Bishop v Woolworths Ltd [2008] QSC 154

SUPREME COURT OF QUEENSLAND CITATION: Bishop v Woolworths Ltd [2008] QSC 154 PARTIES: JACQUELINE KAY BISHOP (plaintiff) v WOOLWORTHS LIMITED ACN 000 014 675 (defendant) FILE NO: BS4747/06 DIVISION: Trial Division PROCEEDING: Determination of separate question DELIVERED ON: 15 July 2008 DELIVERED AT: Supreme Court, Brisbane HEARING DATE: 20 May 2008 JUDGE: Wilson J ORDER: CATCHWORDS: EMPLOYMENT LAW – THE CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW - GENERALLY - where plaintiff made claim for damages for injury suffered at work with the defendant under the WorkCover Queensland Act 1996 – where the Act prescribes procedural steps of compulsory settlement conferences and exchange of offers – whether the plaintiff’s claim was compromised in a telephone conversation with the defendant’s solicitor – whether a binding compromise was reached. WorkCover Queensland Act 1996 Acts Interpretation Act 1954 (Qld) COUNSEL: GJ Cross for the plaintiff RJ Douglas SC for the defendant SOLICITORS: Shine Lawyers for the plaintiff Blake Dawson for the defendant [1] Wilson J: The plaintiff claims damages for personal injuries sustained in the course of her employment by the defendant on 16 October 2000. The defendant pleaded that the plaintiff is not entitled to bring this proceeding as her claim was compromised on 26 April 2006. This is the determination of the question whether it -- 1 of 22 -- 2 was compromised as alleged, which was tried separately in advance of the trial of any other question or issue. [2] The claim was regulated by the WorkCover Queensland Act 1996, 1 by which various procedural steps and attempts to settle the claim had to be undertaken before litigation could be commenced. 2 [3] The defendant alleges - “11. In accordance with s. 293 of the WorkCover Queensland Act 1996, the Plaintiff and Defendant held a compulsory conference on 12th April 2006. 12. The claim of the Plaintiff did not settle at the said compulsory conference and each party exchanged a final written offer open for fourteen days. 13. On 26th April 2006 the Plaintiff orally advised Mr Traves of Abbott Tout, solicitors acting on behalf of the Defendant, that she accepted the final offer of the Defendant. 14. By reason of the matters pleaded in paragraphs 11 to 13 hereof the Plaintiff is not entitled to bring this proceeding as the claim was settled.”3 [4] In her reply the plaintiff admitted the allegations in paragraphs 11 and 12 of the defence and continued – “12. As to the allegations contained in paragraph 13 of the Defence, the plaintiff denies she orally advised Mr Traves of Abbott Tout, that she accepted the final offer of the Defendant. On 26 April 2006, the plaintiff called Mr Traves to enquire as to the amount of the statutory refunds, so as to further assess the Defendant’s final written offer. The Plaintiff still did not accept that offer. 13. As to the allegations contained in paragraph 14 of the Defence, the Plaintiff denies that the claim was settled. The defendants re-opened their Mandatory final offer by way of their letter dated 10 May 2006.” 4 [5] The plaintiff was initially represented by Trilby Misso Lawyers, but they ceased to act for her in about 2003. Thereafter she was unrepresented until her present solicitors took up the cudgels in late May 2006. 1 That Act has since been repealed, but it continues to apply to the plaintiff’s claim. Counsel agreed that Reprint 4A was applicable to this claim: Transcript of Proceedings on 20 May 2008, p 3. 2 WorkCover Queensland Act 1996 ss 293, 294 and 302. 3 Defence filed 7 July 2006, document no. 3 on court file. 4 Reply filed 8 September 2006, document no. 5 on court file. -- 2 of 22 -- 3 [6] The plaintiff attended the compulsory conference without legal representation. The final offers made pursuant to s 294 of the WorkCover Queensland Act 1996 were as follows – (i) the plaintiff's offer “to settle this claim in the sum of $50,000, clear of the refund, less any other applicable statutory refunds, with no entitlements as to costs”; (ii) the defendant's offer “to settle this claim in the sum of $10,000, clear of the refund, less any other applicable statutory refunds, with no entitlements as to costs”. The “refund” referred to in both offers was the refund of worker’s compensation benefits in the amount of $13,604.36. These offers were contained in letters signed by the plaintiff and Mr Graeme Traves on behalf of Abbott Tout, the defendant's solicitors, respectively.5 That these were the terms of the final offers was not in dispute in this hearing; nor was it in dispute that the offers were open for 14 days, the last day for acceptance being 26 April 2006. [7] At about 2.30 pm on 26 April 2006 the plaintiff telephoned Abbott Tout and spoke with Ms Michelle Shaw, a paralegal in the insurance section of the firm. She wanted to speak with Mr Traves (the partner acting for the defendant), but he was in Townsville. [8] According to the plaintiff, she told Ms Shaw that she needed to speak to Mr Traves about the offer, and asked that he call her back.6 Counsel for the plaintiff put it to Ms Shaw in cross-examination that the plaintiff had said she wanted to discuss refunds. 7 Presumably he did so on the basis of his instructions. However, the plaintiff did not give evidence to that effect – an inconsistency which is relevant only to her credibility. [9] According to Ms Shaw, the plaintiff said she wanted to discuss accepting the defendant's offer which was due to expire that day.8 Ms Shaw made a file note of the conversation in these terms: “T/c in Jackie Bishop, wants to accept offer of settlement $10,000, clear of refund & no costs. Me to get Graeme to ring & confirm.”9 5 Exhibit 1, page 1: Plaintiff’s Written Final Offer pursuant to s 294 of the Workcover Queensland Act 1996 (s294 Offer of Plaintiff); Exhibit 1, page 2: Defendant’s Written Final Offer pursuant to s 294 of the Workcover Queensland Act 1996 (s294 Offer of Woolworths). 6 Transcript of Proceedings on 20 May 2008, p 54 ll 29-31. 7 Transcript of Proceedings on 20 May 2008, p 18 ll 51-57. 8 Transcript of Proceedings on 20 May 2008, p 14 ll 13-16; p 18 ll 44-49. 