City Convenience Leasing Pty Ltd v Dencal Pty Ltd

Material before the Appeal Panel

1. The Appellants filed a notice of appeal dated 5 May 2014. The Respondent filed a reply dated 22 May 2014.
2. The Notice of Appeal was filed in time as the Decision was not received until 8 April 2014.
3. The Appellants rely on a statement of Mr Soltan dated 30 June 2014 (only parts of which were admitted). The Respondent relies on an affidavit of Mr Jonathan Carrick Martin sworn 17 July 2014.
4. A transcript of the hearing on 11 March 2014 was also put before the Appeal Panel.
5. The parties have also filed written submissions in the proceedings and the matter was heard over two days on 17 September 2014 and 22 October 2014.

The Appellants' Contentions

1. The Tribunal was in error in deciding: 1. the Settlement Agreement dated 27 March 2014 was admissible in proceedings before the Tribunal and bound both Appellants; 2. the email communication dated 5 March 2014 between the Appellants and their non-lawyer representative was not privileged; 3. the Mediation Agreement variously dated 20 February 2014 and 27 February 2014 was inadmissible in proceedings before the Tribunal; and 4. that, upon its proper construction, all parties were bound by the Mediation Agreement.
2. The Appellants contend that, as the Settlement Agreement was prepared, and mediation from which it came, was conducted by the Office of Small Business Commission, s. 69 of the Retail Leases Act 1994 ("the RL Act") applies. The Appellants further contend that, as the Settlement Agreement was created "during the mediation sessions", and was drafted by the mediator on instructions from the parties, the document is inadmissible by reason of s.69 of the RL Act. They further contend that s. 7 of the RL Act provides that the agreement is void.
3. The Appellants contend they were denied procedural fairness because they were not given an opportunity to make submissions concerning: 1. the conclusion at [30] of the Tribunal's Reasons that the Settlement Agreement was created "following mediation": and 2. ANZ v Bank Ciavarella [2002] NSWSC 1186 (Ciavarella) which was relied upon by the Tribunal in coming to the conclusion that the Settlement Agreement was not created during the mediation and was therefore admissible.
4. The Appellants also contend that the Tribunal erred at [25] of its Decision in admitting the Mediation Agreement because it was prepared by the OSBC for the purposes of conducting a mediation session of a retail tenancy dispute as provide for in Division 2 of Part 8 of the RL Act. They contend that the mediation is not limited to the formal mediation procedures: see s67 of the Act, and that statements made "in the course of the mediation" are not admissible at the hearing of a claim under Division 3 of the Act or in any other legal proceeding because of s.69 of the RL Act.
5. The Appellants contend that the email dated 5 March 2014 ought not have been admitted as: 1. It was copied to the Respondent's solicitors "by mistake" in reply to an email addressed to the Appellants' agent that copied Mr Mustafa Ahmad into the email (Mr Ahmad is said to be an "employee of the First Appellant"). 2. The email was on its face "private and confidential" and may contain legally privileged or confidential information which is intended for the use of the addressee only. The words used required any unauthorised recipient to immediately delete the email and inform the author and put the recipient on notice that no disclosure should be made in circumstances where the recipient of the email was not the "intended recipient". 3. The fact that Mr Soltan was not a practising lawyer did not affect any claim for legal professional privilege, which might otherwise attach to the document. 4. The Respondent had breached solicitor's Rule 34.1 in copying Mr Ahmad into correspondence threatening to commence proceedings in the Supreme Court to enforce the settlement. 5. The Tribunal erroneously held that the email was sent by the Second Appellant, rather than Mr Ahmad.
6. The Appellants further contend that the email does not provide any support for the Tribunal's decision based on the admission of the Settlement Agreement, and that, in particular it can only affect the rights of the First Appellant and does not bind the Second Appellant.
7. In response to the Respondent's contention regarding waiver of privilege in respect of the email (see below), the Appellants contend that: 1. the Tribunal did not decide there had been a waiver; 2. there is "no satisfactory evidence as to the contents of the alleged conversation" referred to by the Respondent; and 3. the letter dated 7 March 2014 ("the letter") relied on by the Respondent is simply insufficient in supporting any contention with respect to waiver.

