Al-Hakim v Monash University [1999] VSC 511

11. At the end of the day, on 7 May the plaintiff and a representative of the university signed a document entitled "Heads of Agreement". The document reads -

"1. Monash University (Monash) will appoint Al-Hakim to the honorary position of Research Associate in accordance with Chapter 1 of the University Staff Handbook, and specifically 1.4.6 Research Associate which sets out the title, eligibility criteria and privileges of the position. 2. Monash undertakes to reappoint Al-Hakim to the honorary position of Research Associate until the 31 December 2001. 4. Monash will make an ex gratia payment to Al-Hakim upon signing of a formal deed of release (which includes a confidentiality undertaking) in compensation for pain and suffering in the amount of -" and an amount of money is then specified. "5. Al-Hakim is responsible for payment of tax, if any, on the ex gratia payment. 6. Al-Hakim releases Monash, its employees, officers and agents (both current and former) from all claims, and liability in respect of all matters set out in the consolidated complaint filed with the Victorian Civil and Administrative Tribunal (VCAT) numbered 69/96, 47/97, 48/97, 144/98 and 265/98 in VCAT's records, and from all claims and liability in relation to all matters which are the subject of these complaints. Al-Hakim will not make any new complaint based upon the facts which are the subject matter of any of these complaints. 7. Upon signing the Deed of Release, Al-Hakim will notify VCAT that all his complaints, 69/96, 47/97, 48/97, 144/97 and 265/98 are withdrawn. 8. Al-Hakim agrees to enter into a formal deed of release reflecting these heads of agreement. 9. Al-Hakim agrees to settlement of the complaints numbered 69/96, 47/97, 48/97, 144/98 and 265/98 without prejudice to his right to apply for any positions for which he is eligible at Monash in the future. Dated at Melbourne this 7th day of May 1999."

The heads of agreement are then signed by the plaintiff on the one hand and a representative of Monash University on the other.

16. Following the execution of the heads of agreement, the mediator notified the tribunal that the proceedings had been settled, as he was required to do by virtue of the provisions of s.90 of the Act.

19. On or about 15 May of 1999, the plaintiff wrote to the mediator challenging the validity of the settlement agreement and seeking further mediation.

22. On 4 June 1999 the respondents filed an application with the tribunal seeking inter alia orders pursuant to s.93(1) of the Act. Section 93(1) of the act reads:

"93. Settlement of proceeding. (1) If the parties agree to settle a proceeding at any time the tribunal may make any orders necessary to give effect to that settlement."

26. The application was heard by the tribunal on 9 July 1999.

29. On 30 July 1999 the tribunal allowed the defendants' application for orders enforcing the settlement agreement and ordered, inter alia,

2. That the plaintiff and the university perform the settlement agreement to the extent that it had not already been carried out;

3. That the plaintiff's application for further mediation be refused.

The tribunal gave extensive reasons for its determination in the matter, such reasons running to some 20 typed pages.

36. The plaintiff now seeks leave to appeal to this court from that determination. The section in the Act relating to appeals from the tribunal is s.148, the relevant sub-sections of which read,

"148. Appeals from the Tribunal. (1) A party to a proceeding may appeal on a question of law from an order of the tribunal in the proceeding - (b) to the trial division of the Supreme Court in any other case, if the trial division gives leave to appeal"

And so it is clear that any appeal from the decision of the tribunal can only be on a question of law and in this instance can only be with the leave of a judge of the court.

41. Although I must confess to having some little difficulty in fully comprehending what it was that the plaintiff was submitting to me, it did seem clear to me that there were two principal matters upon which he relied in an endeavour to demonstrate that the tribunal of law had made an error in the matter. In the first place, he contended that the agreement entered into by him and Monash University on 7 May 1999 was not a concluded and therefore binding agreement and, accordingly, the tribunal was in error in making the order it did that the settlement agreement be performed.

44. The second principal argument advanced by the plaintiff, was that the tribunal had no jurisdiction to give effect to the agreement because it came into existence during the course of a mediation. In that regard, the plaintiff relied firstly on the provisions of s.92 of the Act, which reads,

"92. Evidence inadmissible. Evidence of anything said or done in the course of mediation is not admissible in any hearing before the tribunal in the proceeding unless all parties agree to the giving of the evidence,"

and clause 26 of Schedule 1 to the Act, which reads,

"26. Evidence of mediation not admissible even if parties agree. (1) Evidence of anything said or done in the course of a mediation in a proceeding under the Equal Opportunity Act 1995 is not admissible in any hearing before the tribunal in the proceeding, whether or not the parties agree to the giving of the evidence. (2) Section 92 does not apply to a proceeding under the Equal Opportunity Act 1995."

50. The principles to be applied in determining whether or not parties have arrived at a concluded agreement in relation to their bargain were dealt with by the High Court in Masters v. Cameron [1954] HCA 72; (1954) 91 CLR 353. At page 360 the court said,

"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."

The tribunal found that the agreement in question came into the first of those categories.

55. In my opinion the tribunal made no error in the matter. The agreement clearly sets out the whole of the terms agreed upon by the parties and it is clear that in inserting the provision in it to the effect that the plaintiff would enter into a formal deed of release reflecting the heads of agreement was not intended in any way to effect the performance of the agreement by the parties.

58. Insofar as the second matter relied upon by the plaintiff is concerned, the tribunal dealt at some length with that contention, but in the final analysis rejected it and found that the agreement could be relied upon, even though it may have come into existence during the course of a mediation proceeding. At page 11 the tribunal said, "However, in my view, as I said, the fact that a settlement has been reached and what the terms of that settlement were is admissible and evidence of those matters is admissible. As I said in the case of Hart v. Kunar, which is a decision of VCAT dated 30 June 1999, this conclusion follows from the provisions of s.90, which is the report where a settlement has been reached, s.91, which concerns where a settlement has not been reached, and s.93, which permits the tribunal to make orders to give effect to the agreed settlement. Because of the view I take about the admissibility of terms of settlement and the fact of settlement, I reject Dr Al-Hakim's submissions that if evidence of what happened at mediation is inadmissible, then evidence of the fact of settlement and the terms of settlement must also be inadmissible". Having made that finding, the tribunal then proceeded to make the orders it did.

61. I am not satisfied that the tribunal made any error of law in so concluding. It would seem to me to be an extraordinary situation if in practice parties who have reached agreement to settle a proceeding at mediation cannot then seek to enforce their agreement, particularly when s.93(1) of the Act specifically provides that if the parties do agree to settle a proceeding at any time, the tribunal may make any orders necessary to give effect to the settlement.

64. I am not satisfied that the tribunal made any error of law in its determination in this case, and accordingly the appeal from the order of the Master made on 17 November 1999 is dismissed with costs to be taxed and paid by the plaintiff.