9 Exhibit 2: Original diary note of Ms Shaw dated 26 April 2006. -- 3 of 22 -- 4 Ms Shaw did not recall any discussion of refunds (to the Health Insurance Commission, Centrelink, etc), and said, had there been any such discussion, she would have made a note of it and she would have told Mr Traves about it.10 [10] Ms Shaw called Mr Traves in Townsville on his mobile phone. He had not long finished a conference in another matter, and was in a café about to have lunch before catching a late afternoon flight back to Brisbane. He did not have the file relating to the plaintiff’s claim with him.11 Ms Shaw made a note of the conversation on the page on which she had recorded her earlier note: “T/c out to Graeme (who in Townsville) advised above he to call her back & let me know outcome.” 12 According to Mr Traves, Ms Shaw told him that the plaintiff wished to accept the final offer that the defendant had made at the conference, but she had asked that he contact her "with respect to that discussion".13 Ms Shaw gave him the plaintiff's phone number, which he wrote on a coaster. His lunch arrived, and he rang the plaintiff back about 10 minutes later. 14 [11] According to the plaintiff - • she told Mr Traves that she needed to know the full amount of the refunds she would have to make, as well as the amount she would have to pay her former solicitors Trilby Misso, before she could agree to any offer; • Mr Traves said he would have Ms Shaw call her back with the telephone numbers to call to make inquiries about the refunds; • she said she would call Mr Traves back and let him know the amounts of the refunds; • she concluded the call by telling Mr Traves she would not be taking the offer. 15 The plaintiff said that her father had been giving her advice in relation to her claim, and that he had told her not to accept the offer because there would be money owing for worker’s compensation and hospital bills, and money owing to Trilby Misso.16 Also, she had been speaking with someone at Trilby Misso who had suggested she would have to pay that firm about $9,000.17 10 Transcript of Proceedings on 20 May 2008, p 15 ll 12-22. 11 Transcript of Proceedings on 20 May 2008, p 24 ll 3-5 12 Exhibit 2: Original diary note of Ms Shaw dated 26 April 2006. 13 Transcript of Proceedings on 20 May 2008, p 23 ll 49-52. 14 Transcript of Proceedings on 20 May 2008, p 28 ll 14-16. 15 Transcript of Proceedings on 20 May 2008, pp 54-55. 16 Transcript of Proceedings on 20 May 2008, p 53 ll 47–p54 line 1. 17 Transcript of Proceedings on 20 May 2008, p 64 ll 7-18. -- 4 of 22 -- 5 [12] According to Mr Traves - • he said words to the effect, "I understand that you want to accept our offer", to which the plaintiff replied in words to the effect, “Yes, I do”; • he repeated the offer to her, and she agreed that that was the offer and that she accepted it; • he apologised for his haste, explaining that he had to get to the airport, and said he would have the girls in the office in Brisbane forward the necessary paperwork; • he said he thought it was a good settlement. 18 Mr Traves denied the suggestions put to him in cross-examination that the plaintiff had said she was not accepting the offer that day, that her father had said she needed to look at it more closely, that she needed to know the amounts of the refunds, and that he had said he would have the office girls give her telephone numbers regarding the refunds.19 He did not write or dictate any file note of the conversation. On his way to the airport he rang Ms Shaw back and instructed her to send the plaintiff a letter confirming that she wanted to accept the offer, to enclose a discharge and an HIC settlement notice, and to send them that day.20 [13] According to Ms Shaw, Mr Traves called her back: he instructed her to draft settlement documents, to have them checked by the other partner in the insurance section (Ms Amanda Karpeles), and to call Ms Kate Thurbon of the defendant and tell her of the settlement.21 Ms Shaw made a file note in these terms - “T/c in Graeme Settled $10K clear, MS to send Discharge in mail tonight. Graeme asked MS to phone Client & advised.”22 She said she prepared the documents and contacted Ms Thurbon as instructed; that she had the documents checked and the letter signed by Ms Karpeles; that she took them to the firm's mailroom for sending by Express Post;23 and that on Ms Karpeles' advice she either typed or dictated a full file note.24 That file note was not produced to the Court. [14] The letter to the plaintiff was in these terms - 18 Transcript of Proceedings on 20 May 2008, p 24 ll 20-30. 19 Transcript of Proceedings on 20 May 2008, pp 24 ll 40-48. 20 Transcript of Proceedings on 20 May 2008, p 24 ll 54-58. 21 Transcript of Proceedings on 20 May 2008, p 21 ll 34-53. 22 Exhibit 2: Original diary note of Ms Shaw dated 26 April 2006. 23 Transcript of Proceedings on 20 May 2008, pp 15-16. 24 Transcript of Proceedings on 20 May 2008, p 20 ll 45-55. -- 5 of 22 -- 6 “We confirm settlement of your claim in the sum of $10,000.00 clear of the refund to Woolworths Limited ($13,604.36) with no entitlement to costs, less any other applicable statutory refunds. We enclose:- 1. Discharge; 2. Medicare Australia Notice of Settlement Form. We would be pleased if you could execute the above documents and return same to our office at your earliest convenience. We have requested clearances from other relevant statutory authorities and when those are to hand we will request our client's cheques in payment of settlement monies. Should you have any queries please do not hesitate to contact Graeme Traves.”25 The discharge was in these terms - “DISCHARGE BETWEEN: JACQUELINE KAY BISHOP of 7 Coles Street, Arana Hills in the State of Queensland (hereinafter together with her executors, administrators and assigns referred to as "Jacqueline Bishop"). AND: WOOLWORTHS LIMITED of Fox Road, Acacia Road [sic] in the State of Queensland (hereinafter together with its successors and assigns referred to as “Woolworths Limited”). WHEREAS: A. Jacqueline Bishop claims to have suffered injuries in the course of her employment with Woolworths Limited on 12 October 2000 and is claiming damages without instituted legal proceedings (hereinafter referred to as “the claim”). B The parties are desirous of resolving the claim without any admission of liability and solely for the purposes of avoiding the uncertainty and expense of litigation. NOW THIS AGREEMENT WITNESSES as follows: 1. In consideration of the payment by Woolworths Limited on its own behalf to Jacqueline Bishop the sum of $10,000.00, does hereby forever completely release and discharge Woolworths 25 Exhibit 1 p 4: Letter Abbott Tout to Plaintiff dated 26 April 2006. -- 6 of 22 -- 7 Limited from any liability howsoever arising out of the facts and circumstances the subject of the aforesaid claim. 