1. the circumstances surrounding the Applicant's dismissal precludes the operation of the Deed, particularly at clause 12.3, as the terms of the Deed are in conflict or non-compliant, with "all applicable laws" (including the Corporations Act).[47]

• [57] At no point, prior to the McArdle Letter, did the Applicant advise the Respondent of any specific amendments to be made to, or substantive concerns around, any of the terms of the Final Offer or the Deed.[48]

• [58] On Wednesday, 18 September 2024, Minter Ellison lawyers, on behalf of the Respondent, replied to Mr McArdle's correspondence[49] (Minter Ellison Letter) and in doing so (relevantly):

a) rejected the contention that the Applicant was dismissed by the Respondent, noting that the terms of the Applicant's 'agreed' cessation of employment are reflected in the terms of the Deed;

b) advised that the terms of the Deed had been relevantly updated due to the passing of time, and attached a revised Deed;[50]

1. advised that the Applicant would now be paid his termination entitlements (which he had previously deferred payment of, see paragraphs [47] to [48] of this decision);

d) removed the term of the Deed concerning compliance with "all applicable laws", which read:

The exercise of or compliance with any discretion, right or obligation under this deed is subject to compliance with all applicable laws, including the Corporations Act 2001 (Cth). Nothing in this deed (including clauses 7 and 8) is intended to prevent the Employee from disclosing any information the Employee is expressly permitted to disclose under Chapter 2, Part 2-9, Div 4 of the Fair Work Act 2009 (Cth).";[51]

e) advised that if the Applicant has amendments to the Deed, which are consistent with the terms of the agreement that has already been reached (i.e. as contained in the Final Offer), such proposed amendments should be provided for the Respondent's consideration; and

f) advised that in the circumstances, a meeting would be of no utility.[52]

• [59] I observe that nothing in the foregoing correspondence (and revised Deed) from Minter Ellison lawyers is inconsistent with the terms of the Final Offer. It highlights that the Respondent remains open and willing to make changes to the Deed post receiving feedback from the Applicant (consistent with the terms of the Final Offer, and the terms (or words) of the Deed being satisfactory). The Respondent's outright refusal to attend upon a meeting with the Applicant and his legal representative (as at 18 September 2024) also makes perfect sense in that the McArdle Letter is asking the Respondent to attend a meeting on the premise that the Respondent dismissed the Applicant, and for further 'negotiations' around the Applicant's departure 'package' to occur on that basis. In other words, the purpose of this meeting, from the Applicant's perspective, was not to iron out terms (or words) in the Deed to make them 'satisfactory'. Rather, the Applicant was wanting to re-open negotiations altogether, but this time on a different footing (i.e. that a dismissal had occurred).

• [60] On Thursday, 19 September 2024, the Applicant filed his Application initiating these proceedings.

Legal principles - binding agreements generally

• [61] It is necessary to identify the relevant legal principles that apply to contract law in Australia generally, and more specifically on the issue of the reaching of a binding agreement where the terms of that binding agreement have been agreed, and it has also been agreed that those agreed terms are to be dealt with in subsequent formal documentation.

• [62] The principles governing contract law in Australia remain largely free from legislative interference, although there are exceptions (e.g. section 15AA of the Act). These general principles (including as to agreement formation) are based upon the objective theory of contract being in command, as explained by the High Court in Taylor v Johnson[53] "the law is concerned, not with the real intentions of the parties, but with the outward manifestations of those intentions."[54] The actual intentions, and the state of knowledge, of each party to a contract are irrelevant. The focus is upon what each party by their words or conduct would have led a reasonable person in the position of the other party to believe.[55] The test is thus one of 'presumed' intention (or objective outward manifestation of intention), not 'actual' intention.[56] As was explained by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[57] (Toll) (referring to the case of Pacific Carriers Ltd v BNP Paribas[58]):

"This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction."[59]

• [63] The references in Toll to the "reasonable person" are a reference to the 'notional' reasonable person in the position of the other party.[60] A decision-maker needs to make a determination as to what this person would have understood and believed from the objective evidence. Such a person is postulated (or created) to emphasize that the relevant test is one based upon objective fact. In this regard, the notional reasonable person has business common sense, is informed or aware of the disputed issues for resolution, the context in which any relevant event/s occurred, and has objective knowledge of all of the relevant circumstances. The person is not complacent, nor unduly sensitive or suspicious. Subjective intentions, declarations of retrospective subjective intent, or subjective thoughts or views as to meaning or outcome, are not within the purview or contemplation of the notional reasonable person.

• [64] Where an offer and acceptance occurs, the task is to inquire as to what the reasonable person would deduce or infer from the objective evidence of the relevant interactions and exchanges between the parties. Such exchanges provide the objective framework of facts within which an agreement or contract came (or did not come) into existence, including the context in which the parties 'presumed' intention in that setting is to be drawn from.[61] As Heydon JA said in Brambles Holdings Ltd v Bathurst City Council:[62]

"In the light of the above cases, it is relevant to ask: in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the [plaintiff] and a reasonable person in the position of the defendant think as to whether there was a concluded bargain?"[63]

• [65] In Wong v Wong,[64] Halley J of the Federal Court, pointed out that the categories for binding contracts are not limited to those identified by the High Court in Masters v Cameron:[65]

"[28] The High Court in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360 (Dixon CJ, McTiernan and Kitto JJ) identified the following categories of cases in which parties have agreed on terms, but also agreed that those terms will be dealt with by subsequent formal documentation:

(a) a case 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;

(b) 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; and

(c) a case in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.

[29] In the first two categories there is a binding contract, but in the third there is not: Masters v Cameron at 360-1.

[30] In Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 4 NSWLR 622, McLelland J made the following observation at 628:

"There is in reality a fourth class of case additional to the three mentioned in Masters v Cameron, as recognised by Knox CJ, Rich J and Dixon J, in Sinclair, Scott & Co v Naughton [1929] HCA 34; (1929) 43 CLR 310 at 317, namely, "...one in which the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms".

[31] The Masters v Cameron classifications are no longer, if there ever were, applied as strict categories into which such cases must fall: Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313; (2015) 90 NSWLR 605 (Pavlovic) at [69] (Beazley P), citing Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 at 105.

[32] Rather, as McHugh JA stated in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 631 at 634:

"... the decisive issue is always the intention of the parties which must be objectively ascertained from the terms of the document when read in the light of the surrounding circumstances: Godecke v Kirwan [1973] HCA 38; (1973) 129 CLR 629 at 638; Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 at 332-334, 337."

Legal principles - incompleteness and uncertainty

• [66] In Thompson v White & Ors (Thompson),[66] Tobias JA, with whom Ipp and McColl JJA agreed, made the following points about incompleteness and uncertainty:

a) the context in which the contract is arrived at, and in particular, the conduct of the parties may be relevant to questions of incompleteness. However, once the court has determined that the requisite intention of the parties is present, it is then necessary to go onto to consider whether the contract is so incomplete or uncertain as to be void;[67]

b) in determining whether contracts are void for uncertainty, courts should be astute to adopt a construction which will preserve their validity as they are the upholders of bargains and not their destroyers.[68]

1. a binding contract may be arrived at even though it leaves unresolved many matters which might arise into the future;[69]

d) it does not follow that any omission will make a contract incomplete or uncertain in the sense of rendering it invalid;[70] and

e) the more important the term is the less likely it is that the parties will have left it for future decision.[71] But there is no legal obstacle which stands in the way of the parties agreeing to be bound now while deferring important matters to be agreed later. It happens every day when parties enter into so-called 'heads of agreement'.[72]

Legal principles - the expressions "subject to contract" and "subject to deed" and alike

• [67] Whilst the case of Farrell v Super Retail Group Ltd (Specific Performance Claim)[73] (Farrell) was "not a 'run-of-the-mill' dispute", [74] and from a factual perspective, does not align (at all) with the facts in these proceedings, the following six principles identified by Lee J are relevant:

"First, in ascertaining whether parties intended to create legally binding relations, whether from a series of communications or from a single document, regard may be had to the commercial circumstances in which the parties exchanged their communications and to the subject matter of the alleged contract: Sagacious Procurement Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 (at [69] per Giles JA, Hodgson and Campell JJA agreeing); Allen v Carbone [1975] HCA 14; (1975) 132 CLR 528 (at 532 per Stephen, Mason and Murphy JJ).

