assenion Matter Se ttled - In tention 10 Creart Legal Relatwns - Agreement or Agreement to Agree - Applicant Unrepresen ted in Ne gotiations - Setrlemem Upheld - Proceedin gs Stayed Conditionally on Payment of Settlement Sum to Applican t DECISION On 14 Augu.st 1997 Kay Boyter filed an application for reins1a1emc11110 he r former position with Tayco Pty Ltd. Tayco Pty Ltd i .< a corpor a1ion under the Corporauon s Law and is very much a family company. II i., subs1an1ially sraJ'fed hy the applicant's sihling,< and thei r matrimon ial panne r.s. [I is contende d by 1he respondent that the mauer h,�< been setrled. Reliance i.s placed upon an agreement entered 1n10 a t the conciliation conferen ce held in the Commission pur�'llant to s. 219()) of the Workplace Rela/1011.t Act /997. The conference wa.$ held on 28 Oct()ber 1997. For the purpo.se.s of the c0nfcrence the Comnuss1on was co11�11tute d l>y Comrnis$ioner Swan. The con fercm:c of 28 Octohc:r 1997 led 10 the execu1ion of a docume.nt which I .stt forth hdow - CASE M) R..1494..OF 199..7.. DISMISSAL CONFF,RENCE App<:•rins fol' APPLICANT ............... . .... ...Applicant..Mrs Boyter. Appearing for Rf.5P0!\1>E-:?\T.............. Mr J. Wells... Alkn. 1\llen and Hemsley. C01"FERENCE DATES .. 28.. /.l0../.97.. ... ..!.... .!..... .. ..../.... ./.... ....!.....!..... COS CILIATJON Sl 'CCESSFU, I. MATIER RESOLVED BY AGREEMEl'oT RH.-,rd or Outeome • Complele Rele�·ant Temu Iii Respondent to pay $.... 5.980 .. ....w applicam. '--�--�eJ Payrncnt w 1• subject to tax. nvt subject to la)(. El Reference /� D Ne.w Employment Separation Certificate. 6ZI Confidentiality. D 611 Settlement within ...... 14.... days. Withdraw al vf Application upon term< of Setrlement being carried Olli. 0 Applicant espondenl to draft D«�d. JA. MA'nER RESOLVED BY DECISION OF A.PPLICAYf .'\OT TO TAKE TO TRIAL SIG.'\ED: APPLICA:-:T.... ................K. 13o)1e r.... RESPO:--;DENT.. ........ ...... J. Wells for respondent.. .. COMMISSIONER...... ...D. A . Swan.. On the original documen t the signature .. K. Boyter'' is in the applicant's handwriting, 1he signature "). w.,11, for rt:sponden1" i.s in Mr Wells' handwriting, the .5ignature .. D.A. Swan" is in Commissioner Swan '.< handwriting, the figure "SS,9&0" and the word ·•gross" ar e ha ndv,rilten and the words .. ,ubject to tax". ''Certificate of Se r,·ice" and .. Respondent 10 draft Deed" are c ircled in handwriting. In re-,-ponse 10 th.:, daim 1ha1 the matter ha,; been sellle d, the applicant .suhmits - {a) The agreement is not supported hy consideration ; (h) TI,e agrt:c.meot wa.s nor inten ded to he legally hinding; and (c) Th� agreement was subject to future agreement on the. te rms of the De ed of Settlement a nd the Ceniticate of Service to which the docum en t refors a nd such an agre.e m�nr li,ts not been reached. To understand the first of the applicant'., sulmus.<ions i1 is necessMy to go 10 the mailers which were in di.<pule between 1he parties at the confcr�nce on 28 October I 997. T he apphcant cl aimed. amongst olher lhing.s, that she had not been paid in respe<.:1 of a�TtJed long service leave en1i1lement.s upon her ternunarion. It was contende d by rhe re;μond�nt that t.ht: applica ni did 001 have an cutitlemenl to long service l�ave hccause the period of her service had no r hcen continuou.�. The ,um of $5,980 i.s the amount 1he applicant would t>c cn1i1led 10 in re.��-<:l of accrued lo ng .service kaw i f the rc,JX>ndcnt is inwrrect. The app[i<.:ao1 claim, that the respondent', contention is misconceived and that, in ag reeing to pay her $5,980, 1hc respondent w:« agreeing to do 1hat which it was obliged by statute to do in any c\'ent. (n my view the applk.an t's .-;uhn1is�ion is in<.:on.'-i.r..1ent wi th authority. In \Viga11 , , Edwards (1973) 47 ALJR 586 al 588, �c n21e..s J adopte.d the obscr varions of William, J in th� cou11 below (1hc Pull Cou11 of 1he Supre me Court of Qutc11sland) ..The authorities make ii clear that it was only oecessary for 1he plaintif[< 10 have a.,;.�ert"d a claim which though invalid at law. they genuin el y thought was good.". At 594, Mason J note.J chat ..The general rule is that a promise 10 1,�rform •n existing Jury i.< no con.,idcration ...". He we:nt on to say. howc\'er. that .. An 1rnpooant qual.ilication to the general principle is that a promise to do prcci.se,ly what the prnmisor i.s a lr eady bound to do is suffic1en 1 con.sidaatioo, when it is given hy way of a bona fide compromise of a di.,pur,,<l claim ...". Those pas.sage.