2. Jacqueline Bishop agrees that she is not entitled to any costs in relation to the claim. 3. Woolworths Limited acknowledges that it shall not be entitled to a refund out of the payments referred to in clauses 1 [sic] hereof in respect to Workers' Compensation benefits paid in relation to the injuries the subject of the claim in the sum of $13,604.36. 4. Jacqueline Bishop agrees that the terms and performance of this agreement are to remain confidential between the parties and their legal advisers. 5. Payment of the settlement sum is conditional upon Woolworths Limited receiving: a) A clearance letter or otherwise from the Centrelink. b) A Notice of Charge pursuant to the Health and Other Services (Compensation) Amendment Act 1996, unless Woolworths Limited has exercises [sic] its option of Advance Payment under the Act. c) A clearance letter or otherwise from the Commonwealth Rehabilitation Service (hereinafter referred to as “CRS”. 6. Jacqueline Bishop warrants that apart from possible refunds due to or charges in favour of the Centrelink and/or the Health Insurance Commission and/or CRS, that there are no other refunds due to or charges in favour of any governmental or semi-governmental authorities and in the event of there being any such refund or charge including any refund or charge in favour of the Centrelink and/or the Health Insurance Commission and/or the CRS Jacqueline Bishop hereby agrees to indemnify and keep indemnified Woolworths Limited against any such refund or charge. 7. Jacqueline Bishop authorises the payments referred to in clauses 1 [sic] hereof to be made as follows:- a) To the Health Insurance Commission pursuant to the Health and Other Services (Compensation) Amendment Act 1996, b) To Centrelink such sum as it identifies as its charge to [sic] Jacqueline Bishop's damages; -- 7 of 22 -- 8 c) To CRS Australia such sum as it identifies as it identifies [sic] as its charge to Jacqueline Bishop's damages and d) The balance to be paid to Jacqueline Bishop, whose receipt for same shall be a good and sufficient discharge. 8. Jacqueline Bishop further acknowledges that this agreement may be pleaded in bar to any actions, claims, demands whatsoever and howsoever brought by her or on her behalf and howsoever arising out of the facts and circumstances the subject of the claim. 9. Jacqueline Bishop further warrants that, she has relied on her own enquiries and have [sic] not entered into the agreement or signed this document in reliance on or as a result of any representation, promise, statement, conduct or inducement by or on behalf of Woolworths Limited otherwise then [sic] as has been recorded in this document. IN WITNESS WHEREOF these presents have been executed on the day of 2006. SIGNED SEALED AND DELIVERED by ) the said JACQUELINE KAY BISHOP ) in the presence of: ) ………………………………………… A Justice of the Peace/Solicitor”26 [15] The plaintiff said that Ms Shaw called her back the next day and gave her telephone numbers, 27 but Ms Shaw had no recollection of a further conversation with the plaintiff in which she gave the plaintiff telephone numbers. 28 [16] According to Ms Shaw, two days later (on 28 April 2006) the plaintiff telephoned the defendant's solicitors' office again. She spoke with Ms Shaw, telling her that she had spoken with the Health Insurance Commission about the refund owing to it - and she wanted to discuss it with Mr Traves as soon as possible.29 Ms Shaw sent Mr Traves an email in these terms - 26 Exhibit 1, pp 5-6: Letter Abbott Tout to Plaintiff dated 26 April 2006. 27 Transcript of Proceedings on 20 May 2008, pp 56 ll 21-22; p 72 ll 43-52. 28 Transcript of Proceedings on 20 May 2008, p 20 ll 2-4 (Ms Shaw was asked specifically about a further conversation on 26 April 2006). 29 Transcript of Proceedings on 20 May 2008, p 17 ll 10-18. -- 8 of 22 -- 9 “Jacqui called she has spoken to HIC and it would appear she has a large amount owing to them totalling about $10k. She needs to discuss this with you urgently!”30 [17] Mr Traves gave evidence that on receipt of the email he called the plaintiff about the refunds due to the Health Insurance Commission and Centrelink. The plaintiff said that she had ascertained what the refunds were - in effect, most of the offer. He tried to explain how they were calculated. As he spoke with her, he made a handwritten file note in which he recorded a relevant formula.31 The plaintiff asked whether the defendant would extend the offer to $10,000 clear of those refunds. He replied that this was unlikely, but he would speak to his client. He advised her to check whether all of the amounts related to the incident.32 [18] The plaintiff denied having these conversations with Ms Shaw and Mr Traves on 28 April. She said she had no conversation with them after the expiration of the offer on 26 April 2006. 33 Moreover, she said, the Medicare ‘rebate’ was $6,200, and that the only figures she ever gave the defendant's solicitors were the Medicare one and the Trilby Misso one.34 Later she said that she had a conversation with Mr Traves on 27 April 2006, when she let him know the amount of the Medicare refund - she wanted to let them know that such refunds were substantial and he should mention them to people to whom he was making offers.35 But she denied asking him to contact the defendant about increasing the offer to cover the refunds. She was adamant that she had not accepted the offer.36 [19] On 2 May 2006 the plaintiff called Mr Traves, and discussed the extent of her injuries.37 Mr Traves made a handwritten file note of the conversation.38 [20] The next day the plaintiff sent Mr Traves a radiologist's report of an X-ray dated 24 November 1995, a further radiologist's report of an MRI on 21 December 2000 and a letter from one Lisa Edwards dated 8 March 2001. She said she would be sending him a report by a physiotherapist she had seen in January 1996 and letters from past employers saying that she had not taken any time off because of any injury. [21] Mr Traves responded by letter dated 10 May 2006, in which he said - “Further to your correspondence of 3 May 2006, we acknowledge receipt of same and copies of reports attached thereto. 