Secondly, and relatedly, where parties are sophisticated entities and have contemplated the resolution of a dispute by the drawing up of a deed, or where the purported agreement concerns a significant transaction, it is less likely that the parties intended to be bound immediately unless they expressly said so: Pavlovic v Universal Music Australia Pty Ltd [2015] NSWCA 313; (2015) 90 NSWLR 605 (at 620 [83], 625 [116] per Beazley P, Bathurst CJ and Meagher JA agreeing); Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd [1995] NSWCA 166; (1995) 7 BPR 14,551 (at 14,569-14,570 per Kirby P, Gleeson CJ agreeing). As Kirby P noted in Geebung (at 14,569-14,570), it is necessary in every case to consider the nature and importance of the transaction which the parties contemplate.

Thirdly, evidence of the parties' conduct after the alleged contract has been made is admissible for the purpose of determining whether there was an intention to effect legal relations: Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 (at 547-548, 550 per Gleeson CJ); Heydon on Contract (at [4.170]). As I said in Cardtronics Australasia Pty Ltd v FX Investments Australia Pty Ltd [2020] FCA 218 (at [95]), the probative value of post-contractual communications lies "in the light they throw on the proper interpretation of earlier communications alleged to constitute the conduct": Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 (at 9255 per McLelland J). Further, where correspondence between the parties after an informal agreement refers to important terms and conditions not mentioned during that informal discussion, it may more readily be inferred that the earlier discussion was a preliminary negotiation and not a binding agreement: Uranium Equities Ltd v Fewster [2008] WASCA 33; (2008) 36 WAR 97 (at 134 [133] per Steytler P, McLure and Buss JJA); citing Geebung (at 14,569-14,570).

Fourthly, the existence of matters of importance in which the parties have not reached consensus in their informal agreement will render it the less likely that they intended immediately to be bound before the execution of a formal document; even where the parties have agreed on the "major matters", their subsequent conduct may indicate that they did not intend to be bound until the other issues between them were resolved in a formal document: Uranium Equities (at 134 [133]); citing Geebung (at 14,569-14,570).

Fifthly, the expression "subject to contract" or "subject to deed", in its natural meaning, generally creates an overriding condition that what has been agreed is the intended basis for a future contract and not as constituting a contract itself (Masters v Cameron (at 362-363)). It has been said that the inclusion of such a formula creates a presumption no contract was intended to be formed: Geebung (at 14,562). Each case turns on its facts but interestingly, Ms Farrell was unable to point to any example where these words have been used and a binding agreement was found to have been immediately struck.

Sixthly, subsequent correspondence between the parties showing that they continued in negotiation ordinarily "negatives" the idea of an existing concluded contract: Barrier Wharfs Ltd v W Scott Fell & Co Ltd [1908] HCA 88; (1908) 5 CLR 647 (at 669 per Griffith CJ); Sagacious Procurement (at [101] and [113] per Giles JA, Hodgson and Campbell JJA agreeing)."[75]

• [68] As to the second and fifth principles identified by Lee J in Farrell,[76] the Respondent submits that whilst the presence of words such as "subject to contract" or "subject to deed" (or alike) create a presumption as to no agreement being reached, this presumption is (of course) rebuttable, impeachable, or not so intractable that it will always or necessarily produces that result.[77] In other words, one must always return to the language used, the conduct engaged in, and the surrounding circumstances, to determine or throw light upon intentions.[78]

• [69] The foregoing submissions of the Respondent are consistent with what Lord Clarke said in RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH:[79]

"... Even if certain terms of economic or other significance have not been finalised, an objective appraisal of their words or conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement."[80]

• [70] Indeed, as McHugh JA (with whom Kirby P and Glass JA agreed) said in GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd:[81]

"If the terms of a document indicate that the parties intended to be bound immediately, effect must be given to that intention irrespective of the subject matter, magnitude or complexity of the transaction.

Even when a document recording the terms of the parties' agreement specifically refers to the execution of a formal contract [or deed], the parties may be immediately bound."[82]

• [71] The Respondent's submissions are equally aligned with the decision of the Full Court of the Supreme Court of South Australia in Lucke v Cleary & Ors,[83] where Stanley J points out:

a) a decision-maker should not be deflected from a consideration of the real issue (namely, if the parties have reached a binding agreement) by the stipulation in a document that its terms will be reduced to a deed; and

b) any asserted difficulty in finalising a term/s of an agreement (post agreement being reached) should not automatically be considered as an obstacle to a conclusion that parties have already reached a binding agreement.

Legal principles - implying terms into incomplete offers and incomplete agreements

• [72] If a term/s of an agreement (or purported contract) is incomplete or uncertain, it is unlikely that a decision-maker will conclude that the parties intended to make a concluded bargain. Indeed, an agreement to agree, in the ordinary course, will be no agreement at all.[84]

• [73] A concluded bargain is also an enforceable bargain. Questions as to uncertainty and incompleteness go to enforcement, in that the contract or contractual term is said to be unenforceable because it is, or parts of it are, incomplete or uncertain.

• [74] Whether a decision-maker can conclude that an agreement is enforceable depends upon the extent to which it might be enforced (albeit considerations in this regard are not resolved in a vacuum). Before a question as to enforceability can be resolved, one must first determine and consider all of the terms of a contract (or agreement), being its express and implied terms, and the meaning, application and interaction of those terms.

• [75] In various cases, courts have considered it appropriate (and been willing) to imply a term/s to an otherwise incomplete offer, or an incomplete agreement, thus resolving contentions concerning the absence of a concluded bargain.[85] There are of course limits to the implication of such a term/s, with the more numerous and/or significant the incomplete matters that remain (objectively) in dispute (note, for example, Farrell), the slower a court will be to imply terms.[86]

• [76] In Wells v Devani,[87] Lord Kitchin of the United Kingdom Supreme Court (with whom Lord Wilson, Lord Sumption and Lord Carnwath agreed) said:

"... I recognise that there will be cases where an agreement is so vague and uncertain that it cannot be enforced. So too, there will be cases where the parties have not addressed certain matters which are so fundamental that their agreement is incomplete. Further, an agreement may be so deficient in one or other of these respects that nothing can be done to render it enforceable. But I do not accept that there is any general rule that it is not possible to imply a term into an agreement to render it sufficiently certain or complete to constitute a binding contract. Indeed, it seems to me that it is possible to imply something that is so obvious that it goes without saying into anything, including something the law regards as no more than an offer. If the offer is accepted, the contract is made on the terms of the words used and what those words imply. Moreover, where it is apparent the parties intended to be bound and to create legal relations, it may be permissible to imply a term to give the contract such business efficacy as the parties must have intended. For example, an agreement may be enforceable despite calling for some further agreement between the parties, say as to price, for it may be appropriate to imply a term that, in default of agreement, a reasonable price must be paid."[88]

"Accordingly, where, as here, the parties intended to create legal relations and have acted on that basis, I believe that it may be permissible to imply a term into the agreement between them where it is necessary to do so to give the agreement business efficacy or the term would be so obvious that "it goes without saying", and where, without that term, the agreement would be regarded as incomplete or too uncertain to be enforceable. Each case must be considered in light of its own particular circumstances. In this case the judge carried out the assessment the law requires, and he found it necessary to imply a term to give the contract business efficacy. Further, it cannot be said that, with that term, the agreement is too vague or uncertain to be enforceable. Accordingly, had I not arrived at the same conclusion by a process of interpretation, I would have upheld the judge for the reasons he gave."[89]

• [77] The requirements which need to be satisfied before a term can be implied into an agreement or contract are uncontroversial. They were set out by the Privy Council in the case of BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayors of the Shire of Hastings (BP Refinery), [90] as follows:

"[F]or a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract."[91]

• [78] The observations of Lord Neuberger (President) of the United Kingdom Supreme Court (with whom Lord Sumption and Lord Hodge agreed) in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another,[92] are of significance when determining the practical application of the criteria in BP Refinery. They read:

