CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ACCEPTANCE –
GENERALLY – PARTICULAR CASES – where the claimant,
by his litigation
guardian, gave notice to his employer of a claim for damages in accordance with
Source
Original judgment source is linked above.
Catchwords
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ACCEPTANCE –GENERALLY – PARTICULAR CASES – where the claimant,by his litigationguardian, gave notice to his employer of a claim for damages in accordance withs 275 of the Workers’ Compensation and Rehabilitation Act 2003(Qld) – where the employer was insured by WorkCover Queensland –where the parties participated in a compulsory conferencepursuant to Chapter 5Part 6 of the Workers’ Compensation and Rehabilitation Act 2003(Qld) – where the parties were unable to settle during the conference andagreed to physically exchange final written offers– where theclaimant’s final written offer contained a term that if WorkCover’sfinal written offer was more thanthe claimant’s, the claimant acceptedWorkCover’s offer – where WorkCover’s offer was more than theclaimant’s– where the parties both assert they accepted the otherparty’s offer – whether either party accepted the other’s
offer
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL
APPROACHES TO INTERPRETATION – TO GIVE OPERATION
AND EFFECT TO ACT –
whether s 293 of the Workers’ Compensation and Rehabilitation Act
2003 (Qld) operates to preclude a binding contract of settlement coming into
existence prior to the execution of a ‘discharge’
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH
AND DEFENCES TO ACTION FOR BREACH – CONDITIONS –
CONDITIONS
PRECEDENT AND SUBSEQUENT – where the claimant lacked capacity –
where there was no sanction of the settlement
by a court or the public trustee
pursuant to s 59(2) of the Public Trustee Act 1978 (Qld) – where
the claimant submitted that s 59(2) of the Public Trustee Act 1978 (Qld)
did not operate to invalidate a settlement reached prior to court action being
commenced – where WorkCover submitted
s 59 of the Public Trustee Act
1978 (Qld) operated so that there was no contract without the sanction of
the court – whether there is a binding contract between
the parties prior
to a s 59(2) Public Trustee Act sanction
Acts Interpretation Act
1954 (Qld), s 14B
Civil Procedure Act 2005 (NSW), s 75, s
76
Guardianship and Administration Act 2000 (Qld), s 59
Powers
of Attorney Act 1998 (Qld), s 1(o), s 2(i), s 18(d)
Public Trustee Act
1978 (Qld), s 59
Uniform Civil Procedure Rules 1999 (Qld), r 20, r
483, r 485
WorkCover Queensland Act 1996 (Qld), s
300
Workers’ Compensation and Rehabilitation Act 2003 (Qld),
s 273, s 274, s 275, s 281, s 288, s 289, s 290, s 291, s 292,
s 293, s
360
Affoo v Public Trustee of Queensland [2011] QSC 309
[2012] 1 Qd R
408
Allman v State of Queensland [2012] QDC 94
Azar v
Kathirgamalingan [2012] NSWCA 429
Bishop v Woolworths Ltd [2008]
QSC 154
Brown v Heffer [1967] HCA 40
(1967) 116 CLR 344
Butts v
O’Dwyer [1952] HCA 74
(1952) 87 CLR 267
Collett v Robina Projects Australia
Pty Ltd (t/as Easy T Retail Centre) [2009] QDC 53
Dietz v Lennig
Chemicals Ltd [1969] 1 AC 170
Dixon v Australian Associated Motor
Insurance Ltd [2010] QSC 69
[2011] 1 Qd R 214
Drinkall v Whitwood [2003] EWCA
SIV 1547
Dunhill v Burgin [2014] UKSC 18
Egan v Ross [1928] NSWStRp 101
(1928)
29 SR (NSW) 382
Fisher v Marrin [2007] NSWSC 1411
Harvela
Investments Ltd v Royal Trust Co of Canada (CI) Ltd [1986] AC
207
McWilliam v McWilliams Wines Pty Ltd [1964] HCA 6
(1964) 114 CLR 656
Metal Roofing and Cladding Pty Ltd v Amcor Trading Pty Ltd [1999] QCA
472
Nicotra v State of Queensland [2017] QSC 303
Oxlade v
Gosbridge Pty Ltd (No. 2) [1999] NSWCA 165
Perri v Coolangatta
Investments Pty Ltd (1982) 149 CLR 537
Piper Ellis P/L & Anor v
Farmland P/L & Ors [2000] QSC 157
R v A2 [2019] HCA 35
(2019) 269 CLR
507
R v Clarke [1927] HCA 47
(1927) 40 CLR 227
Sharp bht Sharp v Illawarra
Shoalhaven Local Health District [2018] NSWSC 545
Smallman v Smallman
[1972] Fam 25
Tallerman & Co Pty Ltd v Nathan’s Merchandise
(Vic) Pty Ltd [1957] HCA 10
(1957) 98 CLR 93
Zischke v Mayvista Pty Ltd T/As Macleay
Island General Store [2012] QDC 335
Judgment (164 paragraphs)
[1]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - ACCEPTANCE - GENERALLY - PARTICULAR CASES - where the claimant, by his litigation guardian, gave notice to his employer of a claim for damages in accordance with s 275 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) - where the employer was insured by WorkCover Queensland - where the parties participated in a compulsory conference pursuant to Chapter 5 Part 6 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) - where the parties were unable to settle during the conference and agreed to physically exchange final written offers - where the claimant's final written offer contained a term that if WorkCover's final written offer was more than the claimant's, the claimant accepted WorkCover's offer - where WorkCover's offer was more than the claimant's - where the parties both assert they accepted the other party's offer - whether either party accepted the other's offer
[2]
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - TO GIVE OPERATION AND EFFECT TO ACT - whether s 293 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) operates to preclude a binding contract of settlement coming into existence prior to the execution of a 'discharge'
[3]
CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - DISCHARGE, BREACH AND DEFENCES TO ACTION FOR BREACH - CONDITIONS - CONDITIONS PRECEDENT AND SUBSEQUENT - where the claimant lacked capacity - where there was no sanction of the settlement by a court or the public trustee pursuant to s 59(2) of the Public Trustee Act 1978 (Qld) - where the claimant submitted that s 59(2) of the Public Trustee Act 1978 (Qld) did not operate to invalidate a settlement reached prior to court action being commenced - where WorkCover submitted s 59 of the Public Trustee Act 1978 (Qld) operated so that there was no contract without the sanction of the court - whether there is a binding contract between the parties prior to a s 59(2)Public Trustee Act sanction
Zischke v Mayvista Pty Ltd T/As Macleay Island General Store[2012] QDC 335
[38]
B Charrington KC with S Noble for the respondent Brother International (Aust) Pty Ltd
[39]
B Charrington KC with S Noble for the applicant WorkCover Queensland
[40]
Jensen McConaghy for the respondent Brother International (Aust) Pty Ltd
[41]
Jensen McConaghy for the applicant WorkCover Queensland
[42]
[1] Glen Michael Allen ("Mr Allen"), by his litigation guardian Vanessa Lee Allen, had previously given a notice of a claim for damages in accordance with s 275 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the WCR Act"). The relevant notice had been given to Brother International (Aust) Pty Ltd ("BI"), which was insured by WorkCover Queensland ("WorkCover").
[2] This then activated the pre-commencement procedures found in Chapter 5 Part 5 of the WCR Act.
[3] The parties eventually participated in a compulsory conference, as contemplated by Chapter 5 Part 6 of the WCR Act.