30 Exhibit 3: Email from Ms Shaw to Mr Traves sent 28 April 2006 at 1.55 pm. 31 Exhibit 4: File not of Mr Traves dated 28 April 2006. 32 Transcript of Proceedings on 20 May 2008, pp 25-26. 33 Transcript of Proceedings on 20 May 2008, p 74. 34 Transcript of Proceedings on 20 May 2008, p 74 ll 17-20. 35 Transcript of Proceedings on 20 May 2008, pp 75-76. 36 Transcript of Proceedings on 20 May 2008, p 76 ll 4-29. 37 Transcript of Proceedings on 20 May 2008, pp 31-32. 38 Exhibit 5: File note of Mr Traves dated 2 May 2006. -- 9 of 22 -- 10 It is evident from the medical treatment that there is a pre-existing condition and that such condition has only been aggravated, if at all, by the incident at Woolworths. All x-rays show the pre-existing condition. We further note that there is correspondence confirming a disc derangement as early as January 1996. We note that the x-ray taken by the Everton Park X-ray Clinic in 1995 shows early degenerative changes in the thoracic region and subluxion of L5/S1 with bilateral past defects present. In the circumstances, our client’s position remains unaltered. We again renew our client’s offer in the sum of $10,000.00 clear of the refund, no costs. Such offer shall remain open for a period of 7 days from today’s date.”39 [22] Mr Traves was cross-examined about that letter as follows - “You don't say in that correspondence, ‘Mrs Bishop, this matter resolved on the 26th of April 2006.’ You don't say that anywhere, do you?-- To be fair, in the third last paragraph I say, ‘In the circumstances, our client's position remains unaltered’, and that is a reference to the fact that the matter had settled back on the date that the offer had been accepted. It is also fair to say that I was very cognisant that the claimant was not represented and I didn't wish to have a black and white discussion with respect to offer and settlement at the time, and I was mindful, and had been through this whole matter, that for expediency it was in the best interest of the parties to continue with respect to the offer that had been agreed upon, and I wasn't trying to paint someone a corner [sic] or make allegations of a legal founding specifically due to the fact that I was aware that she was unrepresented and I was certainly aware, given that I had spoken for three hours in conference about two weeks prior, that she was aware of the parameters with respect to where Woolworths' position was. Mr Traves, you're a solicitor with very significant experience, a partner for 11 years. You are communicating with an unrepresented plaintiff. You don't put your case, do you? You don't say, ‘This has been resolved. Why are you bothering me with this material?’?-- I had stated that quite succinctly in my correspondence on the day of the settlement. Again, it did not appear apposite to repeat it if it wasn't accepted in the first instance.”40 39 Exhibit 7: Letter from Mr Traves to Ms Bishop dated 10 May 2006 (emphasis added). 40 Transcript of Proceedings on 20 May 2008, p 34 line 41 – p 35 line 11. -- 10 of 22 -- 11 [23] On 19 May 2006 Mr Traves wrote to the plaintiff - “We refer to the telephone message left with our office today. We confirm this matter proceeded to s.294 conference at our offices on 12 April 2006 and did not resolve. Further we note the formal offers of settlement were exchanged and have now expired. We remind you that pursuant to s.306(3) of the WorkCover Qld Act proceedings need to be served under the Act within 60 days of the conference. We note copies of the relevant sections from the WorkCover Qld Act were provided to you for your records at the conference. We look forward to receiving your Claim and Statement of Claim within the time stipulated by the rules.”41 [24] Mr Traves was cross-examined about that letter as follows - “Nowhere in that correspondence do you assert that it resolved on the 26th of April 2006?-- That's correct. To the contrary, you recommend a course which is only available if the matter hasn't resolved and the offers haven't been accepted?-- At this stage I was mindful that the claimant was again still unrepresented, she hadn't yet been to see Shine Lawyers. There is provision in the Act that a claimant must issue proceedings within 60 days. My client is a high profile retailer and it didn't wish to be said to be taking short points with respect to lack of notice if it proceeded to that point, and that correspondence was written self-servingly to advise the claimant with respect to her need to commence proceedings. Could I say consistent with my client's desire the whole way through this proceeding to try and understand - and it is difficult because in the normal course of events claimants are represented - the process and procedures as they are required in the Workcover legislation, which even practitioners today have a problem with, let alone a layperson.”42 And further – “So, I take it, Mr Traves, that even though you were of the view the matter was resolved, you still invited - or alerted the plaintiff to the point that they should launch legal proceedings within 60 days of the conference?-- This case had been somewhat protracted leading up to the compulsory conference that we had had. As a result of perhaps a 41 Exhibit 8: Letter from Mr Traves to Ms Bishop dated 19 May 2006. 