"In my judgment, the judicial observations so far considered represent a clear, consistent and principled approach. It could be dangerous to reformulate the principles, but I would add six comments on the summary given by Lord Simon in BP Refinery as extended by Sir Thomas Bingham in Philips and exemplified in The APJ Priti. First, in Equitable Life Assurance Society v Hyman [2002] 1 AC 408, 459, Lord Steyn rightly observed that the implication of a term was "not critically dependent on proof of an actual intention of the parties" when negotiating the contract. If one approaches the question by reference to what the parties would have agreed, one is not strictly concerned with the hypothetical answer of the actual parties, but with that of notional reasonable people in the position of the parties at the time at which they were contracting. Secondly, a term should not be implied into a detailed commercial contract merely because it appears fair or merely because one considers that the parties would have agreed it if it had been suggested to them. Those are necessary but not sufficient grounds for including a term. However, and thirdly, it is questionable whether Lord Simon's first requirement, reasonableness and equitableness, will usually, if ever, add anything: if a term satisfies the other requirements, it is hard to think that it would not be reasonable and equitable. Fourthly, as Lord Hoffmann I think suggested in Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10; [2009] 1 WLR 1988, para 27, although Lord Simon's requirements are otherwise cumulative, I would accept that business necessity and obviousness, his second and third requirements, can be alternatives in the sense that only one of them needs to be satisfied, although I suspect that in practice it would be a rare case where only one of those two requirements would be satisfied. Fifthly, if one approaches the issue by reference to the officious bystander, it is "vital to formulate the question to be posed by [him] with the utmost care", to quote from Lewison, The Interpretation of Contracts 5th ed (2011), para 6.09. Sixthly, necessity for business efficacy involves a value judgment. It is rightly common ground on this appeal that the test is not one of "absolute necessity", not least because the necessity is judged by reference to business efficacy. It may well be that a more helpful way of putting Lord Simon's second requirement is, as suggested by Lord Sumption in argument, that a term can only be implied if, without the term, the contract would lack commercial or practical coherence."[93]

• [79] As set out above, there is no rule against the implication of a term into an agreement (or offer) to render that agreement (or offer) sufficiently certain and/or complete.[94]

• [80] Although expressed in positive, negative, and sometimes conflated and overlapping ways,[95] the duty to cooperate is best known as follows:

"It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract."[96]

• [81] In Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd,[97] Mason J reiterated the approval (and application) of the general rule from the 1881 case of McKay v Dick,[98] namely:

"As a general rule ... where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on his part for the carrying out of that thing, though there may be no express words to that effect."[99]

• [82] The following requirements apply to the duty to cooperate (implied by fact, or by law):

a) the duty to cooperate is focused upon the 'performance' of a contractual obligation, to do or not do something, to make it workable;[100]

b) the duty to cooperate must not be inconsistent with the express terms of the contract or agreement;

1. the duty to cooperate does not require the parties to do something that they are not required to do;

d) there cannot be a duty to cooperate in bringing about something which the contract does not require to happen;[101]

e) the scope of the duty to cooperate is confined to only those acts which are necessary (or reasonably necessary) to secure the performance of relevant obligations under the contract or agreement, i.e. something that the contract or agreement requires to happen requires each party to act reasonably towards its achievement;[102] and

f) the duty to cooperate can be expressly excluded.

• [83] There has been some debate as to whether or not the duty to cooperate is automatically implied by law into all contracts or agreements, or implied by fact (on a case by case basis, using the tests in BP Refinery).[103] Of course, if a term is implied by fact, it is unnecessary to deal with the question of its implication by law.

• [84] The duty to cooperate does not require the parties to agree to something that they are not required to agree to. However, if the duty to cooperate requires the parties to do something (that they are capable of reasonably doing) to facilitate (or to attempt to facilitate) agreement (or resolution) on a particular (including outstanding or unresolved) contractual term, the duty has work to do. The consequences for the defaulting party if the relevant cooperation term is ignored (or breached), in the broad sense, are that the non-defaulting party is able to (at its election):

a) bring an end to the agreement between the parties (and seek damages and/or restitution for breach); or

b) alternatively, demand that the agreement be performed by the non-defaulting party in accordance with its express and implied terms.

• [85] Whilst each case will turn upon its own facts and circumstances, the fact that the duty to cooperate does not ultimately require actual 'agreement' cannot (in my view) be used as a sword or a shield by a defaulting party to, for example:

a) advance a contention as to the existence of uncertainty or incompleteness (i.e. in circumstances where the party advancing such a contention is in default of its obligations under the relevant duty to cooperate); or

b) resist a contention that a binding agreement came into existence because the details of a term/s have not been agreed upon (i.e. in circumstances where the party advancing such a contention is in default of its obligations under the relevant duty to cooperate); or

1. abandon (in whole or in part) any of the terms agreed upon in a concluded bargain (i.e. in circumstances where the party doing the abandoning is in default of its obligations under the relevant duty to cooperate).

• [86] Consistent with the approach set out in the legal authorities cited in this decision, the resolution of these proceedings requires me to make ultimate findings on the following questions:

Do the words and conduct of each party lead a reasonable person in the position of the other party to believe that a binding agreement exists? Noting that the common intention (or manifestation of mutual assent) of the parties is based upon what a reasonable person would have 'understood' such intention to be.

Another way of resolving this question is to ask whether the objective circumstances show that the parties did not intend, or cannot reasonably be regarded as having intended, to create the legal relations by reference to the promises that they have set out in their agreement.[104] The magnitude and complexity of the subject matter of the alleged agreement will bear upon the likelihood that the parties intended to reach legally binding terms in an informal manner.[105]

b) What are the terms of the Binding Agreement, and what is the meaning of those terms?

If a binding agreement is found to exist, its terms will exist based upon the meaning of relevant terms (words used), and what such terms require or imply.[106] The meaning of the agreed terms (including by reference to surrounding circumstances, and the words used in communications or other documents exchanged between the parties in the lead up to reaching agreement), is also based upon what a reasonable person would have 'understood' the meaning of the relevant terms (and words) to be.[107]

1. Are any of the terms of the Binding Agreement so vague, uncertain, or incomplete, such that the Binding Agreement was never made, or does not survive?

Whether any of the terms of the Binding Agreement are so vague, uncertain, or incomplete that they lead to a conclusion that the binding agreement was never made, or does not survive, can only be determined after one has first identified all of the terms (express and implied) of the Binding Agreement, and the meaning, application, and interaction of each of those terms.[108]

• [87] In resolving each of the foregoing questions, the subjective views of the parties, or hypotheticals about what was meant to happen, or what should have happened, have no role to play. Put simply, such matters do not fall within the purview of the notional reasonable person. The focus is upon what was said or done, not what a party says that they meant by what was said or done, or not said and done.

• [88] At the 22 August 2024 meeting, Ms Romero made it clear to the Applicant that her desire was to bring the Applicant's employment to an end (quickly) because she had determined that his employment was no longer tenable, culminating in the Proposal Offer from Ms Romero to the Applicant. The fact that it was Ms Romero who first raised the issue of the Applicant departing the Respondent's employ is neither here nor there. The parties subsequently entered into negotiations about that departure (and prior to the Applicant's employment coming to an end). Despite the Applicant's various objections to the suggestion that his employment was no longer tenable, he ended up moving right into negotiations around his departure via the Applicant's Offer on 28 August 2024:

"I am also happy to consider an exit in an amicable and professional way without the need of legal proceedings."

"In the circumstances, I am willing to agree to the terms of your initial proposal [Proposal Offer] as outlined below but with a x12 week ex-gratia payment instead of x2 weeks."[109]

• [89] In putting forward the Applicant's Offer (to depart from the Respondent's employment, on the same terms as the Proposal Offer, but with a 12 week ex gratia payment), the Applicant was very careful to make Ms Romero aware of the fact that he considered that he had certain legal rights (which he was reserving) and that his offer was being made on a without prejudice basis (i.e. without prejudice to his litigious pursuit of any right or claim that he may hold). In other words, the Applicant drew Ms Romero's attention to his view that any claim he might make against the Respondent would involve not only time and cost, but the airing publicly (as part of a court process) of what he considered to be the Respondent's dirty laundry. In this regard, and relevantly, the Applicant's 28 August 2024 email (containing the Applicant's Offer)[110]:

a) lists what he considers to be "business risks" to the Respondent. I understand that the Applicant became aware of these alleged "business risks" as a direct result of him performing his work for the Respondent in the CLRO role;

b) states that the Applicant has sought [obtained] legal advice from "an employment law specialist and Partner" (i.e. a senior and experienced lawyer who specialises in employment law);

1. advises Ms Romero that the Applicant has "a very strong general protections claim", and in doing so, relevantly states:

"I am advised by my lawyer that my prospects of this claim are very strong and the compensation achievable would be well over x12 weeks in an ex-gratia payment given the circumstances of this matter, the level of my role and the time needed to find an alternative role.