[4] Having been unable to settle during the compulsory conference, Mr Allen and WorkCover agreed to:
[43]
(a) adjourn the compulsory conference; and
(b) exchange their final written offers as required by s 292 of the WCR Act on
10 October 2024.
[44]
[5] On that date, the parties engaged in a mutual exchange of what was purported to be their respective final written offers as required by s 292 of the WCR Act. Each party asserts that they accepted the other's offer.
[6] A dispute has arisen between the parties as to:
[45]
(a) which, if any, of the exchanged offers was accepted, particularly in light of Mr Allen having embedded as a term of his offer a provision which provided that if WorkCover's offer was for more than Mr Allen's offer, then Mr Allen accepted WorkCover's offer;
(b) whether there was any binding compromise at all between the parties prior to the signing of a discharge as required by s 293 of the WCR Act;
(c) whether there was any binding compromise between the parties prior to a court sanction of the settlement pursuant to s 59(2) of the Public Trustee Act 1978 (Qld) ("PT Act").
[46]
[7] Accordingly, the real issues in this proceeding raise the following questions.
[8] First, "Which party, if any, accepted the other's offer?"
[9] Secondly, if a party is found to have accepted an offer, "Did s 293 of the WCR Act operate so that no binding contract came into existence, despite an offer's acceptance?"
[10] Thirdly, if the answer to the second question is "no", then the third question is, "Is there a binding contract between the parties prior to a s 59(2) PT Act sanction?"
[11] These reasons will be structured as follows:
[47]
(a) a short chronology of facts as found will be set out;
(b) the real issues will be addressed in order; and
(c) final conclusions and orders will be expressed.
[48]
[12] It was not in dispute that at the time of this hearing, and at the time of the exchange of offers, and at different times in the past, Mr Allen has lacked legal capacity.
[13] On 18 September 2021, a notice of claim was signed by Mr Allen's wife as his litigation guardian and was served on BI. It is not clear how Mrs Allen was authorised to do this at the time. However, Mr Murphy, who was the solicitor for Mr Allen, adduced evidence that was not objected to, for the purpose of supporting that Mr Allen had capacity to enter into a power of attorney document on 18 March 2022. This evidence included a file note of a conversation with the previous solicitor of Mr Allen, a Mr Josh Rowe, confirming that the usual practice that he would have engaged in at the relevant time of Mr Allen's execution of the document, was to follow the Queensland Law Society Guidelines for the assessment of the capacity of a client. He agreed that this was particularly so where his notes recorded that Mr Allen had suffered from transient ischemic attacks.[1] Mr Rowe is recorded as accepting that he must have formed the opinion that Mr Allen had capacity, as Mr Rowe identified that he would not have witnessed the power of attorney otherwise. The unobjected to evidence supports, and I find, that Mr Allen had the relevant capacity to enter into the power of attorney as at 18 March 2022. Pursuant to that document, Mrs Allen was then empowered to act on behalf of Mr Allen in respect of all personal matters and financial matters.
[14] I am satisfied that the power of attorney empowered Mrs Allen to ratify her prior signing and serving of the notice of claim on 17 September 2021 on behalf of Mr Allen, to the extent she lacked such authority at that time. I am also satisfied that the power of attorney authorised Mrs Allen, on behalf of Mr Allen, to continue to prosecute the claim under the WCR Act, including doing all things necessary to settle the claim.[2]
[15] On 19 September 2024, a compulsory conference in respect of Mr Allen's claim occurred. At this physical compulsory conference, the parties contractually agreed as follows:
[49]
(a) the conference was to be adjourned; and
(b) the final written offers required by s 292 of the WCR Act would be exchanged on 10 October 2024.
[50]
[16] It was then further agreed that the exchange would take place at the offices of WorkCover's solicitors at 4.00 pm on 10 October 2024.
[17] It was not in dispute that the exchange contemplated by the parties was to be a physical one.
[18] After a short agreed delay, the mutual exchange of written offers occurred at 4.20 pm on 10 October 2024.
[19] The terms of Mr Allen's final written offer were as follows:
[51]
"Take Notice that the Claimant, Glen Allen by His Litigation Guardian Vanessa Allen, hereby offers to settle his claim for damages for personal injuries sustained over a period of time from 1 January 2016 during the course of his employment with Brother International Australia Pty Ltd in accordance with section 292 of the Workers' Compensation & Rehabilitation Act 2003 on the following terms:-
[52]
The Claimant will accept the sum of $1,800,000.00 (One million, eight hundred thousand dollars) clear of the refund to WorkCover plus administration and management fees to be agreed, or failing agreement, assessed by the Court.
[53]
If WorkCover's Written Final Offer is more than the Claimant's Written Final Offer, the Claimant hereby accepts WorkCover's Written Final Offer.
[54]
(a) All applicable statutory refunds within 7 days of receipt by the Defendant's solicitors of those notice of those refunds; and
(b) The balance of the settlement sum to be paid to the trust account of the solicitors of the Plaintiff within 7 days of receipt by the Defendant's solicitors of the notice of all applicable statutory refunds.
[55]
This written final offer will expire in 10 business days from the day hereof" (the "Allen Offer").
[56]
[20] The Allen Offer was signed by the solicitor for Mr Allen. Clearly enough, the solicitor was signing as the authorised agent of Mr Allen.
[21] The terms of WorkCover's final written offer were as follows:
WorkCover Queensland, on behalf of the employer, makes a final offer of settlement in the sum of $2,000,000.00 clear of the WorkCover refund and inclusive of all other statutory refunds, plus reasonable fund management and administration fees and charges, as agreed or ordered by the court.
[59]
This offer remains open for ten (10) business days" (the "WorkCover Offer").
[60]
[22] The WorkCover Offer was signed by the solicitor for WorkCover. Clearly enough, the solicitor was signing as the authorised agent of WorkCover.
[23] At 4.26 pm on 10 October 2024, Ms Bronwyn Hemon, a solicitor acting for WorkCover, received a scanned copy of the Allen Offer. This was received via an email sent by her junior staff member who had physically received the Allen Offer. Whilst not deposed to by Ms Hemon, it is apparent that she must have read the Allen Offer shortly after it was received, as an acceptance of this offer was sent shortly thereafter at 4.36 pm on 10 October 2024. That email was sent by Ms Hemon, on behalf of WorkCover.
[24] At 5.09 pm on 10 October 2024, an email was sent from the solicitors for Mr Allen advising, amongst other things, that in accordance with the terms of clause 3 of the Allen Offer, Mr Allen had accepted the WorkCover Offer, as WorkCover's Offer (on behalf of BI) had been for more than the Allen Offer.
[25] Subsequent to these communications, there was further correspondence passing backwards and forwards between the respective solicitors, whereby each asserted that their client had accepted the other party's offer.
[26] There is a live issue as to whether the Allen Offer was capable of acceptance due to its clause 3. With the exception of this live issue, both parties otherwise accepted that each of the written offers, if accepted, were in sufficiently certain terms to give rise to a contract of settlement.
[61]
First real issue: Which party, if any, accepted the other's offer?
[62]
[27] The answer to the first real issue is that neither party accepted the other's offer. The reasoning for this conclusion is set out below.
[63]
[28] For the purposes of resolving the first real issue, it is relevant to extract the provisions of the WCR Act which concern the making of final written offers at a compulsory conference. The relevant sections are found in Chapter 5 Part 6 Division 1 and 2 of the WCR Act as follows:
This division does not apply to a claim that is otherwise settled by negotiation between the parties.
[66]
(1) Before the claimant starts a proceeding for damages, there must be a conference of the parties (the compulsory conference).
[67]
(8) The claimant in person, a person authorised to settle on the insurer's behalf and a person authorised to settle on behalf of any contributor must attend the conference and actively participate in an attempt to settle the claim, unless the claimant or person has a reasonable excuse.