42 Transcript of Proceedings on 20 May 2008, p 37 ll 4-23. -- 11 of 22 -- 12 misunderstanding or lack of understanding with respect to procedural matters, I was concerned that that not be used in any subsequent claims or subsequent claim with respect to a misunderstanding, and I wanted the rules, at least, to be put before the claimant so that she understood the position. It was just a restatement of the rules.”43 [25] On receipt of the letter of 19 May 2006, the plaintiff retained Shine Lawyers, because she "knew that [she] was out of [her] depth".44 [26] On 6 June 2006 Mr Hughes of Shine Lawyers sent Mr Traves a facsimile in which he asserted that the conference on 12 April 2006 had been an informal one.45 Later that day Mr Traves sent him a facsimile message refuting the suggestion that the conference had been informal and setting out the history of the matter in bullet point form. He said (inter alia) – “• On 12 April 2006 the conference proceeded, however did not settle. Final offers were exchanged pursuant to s294 of the WorkCover Queensland Act 1996. We note that no certificate of readiness was provided as it is not required under the Act. At the time of the conference, the claimant was provided with the relevant sections of the Act in relation to initiating court proceedings. • On 13 April we wrote to the claimant confirming that the matter did not settle and as such proceedings needed to be served under the Act within 60 days of the conference. • On 26 April 2006 Michelle Shaw of our office was contacted by the claimant, advising that she wished to accept of [sic] offer of settlement in the sum of $10,000.00. On the same day a letter was sent to the claimant confirming the settlement and enclosing a discharge and notice of settlement. • Under cover of letter dated 3 May 2006, the claimant forwarded us a report of Dr Scott McMenamin dated 24 November 1995, a report of Dr D A Lisle dated 21 December 2000 and a letter from Lisa Edwards dated 8 March 2001. • On 10 May 2006 we forwarded the claimant a letter renewing our client's offer of $10,000.00 clear of the refund to Woolworths, with not [sic] entitlement to costs. • On 19 May 2006 we forwarded a letter to the claimant confirming that pursuant to s.306(3) of the WorkCover Queensland Act 1996, proceedings needed to be served under the Act within 60 days of the conference. 43 Transcript of Proceedings on 20 May 2008, p 39 ll 8-19. 44 Transcript of Proceedings on 20 May 2008, p 60 line 9. 45 Exhibit 12: Letter from Shine Lawyers to Mr Traves dated 6 June 2006. -- 12 of 22 -- 13 We have enclosed copies of the above-listed documents for your records. We confirm that the nature of the meeting was in fact a compulsory conference pursuant to section 293 of the WorkCover Queensland Act 1996 and that due to the date of accident, there was no requirement for any certificate of readiness to be issued. We further confirm that both the claimant and our client have conformed with the requirements of the Act in relation to participation in a compulsory conference pursuant to Section 293. As such we look forward to receipt of your client’s Claim and Statement of Claim in due course. Should you wish to discuss this matter please do not hesitate to contact Graeme Traves on (07) 3032 5740.”46 [27] Mr Traves was cross-examined about that letter as follows – “Mr Traves, nowhere in the letter – the letter speaks for itself – do you assert that you had a conversation with the plaintiff wherein she accepted to you – accepted in a conversation with you – the offer of $10,000; do you?- - If I might answer that the long way? It is fair to say that I was liaising for Shines for the first time; that prior to the sending of that correspondence, there had been a suggestion that the conference held on the 26th of April was not, in fact, a conference for the purposes of the legislation, and I was at pains to specify why that, in fact, was the case, and hence the reason for the detailed chronology. I was not attempting in that correspondence to assert or distract from what I intended to do, which was to set out the precursors and the attendance at the compulsory conference, because to do so would then invalidate any subsequent proceedings if a conference hadn’t been had as alleged by the claimant’s lawyers at the time; that is, that they purported that the conference that was held was not, in fact, a compulsory conference and they had, in fact, specifically requested that I respond to that issue alone or they would make an application for a determination that the conference wasn’t, in fact, a conference. It was purpose written specifically to respond to that allegation and nothing else. I accept that that’s in response to that query, Mr Traves. You give a detailed chronology setting out the matters which occurred from 13 October 2005, but you didn’t take the opportunity, at the first opportunity with Shine Lawyers, to say this matter was resolved in a conversation with you on the 26 th of April 2006. You failed to do that?-- In that correspondence addressing the issue with respect to the compliance or otherwise of the conference, I had no reason to 46 Exhibit 9: Letter and attachments as faxed from Mr Traves to Mr Carl Hughes of Shine Lawyers dated 6 June 2006. -- 13 of 22 -- 14 address those issues, and I accept that I did not address those issues.”47 [28] On 7 June 2006 the plaintiff commenced this proceeding. The claim and statement of claim were sent to the defendant's solicitors under cover of a letter of that date, which they received on 9 June 2006. 48 [29] On 9 June 2006 Mr Traves wrote to Shine Lawyers – “We refer to the above matter our letter of 6 June, your correspondence of 7 June, and the telephone conversation of even date. As we indicated in our telephone conversation we are surprised that your client has instructed you to commence proceedings when in fact the parties had agreed on a settlement of this claim. You will see from our facsimile dated 7 [sic] June and the documents attached that your client accepted the offer of $10,000.00 in full and final settlement of her claim against Woolworths Limited. So far as our client was concerned we were waiting for the Discharge to be returned, hence our amazement when the claim and statement of claim were served on our office. Please note that we have no instructions to accept service of these proceedings. May we suggest that you effect service on our client. If your client intends to pursue the Claim against our client we put you on notice that the Claim will be vigorously defended by Woolworths on the basis that the parties had negotiated a settlement of your client’s claim for the amount of $10,000.00 clear of our client’s refund, therefore your client has no entitlement to pursue the proceedings currently on foot. Please provide by way of return a Notice of Discontinuance, together with the Discharge and the Medicare Notice of Settlement representing a settlement of the matter for the amount of $10,000.00 clear of our client’s statutory refund. Should you wish to discuss this matter please do not hesitate to contact Graeme Traves on (07) 3032 5740.”49 [30] Mr Traves was cross-examined about that letter as follows - “Did you express surprise that the proceedings were commenced?