The Respondent's Contentions

1. The Respondent contends that the admission of the Settlement Agreement does not depend on the proper admissibility of the Mediation Agreement or the email. It contends that the Settlement Agreement is itself admissible, absent any finding in respect of the other documents.
2. In support of its contention that the Settlement Agreement is admissible, the Respondent contends that the Settlement Agreement is not a document falling within the meaning of s.69 of the RL Act as it was not made in the course of the mediation.
3. The Respondent also contends that the acts of the Second Appellant, in signing the Settlement Agreement, also bind the First Appellant.
4. As to the email, the Respondent contends that the email was sent intentionally to it to avoid the commencement of threatened proceedings and that it contains admissions consistent with those made in a subsequent telephone conversation between Mr Ahmad and the solicitor for the Respondent, Mr Conomy, a conversation which took place prior to any assertion by Mr Soltan that the email had been sent by mistake. Further, the Respondent contends that the email is admissible as it affects the rights of the Respondent, responding to a demand made by the Respondent.
5. Finally, the Respondent contends that since the orders were made by the Tribunal, the parties have performed the Settlement Agreement and the Appellants have acted inconsistently with exercising a right of appeal. Importantly it says that the Respondent has given up rights (and that the Appellants have allowed it to do so) in furtherance of the settlement. In particular, the Appellants have tendered payment as required by the Settlement Agreement and the Respondent, in reliance on the representations made by the Appellants, subsequently exchanged the bank guarantee for the payment of a sum lesser than the value of the bank guarantee. The Respondent contends that the Appellants are estopped from challenging the validity of the Settlement Agreement and that the current appeal before the Appeal Panel is not maintainable as the Respondent has given up a security worth more than it received from the Appellant, on the strength of the validity of the Settlement Agreement. Accordingly it seeks that the appeal be dismissed or at least permanently stayed.

Consideration

1. The Appellants were the applicants in proceedings COM 14/00617 filed 1 November 2013 in the Administrative Decisions Tribunal of New South Wales. Relevantly, as set out in the Decision the following facts are not in dispute: 1. the First Appellant entered a retail lease with the Respondent: Decision [1] 2. the Second Appellant was a director and shareholder of a holding company which owned all shares in the First Appellant: Decision [2] 3. the Appellants sought: Decision [3] and [4] 1. declaratory orders and damages against the Respondent for misleading and deceptive conduct and unconscionable conduct; 2. orders for a refund of money paid under a deed: 1. the parties were referred to mediation: Decision [5] 2. the mediation took place on 20 and 27 February 2014: Decision [5] 3. the Second Appellant signed the Settlement Agreement on 27 February 2014: Decision [7]
2. The first issue that arises for determination is: 1. whether or not an agreement reached at the mediation ordered by the Tribunal was admissible in the proceedings; and 2. if so, whether or not the Settlement Agreement bound both Appellants.
3. The second issue for determination is whether the email dated 5 March 2014 was admissible in proceedings before the Tribunal in connection with the enforcement of the Settlement Agreement. If so, was that email relevant for the purposes of: 1. construing the Settlement Agreement, including determining who were the parties; and 2. providing evidence of an agreement subsequent to the conclusion of the mediation on the terms recorded in the Settlement Agreement which would be incorporated by reference.
4. The third issue is whether or not the Mediation Agreement is admissible in proceedings before the Tribunal. This question is substantially resolved by the determination of the issue of whether or not the Settlement Agreement itself was admissible.
5. The fourth issue is whether or not the Tribunal Member correctly construed the Mediation Agreement.

Admissibility of the Settlement Agreement

1. The Tribunal has jurisdiction to determine a retail tenancy claim pursuant to Div 3 of the RL Act. Such a claim is defined as a claim in connection with the liability or obligation with which a retail tenancy dispute is concerned: see s 70(a) RL Act. A retail tenancy dispute means any dispute concerning the liabilities or obligations (including any obligation to pay money) of a party or former party to retail shop lease or former lease being liabilities or obligations which are raised under the lease or former lease or which are raised in connection with the use or occupation of the retail shop to which the lease or former lease relates: see s 63(1) RL Act.