[68]
(2) An agreement that the compulsory conference is to be held with a mediator must specify how the costs of the mediation are to be borne.
[69]
Information to be given by party's lawyer before other type of settlement attempted
[70]
Before settlement of a claim is attempted in a way other than by a compulsory conference, each party's lawyer must give the party a statement (also a financial statement) containing the information mentioned in section 290A(3).
[71]
292 Parties to make written final offers if claim not settled at compulsory conference
[72]
(1) This section applies to the following (each a claim) -
[73]
(a) a claim made by the claimant against another party;
[74]
(b) a contribution claim relating to the claim made by the claimant.
[75]
(2) If a claim is not settled at a compulsory conference, each party that has legal capacity to settle the claim must ensure that it makes a written final offer or written final offers at the conference to another or other parties at the conference that would dispose of the claim if the offer or offers were accepted.
[76]
(3) Any 2 or more parties may make a joint written final offer to another party.
[77]
(4) Before a joint written final offer is made, the parties making the offer must give the party to whom the offer is to be given sufficient notice of the fact that a joint written final offer will be made to enable the party to appropriately respond.
[78]
(5) Also, if more than 1 claim is the subject of the compulsory conference, a written final offer may be a consolidated written final offer for all the claims made by the claimant.
[79]
(6) A consolidated written final offer must cover all contribution claims relating to all the claims made by the claimant to the extent the party making the offer has legal capacity to settle the contribution claims.
[80]
(7) A consolidated written final offer must detail the portion of the offer applicable to each claim.
[81]
(8) A consolidated written final offer can only be accepted or rejected in full.
[82]
(9) A written final offer must remain open for 10 business days and proceedings must not be started while the offer remains open.
[83]
(10) If the claimant or insurer brings a proceeding in a court for a claim, the claimant or insurer must, at the start of the proceeding, file at the court a sealed envelope containing a copy of the claimant's or insurer's written final offer for the claim.
[84]
(11) A party to proceedings for a claim, other than the party who starts the proceedings, within 10 business days after being served with the legal process that starts the proceeding, must file at the court a sealed envelope containing a copy of the party's written final offer for the claim.
[85]
(12) The court must not read an offer filed under subsection (10) or (11) until it has decided the claim relating to the offer.
[86]
(13) The court must have regard to the filed offer in making a decision about whether it should order that a party to whom an offer was given should pay all or part of -
[87]
(b) if the claim is a contribution claim - any costs the party who was given the offer is liable to pay to the claimant.
[88]
[29] Mr Allen contended that clause 3 of the Allen Offer operated as an acceptance of the WorkCover Offer. It was submitted that this occurred because the WorkCover Offer was, as a matter of fact, for a monetary sum in excess of that offered by Mr Allen. Mr Allen contended that this was the only criteria required for the acceptance to be unconditional.
[30] In making that submission, Mr Allen further contended that even if the Allen Offer was non-compliant with the terms of s 292 of the WCR Act, it was still operative as an acceptance of WorkCover's offer.
[31] Next, it was submitted that clause 3 of the Allen Offer ought to be objectively construed as communicating that when the criteria referred to in clause 3 had been met, Mr Allen's offer to settle for $1.8 million had been withdrawn.
[32] Finally, Mr Allen submitted that clause 3 was a clear form of communication of the acceptance of the WorkCover Offer. It was said that Mr Allen did not require knowledge of the quantum offered by WorkCover in order for that type of acceptance to be operative. It was said that the WorkCover Offer existed as a matter of fact and it was either above that offered by Mr Allen or it was not.
[33] It was pointed out that there was no dispute between the parties as to what would be the terms of any settlement, namely it would be the terms contained in the WorkCover Offer.
[89]
[34] The primary contention of WorkCover was that s 292 of the WCR Act was designed to encourage parties to put their single best offer forward after settlement negotiations had failed at the compulsory conference. It was submitted that clause 3 of the Allen Offer did not do this.
[35] It was said that the situation created by the inclusion of clause 3 was analogous to the situation which existed in Harvela Investments Ltd v Royal Trust Co of Canada (CI) Ltd[1986] AC 207. In that decision, an entity ("A") had created unilateral contracts with two other entities ("B" and "C") as to how a fixed tender process was to function. "A" had communicated to both "B" and "C" that they should each submit a revised offer to purchase certain shares. "A" bound itself to accept the highest offer received by it that complied with the terms of its communication. In response, "B" offered a fixed sum of $2,175,000, whilst "C" offered a fixed sum of $2,100,000 or $101,000 in excess of any other offer expressed in a fixed monetary amount, whichever was the higher. "A" then treated "C" as having made the highest offer, being $2,175,000 plus $101,000, as per the second alternative in "C's" offer.
[36] The Privy Council determined that on the proper construction of the unilateral contract which governed the tendering process, the contract had called for a single highest monetary offer. Accordingly, "C's" offer which had contained the two alternatives was found to be an invalid offer as it was non-compliant with the terms of the contract governing the tendering process.
[37] WorkCover contended that, at the time of the exchange, as a matter of fact, the WorkCover Offer was always higher than the exchanged Allen Offer. Consequently, clause 3 of the Allen Offer had the effect that there was no offer capable of being accepted by WorkCover so as to dispose of the claim. WorkCover relied on s 292(2) of the WCR Act for the proposition that s 292 required a final written offer to be one where the acceptance of it would dispose of the claim.
[38] WorkCover submitted that the offer that was made by Mr Allen was inconsistent with the requirement of s 292(2) of the WCR Act, and was therefore an invalid offer in terms of the contract which had been made for the exchange of final written offers as required by s 292 of the WCR Act.
[90]
(a) becoming the standard mechanism for acceptance in the pre-contract personal injuries regime;
(b) causing potentially absurd results in circumstances where both parties to a dispute used such clauses in their offers;
(c) potentially disadvantaging persons who are unfamiliar with any court decision which upholds the validity of this form of acceptance.
[91]
[44] The starting point is to observe that the parties had contractually agreed at the compulsory conference on the process they would adopt for the purposes of the making of each of their final written offers as required by s 292(2) of the WCR Act. In that regard, I emphasise the following matters.
[45] Section 292(2) of the WCR Act provides, in part, that if the parties have not settled at the compulsory conference each party must make their written final offer at the conference itself. Part of the agreed process dealt with this requirement by adjourning the conference so as to facilitate the making of the offers in accordance with this statutory requirement.
[46] Secondly, it is relevant to note that s 292(2) of the WCR Act does not require a simultaneous physical exchange of offers. The agreed process introduced this type of exchange as an additional requirement for the making of the offers. The purpose was obvious. It was to provide each party with a theoretically equal opportunity to accept the other party's offer.
[47] The drawback of such an agreed process is that it can create a race between the parties to accept the other's offer if they are each more favourable to the acceptor. Where such an agreed process has embedded within it the potential for such a race to acceptance, then that agreed process will naturally provide fertile ground for parties to seek to implement devices which might aid in the winning of the race to acceptance.
[48] Thirdly, s 292 of the WCR Act requires that the parties must ensure that each makes a final written offer to the other party "that would dispose of the claim if the offer...were accepted." Importantly, what was agreed to be exchanged was each party's offer required under s 292(2) of the WCR Act, namely, offers which, if accepted, would dispose of the claim.
[49] I accept the submission of WorkCover that there is an analogy with Harvela. Here, there was a contractually agreed process for the exchange of offers. Contrary to what was agreed to occur, the exchanged Allen Offer was not an offer capable of acceptance by WorkCover so as to dispose of the claim.