-- Yes, I expressed surprise for two reasons: firstly, because there had 47 Transcript of Proceedings on 20 May 2008, p 39 line 44 – p40 line 20. 48 Exhibit 13: Letter from Shine Lawyers to Woolworths (Qld) Limited dated 7 June 2006. 49 Exhibit 10: Letter from Mr Traves to Mr Carl Hughes dated 9 June 2006. -- 14 of 22 -- 15 previously been proceedings issued by Trilby Misso, the claimant’s prior solicitors, and therefore I was surprised with respect to the need to subsequently issue proceedings. I was also surprised in light of the fact that the matter had resolved, so far as I was aware, and therefore the need to issue proceedings would not evolve. So, yes, I was surprised.”50 [31] Mr Traves had formerly been a member of the firm Hunt & Hunt. In August 2002 Hunt & Hunt had been the solicitors for the defendant, and Mr Traves had had carriage of this matter. He had written to Trilby Misso in these terms on 8 August 2002 – “Our firm has received instructions from Woolworths. We put you on notice that: • Should this matter settle, Woolworths will require the plaintiff to execute its standard Discharge, which will include inter alia a warranty to the effect that the matters set out in the plaintiff's Pleadings and Answers to Interrogatories are true and correct; and • Woolworths intends to avail itself of the advance payment option provided under s33A of the Health & Other Services (Compensation) Act 1995 (Cth), see enclosed notice. Please arrange for all future correspondence to be forwarded to Graeme Traves of our office.”51 [32] The plaintiff never signed the discharge or the Medicare notice of settlement form. The onus of proof [33] The defendant bears the onus of satisfying the Court on the balance of probabilities that a binding compromise was reached. Two questions [34] There are two critical questions: (i) the content of the conversation between the plaintiff and Mr Traves on 26 April 2006; and (ii) whether was there a binding compromise in all the circumstances. 50 Transcript of Proceedings on 20 May 2008, p 41ll 28-36. 51 Exhibit 11: Letter from Graeme Traves of Hunt & Hunt Lawyers to Trilby Misso Lawyers dated 8 August 2002. -- 15 of 22 -- 16 The conversation on 26 April 2006 [35] The plaintiff was born in 1970. Before her injury in 2000 she was a meatpacker employed by the defendant. She retained Trilby Misso Lawyers to act for her in relation to her injury, but they ceased to act in about 2003 after she consulted another firm for a check opinion. From then until late May 2006 she pursued her claim without legal representation. [36] There is nothing to suggest that the plaintiff had any knowledge or experience in the making of such claims. She sought her father's advice from time to time, but he, too, was apparently a layman in this area. She gave her evidence to the best of her recollection, and without any deliberate falsehood. Not surprisingly for a self- represented litigant, she had no diary note or other written record of relevant conversations. [37] I infer that two matters were concerning the plaintiff - the imminent expiry of the defendant's final offer and the fact that an amount owing to Trilby Misso and statutory refunds would have to be met out of any amount the defendant agreed to pay her. I accept Ms Shaw's evidence that the plaintiff told her that she wanted to accept the defendant's final offer which was about to expire. There would have been little point in the plaintiff's pressing to speak with Mr Traves that afternoon if she did not want to accept the offer. [38] I accept Ms Shaw's evidence that the plaintiff called two days later and said she needed to speak to Mr Traves urgently because she had discovered there was about $10,000 owing to the Health Insurance Commission. As I have sought to demonstrate in paragraph 18 of these reasons, the plaintiff gave inconsistent evidence of this conversation - which I attribute to her being alarmed and confused at finding out the extent of the refund. [39] Mr Traves is a solicitor of many years' experience in personal injuries work. He and Ms Karpeles ran the insurance section of their firm, where I infer they handled numerous claims at any time. [40] They were assisted by Ms Shaw, who at the time had some eight years' experience as a paralegal, and who had been with the firm for about two years. Ms Shaw's duties included attending to incoming and outgoing telephone calls, preparation of correspondence and court documents using precedents, small drafting tasks, research and attending Court for call-overs, etc. She knew of the plaintiff, but had not met her. Ms Shaw impressed me as careful and conscientious within the limits of her expertise and duties, and as an honest witness. [41] Mr Traves did not make any note of the conversation on 26 April 2006. This was remiss of a solicitor, and the circumstances of his being in a café in Townsville between the conclusion of a conference in another matter and catching a flight back to Brisbane do not afford an adequate excuse. -- 16 of 22 -- 17 [42] His subsequent conduct was not consistent with his version of that conversation. He made no mention of the claim having been settled in his conversation with the plaintiff on 2 May or in his letters to the plaintiff on 10 and 19 May. In his letter of 10 May he “renewed” the defendant’s offer, and in his letter of 19 May he reminded the plaintiff of the need to serve proceedings within 60 days of the conference which had taken place on 12 April. Those two communications were quite inconsistent with the existence of a binding compromise. It was not until his facsimile to Shine Lawyers of 6 June that he first asserted that it had been settled, and even then he did not mention his conversation with the plaintiff, although he mentioned the conversation between the plaintiff and Ms Shaw on 26 April and the letter and accompanying documents (including the discharge) which were despatched that day. He enclosed copies of correspondence from as early as 13 October 2005, including Ms Shaw’s diary note of 26 April 2006 and the letter to the plaintiff of that date (but not the discharge).52 In his