In the circumstances, I am willing to agree to the terms of your initial proposal as outlined below but with a x12 week ex-gratia payment instead of x2 weeks, namely:

d. payment for all your accrued outstanding annual leave;

g. I am proposing that the agreed separation take effect Wednesday 28th August or other agreed date.

I consider this to be very reasonable in the circumstances:

• Considering the ex-gratia payments made to others and the circumstances of their exits.
• To avoid the time, costs and business disruption of a legal dispute plus the exposure of the matters raised including documentary evidence and the calling of witnesses.
• To avoid the need for your insurer to be notified of the claim and the related matters raised.

Should a resolution not be reached I will unfortunately instruct my friend and her firm to commence a Fair Work Claim to enforce my legal rights and seek damages."

• [90] In response to the Applicant's Offer, the Respondent made its own offer (or a counter offer, being the Final Offer), with an 8 week ex gratia payment. This Final Offer was also put on a without prejudice basis (i.e. without prejudice to any right that the Respondent may hold to terminate the Applicant's employment contract (and the employment relationship) purely upon the payment of notice, or to have the Complaint made against him investigated, with likely adverse consequences if substantiated). In this regard, and relevantly, the Final Offer:

a) pointed out that the Respondent considered that it had valid and lawful reasons to terminate the Applicant's employment if a settlement agreement could not be reached;

b) made clear that the Respondent's decision to have the Applicant depart from the business was unrelated to him performing his role in identifying "risks" (howsoever described), with the decision for him to depart based upon a loss of faith in the Applicant's leadership (including in the context of his previous, repeated, and concerning, behaviours and interactions with Ms Romero and other staff, and the Complaint);

1. noted that the Applicant's employment had not been terminated, and that (at least at this stage) negotiations continued towards the terms upon which the Applicant would depart from the Respondent's business on a mutually agreed basis;

d) specifically rejected the Applicant's offer of a 12 week ex gratia payment; and

e) made a "final offer" of an 8 week ex gratia payment (on all of the same terms as set out in both the Proposal Offer and the Applicant's Offer).

• [91] The short point to the exchanges between the Applicant and the Respondent, as set out in paragraphs [89] and [90] above, is that the parties, from a contractual context,[111] were setting out their respective contentions to each other (about their respective legal positions, including as to liability and damages), and making without prejudice offers concerning a binding agreement to be reached to mutually relinquish the pursuit of such claims.[112]

• [92] The Proposal Offer, the Applicant's Offer, and the Final Offer, were all in the same terms.[113] It follows that the words used in the Acceptance Email (sent by the Applicant at 11:09am on 30 August 2024, in direct response to the Final Offer), being "I am willing to accept your below offer [being the Final Offer] subject to satisfactory terms within the Deed of Release", need to be considered in the context of what a reasonable person would have been led to believe, or understood, by reference to the communications between the parties during the period 22 August 2024 to 30 August 2024.

• [93] I find that the objective evidence discloses that the Applicant understood the terms of the Final Offer, and that it was indeed an "offer" capable of acceptance by him.[114] This is consistent with the terms of the Final Offer being directly reflective of the overall dealings between the parties up until the time that the Final Offer was made. The only differences between the Proposal Offer, the Applicant's Offer, and the Final Offer, is the dollar amount of the ex gratia payment (expressed in weeks' pay). On the evidence, no issue of ambiguity as to the meaning of the terms (or words) of the Final Offer is raised by the Applicant or the Respondent prior to the Acceptance Email.[115] Equally, on a plain reading of the words set out in the Final Offer, I do not accept that there is any vagueness or uncertainty as to the straight up meaning of any of the terms set out in the Final Offer.[116] This is especially so when one acknowledges that each of the terms of the Final Offer are directed to only one outcome, the departure of the Applicant from the Respondent's employ.[117] It is worth again repeating that this is not a complex commercial transaction.

• [94] The Applicant's acceptance of the Final Offer (via the Acceptance Email) does not:

b) identify any alternatives to the Final Offer (or alternatives to any of its individual terms);

1. seek (or request) that any term in the Final Offer be varied, modified, or reworded;

d) seek the inclusion of a new (or a different) term;

g) suggest that the Final Offer is incomplete, or that he is unable to agree to the Final Offer because it is missing a term, or that a particular term contained in the Final Offer needs to be agreed to before his acceptance will occur;

h) suggest that any term of the Final Offer has not been agreed, or will not be able to be agreed moving forward; or

1. assert that the Final Offer is not agreed unless, and until, at some undetermined time, the Deed is formally executed (i.e. signed, sealed, and delivered as required by sections 38 and 38A of the Conveyancing Act 1919 (NSW)).

• [95] Considering the objective evidence as a whole, including the terms of the Final Offer, read in light of the terms set out in the Proposal Offer and the Applicant's Offer, and the without prejudice or other communications and interactions between the parties between 22 and 30 August 2024, I find that a reasonable person in the position of the parties would have understood and believed that:

a) the parties each had a crystal clear intention (as at 28 August 2024) to create legal (or contractual) relations concerning the reaching of a binding agreement about the 'agreed' departure of the Applicant from the Respondent's employ. In other words, each party, from their words and conduct, fully understood, and displayed outward manifestations of intent to make an agreement concerning the Applicant's departure from the Respondent's employ. That intent included both parties being willing to be held accountable by the law if they failed to fulfil the contractual obligations and promises that they might end up ultimately agreeing upon;

b) the only issue holding up agreement between the parties, as at the time that the Final Offer was sent to the Applicant, was one of money (i.e. the amount of the ex gratia payment);

1. reading the Final Offer side by side with the words set out in the Applicant's Acceptance Email, the agreement between the parties came down to a classic offer (Final Offer) and acceptance (Acceptance Email) scenario. On 30 August 2024 at 11:09am, the Applicant accepted the Final Offer via the words "I am willing to accept your below offer subject to satisfactory terms within the Deed of Release", and requested that a copy of the Deed be sent to him for "my review";

d) from a factual and legal perspective, the Acceptance Email manifested an unequivocal assent by the Applicant to the Respondent's Final Offer, thereby (and immediately) producing a concluded bargain (and binding agreement) between the parties (i.e. as at 11:09am on 30 August 2024) (Binding Agreement); and

e) all negotiations between the parties ceased after the Binding Agreement was made.

• [96] I find that the Binding Agreement is of the kind referred to in the "first" category of Masters v Cameron. The terms of the Binding Agreement require that its terms are to be recorded in a deed that is executed by the parties, i.e. as opposed to each party's agreement taking place upon the relevant deed being 'signed, sealed and delivered'.

• [97] The express terms of the Binding Agreement are:

d) payment for all your accrued outstanding annual leave;

g) the agreed separation will take effect at 5pm on 30 August 2024.

• [98] The meaning of terms (a) to (d), and (g) of the Binding Agreement, are not in dispute. Together, these terms give rise to the Applicant ceasing to be employed by the Respondent, and being paid as specified.

• [99] The acceptance of the foregoing terms of the Binding Agreement by the Applicant contained a proviso "subject to satisfactory terms within the Deed of Release" (Proviso).

• [100] The Deed Email (sent by Ms Romero at 11:33am on 30 August 2024) is consistent with Ms Romero moving to formalise the terms of the Binding Agreement in a Deed (per Term (f) of the Binding Agreement). Ms Romero states in the Deed Email that she is content for the Applicant to review the Deed and confirm that its terms (and words) are "satisfactory" to him. I observe that Ms Romero's use of the term "satisfactory" in the Deed Email is consistent with the Proviso ("subject to satisfactory terms within the Deed of Release").