[50] The agreement necessarily had an implied term to the following effect: "...no offers supplied under the agreed process can be accepted unless both parties have exchanged with each other final written offers which, if accepted, would dispose of the claim, as required by s 292 of the WCR Act."
[92]
(a) the term is reasonable and equitable;
(b) the term is necessary to give business efficacy to the contract;
(c) the term is obvious;
(d) the term is capable of clear expression; and
(e) the term is not contradicted by any express term of the contract.
[93]
[52] The whole point of an agreement to simultaneously exchange offers required under
[94]
s 292(2) of the WCR Act was to give each side an immediate and theoretically equal opportunity to race to an acceptance.
[95]
[53] Contrary to the submission of Mr Allen, it cannot be the case that the agreement for the simultaneous exchanges of offers as required by s 292 of the WCR Act would allow a party to accept a compliant offer provided by the other party in circumstances where it had failed to exchange an offer which was capable of acceptance by that other party. The position contended for by Mr Allen was fundamentally at odds with what had been agreed, hence why the implied term was so obvious that it goes without saying, and the agreement would not be efficacious without it.
[54] As in Harvela, it is the content and operation of the contractually agreed process which resolves the dispute.
[55] Clause 3 operated so as to create only two possible outcomes. If the WorkCover Offer was for less than the Allen Offer, then the Allen Offer would operate as an offer capable of disposing of the claim if accepted by WorkCover. If the WorkCover Offer was greater than the Allen Offer, then no operative offer capable of acceptance by WorkCover was made.
[56] Clause 3 was expressed to be part of the terms of the offer. Clause 3 provided unambiguously that the WorkCover Offer is accepted in the second of the outcomes. Clause 3 resulted in there being no extant offer for the second outcome.
[57] The submission made by Mr Allen was that clause 3 operated to withdraw the Allen Offer in that circumstance. I would express the position somewhat differently, namely that clause 3 conditioned the offer such that it was only capable of acceptance if WorkCover's offer was for a lesser amount.
[58] As the WorkCover Offer was always, as a matter of fact, for a greater sum than the $1.8 million at the point of the physical exchange, WorkCover is correct in its submission that it never received an offer which, if accepted, would have disposed of the claim.
[59] It is irrelevant that Mr Allen's representatives did not know at the point of exchange which of the two outcomes would occur. To the extent that their knowledge was relevant at all, they were certainly aware that one of the two binding outcomes was that the WorkCover Offer may have been greater than $1.8 million.
[60] In accordance with the implied term, neither party was at liberty to accept the other's offer.
[61] In the case of WorkCover, there was no other final written offer open for it to accept.
[96]
"...It is true that the defendant did not, or may not have, become aware of the terms of those General Conditions until the first invoice was delivered by the plaintiff, or even at all. But that is irrelevant. It is perfectly possible in law for a person to contract on terms that are incorporated into a contract only by reference to another document, which that party has never before seen, and may in fact never set eyes on..."
[97]
[68] At paragraph [40], his Honour continued:
[98]
"...They were thus sufficiently identified as the Conditions being referred to in the application for credit that was signed by the defendant, and they were therefore effectively incorporated in the contracts or sales that subsequently took place between the parties..."
[99]
[69] Here, Mr Allen, by his representatives, had knowledge that an offer to settle the claim for a sum of money was being made by WorkCover. His form of acceptance ensured that the settlement sum must exceed $1.8 million. Mr Allen, by his representatives, did not know all of the remaining terms. He knew they were articulated in the sealed written offer and therefore they could be objectively identified. He was agreeing to be bound by those objectively identifiable terms. That was enough for the acceptance to be contractually effective.
[71] That decision does not support the submission as advanced. Clarke concerned a reward which had been offered to the general public for the supply of information. The principle discussed in that decision is to the effect that, if a person supplies the information or does the thing which is required as the condition for the reward, but does so without knowledge of the offer of reward, then no contract comes into existence. That result ensues because the conduct was not performed in the expectation of the reward. The decision in Clarke has no application to the facts of this case.
[72] The second contractual contention was said to be that the method of acceptance should be via a manner reasonably contemplated by the offeror, and that it was not reasonably contemplated by the offeror that the acceptance would have been embodied in the offeree's own offer. That submission was made by reference to Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd[1957] HCA 10; (1957) 98 CLR 93.
[73] The principle which was discussed in Tallerman concerned the question of what mode of communication could be contemplated by the parties as a means of effective acceptance of an offer. was one of a line of cases which dealt with what became known as the 'Postal Rule.'
[85] Given the answer to the first real issue, it is not strictly necessary to deal with the second real issue.
[86] Nonetheless, if I am incorrect in respect of the first real issue, then my answer to the second real issue is that s 293 of the WCR Act does not operate to preclude a binding contract of settlement coming into existence prior to the execution of a discharge. The reasoning for this conclusion is set out below.
[102]
[87] For the purposes of resolving this issue, it is appropriate to set out s 293 of the WCR Act as follows:
[103]
If a claim or contribution claim is settled before the start of a court proceeding, the parties to the settlement must sign a discharge for the claim."
[104]
[88] It is also relevant to set out the extract from the explanatory memorandum to the WCR Act which pertains to what became s 293. That extract is as follows:
[105]
Division 2 - Settlement before Court proceedings
[106]
Clause 293 requires the parties to a settlement to sign a discharge for the claim. This then makes the agreement binding on parties to the settlement.
[107]
(c) Mr Allen's contentions and WorkCover's contentions
[108]
[89] The contentions of the two parties in respect of the operation of s 293 of the WCR Act is centred around the decision of Bishop v Woolworths Ltd[2008] QSC 154, being a decision of M Wilson J. In that decision, her Honour had cause to consider s 300 of the WorkCover Queensland Act 1996 (Qld). That Act was the predecessor to the WCR Act. Section 300 was in identical terms to s 293 of the WCR Act. Further, the explanatory memorandum to s 300 was also in identical terms to the explanatory memorandum which pertained to s 293 of the WCR Act.
[90] Her Honour had already found in that case that no contract of settlement had come into existence because there had been no acceptance of an offer. Accordingly, her Honour's subsequent remarks in relation to s 300 were obiter dictum.
[91] In those obiter dictum statements, her Honour expressed the concluded view that the effect of s 300 of the precursor Act was that no binding settlement came into existence unless a binding discharge had been signed.
[92] In coming to that conclusion, her Honour found:
[109]
(a) section 300 was ambiguous in its meaning, in that on one hand it could amount to, at its highest, a condition subsequent of a compromise of a claim, whilst on the other hand it could indicate that a compromise was not binding unless and until a discharge had been signed;
(b) in certain circumstances, there could be problems in proving an oral compromise, as the case before her illustrated;
(c) the objects of the Act included striking a balance between the interests of injured workers on the one hand and employers and WorkCover on the other;
(d) certainty as to the existence and terms of a compromise would be in the mutual interest of both parties and would be promoted by a requirement that a disclosure be signed by the parties before it became binding; and
(e) her Honour regarded the relevant extract from the explanatory memorandum as providing that a settlement was not binding until the parties signed a discharge.
[110]
[93] For all of those reasons, her Honour formed the view that the correct interpretation of s 300 was that a compromise was not binding unless and until a discharge was signed.
[94] Mr Allen contended that I should not follow the reasoning of Wilson J, whereas WorkCover submitted that the reasoning of Wilson J ought to be accepted.
[95] The decision in Bishop has not received significant consideration in subsequent authorities. It was followed in the District Court decision of Collett v Robina Projects Australia Pty Ltd (t/as Easy T Retail Centre)[2009] QDC 53. It otherwise was referred to in a separate District Court decision of Zischke v Mayvista Pty Ltd T/As Macleay Island General Store[2012] QDC 335, where Jones DCJ was also invited not to follow it. His Honour in that case ultimately did not need to decide whether or not he agreed with the reasoning in Bishop.