facsimile of 9 June he referred to documents attached to his facsimile of 7[sic] June, but again made no mention of his own telephone conversation with the plaintiff on 26 April. [43] In cross-examination Mr Traves sought to explain his failure to raise the settlement in his communications with the plaintiff in terms of concern for a self-represented litigant, and concern that his client not be seen as overbearing or point scoring. He sought to explain his failure to refer to his conversation with the plaintiff on 26 April in his letter to Shine Lawyers of 6 June by saying that the letter was written for the specific purpose of refuting a suggestion that the conference on 12 April had been an informal one. But, of course, the question of whether the conference had satisfied the requirements of s 293 of the WorkCover Queensland Act could have been relevant only if there had been no binding settlement of the claim. I found his explanations disingenuous. While I readily accept that acting for an employer against a self-represented claimant can be difficult, I think it is more likely that he had no clear recollection of the content of the conversation on 26 April, and that the facsimiles of 6 and 9 June were prepared solely by reference to the documents on the file. [44] I have concluded that Mr Traves' evidence of the conversation on 26 April was the product of a reconstruction from the documents on the file. No doubt he has had to turn his mind to this on quite a number of occasions since the claim was filed in June 2006, and I treat the process of reconstruction as subconscious rather than deliberate. [45] Ms Shaw's evidence of the initial conversation between her and the plaintiff and of the instructions Mr Traves gave her that afternoon is somewhat of a conundrum. While I accept her evidence, the critical conversation was that between the plaintiff and Mr Traves. It may be that the plaintiff did not make her position clear to Mr Traves and or that he misunderstood the purport of what she was saying. Mr Traves’ instructions to Ms Shaw were consistent with the plaintiff's having accepted the defendant's "final offer" made pursuant to s 294 of the WorkCover Queensland Act 1996, and his having said that he would have the girls in the office in Brisbane prepare the necessary paperwork. But in all the circumstances I am not satisfied on 52 Exhibit 9: Letter and attachments as faxed from Mr Traves to Mr Carl Hughes of Shine Lawyers dated 6 June 2006. -- 17 of 22 -- 18 the balance of probabilities that the content of the conversation between the plaintiff and Mr Traves was to that effect. A binding compromise? [46] Even if Mr Traves’ version of the conversation were accepted, in my view it would not have given rise to a binding compromise. Two further questions would have arisen: (a) Did the parties intend to make a concluded agreement? (b) If “yes” to (a), did they succeed in doing so – in other words, did they reach a binding compromise? 53 [47] In the circumstances of this case these two questions would have been related. In Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd54 Gleeson CJ observed – “To say that parties to negotiations have agreed upon sufficient matters to produce the consequence that, perhaps by reference to implied terms or by resort to considerations of reasonableness, a court will treat their consensus as sufficiently comprehensive to be legally binding, is not the same thing as to say that a court will decide that they intended to make a concluded bargain. Nevertheless, in the ordinary case, as a matter of fact and commonsense, other things being equal, the more numerous and significant the areas in respect of which the parties have failed to reach agreement, the slower a court will be to conclude that they had the requisite contractual intention.” [48] In Masters v Cameron55 Dixon CJ, McTiernan and Kitto JJ discussed three possible scenarios when parties enter into an informal agreement: (a) they may intend to be bound immediately, but at the same time propose to have the terms restated in a form which is fuller or more precise, but not different in effect; (b) they may have agreed upon all the terms of their bargain, but have made the performance of one or more of those terms conditional on the preparation and execution of a formal contract ; 53 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548; Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 14,551 at 14552, 14,561 – 14,563. 54 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548. 55 Masters v Cameron (1954) 91 CLR 353. -- 18 of 22 -- 19 (c) they may not intend there to be a concluded bargain at all, unless and until they execute a formal contract.56 [49] Evidence of the parties’ communications after the making of an informal agreement is admissible to determine, objectively, whether or not they intended to form a binding agreement.57 In Abigroup Contractors Pty Ltd v ABB Service Pty Ltd58 Giles JA summarised the authorities as follows – “63 Evidence of subsequent communications between parties is admissible for the light it casts upon their dealings from which a contract is alleged to have arisen: for example, it may show that apparently concluded negotiations were in fact continued, or were not regarded by the parties as contractually binding until entry into a formal contract (B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 97011 at 9149, 9155; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 97023 at 9255; Brambles Holdings Ltd v Bathurst City Council at 163-4). Evidence of the parties' subsequent conduct is also admissible as an admission by conduct of the existence or non existence of a subsisting contract (Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1907] HCA 79; (1908) 5 CLR 647 at 668-9, 672; Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd at 9255). The probative force of an admission may not be great. If the direct evidence is complete and enables a conclusion, an indirect admission may count for little. Similarly, if an admission is of a matter of law or legal consequences, as to which the admitting party has no expertise or is otherwise to be seen as uninformed or unreliable, the admission will not carry much weight (see for example Lustre Hosiery Ltd v York [1935] HCA 71; (1935) 54 CLR 134 at 138-9, 143; R W Miller & Co Pty Ltd v Krupp (Australia) Pty Ltd (1991) 32 NSWLR 152 at 155-6). And as Gleeson CJ said in Australian Broadcasting Corporation v XIV Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550, ‘it will often be necessary to identify with some care the fact which is said to have been admitted’.”59 [50] Even on Mr Traves’ version of the conversation, there would have been no binding compromise for two reasons – 56 Masters v Cameron (1954) 91 CLR 353 at 360. 