2. In determining disputes, the Tribunal has powers to make orders as provided in S 72 and 72AA of the RL Act.
3. Section 68 of the RL Act provides that a retail tenancy dispute or other dispute may not be the subject of proceedings before a Court (which includes the Tribunal) until the Registrar has certified in writing that mediation has failed to resolve the dispute or the Court is otherwise satisfied that mediation is unlikely to resolve the dispute: see s 68(1) RL Act. The Registrar must also certify mediation has failed if satisfied that one or more of the parties has refused to take part in or has withdrawn from mediation.
4. It is common ground that the Appellants commenced their proceedings prior to mediation. It is also common ground that the proceedings were referred to mediation under Pt 8 Div 2 of the RL Act.
5. It was not suggested that, because the mediation had not failed, the Tribunal did not have jurisdiction to determine the retail tenancy dispute. In this regard it is clear from s 68 of the RL Act that the Registrar is not required to provide a certificate of a successful mediation. Further, the failure to provide a certificate does not, in any event, operate to invalidate any decision made by the Tribunal: see s68(4) of the RL Act.
6. Rather, the issue is whether or not the Settlement Agreement is a document rendered inadmissible by reason of s 69 of the RL Act. This section provides as follows: Section 69 Statements made during mediation not admissible Any statement or admission made in the course of the mediation of a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) pursuant to arrangements made by the Registrar under this Part is not admissible at a hearing of a claim under Division 3 or in any other legal proceeding.
7. The Appellants contend that, upon the proper construction of s 69 of the RL Act, the words "any statement or admission made in the course of the mediation" includes any settlement agreement reached and therefore the Settlement Agreement is not admissible.
8. For the reasons that follow the Appeal Panel disagrees.
9. In support of this interpretation, the Appellants rely upon the decisions of the Court of Appeal in Gain v Commonwealth Bank [1997] 42 NSWLR 252 and Wentworth v Rogers & Anor. [2004] NSWCA 109, particularly Wentworth at paragraphs [17] - [27] where the Court concluded that upon the proper construction of s110P of the Supreme Court Act, 1970 (SC Act) an agreement reached pursuant to a Court ordered mediation was not admissible unless all parties consent.
10. The Court of Appeal in Wentworth adopted the reasoning of the Court of Appeal in Gain and said at [23] "although exclusion of all evidence of matters said at a mediation session would place very severe limits on the ability of a party to challenge a mediation certificate given under the Act, nevertheless the provisions of section 15 excluding that material must be given effect to".
11. In Gain, the Court of Appeal held that a document prepared and signed by the mediator as a "Summary of Mediation" was inadmissible in judicial review proceedings in connection with a certificate issued following mediation by reason of s15(1) of the Farm Debt Mediation Act 1994 (FDM Act).
12. The Appellant also pointed to the fact that the views expressed by Badgery-Parker in State Bank of NSW v Freeman NSWSC, 31 January 1996 and by Rolfe J in Commonwealth Bank of Australia v McConnell, 24 July 1997, also cases dealing with the FDM Act, were obiter and not accepted by the Court of Appeal in Wentworth.
13. In relation to the reliance by the Tribunal in the Decision upon the decision of Ciavarella, again a case dealing with the FDM Act, the Appellants said that decision had no application in the present circumstances as it dealt with an agreement reached after "a mediation session has come to an end". In this regard the Appellants also appear to submit that an agreement subsequently concluded is also inadmissible if it in part contains a written agreement prepared during a mediation session: see Appellants' submissions dated 27 June 2014 at [45].
14. In order to determine whether these cases are relevant to the disposition of the present appeal, it is necessary to consider the legislation being interpreted by the Court of Appeal in each case.
15. At the time Gain was determined, s15 of the FDM Act had not been amended to add subsection 3 which excluded "Heads of Agreement" from the operation of s 15(1). Section 15(1) was in the following terms: 15 Confidentiality of mediation sessions (1) evidence of anything said or admitted during a mediation sessions and a document prepared for the purpose of in the course of or pursuant to, a mediation session are not admissible in any proceedings in a Court or before a person or body authorised to hear and receive evidence.