[111]
[96] With the greatest respect to her Honour, if I had to decide the second real issue, I would not follow the reasoning in Bishop. My reasoning is as follows.
[97] First, I note the orthodox approach to the task of statutory construction identified by their Honours Kiefel CJ and Keane J (with whom Nettle and Gordon JJ agreed) in R v A2[2019] HCA 35; (2019) 269 CLR 507. It may be summarised as follows:
The task must commence with a consideration of the words as used in the relevant provision under construction. What must be construed is the actual words rather than looking at paraphrases of the words as they may appear in extrinsic materials. The importance of directing attention to the actual words used derives from the fact that it is those words which are being interpreted.
The process of paying close attention to the words actually used in the statute does not suggest a return to the literal approach of statutory construction. The literal approach was abandoned many years ago.
The next step is to ensure that the words being construed are read within the context in which they appear in the statute at large, and with reference to any mischief to which the provision is directed. By this process, the courts have recognised that even though words may bear an apparently plain meaning, if they do not conform to the evident purpose or policy of the particular provision, it is appropriate for the courts to depart from the apparently plain meaning. Ultimately, the construction which promotes the purpose of a statute is to be preferred.
In identifying a mischief to which a particular section is directed, it is permissible to look at both the context in which the words appear within the larger statute, as well as categories of extrinsic materials identified in s 14B of the Acts Interpretation Act 1954 (Qld).
[112]
(a) maintaining a balance between providing fair and appropriate benefits for injured workers and ensuring reasonable cost levels for employers; and
(b) ensuring that injured workers are treated fairly by insurers.[5]
[113]
[100] Those objects are at a high level of generality but may be used in aid of construction of the provisions of the WCR Act.
[101] Next, it is relevant to note that s 293 of the WCR Act sits within Chapter 5 of the Act. Chapter 5 deals with access to damages.
[102] Part 5 of Chapter 5 then deals with pre-court procedures. It identifies that an object of Part 5 is to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense.
[103] Section 274(1) of the WCR Act provides that in accordance with the object previously stated, Part 5 is to be applied by the parties to avoid undue delay, expense and technicality. By s 274(2) of the WCR Act, the parties impliedly undertake to the other party to proceed in an expeditious way. Section 274(3) of the WCR Act provides that the court may impose appropriate sanctions if a party does not comply with a provision of Part 5.
[104] Section 275 of the WCR Act then provides for a claimant to give a notice of claim for damages. This starts the pre-action procedures.
[105] Next, it is relevant to note that the pre-action procedures contemplate and promote the settlement of the claim by the parties at a number of stages.
[106] These statutory prompts to settlement in Chapter 5 of the WCR Act include the following:
Section 275(6) requires an initial claim document to be accompanied by a genuine offer of settlement or a statement of the reason why an offer of settlement cannot yet be made.
Section 281(1) provides that the parties must endeavour to resolve a claim as quickly as possible.
Section 281(4) provides that WorkCover's written notice in response to the claim must state whether the insurer accepts or rejects any offer of settlement that may be made by the claimant.
Section 281(4)(c) provides the insurer's responsive notice must contain a genuine offer or counter-offer of settlement, or a statement of reasons why an offer or counter-offer of settlement cannot yet be made.
Section 288 simply acknowledges, in a negative form, that the parties may otherwise settle the claim by negotiation at any time.
Section 289 provides for a compulsory conference.
Section 289(8) provides that the claimant or their authorised agent must have authority to settle at the compulsory conference and must actively participate in an attempt to settle the claim, unless they have a reasonable excuse.
[114]
s 293 of the WCR Act appears. That section provides as follows:
[115]
"Division 2 Settlement before court proceedings
[116]
If a claim or contribution claim is settled before the start of a court proceeding, the parties to the settlement must sign a discharge for the claim."
[117]
[111] Turning then to the specific text of s 293, the first portion of that text is clear. It states, "If a claim...is settled before the start of a court proceeding...". This first part of the provision as a matter of ordinary grammar sets a condition, namely "if a claim is settled." What then follows is the main part of the clause which sets the consequence of the condition, namely "...the parties must sign a discharge...". Both as a matter of text and as a matter of grammar, the section only imposes the requirement to sign a discharge if the claim is "settled." That language in the first part of s 293 is entirely consistent with the previous sections emphasised above, which invoke the concept and consequences of contract, namely an offer to settle a claim and an acceptance of that offer will result in a settlement of the claim, in the sense of a contract of compromise.
[112] The later amendment to s 292(2) further supports this construction. The offer which is to be made as a final written offer must be one, which if accepted, would dispose of the claim. That provision makes plain that only an offer which meets that requirement is an offer which is compliant with s 292(2). That is important for the potential cost consequences which may occur if a dispute proceeds to trial and a court has to consider the final written offers. It is also important in emphasising that what is contemplated by s 292(2) is an offer which, if accepted, would in fact dispose of the claim in the sense of settling the claim.
[113] The construction adopted by Wilson J in Bishop necessarily results in the claim not being settled. Her Honour's construction is to the effect that no contract of settlement comes into existence unless and until a "discharge" is signed. Such a construction would mean the reference to "settled" in the first part of s 293 is to a claim "settled" in principle only. With respect, there is nothing in the prior sections which support that the concept of "settled" or "settlement" ought to be construed in that way.
[114] Whilst extrinsic material may be an aid to construction, the extrinsic material is not itself the provision which is being interpreted. The language of the extrinsic material in this case is to the effect that:
[118]
(a) section 292(3) requires the parties to a settlement to sign a discharge for the claim; and
(b) this then makes the agreement binding on the parties to the settlement.
[119]
[115] Even that explanatory memorandum uses the concept of the two opposing persons being "parties to a settlement" and the concept of there being an "agreement." Both of those statements are consistent with a contract of settlement in some form existing.
[116] The part of the explanatory memorandum which states "...this then makes the agreement binding on parties to the settlement..." is what Wilson J relied on. These words could equally be relating to the settlement being finally binding and s 293 merely operating as a statutory condition subsequent. That is, if a party refuses to sign a discharge, then despite the existence of a contract, the other party could elect to terminate it as a result of the statutory condition subsequent not being met.
[117] Whilst I accept that there is a benefit in having certainty as to the existence and terms of a compromise, there is equally a commensurate benefit in holding people to the bargains which they have made. The construction which Wilson J gave to s 293 results in either party being at liberty to renege on any "settlement" which had been reached at any time prior to the parties signing a discharge. That seems to be an undesirable result for a scheme which has as an object of the avoidance of undue delay, expense and technicality.
[118] Fourthly, it is relevant to note that the phrase "discharge" is not defined in the WCR Act. In oral argument, WorkCover suggested that the phrase "discharge" should be construed as meaning a larger document which WorkCover often prepares with additional standard terms and conditions it requires.
[119] I do not accept that construction of "discharge" as articulated by WorkCover. Section 292(2), for example, contemplates that the offer in that case is one which, if accepted, will dispose of the claim. That particular section therefore requires that all of the terms and conditions for the settlement must be contained in that offer. That merely restates the general position which applies in contract law.
[120] Fifthly, it is relevant to note that there are a number of authorities dealing with offers made pursuant to the UCPR where the offers have been found to be non-compliant with the rules, because they contained a condition that the parties had to subsequently sign a deed containing terms as may be agreed between the parties. Such offers were found to be non-compliant because they contained what was, in effect, an agreement to agree, which rendered the purported settlement contract invalid for uncertainty.