< ha\'� recently he«n a dopted hy Han dley JA ,n Spies ,., Commo11wec1/th /lank ofi\u.vtralia (1991) 24 ;\SWl.R 691 al 698. In th1s ca$c I am satisfied that, at the till'lc of the conference. the respon de nt disputed the applicant's claim to paymen t in respect of long servic e leave. Indeed, the r�spondent disputes it now. The applican t ad rni1.� lo being physically absent from work f or a period. However, she claims 1ha1 for 3 month< .she was absent on unpaid leave with the con.sent of her (now) dec ea.<ed father and that the remaining per iod of ahsencc did not exc.:cd 3 months. h is the n sai d that the ahsenc� is protec1ed by s. 197(1)(<.:)(i) and (iii) of the Workplace Rdarions Acr /997. In my ,·kw. 1t 1.s inheren tly probable that such an explanation would be queried rather than a,�cepte d. Indeed, T entertain some scep11cirn1 about the explanation myself. It did not appear in the affidavit filed by the applicant on 2 Fe bruary 1998 and did not surface until. by leave, the respondent tendered a fllflher affidavit execute.cl on the m<>n1ing of the trial. In any event, it is plain that the claim ,n respect of long service leave wa.5 and is disputed and honestly disputed. I reject the submission tha t Callisher v Bisc hoffslieim (I 870) LR 5 QB 449 estahlishes that 10 constitute good consideration a claim must he r<'asonable as well a,- honest. (I do accept, howe ver, that lack of rea.<ona bleness may lea d to an inference that the claim is not honest.) What Cockburn CJ said, at 452, wa., that if a party "...bona 26174_1.D(X: -- 1 of 2 -- 200 QUEENSLAND GOVERNMENT lNDUSTRIAL GAZETTE 20 March, 1998 fide believes h" has a fair chance of succes.<. he has a reasonahle ground for .suiog.. :·. That is yuite a different proposition. JI is to be noted that in Spies v CommO!lw�a/th Bank of Australia (J 991) 24 :'ISWLR 69 J at 698. Handley JA con.s,dered Callis/ta v Bi.vcho/fsheim (I 870) LR 5 QB 449 as an early statement of the rule suh,e4uently a.<sened in Wigan v Edwards (1973) 47 ALJR 586. The case of ARRA LE v Co.rtain Civil En8i11eerit1g Ud I I 9761 I Lloyd's Rep 98 is enlirely differenl. In that case, under the relevant Workers Compensation Scheme. the defendant had a defence availahle to it if it pnwcd that the plaintiff deliherately contravened in.<truclions. The dc.fcndant dcctc:d not to mvunt that defence and paid the plr,intiff the .statutory amount. The plaintiff signed a receipl acknowledging the payment w;s, .. ... in full satisfaction and discharge of all claim, in respect of personal injury ... arisi ng... frorn... lthe l accident...". The plain1iff brought a common Jaw action for damag<!.,. The defendant anempted 10 rely on 1he rec,e1p1 with the har to the common Jaw claim. It wa� inevitable that the defence would fail. The reli nquishing of the statu1ory defence to the workers· COtnp<'nsation claim could not consti1u1e good con.sideration after the d�fondanl, knowing what it wa.s doing, had elected not to mount that defonee.. To the e;,itent that the observations of L ord Denning MR, at I 02, a.ssen a wider proplisition, I am not persuaded to follow them. The applicant's olhe.r suhmi!'.sions are that there was no intention to cr�ate legal relations and that what wa.s entered into was an agreement to agree. These i.5sues are intertwined and are hest deal! with together. In shon form. th.s claim i.s that the applicanl thought that nothing was scnled on 28 Octooer 1997. The asseninn is that she thought the crudal document was the Deed to which the memorandum ex.ecuted on 28 October J 997 refers. She thought that if she did not sign that Deed because she was dissatisfied with it, terms or dissatisfied with the Certificate of Scn•ice or for any other rea.<on, 1he matter would go 10 a hearing. It is ditlicult to accept that any rea.<onahle JJ<!r.son might so have con�1rued the document. I rcfor 10 the heading "CONCILIATIO!'< SlJCCESSt'UL" and to the headings "l\-1ATTER RF.SOLVED BY AGREEME�T", Record of Outcome - Complete Rele,·ant Tenns. Plainly enough the document conlemplatc.< the preparation and execution of a Deed. The circumstance that a document comemplatcs the execution of a further document does not neces.sarily lead to the conclusion that !he panies have agreed to agree. Jn Masters v Cwnaofl (1 ?54) 9 1 CLR 353 at 360. Dixon CJ. McTiernan and Kit10 JJ, in what is now a well known pa.<sage, .