57 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at 163-164; Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 14,551 at 14, 562 – 14,563; B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9155; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 666, 668, 671-672. 58 Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181. 59 Abigroup Contractors Pty Ltd v ABB Service Pty Ltd (formerly ABB Engineering Construction Pty Ltd) [2004] NSWCA 181 at para 63. -- 19 of 22 -- 20 (a) this would have been a case within the third category in Masters v Cameron; and (b) by force of s 300 of the WorkCover Queensland Act a settlement would not have been binding until the parties signed the discharge. [51] In concluding that this would have been a case within the third category in Masters v Cameron, I have taken account of Mr Traves’ version of his telephone conversation with the plaintiff and the letter prepared by Ms Shaw (assuming the letter reflected the conversation). The terms of the discharge were not discussed. It might (and it did) contain further terms (the confidentiality provision and the plaintiff’s warranty that she had not relied on any representation or inducement, etc) of which the plaintiff had no actual or constructive notice. In other words, all of the terms of the bargain would not have been agreed upon. I have taken account, too, of Mr Traves’ subsequent communications with the plaintiff and Shine Lawyers, which amounted to an admission by conduct that they had not reached agreement. I have not taken account of the letter from Hunt & Hunt to Trilby Misso almost four years earlier: in my view it was too remote to have any bearing on the issue, and further, the standard discharge referred to in that letter was apparently one appropriate to a settlement reached after the commencement of litigation rather than before. [52] Chapter 5 of the WorkCover Queensland Act was headed “Access to Damages”. Part 6 of that chapter dealt with “Settlement of Claims”. Division 1 of that part was headed “Compulsory Conference”, and division 3 (which contained only s 300) was headed “Settlement before Court Proceedings”. The first section in division 1, s 292, provided – “Application of div 1 292. This division does not apply to a claim that is otherwise settled by negotiation between the parties.” [53] Section 300 followed the provisions for a compulsory conference (ss 293 – 293B) and for written final offers after an unsuccessful compulsory conference (s 294).60 It provided – “Settlement of claim for damages 300. If a claim is settled before the start of a court proceeding, the parties to the settlement must sign a discharge for the claim.” [54] Section 300 applied to a compromise reached at a compulsory conference and also to one reached by the acceptance of a final offer within the meaning of s 294. Where a claim was not settled at a compulsory conference, the making of final offers was compulsory, the offers had to remain open for 14 days, and proceedings might not 60 See the letters in exhibit 1 docs 1 and 2. -- 20 of 22 -- 21 be commenced while the offers remained open. If proceedings were subsequently commenced, the Court had to have regard to the final offers in making a decision on costs.61 [55] What was the consequence of non-compliance with s 300? The section was ambiguous. Senior counsel for the defendant submitted that the signing of a discharge was, at its highest, a condition subsequent of a compromise of a claim, requiring the parties to take a step. Counsel for the plaintiff submitted that a compromise was not binding unless and until a discharge was signed. [56] Generally a compromise is binding and a complete defence to litigation for the recovery of damages according to the principles of contract law. In many cases a compromise need not be reduced to writing in order to be enforceable. That is so whether the compromise is reached before or after the commencement of litigation. Of course, there can be problems proving an oral compromise – as the facts of this case illustrate. [57] It is clear from the objects of the legislation, contained in Chapter 1 Part 2, that it was intended to strike a balance between the interests of injured workers on the one hand and employers and WorkCover on the other.62 Those objects are an aid in the interpretation of the statute.63 Certainty as to the existence and terms of a compromise would be in the mutual interests of both sides, and it would be promoted by a requirement that a compromise be signed by the parties before it became binding. [58] In resolving the ambiguity it is permissible to have regard to the interpretation put on s 300 in the Explanatory Notes which accompanied the bill by which the legislation was introduced into Parliament.64 Those notes provided – “Settlement of Claim for Damages Clause 300 requires the parties to a settlement to sign a discharge for the claim. This then makes the agreement binding on parties to the settlement.” 65 In other words, a settlement was not binding until the parties signed a discharge. [59] In short, I think that the correct interpretation of s 300 is that contended for by the plaintiff’s counsel. The discharge was never signed. Accordingly, even if Mr Traves’ version of the conversation on 26 April 2006 were accepted, there would not have been a binding compromise. 61 WorkCover Queensland Act 1996 s 294. 62 The defendant was a self-insurer. 63 WorkCover Queensland Act 1996 s 4(2). 64 Acts Interpretation Act 1954 (Qld) ss 14B(1) and 14B(3)(e). 65 Explanatory Notes relating to the Workcover Queensland Bill 1996 as introduced into the Legislative Assembly on 27 November 1996. -- 21 of 22 -- 22 Orders [60] The defendant has failed to prove that the claim was compromised as alleged. I will hear the parties on the form of the order and on costs. -- 22 of 22 --