[120]
Third real issue: Is there a binding contract between the parties prior to a s 59(2) Public Trustee Act sanction?
[121]
[125] For the purposes of resolving the third real issue, it is appropriate to again reproduce s 293 of the WCR Act as follows:
[122]
If a claim or contribution claim is settled before the start of a court proceeding, the parties to the settlement must sign a discharge for the claim."
[123]
[126] If I was incorrect on my answer to the first real issue, and given my answer to the second real issue would have been in the negative, my answer to the third real issue would be that there would have been a binding contract between the parties prior to a s 59(2) PT Act sanction.
[124]
[127] For the purpose of resolving the third real issue, it is relevant to extract s 59 from the PT Act. It provides as follows:
[125]
"59 Compromise of actions by or on behalf of persons under a legal disability claiming moneys or damages valid only with sanction of court or public trustee
[126]
appropriate person, for a person under a legal disability, means -
(b) if the person does not have an administrator - an attorney for a financial matter for the person under an enduring power of attorney under the Powers of Attorney Act 1998; or
(c) if the person does not have an administrator or an attorney mentioned in paragraph (b) - the public trustee.
[128]
court means a court within whose jurisdiction an amount or damages are claimed by or for a person under a legal disability suing either alone or with others, and includes a judge or magistrate of the court.
(1) In any cause or matter in any court in which money or damages is or are claimed by or on behalf of a person under a legal disability suing either alone or in conjunction with other parties, no settlement or compromise or acceptance of money paid into court, whether before, at or after the trial, shall, as regards the claim of such person under a legal disability, be valid without the sanction of a court or the public trustee, and no money or damages recovered or awarded in any such cause or matter in respect of the claims of any such person under a legal disability, whether by verdict, settlement, compromise, payment into court or otherwise, before or at or after the trial, shall be paid to the next friend of the plaintiff or to the plaintiff's solicitor or to any person other than the public trustee unless the court otherwise directs.
[131]
(2) Any claim for money or damages by or on behalf of a person under a legal disability claiming either alone or in conjunction with other parties may be settled or compromised out of court before action brought, with the sanction of a court or the public trustee, but no money or damages agreed to be paid in respect of the claim of any such person, whether by settlement or compromise, shall be paid to any person other than the appropriate person for the person under a legal disability unless by direction of a court upon application made in that behalf.
[132]
(3) Every settlement, compromise, or acceptance of money paid into court when sanctioned by a court or the public trustee under this section shall be binding upon the person under a legal disability by or on whose behalf the claim was made.
"impaired capacity, for a person for a matter, means the person does not have capacity for the matter."
[135]
[129] Mr Allen's submissions had originally proceeded on the basis that the relevant section for consideration was s 59(1) of the PT Act. Ultimately, it was accepted that the relevant section for consideration was s 59(2) of the PT Act. This was because s 59(1) only had application to sanctions of settlements or compromises which had been reached during court litigation processes, whereas s 59(2) dealt with settlements or compromises which had been reached prior to court action being commenced.
[130] Having identified that s 59(2) was the applicable section, it was submitted that the language between ss 59(1) and 59(2) was materially different. Section 59(1) provided that "no settlement or compromise...shall...be valid without sanction." This was contrasted to s 59(2) which provided "...any claim...may be settled or compromised...with the sanction of the court."
[131] It was submitted by Mr Allen that the language of s 59(2) did not critically use the terminology of the absence of "validity" in its language.
[136]
"76 Settlement of proceedings commenced by or on behalf of, or against, person under legal incapacity
[137]
(1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons -
[138]
(3) Except with the approval of the court, there may not be -
[139]
(a) any compromise or settlement of any proceedings to which this section applies
[140]
as regards a claim made by or on behalf of, or against, a person referred to in subsection (1).
[141]
(4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement.
[142]
(5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made.
[143]
(6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent."
[144]
[133] The New South Wales Court of Appeal gave a construction to s 76 of the Civil Procedure Act 2005 (NSW) which contemplated that a contract of settlement or compromise could exist. The existing settlement or compromise would be accompanied by an implied term which required each of the parties to approach the court to seek the relevant sanction contemplated by s 76.
[134] Mr Allen also relied on the decisions of Fisher v Marrin[2007] NSWSC 1411, and Sharp bht Sharp v Illawarra Shoalhaven Local Health District[2018] NSWSC 545, and the United Kingdom Court of Appeal decision of Smallman v Smallman[1972] Fam 25 at 31. In each of those three decisions, the relevant sections under consideration did not use the language of an absence of validity. Each case adopted a construction of the relevant provision which allowed for the existence of a contract of settlement containing a form of implied term which required each of the parties to do all that was necessary to obtain the relevant sanction or approval of the court.
[135] Finally, reliance was placed on the decision of Affoo v Public Trustee of Queensland[2011] QSC 309; [2012] 1 Qd R 408, where Dalton J found that the construction of s 59(1) of the PT Act, could contemplate a form of existing contract prior to the court sanction. Her Honour was satisfied that where there had been an express term to the effect that the settlement was subject to the sanction of the court, that a binding contract, short of settlement, existed. Her Honour found that the contract was subject to a condition precedent as to the performance of its terms, the relevant one being the court's ultimate sanction of the settlement. There would be an implied obligation:
[145]
(a) not to withdraw from the agreement before the outcome of the condition precedent had occurred; and
(b) for each party to cooperate in obtaining the sanction.
[146]
[136] Her Honour declined to follow the approach identified in the decision of Dietz v Lennig Chemicals Ltd[1969] 1 AC 170.
[147]
[137] WorkCover submitted that the only real difference between ss 59(1) and 59(2) of the PT Act is whether there is a proceeding on foot. WorkCover referred to Dixon v Australian Associated Motor Insurance Ltd[2010] QSC 69; [2011] 1 Qd R 214 for this contention.
[138] WorkCover submitted that the decision of Nicotra v State of Queensland[2017] QSC 303 at [16] to [19] supported that ss 59(1) and 59(2) should be considered to be similar in operation, with the only real difference being whether a proceeding was on foot.
[139] Reference was also made to the District Court decision of Allman v State of Queensland[2012] QDC 94, where it was said that s 59(2) was meant to operate as an adjunct to s 59(1).
[140] It was contended that the wording in the heading to s 59 also suggested that without the approval of the court there can be no contract at all.
[148]
"Where in any proceedings...money is claimed by...a person under disability no settlement...shall...be valid without the approval of the court."
[149]
[142] WorkCover contended that for the arguments previously advanced, s 59(2) should be given the same construction as s 59(1) which, in turn, should be the same as was found in Dietz.
[143] WorkCover contended that the New South Wales decisions referred to by Mr Allen were all distinguishable because they concerned provisions which made no reference to the settlement not being valid until sanctioned.
[144] In relation to Affoo v Public Trustee of Queensland,[6] WorkCover submitted that the decision turned on the presence of an express term that the settlement was "subject to sanction." It was submitted that Dalton J distinguished Dietz and followed Smallman, primarily because of the inclusion in the agreement of that express term. It was pointed out that here there was no such express term that the settlement was "subject to the sanction of the court."
[145] Ultimately, it was said that the decision of Dietz was the most analogous decision to the present case and its construction should prevail.
[150]
[146] If I were wrong on my answer to the first real issue, and given how I would have answered the second real issue, on the third real issue I would otherwise have found that there was a binding contract between the parties prior to any sanction required by s 59(2) of the PT Act. My reasoning for this is as follows.