• [101] The notion that either the Applicant or the Respondent might sign a Deed containing terms (or words) that they knowingly considered to be unsatisfactory is not suggested by either party to these proceedings. I infer, or imply by fact, that the requirement for satisfactory terms to be contained in the Deed applies to both the Applicant and the Respondent (Satisfaction Term).[118]

• [102] On the basis of Term (f) of the Binding Agreement, the "agreed messaging/communications" term, and the Satisfaction Term, it is apparent that both parties need to confer between each other to resolve all of the terms (and words) of the Deed. So that neither party can 'block' the finalisation of the Deed (including via silence, or non-responsiveness), or advance a position that the Binding Agreement is invalid, voidable or incomplete upon the 'mere contention' that a term in the Deed is (or will be) unsatisfactory or unable to be agreed upon, I consider it necessary (in this case) to imply (by fact) the following term as a term of the Binding Agreement:

"Each party shall be required, if any wording or a term/s of the Deed is not considered by them to be 'satisfactory', to specifically, adequately, and at their earliest convenience (or within a reasonable time) bring such unsatisfactory term/s (or wording) to the other party's attention, and (if applicable) also propose an amendment or an alternative set of words to make the unsatisfactory term (or wording) satisfactory (i.e. provided such amendment or inclusion is consistent with the terms of the Binding Agreement). (Cooperation Term)"

• [103] I consider that the Cooperation Term in this case:

a) is consistent with the scope of the duty to cooperate, including as explained by the High Court (see paragraphs [79] to [85] of this decision);

b) is specific and limited, and expressed as not being a term that contradicts any term/s of the Binding Agreement. In other words, the Cooperation Term in this case does not require agreement to be reached as to, for example, messaging/communications, only that the parties engage with each other in a timely manner for the purposes of attempting to reach an agreement on satisfactory wording on any messaging/communications. Parties otherwise remain free to act in their own self-interest during any such engagement;

1. is necessary to give business efficacy to the Binding Agreement. The terms of the Binding Agreement in this case require a deed to be drafted in terms that are agreed by both parties to be satisfactory, and for any messaging/communications around the Applicant's departure from the Respondent's employ to be agreed. Neither of these matters can miraculously happen themselves. Absent the Cooperation Term, the Binding Agreement will not be effective in that either party will be free to not engage (or not engage properly or adequately) with the other party, and thereafter assert that no agreement has been reached, and/or that no agreement is capable of ever being reached;

d) further to (c), the Cooperation Term is so obvious that it goes without saying; and

e) in view of (a) to (d) above, the Cooperation Term is a reasonable and equitable term.[119]

What is the meaning of the terms of the Binding Agreement?

The Satisfaction Term, and the meaning of being 'satisfied'

• [104] In my view, the Proviso (being the phrase "accept [the Final Offer] subject to satisfactory terms within the Deed of Release"), simply means what it says, being that the terms of the Binding Agreement are accepted subject to such terms being satisfactorily reflected in a deed of release. In other words, the phrase does not extend to demanding the inclusion of any terms in the Deed that are in addition to, or inconsistent with, the terms of the Binding Agreement. If this phrase were meant to mean otherwise, or was intended (objectively) to encompass the inclusion of new and additional terms, it would need more words.

• [105] The ordinary meaning of the word (adjective) "satisfactory" is "fulfilling expectations or needs; acceptable, though not outstanding or perfect"[120] and "good or good enough for a particular need or purpose".[121]

• [106] The meaning of the Satisfaction Term (including the phrase "subject to satisfactory terms within the Deed of Release") does not extend to either party commanding some form of veto power under the Binding Agreement such that a party can, in their absolute discretion, determine that a term (or the terms) of the Deed are simply unsatisfactory to them. Rather, the Satisfaction Term is to be applied objectively, on the basis that any asserted dissatisfaction by a party with the terms (or words) of the Deed needs to be 'genuine', in the sense that any dissatisfaction about the terms (or words) of the Deed:

a) as it concerns the terms of the Binding Agreement, is about consistency with the relevant term(s) of the Binding Agreement; and

b) as it concerns any ancillary or mechanical term of the Deed, is 'real', and remains unresolved despite communications between the parties attempting resolution.[122]

The meaning of "agreed messaging/communications" (term (e) of the Binding Agreement)

• [107] The Binding Agreement includes a term that the parties will reach an agreement on messaging/communications around the Applicant's departure from the Respondent's employ (term (e)). Such agreement on messaging/communications is also subject to the Satisfaction Term. In other words, such messaging/communications cannot be one-sided, or unsatisfactory to either party. From the perspective of the reasonable person, the nature of any messaging/communications to be agreed upon, including the genuineness of any alleged disagreement about same, takes it que from the previous interactions and communications between the parties over the issue of messaging/communications (between 22 and 30 August 2024), and the conduct of the parties thereafter (i.e. right up to 19 September 2024 when the Applicant filed his Application in these proceedings).

• [108] There is no evidence of any exchanges between the parties around what would be agreed between the parties on messaging/communications. In his witness statement evidence, the Applicant gives his subjective retrospective views as to what he specifically intended to include in any messaging/communications, and to whom such messaging/communications should be distributed. These views were never communicated to the Respondent. More relevantly, there is no suggestion on the evidence that any agreement on messaging/communications surrounding the Applicant's departure from the Respondent's employ was (objectively) ever intended to encompass more than a statement concerning the Applicant moving on (at the right time for himself), or pursuing other roles, or investigating new endeavours, or taking a break, and of course thanking him for his work during his time at the Respondent.

• [109] The draft wording on messaging/communications, as set out in the Deed (provided by the Respondent to the Applicant at 11:33am on 30 August 2024), reads:

"circulate a statement to relevant staff about the [Applicant's] departure, which includes the following wording "Sadly, Andrew has decided to leave the organisation to explore another opportunity. We are very grateful for Andrew's contribution to the organisation and we wish him every success for the future"".

• [110] The Applicant has not given any evidence, or made any submissions, concerning any specific difficulty he raised with the Respondent about the foregoing wording, or an alternative set of words that he would agree to. The Applicant did not raise any 'specific' concerns with the Respondent around the messaging/communications term at any time during the period leading up to the Bargaining Agreement (22 to 30 August 2024), or after (1 to 15 September 2024).

• [111] This is not a case in which each party was advancing a particular (and differing) set of words around messaging/communications in the lead up negotiations to the Binding Agreement being concluded, but reached a stalemate. Rather, the evidence discloses that any agreement around messaging/communications has been a matter that has not attracted any importance or significance (or been in contest) at all in exchanges between the parties in the lead up to the Binding Agreement being concluded, on 30 August 2024, or even thereafter.[123] It is thus a term to which no real view as to its content has been expressed by either party. And it was Ms Romero (in the Proposal Offer), not the Applicant, that first listed messaging/communications as a term of any proposed mutual separation agreement.

Are the terms of the Binding Agreement unsatisfactory?

• [112] The Applicant asserts that no Binding Agreement exists because the terms of the Deed have been, and continue to be unsatisfactory, to him. In making this assertion, the Applicant states:

"In my mind the [Binding Agreement] was only partly arrived at [on 30 August 2024]. When I saw the draft Deed, I realised that the [Binding Agreement] would not be settled without the deed being considerably further negotiated."[124]

• [113] The foregoing statement of the Applicant is his subjective opinion advanced after the date that the Binding Agreement was made on 30 August 2024. It is therefore irrelevant. Again, the subjective views of a party as to what they meant by their actions or conduct, pre or post entering into a binding agreement, do not fall within the purview of the notional reasonable person.

• [114] At the hearing, the Applicant raised a whole raft of matters that he considers necessary for inclusion in the Deed to make it 'satisfactory' for him to sign,[125] including:

a) "cornerstone of the agreement" elements (being a written reference, a statement of service, and internal arrangements for future reference checks);[126]

b) a "had to have" element (being a non-disparagement clause that in addition to the Respondent, bound three other individuals employed by, or connected with, the Respondent);[127]

1. a broad personal indemnity term;[128]

d) an "opportunity" to obtain legal advice (about the Deed) term;[129] and

e) any messaging/communications about the Applicant's departure to be distributed not only to the Respondent's staff, but also to the Respondent's client contacts (or some of them) and the Respondent's stakeholders or service providers (or some of them).[130]

• [115] The cornerstone of the agreement elements are not mentioned in any of the exchanges between the parties prior to the commencement of these proceedings.[131] Nor is the issue of extending any agreed messaging/communications to the Respondent's clients/service providers/stakeholders.

• [116] The need for any disparagement term to be extended to three other individuals, and thus require those three individuals to be parties to the Deed, is not mentioned in any of the exchanges between the parties prior to the commencement of these proceedings. It is raised as an issue for the first time in the Applicant's Witness Statement.