16. Sections 110P(4) and (5) of the SC Act provided: (4) evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court, tribunal or body. (5) a document prepared for the purposes of, or in the course of, or as a result of a mediation session, or any copy of such a documents, is not admissible in evidence in any proceedings before any court, tribunal or body.
17. For the purpose of s110P, mediation session was defined to include "any steps taken in the course of making arrangements for the session or in the course of the follow-up of a session. However, inter alia, s110P(6) provides that subsections (4) and (5) do not apply if persons identified in a document consent to its submission into evidence. In this regard the Court of Appeal in Wentworth determined that consent could be provided expressly or by implication in any settlement agreement: see Wentworth at [28]-[30]
18. As is evident from the various legislation, the words used in s 69 of the RL Act render inadmissible "any statement or admission made in the course of the mediation" whereas: 1. s 15(1) of the FDM Act excludes "anything said or admitted during a mediation session and a document prepared for the purpose of, in the course of or pursuant to, a mediation session" and; 2. s 110P(4) and (5) of the SC Act excludes: 1. "anything said or any admission made in a mediation session"; and 2. "a document prepared for the purpose of, or in the course of, or as a result of, a mediation session."
19. Both s15 of the FDM Act and s110P of the SC Act expressly exclude documents prepared "for the purpose of, in the course of or pursuant to" the mediation. The RL Act does not refer to "document". The words in s 69 of the RL Act identifying what is excluded are less expansive than those used in s15 of the FDM Act or s 110P of the SC Act.
20. In these circumstances, the decisions in Gain, Wentworth and Ciavarella are not determinative of the issue before the Appeal Panel and the words of Hodgson JA in Wentworth at [24] (with modification) are apposite. That is, the Appeal Panel is of the view that it is not constrained by the cases interpreting the FDM Act or SC Act to approach the interpretation of s69 of the RL Act in any particular way. What the Appeal Panel is required to do is to consider and apply the words of s69 of the RL Act. This is a matter of statutory construction.
21. In our opinion, proper construction of s69 of the RL Act does not render inadmissible a settlement agreement which records the resolution of a dispute the subject of a mediation required under s68 of the RL Act.
22. Unlike the FD Act or SC Act, s69 excludes "statements and admissions in the course of the mediation" rather than "anything said or any admissions made in a mediation".
23. While the use of the word "statement" might include a written or oral statement "made in the course of the mediation", s69 does not refer to documents prepared or agreements reached in the course of the mediation.
24. The expression "made in the course of mediation" suggests that the exclusion refers to a statement made by one party to another, not a document jointly prepared that records the binding agreement by the parties by agreement and thereby resolves the dispute (or part of the dispute) the subject of the mediation.
25. Such an interpretation is consistent with the fact that when the dispute is resolved by a concluded settlement agreement, the mediation ends. In these circumstances the mediation is "successful" and a certificate under s68 that the mediation has "failed" could never be issued.
26. The cases referred to by the Court of Appeal in Wentworth, particularly the comments of Badgery-Parker J in Freeman and Rolfe J in McConnell, might suggest some difficulty in the implementation of the construction of the RL Act as found by the Appeal Panel if there is a dispute concerning: 1. whether there is a settlement agreement; 2. its terms; and 3. whether or not the agreement might be subject to a claim for rectification.
27. In our opinion these matters are easily resolved through the usual hearing processes. Firstly, the admissibility of documents (and for that matter any oral conversations) said to constitute the agreement can be determined by the court or tribunal on a voir dire in the same way Hodgson JA said in Wentworth that the question of consent provided under s110P(6) of the SC Act as part of a settlement agreement reached at mediation might be resolved.
28. Similarly, the court or tribunal may, subject to the applicable legal authorities concerning the admissibility of pre and post contractual communications and evidence of surrounding circumstances, also admit relevant evidence establishing the terms of the agreement. In this regard, it is difficult to see what statements made in the course of mediation would be admissible other than those which record what one party has agreed to do (or not do) as part of a settlement agreement. Accordingly, the interpretation proposed by the Appeal Panel would allow any such written or oral statement to be admitted as it records a term of the agreement that was reached.