[147] I accept that the language in s 59(1) of the PT Act is to a broadly similar effect as that contained in the relevant UK rule of court which was under consideration in Dietz. This raises the prospect that s 59(1) of the PT Act should be given a similar construction to that adopted in the United Kingdom. However, in Affoo, Dalton J declined to follow Dietz, in terms of the operation of the section on its proper construction. Given the view I have taken below as to the proper construction and operation of s 59(2), it is unnecessary to express a view as to the operation of s 59(1).
[148] Importantly, the sanction required here is under s 59(2). That section contains materially different language to that found in s 59(1). I do not accept the submission advanced by WorkCover that the two subsections are intended to be similar in effect in all respects. The authorities relied upon by WorkCover above were not examining the particular issue presented by this third real issue. The observations of there being a similar operation between and (2) should not be construed as identifying an identical operation for all purposes.
[151]
ss 75 and 76 of the Civil Procedure Act 2005 (NSW), are both drafted without reference to an absence of validity. Both of the New South Wales sections avoid language which would indicate invalidity of the underlying settlement prior to the sanction.
[152]
[150] The reasoning on this issue in the various New South Wales decisions emphasise that the language of the NSW section which they were examining was materially different to the language of the United Kingdom rule of court which was the subject of consideration in Dietz.[7] In Azar v Kathirgamalingan[2012] NSWCA 429, Basten JA observed that the decision of Smallman v Smallman[1972] Fam 25 had also involved a statutory provision which did not use the language of invalidity.
[151] Smallman was decided shortly after Dietz, but does not cite Dietz. The obvious explanation for this is that the different language used in the court rule on the one hand, compared to the statutory provision on the other hand, was central to the reasoning of the courts.
[152] Azar also lists a set of additional factors which promote a construction for a clause such as s 59(2) of the PT Act, which would not result in the underlying settlement contract being invalid prior to sanction. A number of those factors are also present here. They include the following:
Section 76 of the Civil Procedure Act 2005 (NSW) operated in circumstances where, prima facie, an agreement might have been entered into with somebody with no capacity, but equally might have been entered into on behalf of a person who was represented by others who had lawful authority to so act on his or her behalf. In the present case, that second category of persons would include persons with appropriate powers of attorney, or a person with the benefit of an appropriate order under the (Qld), empowering the person to enter into a settlement agreement on behalf of the incapacitated person. As was recognised in in relation to and of the (NSW), (the equivalent of the Queensland
[153]
ss 59(1) and 59(2), albeit differently worded), those provisions were intended to apply to both categories of people.
[154]
The reasoning of Basten J in Azar made reference to High Court authority which concerned contractual obligations arising in circumstances where a statute prohibited a particular type of transaction (typically, a dealing in Crown land) from occurring without the consent of a government official, and where a contract was entered into for such a transaction which made no mention of the obtaining of such a consent. It was observed that the authority supported the valid operation of such a contract within the confines of the prohibition. In such a case, the contract would be construed as containing implied terms binding the parties to do all things reasonable to seek the relevant consent, and for both parties to do nothing to jeopardise the obtaining of the consent. In such a case, the contract would only go off if the consent was not obtained.[8]
It was possible for an offer of compromise to be made so that it would be conditional upon some event, other than acceptance of the offer occurring.[9] It was reasoned that the effect of s 76 of the Civil Procedure Act 2005 (NSW) was to impose such a condition on any agreement to settle proceedings. Thus, when a person under legal incapacity, by his or her tutor, accepted an offer of compromise, that acceptance did not itself give rise to a complete binding agreement for the settlement of the proceedings. However, it did give rise to some contractual obligations. In the absence of an express obligation to seek the approval of the court, the appellate court reasoned that there would be an implied obligation on the part of the tutor to seek the approval of the court. In the event that the court ultimately granted its approval, there would then be a binding agreement in the terms of the offer of compromise.
[153] In Affoo, Dalton J (as her Honour then was) applied the reasoning in Azar in interpreting s 59(1) of the PT Act. In addition, and in a similar vein to the reasoning in the NSW decisions, her Honour relied upon the statement of Mason J in at 552, to the effect that, generally speaking, the court will tend to favour a construction that leads to the conclusion that a particular stipulation in a contract is a condition precedent to performance, as against one which leads to the conclusion that the stipulation is a condition precedent to the formation or existence of the contract. Her Honour observed that in most cases, it is artificial to say in the face of the details settled upon by the parties that there is no binding contract unless the event in question happens. Instead, it is appropriate, in conforming with the mutual intention of the parties, to say that there is a binding contract which makes the stipulated event a condition precedent to the duty of one party, or perhaps of both parties, to perform. Her Honour relied upon this principle in support of the proposition that it is in the interest of certainty that parties who have agreed on terms, albeit subject to a condition precedent, have some measure of certainty when the contract, properly construed, contemplated that they are immediately bound.
[155]
[158] Having decided the first real issue to the effect that there was no offer accepted by either party, the consequence is that each of their originating applications ought to be dismissed. I will make an order to that effect in respect of each of the originating applications.
[159] I will order that the stay that I imposed on the proceeding that had been commenced by Mr Allen via his litigation guardian be discharged. That proceeding can now continue in the ordinary way.
[160] I will hear both parties on the issue of costs.
[156]
[1] The file note refers to a "trans ischemic attack", which I have assumed is a reference to a transient ischemic attack, being a temporary interruption of blood flow to the brain, and is also known as a mini-stroke.
[3] At [76] and [77]. See also Piper Ellis P/L & Anor v Farmland P/L & Ors[2000] QSC 157.
[159]
[4] The 'Postal Rule' refers to cases that have concluded that acceptance of an offer occurs when a letter of acceptance is posted, not when it is received by the offeror.
[39] In the alternative to the primary submission, WorkCover separately contended that the acceptance of the Allen Offer was contrary to contract law for three reasons. Those reasons are as follows.
[40] First, in order to accept an offer, WorkCover said that an offeree needs to have a prior awareness of the offer. For this proposition, reliance was placed on the decision of R v Clarke[1927] HCA 47; (1927) 40 CLR 227 at 240.
[41] Secondly, WorkCover said that acceptance can only occur in a manner reasonably contemplated by the parties, and that it was not reasonably contemplated by WorkCover that the acceptance could have been embedded in Mr Allen's offer. Reliance was placed on the decision of Tallerman & Co Pty Ltd v Nathan's Merchandise (Vic) Pty Ltd[1957] HCA 10; (1957) 98 CLR 93 at 111-112.
[42] Thirdly, WorkCover said that it is impermissible to use what it describes as a referential offer, but more accurately should be described as a referential acceptance. That is, an acceptance of terms of which were established by reference to the other party's then unknown offer. For this proposition, reliance was again placed on the decision in Harvela Investments Ltd v Royal Trust Co of Canada (CI) Ltd[1986] AC 207 at 231 per Templeman LJ.
[43] Finally, and in support of the prior contentions, it was submitted that a finding that clause 3 of Mr Allen's offer achieved an acceptance of WorkCover's offer would cause perverse consequences. It would do so by:
[51] Such an implied term meets all the requirements of implication in fact, namely:
[62] In the case of Mr Allen, he was not at liberty to accept the compliant final written offer made by WorkCover, as he had failed to exchange a final written offer as required by s 292(2) of the Act.
[63] For these reasons, no settlement has arisen between the parties.
[64] Given the conclusion expressed above, it is strictly unnecessary to consider the further points which were raised by WorkCover.
[65] Nonetheless, if I am incorrect in the prior conclusion, I express how I would have determined these matters.
[66] In relation to the first contractual issue, I do not accept the submission that an offeree needs to have a prior awareness of all of the terms of an offer before he or she accepts it.