<rtid:- "Whete parties who have hcen in negotiation reach agreement upon tcrrns of a contractual nature and also agret that the mailer of their nego1iation shall ),., dealt with hy a formal contract, the case may belong 10 any of three cla.,.se�. I t may he one in which rhc parties have reached linality in arranging all the terms of their bargain and intend to be immediately bound 10 1he performance of tho.se terms. hut at the same time propose to have the tams restated in a form which will be fuller and more precise hut not different in effect. Or, secondly, it may he a case in which the parties have: ,ompJ e1cly agreed upon all the terms of their hargain and in1«nd no depanure from or addition to that which 1heir agreed terms expre.,s of imply, but ncverthele.�s have made performance of one or more of lhe terms condilional upon the exe<:ution of a formal document. Or, thmlly. the c;cse may he one in which the intention of the pat'lie.< is not to m,,kc a condudet! bargain at all, unless and until they execute a formal contract. In each of the fir.,t two cas�.s th�rc is a binding contract: ill 1h11 first case a conu:act hinding th� parties at once to perform the agreed terrn.s whether the contemplated formal document comes into existence or not. and to join (if !hey have .so agreed) in sellling ,,nd executing the formal document; and in the second case a contract binding the pan1e.s 10join in hringing the formal contrac1 into existence and then to carry it into execution.". In the present case, on the face of the document, the agreement i.s of the sce<.)nd type. All the terms of the bargain have been identified and agreed upon. No departure from or addition to that which their agreed term� express or imply is intended. Those agreed terms make the ohligation 10 pay the sum of S5.980 aod to deliver a ccnifica1e of service c:onditional upon the execution of a deed containing the agreed terms. Compare Ryan v Fumeys Stock Feeds Pty Ud dated 14 August J 997 (unpubli.shed decision of !he lndu.<trial Relittions Court of Australia, :--:SW). The applicant swears that she can recall her husband a.sk.ing Commissioner Swan what would happen if she did not sign !he document (in her under.standing a reference to the Deed) and that Commissioner Swan replied "The rnaller will go to hearing'' or word, to that effect. The appl icant's husband also gives evidence 10 that effect. Mr Wells, the solicitor acting for the respondent, gives quite different evidence. He tells me that that conversation did not occur. He says that what happened was that, while Commissioner Swan was filling out the memorandum of agreement. she told the applicant that "This would be an end to all claims.". When !he applicant raised the rnat1er of claims which the respondent had against her. Commissioner Swan made clear that those claims were not covered. Mr Wells says that Commi.<,sioner Swan stated that only !he applicant's claims were being hrought to an end by the agree,rnent. Mr Well.s is a reputable solicitor well known in this Commis.sion. He ha.s no interest in misrepresenting what occurred. II i.s inherently unlikely that Commissioner Swan w<>uld have solicited execution of the memorandum of agreement without ac4uainting an unrepresented pany with the conse.4ucnccs of execution. 'vlr Wells, and . indeed the applicant's hushand, recollect that Commi!'.sioner Swan commenced the conference by explaining to the panies the: purpose of the confen:nce. It ,tands 10 reason that Commissioner Swan would have done so. The applicant denies that such a hriefing occurred. I think it likely that her recollection is flawed. Additionally, it is unlikdy that the applicant would have soughl advice about the conscqucoce of executing the De.ed without also taking advice about executi()n of the document. I have decided to reject the evidence of the applicant and her hushand. TI1e applicant asserL5 that .she did not intend to seule her claim on 28 Oclob�r I 997 and did not intend that the l�rn\5 agreed upon io the memorandum should he binding upon her. I have some douhts ahout that evidence hut, in any event, i ntention to be legally bound, like the terms of an agreement, is to be objectively ascertained. Some compl aint has heen made !hat the applicant was not legally represented at the conciliation conference. It often happens that panies are not legally represented at conferences. Jndeed the \Vorkplace Relations Act (1997) (regrellably) denies a pany the right to be legally represented at as. 219( J) conference unkss !he other pany consents. There is not the least sugge;iion that the applicant was overborne, nor could there be. The conference was supervised by Commissioner Swan. Acceptance of the submission that the mere absence of legal representation is sufficient, 10 deny �ffec1 to a selllement (a proposition for