29. In relation to the possibility of a claim for rectification of a written agreement prepared during the course of a mediation, again this does not seem problematic given the Appeal Panel's interpretation of s69 of the RL Act.
30. Rectification may be ordered in circumstances where: 1. there was a pre-existing contract made prior to the date on which the written agreement sought to be rectified was executed; or 2. the written agreement sought to be rectified "does not give effect in some respect to the concurrent intention of the parties existing at the date of its execution". See Slee v Warke [1949] 86 CLR 271 at 280.
31. If rectification is sought of a written agreement, evidence of any statement made during the course of the mediation would only be admissible if; 1. that statement constituted an agreement which was reached prior to the execution of the written agreement; or 2. it was evidence as to the common intention of the parties which reflected an agreement reached at the time that is inconsistent with the written agreement as executed. That is the admission would be limited to evidence establishing what was agreed.
32. If there is in fact no concluded agreement and the parties remain in dispute then the statements are protected and would be inadmissible.
33. To the extent that it is necessary to go beyond the words of s.69 and examine the purpose of the provision in order to aid construction, the Appeal Panel is of the view that this interpretation of s69 of the RL Act promotes the purpose of the Act of first requiring mediation and allowing confidential mediation as a means to resolve disputes without rendering inadmissible an agreement reach in consequence of a successful mediation.
34. On the other hand the construction proposed by the Appellants: 1. would discourage parties from resolving their disputes at mediation as there would be no power in the Act to allow parties to enforce such an agreement through any legal proceedings as the agreement could not be proved; and 2. would render futile the mandated process.
35. This is because upon the Appellants' construction, even with consent, a settlement agreement concluded at a mediation could never be relied upon as the legislative exclusion would be absolute.
36. Further, the fact that s69 of the RL Act makes no provision for consent is not, in our view, a reason to conclude that it operates to exclude settlement agreements reached at mediation. Such a provision is unnecessary because those matters identified as occurring "during the course of the mediation" which are excluded are a limited class of things that might occur and, on our construction, an agreement reached which resolves a dispute is not within that class.
37. An examination of the SC Act and FDM Act provisions and their purpose serve to highlight the operation of the different statutory provisions.
38. The fact that s110P(6) of the SC Act requires consent before an agreement reached at a court ordered mediation becomes admissible, is not surprising. The language of ss 110P (4) and (5) is very broad and unless the proceedings are resolved by consent, any proceeding can only be resolved by a hearing on the merits. There is good reason why the Court, in mandating a settlement process, would not wish to have the areas of disputation enlarged. At the same time, the effectiveness of the process requires that the parties can communicate freely in trying to resolve their disputes.
39. However, as made clear by Hodgson JA in Wentworth, consent may be express or implied in the document prepared at the court ordered mediation recording any settlement: Wentworth at [28]. In that case, whether there is a settlement agreement from such a mediation and/or whether there has been consent is a matter which would be determine on a voir dire to admit the documents: see Hodgson JA at [30] and following.
40. Section 10 of the FDM Act prevents the creditor taking proceedings until a certificate has issued under ss11 because: 1. The mediation process has been satisfactorily completed, whether or not the mediation is successful, or 2. a certificate has otherwise issued due to the other circumstances set out in that section.
41. Unlike the FDM Act (which requires that a certificate of "satisfactory mediation" be issued), s68 of the RL Act only provides for the issue of a certificate when a mediation has "failed". On any view, where settlement is reached at a mediation under s68 of the RL Act, it has not failed. In these circumstances it would be a curious result in the extreme to conclude that the legislature intended by ss 68 and 69 of the RL Act that the parties had no enforceable rights but could not commence proceedings as no certificate would issue because there was a successful mediation.
42. Our interpretation is also consistent with the Second Reading Speech on 20 April 1998 where it was said in relation to mediation: In the event of satisfactory resolution the mediator will inform the registrar of the terms of settlement, but will not disclose the details emerging during the mediation process.