• [117] The need for a broad personal indemnity term is not mentioned in any of the exchanges between the parties prior to the commencement of these proceedings. I observe that despite raising various concerns as to alleged business risks to the Respondent in his 28 August 2024 email, the Applicant does not raise any concerns for him personally such that he was involved in the creation of the alleged risk/s, failed to disclose an alleged risk/s to the Respondent's executive, or otherwise sought to cover up a risk/s (or breach/s). There is certainly no mention of a request (or need) for some form of 'indemnity' for himself to be in place in any of his communications with the Respondent.[132]

• [118] The Applicant's assertions as to his dissatisfaction with the terms of the Deed arise in circumstances where the terms that he (subjectively) considers necessary for inclusion in the Deed (to make it satisfactory for him to sign) are not terms of the Binding Agreement, and were not raised at all prior to the commencement of these proceedings (or more relevantly, during the period 22 to 30 August 2024). It follows that I reject the Applicant's contention in these proceedings that the terms of the Deed are (objectively) unsatisfactory or contrary to the Satisfaction Term. Another way of saying this is that I do not accept that any asserted dissatisfaction by the Applicant with the terms of the Deed is genuine (or validly arises) by reference to the events that have happened, the facts of this case, and the terms of the Binding Agreement.

Are any of the terms of the Binding Agreement so vague, uncertain, or incomplete, such that the Binding Agreement was never made, or does not survive?

• [119] In Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd,[133] Anderson J made the following point about the approach to be taken to questions of incompleteness and uncertainty in relation to a concluded bargain:

"I think it is fair to say, speaking very generally, that where the parties intended to make a final and binding contract the approach of the courts to questions of uncertainty and incompleteness is rather different from the approach that is taken when the uncertainty or incompleteness goes to contractual intention. Where the parties intended to make an immediately binding agreement, and believe they have done so, the courts will strive to uphold it despite the omission of terms or lack of clarity. Trustees Executors & Agency Co Ltd v Peters [1960] HCA 16; (1960) 102 CLR 537; Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429; Meehan v Jones [1982] HCA 52; (1982) 149 CLR 571."

• [120] My findings as to the existence of the Binding Agreement are founded upon my finding that relevant contractual intention was present, and that offer and acceptance occurred.

• [121] In rejecting the Applicant's contention that the Bargaining Agreement was never made or does not survive because its terms, or some of its terms, are incomplete or uncertain, I rely upon the following findings:

a) the Applicant has misconstrued or misapplied the Satisfaction Term, in that his claims as to dissatisfaction are founded upon his own subjective beliefs, or include claims that extend beyond the meaning of the Satisfaction Term as it applies to the Binding Agreement; and

b) the "agreed messaging/communications" term, whilst not yet agreed, has a confined scope as to what would be understood (by the reasonable person) to be its content. The failure of the parties to reach agreement on messaging/communications has occurred directly as a result of the Applicant failing to engage (at all) with the Respondent in any discussions or other communications around the topic, despite every (reasonable) opportunity for him to do so over a period of more than two weeks.

• [122] In his submissions and evidence, the Applicant alludes to the passage of time, and the fact that the agreed messaging/communications term is now otiose in the sense that the distribution of a communication now, about the Applicant's departure from the Respondent's employ in August 2024, is pointless. But this situation arises from the Applicant's own conduct, in that he made no attempts to actively engage with the Respondent about the Deed or any of its terms until the McArdle Letter (some 16 days after he had already received a draft of the Deed). Nothing more need be said on this issue.

• [123] The Applicant failed to provide the Respondent with a marked up version of the Deed, or other comments concerning any of the terms of the Deed (including on messaging/communications), during the period 30 August to 15 September 2024. At no point prior to the McArdle Letter did the Applicant provide any comments or feedback to the Respondent concerning any of the specific terms of the Deed, let alone a marked up version of the Deed.

• [124] It is not suggested on the evidence that the terms (or words) of the Deed, as drafted by the Respondent, have ever been provided to the Applicant on the basis that the Respondent had some form of unfettered right to insist upon the inclusion of certain terms (or wording) in the Deed that are not consistent with the terms of the Binding Agreement. At all times, the Deed was provided to the Applicant on a "subject to his review" (and amendment in "mark-up") basis, so as to reflect wording satisfactory to both parties, but at the same time consistent with, and confined to, the terms set out in the Binding Agreement.

• [125] The Deed was first provided to the Applicant as a draft (in PDF file format) on 30 August 2024 (per the Deed Email), for his review (as to satisfactory terms or words) and mark-up return (as applicable). PDF computer programs (widely and freely available on the internet) allow for PDF files to be amended in their own PDF native format, or enable the conversion of a PDF file to a Microsoft Word or Google document file (to thereafter easily mark up or edit electronically via a word processing program). Of course, one can also print the PDF document and mark it up by hand, and return scans or photos of the amended pages. All of that aside, the Deed was also sent to the Applicant on 3 September 2024 in Microsoft Word format. There is no evidence to suggest that the Applicant was incapable of simply picking up the phone and calling the Respondent to discuss any changes or amendments to the draft Deed at any time (on and from 30 August 2024).

• [126] The Applicant's case as to his avoidant behaviour, including his failure to engage with the Respondent or otherwise provide feedback on the terms (or words) of the Deed, during the period 30 August to 15 September 2024, essentially comes down to his "mental health didn't allow [him] to".[134] However, this explanation is not supported by any probative evidence,[135] and is otherwise inconsistent with the Applicant's own evidence.

• [127] The Applicant's own evidence is that despite being under a high level of "psychological distress" on and from 22 August 2024, he was cognitively capable enough to continue working right up until 30 August 2024,[136] and during the period 22 to 30 August 2024, he:

a) physically attended the Respondent's workplace to work, and engaged in meetings, and conferred and communicated with other staff (i.e. continued to perform his job); and

b) sent lengthy, articulated, and structured emails to Ms Romero around his departure, including his objections to same (and conferred separately with a lawyer in doing so).

• [128] The Deed Email was sent to the Applicant at 11:33am on 30 August 2024. However, the Applicant then went incommunicado for the remainder of that day, for no apparent reason (or for reasons not properly explained or articulated on the evidence before me).[137] There is no evidence to suggest that the Applicant was unable to email, telephone or text Ms Romero at any time on 30 August 2024, even if just to touch base.

• [129] In my view, it follows that any assertion by the Applicant that he somehow became incapacitated (cognitively or otherwise), at or after the time that he sent the Acceptance Email (being 11:09am on 30 August 2024), needs to be supported by probative evidence. It is not. The evidence does not suggest that the Applicant was unable (due to incapacity, or otherwise) to provide to the Respondent a marked up version of the Deed, or comments concerning the specific terms of the Deed, during the period 30 August to 15 September 2024.

• [130] The Applicant's medical evidence (taking it at its highest) does not support him being so incapacitated that he could not, during the period 30 August 2024 to 15 September 2024:[138]

a) communicate his self-diagnosed, or professionally diagnosed, 'incapacity' to the Respondent, such that the Respondent (and the reasonable person) would be aware that the reason for his silence, inaction, lack of initiative, and not progressing things on the Deed at the time (in non-compliance with the Cooperation Term) was because of his incapacity; or

b) communicate with or respond to the Respondent (via text, telephone or email):

1. about his purported objection to the cessation of his employment occurring on 30 August 2024, and his IT access being removed;

1. that he considered negotiations about the cessation of employment to remain open and on-going after 30 August 2024; or

1. that specific terms of the Deed were unsatisfactory to him.[139]

• [131] On the facts of this case, the Applicant's failure to properly (and in a timely manner) communicate and engage with the Respondent to finalise the terms of the Deed is in breach of the Cooperation Term. There is no basis on the evidence to ignore or condone such behaviour. This breach cancels out or gravely undermines all of the Applicant's assertions in this case as to the terms of the Deed being unsatisfactory, and/or the agreed messaging/communications term not being able to be agreed because it is an uncertain or incomplete term incapable of resolution or enforcement.

• [132] Tying all the different strings together, I summarise my ultimate findings on the Respondent's Settlement Objection, as follows:

a) a Binding Agreement was made between the parties on 30 August 2024, at 11:09am, per the Acceptance Email. It continues (to this day) to be enforceable;

b) the terms of the Binding Agreement (including the agreed messaging/communications term) are not so uncertain or incomplete that it can be concluded that the Binding Agreement was never made, or does not survive (in whole or in part);

1. the Applicant's contentions as to his dissatisfaction with the terms of the Deed go beyond the scope of the Satisfaction Term, and must (on the evidence) be rejected;

d) the Applicant's contentions as to his dissatisfaction with, and/or assertions as uncertainty or incompleteness around, the terms of the Deed, must also be rejected in circumstances where a finding has been made that the Applicant is in breach of the Cooperation Term. In other words, if the Applicant did or does have any concerns around the terms of the Deed, such concerns must be consistent with the Satisfaction Term, and he needs to comply with the Cooperation Term, before such concerns can be said to be real, or otherwise unresolvable or unsolvable; and

e) given that the Binding Agreement is in place and enforceable, the Applicant retains the on-going ability to confer with the Respondent in accordance with the Cooperation Term to satisfactorily finalise the terms (or words) of the Deed.