which no authority has heen cited) would destroy the utility of the conference program. I reject the submission. The applicant takes the funher point that the agre.eme,111 has nol been performed. She 1s 4uite right. The agreement is not being peri'ormed. h is not being performed because she ha.s not honoured her obligation to execute the Deed. The applicant cannot repudiate the agreement on the hasis of her own breach. I am, however, concerned that the sum agreed upon has yet to be paid to !he applicant. To dismiss the application for reins1a1.emeo1 and leave the applicant to pursue the SS,980 in the civil courts seems to me to be wasteful of time and of money. Mr Kelly of counsel, who appears for the respondent, s.x,ks to waive the requiren-..,nt of execution of a Deed and seeks the stay of lhe& proc�edings conditionally on the respondent paying the su.m of $5,980 to the applicant. That wa.s the solution adopted by Witco,, CJ in Ryan v Fu meys Sr,><:k Feeds Pty l..Jd dated I 4 Augu�, 1997 (unpuhlished decision of the Industrial Relation.I Court of Australia, NSW). In my view each of s. 289(1 )(a) and s. 341 (a)(v) are a .sufficient .«)UrCe of power. The respondent asks for co.<;ts. The .submission i.s that this is an interlocutory proo.:eding and, in con�-cquence., the source of the power to award wsLs is s. 341 (a)(viii). It is put that !he principles governing the txerci.1e of the power to award costs at .<. 341 (a)(v1ii) are those developed by President de Jersey in fother v L,,ctLt O 997) 155 QGIG J 058 at I 058. For reasons which I developed in To,rnsvi/le Cil)' Council v Brennan 157 QGIG 92 at 93, J am satisfied that it is s. 225(1) and not s. 350 which is the source of power to award COSL5 in !he case of a complaint of unlawful dismissal. For 1he same reasons, I consider .,. 225( I) to be the relev:,nt head of power where an interlocu1ory application is made in !he course of proce.edings in respeet of an unJa..,ful dismissal. In the present case. there is no ba.<is for concluding !hat the application for relief wa.s made frivolou.sly, vexatiously or without reasonable cauSe. The substance of the. c:sse made is that in pre.ssi ng the application after execution of the memorandum of 28 October J 997 the applicant caused cost to he incurred by the respondent "because of an unreasonable act or omission connec1ed with !he conduct of lhe apphcallon", see s. 235(1)(b). Given the close family relationship between all those who were participants in the transaction I think it highly likely !hat some measure of trauma auached 10 the conference of 28 Oct<>l>er 1997. I note that, in the course of his evidcnce, Mr Wells said !hat he discussed !he terms of seulement with the applicant and her husband (in the presence of Commis.<iooer Swan) and in the absence of any officer or employee of the respondent. The reason for !his was because of the way in which the conference had developed, a point had been T20 March. 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZE'ITE reached where it was more likely that the parties would reach agreement if they were not in one an()(her·s company. I can understand that in !hose circum5tanccs the applicant and her hushand might have an inadequate <>r erronemrs recollection of 1he events. The applicant lO<)k advice. Ha solicitor has not acted in a cavalier fashion. It is apparent from the suhrnissions which he ha.s made and the authorities to which he ha.s referred that he brought a coosiderable amount of diligence to bear. The circumstance that a case fails does not mean it wa.s unreasonable 10 mounl it. J n all the circurnstance.s I dismis.< the application for co.,ts. ) order that the respondent pay to the applican1 the .sum of $5.980 <1nd deliver a Cenificate of Service . I order that upon paymen1 of tha1 amount and delivery of 1h11 Certificate, the appl ication currently be.fore mo:: I,,: pem1anently stayed. I add that the ohhgation is 10 deliv('r a Cenificale of Service n(� a Certilicale satisfactory to the applkanl. I shall not entenain an application to vacat,, the orde.r ha.�ed on dissatisfaction. It will of course h" otherwis� i f the document cannot be characterised as a Ctnificate of Service.. Dated this tenth day of March, 1998. D.R. HAL L. Chief Industrial Comrru.s.qonu. Appearances:- Mr (i. I. HoJland of Holland and Holland for the applicant. Mr D. Kelly instructed hy All..:n, Allen and Hemslq for the rc.spondent. Operative Date: ":-/A Decision -Senle.menl Cphcld Rekas.:d: 1 1 March 1998 ########################################################## 20 1 -- 2 of 2 --