43. Finally, reference is made to the decisions of the Administrative Decisions Tribunal in Wallis Lake Fisherman's Co-operative Ltd v ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips (No 2) (RLD) [2011] NSWADTAP 29 (Wallis Lake) and DB Rreef Funds Management Ltd & P.T. Ltd v Valentino Home Fashion Pty Ltd; Valentino Home Fashion Pty v Westfield Hurstville (Westfield Management) [2008] NSWADT 332 (DB Rreef Funds) which the Appellants relied upon in support of their construction of s 69 of the RL Act.
44. Wallis Lake states that a settlement offer made in the course of an unsuccessful mediation was inadmissible: Wallis Lakes at [58]-[64]. Clearly an offer to settle is a statement made from one party to the other in the course of a mediation. However, in that case there was no agreement at the mediation to resolve the dispute generally or any agreement in relation to costs. There was no subsequent consent to disclose the statement made in the course of the mediation and no circumstances that would remove the protection of the communication made by one party to the other.
45. Similarly, in DB Rreef Funds the mediation failed: see [3].
46. However, in that case a party sought to rely upon a statement made in "the Application for Mediation" which was to be conducted under the RL Act. The Administrative Decisions Tribunal determined that that information "set out, in some detail, contentions and complaints by the Lessee against the Lessor" and that the statement should "be viewed as not just part of a document formally starting the mediation process but also as the presentation of matters for the purpose of the mediation". Consequently, the Administrative Decisions Tribunal concluded that it was a statement or admission made in the course of the mediation and was rendered inadmissible by reason of s69 of the RL Act: see [49].
47. In our view neither of these decisions provide any support for the Appellants' construction of s69 of the RL Act.
48. In these circumstances, the Appeal Panel finds that the Tribunal was correct in its conclusion that s 69 of the RL Act did not prevent the Settlement Agreement dated 27 March 2014 being tendered in evidence in the Tribunal proceedings.

Was the Second Appellant a party to and bound by the Settlement Agreement

1. The next question is whether upon the proper construction of the Settlement Agreement and by Mr Gebara signing the agreements, both the First and Second Appellants were thereby bound to the terms of the Settlement Agreement.
2. A determination of this question involves the Appeal Panel applying the principles set out on Toll (FGCT) Pty Ltd v Alphagram Pty Ltd and Ors [2004] 219 CLR 165 where the High Court said at p179: This Court, in Pacific Carriers Ltd v BNP Paribas (20), 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 understanding of the parties about their rights and liabilities that govern 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 (21)
3. There is no dispute that: 1. the proceedings referred to in the Settlement Agreement as "NCAT proceedings" were those proceedings commended by the Appellants originally in the Administrative Decisions Tribunal of New South Wales; 2. those proceedings were referred to the mediation by the Tribunal; 3. the Second Appellant, Mr Gebara attended the mediation on 27 February 2014, following an agreement to have a further mediation session after 20 February 2014: Appellants' submissions 27 June 2014 paragraph 40(ii) 4. Mr Gebara signed the Settlement Agreement: Appellants' submissions 27 June 2014 paragraph 40(v)
4. Relevantly, the Settlement Agreement has the following provisions: 1. The "Applicant" is recorded as "City Convenience Leasing Pty Ltd" 2. The "Matter" is recorded as "135139 NCAT" 3. The Settlement Agreement records it is "to resolve NCAT proceedings number 135139 (and all other proceedings in relation to this dispute) on the following terms" 4. The Applicant is to pay the Respondent (recorded as "Dencal Pty Ltd") the sum of $25,000.00 by 31 March 2014 (clause 1) 5. The Respondent is to return a bank guarantee to the Applicant (clause 2) 6. The payment and return of the bank guarantee is to occur simultaneously (clause 3) 7. "Each party releases the other from all claims in relation to the lease and the dispute" (clause 5) 8. "The parties agree to take all steps to dismiss the proceedings No 135139 in NCAT with no order as to costs" (clause 6) 9. Mr Gebara, the Second Applicant, signed the agreement.
5. The essential features of the agreement that lead to the conclusion that the Second Appellant agreed to be bound were: 1. the agreement was to resolve the NCAT proceedings to which he was a party; 2. the "parties" recorded an agreement in clause 6 of the Settlement Agreement that the proceedings were to be dismissed with no order for costs; 3. dismissal of the NCAT proceedings could only occur if all parties to the proceedings agreed to do so, those parties including the Second Appellant, Mr Gebara; 4. the Second Appellant signed the Settlement Agreement, having agreed to participate in the mediation and having done so on 27 February 2014.