• [133] I do not accept that the foregoing ultimate findings are inconsistent with any of the six principles identified by Lee J in Farrell[140] (noting that such principles are not absolute, and need to be considered and applied in the context of the other legal principles cited in this decision, and the facts and circumstances of this particular case).[141]

The Applicant was not dismissed by the Respondent

• [134] An agreement between an employer and employee, for an employee to cease working for an employer, does not fall within the meaning of "dismissal" under s.386(1) of the Act.

• [135] Whatever way one may choose to slice and dice the facts of this case to attempt to cross the threshold of a dismissal, any such finding would be wrong in that it would be inconsistent with the terms of the Binding Agreement. The evidence discloses that the Applicant had choices open to him other than sending the Acceptance Email. I therefore reject the contention by the Applicant that he was dismissed by the Respondent, on 30 August 2024, or at any other time.

• [136] Given the existence of the Binding Agreement, and my finding that the Applicant was not "dismissed" by the Respondent (within the meaning of s.386 of the Act), the Respondent's Settlement Objection and its No Dismissal Objection are upheld. The Commission has no jurisdiction to deal with the Applicant's Application. An Order has been issued contemporaneously with this decision dismissing the Applicant's case [PR788091].[142]

Mr Chris McArdle, Principal, McArdle Legal, appeared (with permission) on behalf of Mr Andrew Ebbott (Applicant). Mr Ken Brotherson, of Counsel, authored the Applicant's written closing submissions.

Mr Leo Saunders, of Counsel, instructed by Ms Kristy Edser, Partner, and Mr Jacob White, lawyer, Minter Ellison lawyers, appeared (with permission) on behalf of the Arriba Group (Respondent).

[1] A "dismissal", within the meaning of s.12 (and ss. 365(a) and 386) of the Fair Work Act (2009) (Act), is a jurisdictional prerequisite to making a valid s.365 application.

[2] The power to conduct a conference and issue a certificate under s.368 of the Act is predicated upon the Commission having jurisdiction to conduct such a conference, or issue such a certificate. This cannot occur unless a 'valid' (or within jurisdiction) general protections involving dismissal application has been made.

[3] Note the s.594 Confidentiality Order made in these proceedings (dated 10 December 2024).

[4] Digital Hearing Book/Court Book (CB), pp.148-156.

[6] Ms Romero Statement, at [10]-[13], CB, p.141. Uncontested in cross-examination.

[7] Ibid, at [12], CB, p.141. Uncontested in cross-examination.

[9] Applicant Statement, at [15], CB, p.74.

[12] Ms Romero Statement, at [8(b)], CB, p.141. See also, CB, pp.99, and 289-290.

[13] Ms Romero Statement, at [14]-[18], CB, p.142.

[14] CB, p.204. See also Ms Romero's Statement, at [26]-[28], CB, p.143, and Annexure 'D', CB, pp.202-203.

[15] Applicant Statement, at [35]-[46], CB, pp.76-78. See also CB, pp.210-212 (Applicant's email of 23 August 2024, 7:03pm). Compare, Ms Romero's Statement, at [12]-[13], CB, p.141.

[18] Ms Kate Smith Statement, at [4], CB, p.138.

[19] Applicant Statement, at [47]-[51], CB, p.78.

[20] Ms Romero Statement, at [39], CB, p.144.

[23] CB, pp.108-109. Transcript, PN119-PN120. Applicant's Statement, at [54], CB, pp.78-79.

[24] Ms Romero Statement, at [42], CB, p.145.

[25] The Applicant removed further personal effects or items from the office on 30 August 2024, again, absent any direction or request to do so by the Respondent. I proceed on the basis that the Applicant removing his personal effects from the workplace on 30 August 2024 was a direct acknowledgement (or admission) by him that he would be leaving the Respondent's employ that day (i.e. consistent with the Acceptance Email).

[26] CB, pp.232-233. The terms of the Final Offer correspond (or use the same words) as the terms of the Applicant's Offer (and the Proposal Offer),

[27] Ms Kate Smith Statement, at [6], CB, p.138.

[33] Applicant's Closing Submissions, 20 January 2025, at [36].

[34] CB, p.254. Transcript, PN422-PN434, and PN451.

[35] Note also, Ms Kate Smith Statement, at [6], CB, p.138, and Ms Romero Statement, at [42], CB, p.145.

[37] Ibid, PN422 and PN451. See also Ms Kate Smith Statement, CB, pp.138-139, and Transcript, PN328-PN344.

[46] Ibid, pp.269-270. Transcript, PN284-PN286.

[47] Ibid, pp.269-270 (a copy of the Deed is found at CB, pp.245-253).

[48] Transcript, PN163, and PN169-PN171.

[50] Ibid, pp.271-277, and pp.42-50 (revised Deed).

[52] Ibid, pp.271-277, and pp.42-50 (revised Deed).

[53] [1983] HCA 5; (1983) 151 CLR 422. See also Codelfa Constructions Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, at 352.

[54] Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422, at 428.

[55] Westport Insurance Corp v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37, at [82] per Heydon J.

[56] Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422, at 428. See also Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, at 275 [59].

[57] (2004) 219 CLR 165; [2004] HCA 52. See also Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7; Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8, at [25].

[58] (2004) 218 CLR 451; [2004] HCA 35.

[59] (2004) 219 CLR 165; [2004] HCA 52, at [40].

[60] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451, at [22] (unanimous decision); Toll (FGCT) Pty Limited v Alphapharm Pty Limited [2004] HCA 52; 219 CLR 165, at [40]-[41] (unanimous decision).

[61] Codelfa Constructions v State Rail Authority [1982] HCA 24; 149 CLR 337, at 352, per Mason J.

[62] [2001] NSWCA 61; 53 NSWLR 153.

[64] [2022] FCA 78.

[65] [1954] HCA 72; (1954) 91 CLR 353.

[66] [2006] NSWCA 350.

[69] Citing Ipp J in Anaconda Nickel Ltd v Tarmoola Australia Pty Ltd [2000] WASCA 27; (2000) 22 WAR 101, at 110, [25].

[70] [2000] WASCA 27; (2000) 22 WAR 101, at 112, [29].

[71] Farrell v Super Retail Group Ltd (Specific Performance Claim) [2024] FCA 1515, at [18].

[72] [2006] NSWCA 350, at [99]-[100]. See also per Lloyd LJ (with whom the other members of the Court of Appeal agreed) in Pagnan SpA v Feed Products Ltd [1987] 2 Lloyd's Rep 601, at 619.

[73] [2024] FCA 1515.

[77] Respondent's Closing Submissions, 9 February 2025, at [24]-[28], citing Geenbung Investments v Varga Group Investments [1995] NSWCA 166, at p.13 (per Kirby P). See also, for example, the outcomes in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1952) 2 NSWLR 3901, and Godecke v Kirwan [1973] HCA 38; (1973) 129 CLR 629.

[79] [2010] UKSC 14; [2010] 1 WLR 753.

[81] (1986) 40 NSWLR 631.

[84] Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53; (1982) 149 CLR 600, at 604. See also, Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2015] NSWCA 1, at [59]-[64].

[85] A 'concluded bargain' and its 'enforcement' are (of course) separate but related questions: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, at 548.

[86] See, for example, Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540, per Gleeson CJ.

[87] [2019] UKSC 4; [2020] AC 129; [2019] 2 WLR 617.

[90] (1977) 52 ALJR 20. See also Realestate.com.au Pty Ltd v Hardingham; RP Data Pty Limited v Hardingham [2022] HCA 39; 406 ALR 678, at [21]-22], and [43]-[51]; Ratepayers of the Shire of Hastings (Victoria) (1977) 180 CLR 266.

[92] [2016] 4 All ER 441; [2015] UKSC 72.