[67] This Court has recognised that a contract may arise even though one party does not objectively or subjectively know the contents of certain of the terms to which it has accepted. In Metal Roofing and Cladding Pty Ltd v Amcor Trading Pty Ltd[1999] QCA 472, McPherson JA, with whom the other members of the Court agreed with on this issue,[3] found that a party was bound by the "general terms and conditions of sale" of a supplier where the purchaser had signed an acceptance which acknowledged receipt and acceptance of those "general terms and conditions of sale," despite never having received them. At paragraph [39], his Honour stated:
[74] The case of Tallerman does not deal with the circumstances which exist here where the purported acceptance was actually communicated to WorkCover. I do not find this authority of particular assistance. The present case does not turn on the contemplated method of acceptance. Rather, it turns on the content and operation of the agreed process for the exchange of offers.
[75] The third contractual contention was said to be that it was impermissible for Mr Allen to have used a referential offer (I have described it previously as a referential acceptance). This contractual contention was again founded on Harvela. The relevance of the existence of a "referential offer" in Harvela was that it was contrary to the type of offer which the unilateral contract contemplated as being a valid offer. The case did not stand for the proposition that as a matter of law a referential offer or acceptance could never validly operate. Rather, Harvela turned on the content and operation of the contractual process of offer and acceptance which had been established by the unilateral contract.
[76] Before leaving the first real issue, I make the following observations about the incidental matters which were raised in oral submissions.
[77] Mr Murphy gave evidence on behalf of Mr Allen. Mr Murphy is a very experienced solicitor in the area of personal injuries litigation. He gave evidence, which I accept, that on a number of occasions WorkCover has included a clause similar to clause 3 in its final written offer. I was also informed that other claimants had, on occasions, used clauses similar to clause 3 in their final written offers.
[78] WorkCover led evidence from the particular WorkCover officer who had charge of the Allen file to the effect that she was unaware of WorkCover having ever used a clause similar to clause 3, and she personally had never given instructions for such a clause to be used. I also accept her evidence as truthful.
[79] Both of those sets of evidence can stand together.
[80] However, the fact that on other occasions a similar clause has appeared in offers concerning other people's claims does not alter the conclusions which have been reached by reference to the content and operation of the agreed exchange process which existed in the present case.
[81] Next, I note that WorkCover submitted that if clause 3 were a valid form of acceptance then it would become the default form of acceptance by practitioners who were aware of any relevant legal authority which endorsed it. It was submitted that this would create inequity between lay persons and self-insurers on the one hand, and those represented by legal practitioners who were aware of specific authority on the other hand.
[82] That submission is a hollow one. The very same lay person litigants or self-insurers may equally not appreciate that an agreement for the mutual exchange of s 292(2) offers has the real potential to create a race to acceptance. This dispute is not to be decided by notions of unfairness to particular groups, in an abstract sense. The implied term referred to above does involve a consideration of fairness and equity, but it does so through the orthodox lens of contract law as it applies to the contractually agreed process for the exchange of offers which was present in this case.
[83] Finally, I note that there is no reason why WorkCover or claimants can not build in to their offers a specific mechanism for acceptance. Contract law recognises that an offeree can express how a particular offer is to be accepted. For example, the offer might contain a provision which states that an offer can only be accepted in writing by way of an authorised representative signing an acceptance provision attached to the offer and then returning a copy of that acceptance document to the legal representative of the offeror.
[84] There is nothing in s 292 of the WCR Act that precludes such a contractual provision from being part of a final written offer.
[98] Secondly, the relevant context here includes a variety of matters.
[99] The main objects of the WCR Act such as:
Section 291 provides that before settlement of a claim is attempted in a way other than by compulsory conference, certain financial statements must be given by each party.
Section 292(2) provides that if a claim is not settled at a compulsory conference, then each party that has legal capacity to settle the claim must ensure that it makes a written final offer.
Section 292(2) also includes the requirement that the written final offer is one that would dispose of the claim if the offer were accepted. I note that this particular requirement was included by amendment after the decision of Bishop. The explanatory memorandum to this amendment does not illuminate the reason for the amendment.
[107] The provisions set out above use the language of contract law. They refer to offers and acceptances of offers. By using that language, they are intentionally engaging with contractual concepts and contractual consequences. This includes the concept and consequence that an acceptance of an offer to settle results in a settlement.
[108] The use of terms 'settle' or 'settlement', engages the concept of there being a contract of settlement, namely one which disposes of the dispute by way of a compromise.
[109] Some of the forms of the offers contemplated by the WCR Act are ones which are made in writing and some of the forms of acceptances contemplated by the WCR Act are ones which are also made in writing. However, the WCR Act clearly contemplates that other methodologies for settlement are available (ie by oral negotiation). Both methodologies, or a combination of those methodologies, may result in a settlement of a claim.
[110] Thirdly, it is then relevant to note that it is within this larger statutory context that
[121] What s 293 requires is a document (or possibly documents) bearing a signature of each of the parties or their authorised agent, which expresses that there is a discharge of the claim.
[122] There is some obvious benefit in having a document or documents which record that the claim is discharged. It provides a written record of the effect of the settlement which already exists. In an Act which has statutory entitlements and also deals with the resolution of common law claims, such a record of the resolution of the common law claim would be useful. This is particularly so where the dispute has not reached litigation.
[123] If the intent or purpose of the Act had been that there is no settlement unless and until it is in writing executed by both parties, then the Act could easily have expressed this. An example is found in offers made pursuant to the UCPR. Section 293 does not in any convincing way present as such an intended mechanism.
[124] Accordingly, if the second real issue had been a live one, I would have answered it by concluding in the negative, namely that s 293 does not operate in the circumstances of this case to preclude a binding contract of settlement.
[132] It was submitted that s 59(2) of the PT Act more properly reflected the language of s 76 of the Civil Procedure Act 2005 (NSW), which had been the subject of detailed consideration by the New South Wales Court of Appeal in Azar v Kathirgamalingan [2012] NSWCA 429. Section 76 of the Civil Procedure Act 2005 (NSW) provides as follows:
[141] WorkCover relied upon the decision in Dietz and the subsequent English authorities which followed it for the proposition that provisions such as s 59(1) of the PT Act ought to be construed as operating to preclude the existence of any contract prior to the court's sanction. The relevant rule of court in question in Dietz provided as follows:
[149] The choice of language between the two subsections suggests an intentional distinction. This distinction in the language used differs from the New South Wales position where the equivalent sections to ss 59(1) and 59(2) of the PT Act, being
[154] Accordingly, the points raised in Azar and in Affoo support a construction of s 59(2) of the PT Act which would favour the existence of a form of contract between the parties which would impose an implied obligation on each party to do everything within that party's power to obtain the relevant sanction.
[155] Such a construction is consistent with the language actually used in s 59(2), which is materially different to that used in s 59(1). The absence of the language of invalidity is a material matter. It does indicate that the potential construction promoted by Dietz and the other United Kingdom authorities is not one intended to apply to s 59(2) of the PT Act. This would be so irrespective of Affoo, which stands in its own right against the construction and operation promoted in Dietz.
[156] Section 59(3) still has a valid operation. This is because a sanction may be sought in respect of settlements where one party had no capacity to settle, and that party was not represented by somebody with the capacity to settle or compromise on their behalf. Section 59(3) has the effect to make that particular purported settlement or compromise binding on the incapacitated party once a sanction is achieved.
[157] Accordingly, if it had been necessary to decide, I would have found that there was a contract in existence between the parties prior to any sanction being sought, albeit one with the requisite implied term. Whilst the authorities describe the contract as being something short of a contract to settle, it ultimately has the same effect, subject only to the obtaining of the sanction.