6. No submission is made in the appeal that the Second Appellant, Mr Gebara lacked authority to bind the First Appellant or that the First Appellant was not bound by the Second Appellant signing on its behalf. Rather the Appellants submit the Second Appellant "is not a party to the (Mediation Agreement) or the (Settlement Agreement): see Appellants' submissions 27 June 2014 paragraph 80.
7. In this regard the Appellants say: (Appellants' submissions 27 June 2014 paragraph 81-83) 1. the Second Appellant was not a party to the Mediation Agreement; 2. the Second Appellant did not attend the first mediation session and no one else attended on his behalf; and 3. each of the Appellants has separate causes of action in the Tribunal.
8. Whether the First Appellant attended the first mediation session in person or by a representative is irrelevant in considering what happened at the second session and who is bound by the agreement. In any event, his representative or agent Mr Soltan was in attendance.
9. The submission that Mr Gebara attended the second mediation session in some limited capacity is not supported by any evidence before the Appeal Panel. It is a submission contrary to what he knew or should have known, namely that mediation was required prior to him commencing any proceedings and he was required to attend the mediation.
10. Further it is a submission that suggests; 1. the Appellants were not participating in the mediation, contrary to the directions made by the Tribunal, again a matter not supported by any evidence; or 2. the Second Appellant was participating in a limited capacity never communicated to the opposing party.
11. It is also a submission contrary to the statement made by Mr Soltan in the hearing before the Tribunal. In this regard Mr Soltan said (Transcript, page 3 line 9-11): During the mediation session the mediator drafted some sort of agreement that was signed by Mr Gebara on behalf of himself as second applicant (emphasis added).
12. Therefore, absent evidence from Mr Gebara that he was not complying with the Tribunal's directions or was doing so for some limited undisclosed purpose, this submission should be rejected.
13. Accordingly, the Appeal Panel finds that the First and Second Appellants are bound to the terms of the Settlement Agreement.

Admissibility of the email.

1. Given the conclusion that the Appeal Panel has come to in respect of the Settlement Agreement it is not strictly necessary to determine whether or not the Tribunal was in error in finding that the email was admissible. However, in the event that the Appeal Panel is wrong in its construction of the Settlement Agreement, it has determined to resolve that question.
2. The Appellants' Notice of Appeal and submissions challenge the Tribunal's decision to admit the email on the basis that the Tribunal was in error in concluding that communication between the Appellants and their "non-lawyer representative" is not privileged. Three propositions were put forward: 1. If the ruling were allowed to stand a lawyer representative could cross-examine a party is to communications with his non-lawyer representative whereas a party represented by a lawyer would have those communications protected by reason of legal professional privilege. This would be inequitable and not produce a fair trial. 2. Section 120 of the Evidence Act 1995 militates against admitting evidence of communications between a party and his non-lawyer agent for the purpose of conducting legal proceedings. In this regard the Appellant relied upon the decision of the Administrative Decisions Tribunal in Armstrong Jones Management Pty Ltd v Saies-Bond & Associates Pty Ltd (No.2) [2007] NSWADT 58 at [17]. 3. The email was copied to the Respondent's solicitor by mistake and accordingly any privilege which abides, has not been waived.
3. There is no issue in the present appeal that legal professional privilege is a rule of law that protects communications between a person and their lawyer for the purpose for the purpose of obtaining legal advice: see eg Baker v Campbell (1985) 158 CLR 52 per Wilson J at 98 and Dawson J at 128- 129.
4. As Dawson J made clear, the purpose of the privilege was to facilitate "the proper functioning of the legal system". In this regard His Honour said: The restriction of the privilege to the legal profession serves to emphasise that the relationship between a client and his legal advisor has special significance because it is part of the functioning of the law itself.
5. It is not a privilege which attaches in favour of an advisor who is not a lawyer and there is no dispute that the Appellants' representative Mr Soltan is not a lawyer.