[93] Ibid, at [21]. See also at [22]-[31]. Note judgement of Lord Clarke, at [77]: "it must be necessary to imply the term and that it is not sufficient that it would be reasonable to do so. Another way of putting the test of necessity is to ask whether it is necessary to do so in order to make the contract work": see the detailed discussion by Lord Wilberforce in Liverpool City Council v Irwin [1976] UKHL 1; [1977] AC 239, at 253-254.

[94] Of course, the tests in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayors of the Shire of Hastings (1977) 52 ALJR 20, at 26, must still be satisfied. See also Wells v Devani [2019] UKSC 4; [2020] AC 129; [2019] 2 WLR 617, at [33] and [35], and Catterwell, Ryan (2023). Co-operation and prevention in contract law. Melbourne University Law Review 47 (1) 114-153, at 124, and the authorities cited therein at footnote 40.

[95] Catterwell, Ryan (2023). Co-operation and prevention in contract law. Melbourne University Law Review 47 (1) 114-153.

[96] Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, at 263 (per Mason J, citing Griffith CJ in Butt v McDonald (1896) 7 QLJ 68, at 70-71).

[97] [1979] HCA 51; (1979) 144 CLR 596.

[99] Ibid, at 263. See also, Catterwell, Ryan (2023). Co-operation and prevention in contract law. Melbourne University Law Review 47 (1) 114-153, at 123.

[100] This is to be contrasted with the implied term of mutual trust and confidence, which concerns the maintenance of the on-going relationship between the parties. Some aspects of the implied duty to cooperate do overlap with the duty of good faith, however, they are not the same duties. The duty to cooperate is limited to enforceable obligations, whilst the duty of good faith extends to fair dealing (including parties exercising their rights or powers under a contract in bad faith or for an extraneous purpose/s): Alcatel Australia Limited v Scarcella and Ors [1998] NSWSC 483; (1998) 44 NSWLR 349; Renard Constructions (ME) Pty Limited v Minister for Public Works (1992) 26 NSWLR 234.

[101] Australis Media Holdings P/L v Telstra Corp (1998) 43 NSWLR 104.

[102] Bell Group NV v Insurance Commission of Western Australia [2017]WASCA 229, at [113]; New Standard Energy PEL 570 Pty Ltd v Outback Hunter Pty Ltd [2019] SASCFC 132, at [130]; Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, at 607-608; Board of Fire Commissioners (NSW) v Ardouin [1961] HCA 71; (1961) 109 CLR 105, at 118.

[103] Compare (a) Catterwell, Ryan (2023). Co-operation and prevention in contract law. Melbourne University Law Review 47 (1) 114-153, and the authorities cited therein as to implication by law, with (b) the cases of Adaz Nominees Pty Ltd as trustee for the Rado No 2 Trust v Castleway Pty Ltd as trustee for the Castleway Trust [2020] VSCA 201, at [116]-[118]; Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd [2021] VSCA 69, at [105]-[108], as to implication by fact (using the tests in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266).

[104] South Australia v The Commonwealth [1962] HCA 10; (1962) 108 CLR 130, at 154, per Windeyer J (cited with approval in Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95).

[105] Plankton Australia Pty Ltd v Rainstorm Dust Control Pty Ltd [2018] FCA 174, at [13] (per Colvin J); Dig It Landscapes Pty Ltd (in liq) v Bupa Aged Care Australia Pty Ltd (No 2) [2024] FCA 31, at [137] (per Jackson J).

[106] Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, at 109-110 (per Gibbs J); Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253, at [98]-[100].

[109] CB, pp.108-109. Transcript, PN119-PN120. Applicant's Statement, at [54], CB, pp.78-79.

[111] Farrell v Super Retail Group Ltd (Specific Performance Claim) [2024] FCA 1515, at [15]; Radovanovic v Stekovic [2024] NSWCA 129.

[112] A communication that is made between persons in connection with an attempt to negotiate a settlement (or potential settlement) of a dispute classifies as a without prejudice communication, i.e. a document may or may contain a without prejudice communication whether or not it is marked with, or prefaced by, the words "without prejudice".

[114] Transcript, PN123-PN129, and PN138.

[115] With the Acceptance Email itself raising no issue of ambiguity either.

[116] A contract (or agreement/deed) is not void for uncertainty simply because it can have more than one meaning. As long as a term is capable of meaning, that term will ultimately bear the meaning that a relevant court or tribunal gives the term: Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429, at 436-437 per Barwick CJ.

[117] Farrell v Super Retail Group Ltd (Specific Performance Claim) [2024] FCA 1515, at [15].

[118] In inferring or implying the Satisfaction Term by fact, I apply the test set out in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayors of the Shire of Hastings (1977) 52 ALJR 20, at 26 (see also Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another [2016] 4 All ER 441; [2015] UKSC 72, at [21], see also at [22]-[30], and [77];; Realestate.com.au Pty Ltd v Hardingham; RP Data Pty Limited v Hardingham [2022] HCA 39; 406 ALR 678, at [21]-22], and [43]-[51]).

[119] Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another [2016] 4 All ER 441; [2015] UKSC 72, at [21], see also at [22]-[30], and [77]; BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayors of the Shire of Hastings (1977) 52 ALJR 20, at 26; Realestate.com.au Pty Ltd v Hardingham; RP Data Pty Limited v Hardingham [2022] HCA 39; 406 ALR 678, at [21]-22], and [43]-[51].

[122] Respondent's Submissions, 9 February 2025, at [18]-[19]. Note Applicant's answers in cross-examination: Transcript, PN170-PN202.

[123] Farrell v Super Retail Group Ltd (Specific Performance Claim) [2024] FCA 1515, at [18].

[124] Applicant's Statement, at [59], CB, p.80.

[125] Applicant's Reply Statement, at [8]-[12], CB, pp.282-283.

[126] Applicant Statement, at [47]-[52], CB, p.78.

[129] Ibid, at [64], CB, p.80. This is resolved under the Deed's 'warranty' as to legal advice term.

[130] Applicant's Reply Statement, at [8]-[12], CB, pp.282-283.

[131] Note my findings as to the 27 August 2024 meeting at paragraph [26] of this decision.

[133] [2000] WASCA 27.

[134] Transcript, PN171. I have already dealt with the 27 March 2024 meeting at paragraph [26] of this decision.

[135] Note paragraph [43] of this decision re the evidentiary status of medical certificates or reports relied upon by the Applicant in these proceedings.

[136] Applicant's Statement, at [46], CB, p.78, at [57], CB, p.79, and at [72], CB, p.81.

[137] In other words, despite it still being a paid working day for the Applicant on 30 August 2024, and him having access to his work email and the Respondent's communication systems (i.e. Microsoft Teams) until 5pm that day, the Applicant does not respond (via call-back) to Ms Romero's missed call on Microsoft Teams at 1:20pm, and did not respond to her 11:33am email (Deed Email) or her 4:52pm email (Exit Email). The Applicant had every opportunity to respond to Ms Romero's 4:52pm email (Exit Email), as it was sent to both the Applicant's work, and his personal, email addresses. Any communication concerning the Binding Agreement did not need to occur during normal business hours, or only on Monday to Friday working days.

[138] Farrell v Super Retail Group Ltd (Specific Performance Claim) [2024] FCA 1515, at [17] and [20].

[139] Indeed, the evidence discloses that the Applicant was able to text the Respondent and sent it medical certificates, during this period. On 3 September 2024, the Applicant responded to the Respondent (advising via text message that he was marking up a few errors/inconsistencies). On 6 September 2024, the Applicant responded to the Respondent (advising via text message that he had been caught up, that he will action the mark-ups to the Deed over the weekend, and that he will send back his marked up version of the Deed to the Respondent over the weekend, as well as asking for his final pay to be deferred). On 11 September 2024, the Applicant responded to the Respondent (again, advising via text message that he "will get it [the Deed] back to you soon"). On 13 September 2024, the Applicant provided a medical certificate to the Respondent.

[140] See paragraph [67] of this decision.

[141] See, for example, Ondrich v ASM Global Convex Pty Ltd & Ors [2025] QIRC 80.

[142] Note the cases of Lewer v Australian Postal Corporation [2023] FWCFB 56, at [56], citing Coles Supply Chain Pty Ltd v Milford and Anor [2020] FCAFC 152; (2020) 279 FCR 591, at [69]. In the proceedings before me, I equally do not consider it necessary to specifically identify an express power in the Commission to dismiss (or to decline to act upon an application) on the basis that it fails for want of jurisdiction, or cannot proceed any further.

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