6. The Tribunal concluded at [18] - [19] that a communication between a party and a non-lawyer was not protected by legal professional privilege.
7. In our view, this decision was correct.
8. However, the Appellants also assert a privilege arising because of the provisions of s120 of the Evidence Act. This section provides: 120 Unrepresented parties (1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceedings by a lawyer, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the party and another person; or (b) the contents of a confidential document (whether delivered or not) that was prepared either by or at the direction or request of, the party; for the dominant purpose of preparing for or conducting the proceedings.
9. A person who is not a lawyer had a right to represent a party in proceedings in the Administrative Decisions Tribunal on behalf of a party: (s 77C of the RL Act). This right has been carried forward into the Civil and Administrative Tribunal Act (NCAT Act): see clause 7 of Schedule 4. It may be that there is a basis for concluding that a communication between the representative and the party to the proceedings is protected by a confidence. Notwithstanding that the rules of evidence did not apply to proceedings in the Administrative Decisions Tribunal by reason of s73(2) of the Administrative Decisions Tribunal Act, 1997, (the legislation applicable because these proceedings were commenced prior to Tribunal being established) it may be that the admission of such a communication as evidence is unfair in that it curtails or limits a party's capacity to exercise a statutory right to be represented. If so, the communication may be protected.
10. In this regard, there are circumstances in which a privilege (other than legal professional privilege) can extend to protect communications with non-lawyers which are ancillary to the protected communication. For example in Yokogawa Australia Pty Ltd & Ors v Alstrom Power Ltd 262 ALR 738, Duggan J said at [104] in relation to "without prejudice privilege": It was further argued by the appellant that the privilege could not apply to internal communications within Alstom. In my view this cannot be accepted as a general rule. The determination as to whether a particular communication is privileged: "…. depends upon what formed part of the negotiations for the settlement of the action and what was reasonably incidental thereto. The privilege is not restricted to the actual communication with the other party. If this were so a recommendation by an officer of a party to his superior that a claim should be settled on a particular basis would not be privileged, whereas a communication of an offer to settle on that basis to the other party would attract the privilege."
11. However, in the present case it is unnecessary to determine this issue having regard to the particular communication which is sought to be protected. The email in question (found in exhibit B in the appeal), dated 5 March 2014, sent by Mr Ahmad to Mr Soltan and copied to the Respondent's solicitor was in the following terms: Dear Haney, Please advise Justin that we are going to honour the obligation in paying $25,000 plus GST to Mr Maloney on or before 28 March 2014 in exchange for the original copies of the Bank Guarantees and a letter from Dencal stating that they are no longer required (as per par 1 of the terms), and you will attend our office with terms for dismissal of the current NCAT proceedings with no order as to costs (as per par 6 of the terms) Thank you. Kind regards
12. The email was sent in relation to a demand made by letter from the Respondent's lawyers to the Appellants representative, Mr Soltan dated 5 March 2014. A copy of the letter is found in Exhibit B to the appeal. As is evident from the letter and the email by which it was sent, the letter was copied to the Second Appellant as well as Mr Ahmad. The letter sought confirmation that the agreement reached at the mediation, a copy of which was attached to the letter, would be performed. Otherwise, the Respondent was threatening to commence legal proceedings in the Supreme Court of New South Wales seeking declaratory relief that the Settlement Agreement bound the parties.
13. The email sent by Mr Ahmad was a response to that demand which instructed the agent, Mr Soltan, to advise the Respondent's solicitor that the agreement reached at mediation would be honoured.
14. The email was not a request for advice in connection with the existing proceedings, legal or otherwise. Nor is it the provision of information in respect of which any advice was sought. It was simply an instruction to the agent to confirm that the settlement agreement reached at mediation would be honoured and that the agent was to attend the office of the Appellants "with terms for dismissal of the current NCAT proceedings with no order as to costs (as per par 6 of the terms)." Such a communication is not protected and by its very content contemplates it will be disclosed rather than remain confidential.
15. Further, even if s120 of the Evidence Act did create a relevant confidence that could protect a communication between a party and their agent, in our opinion the email in question would not, in any event, be protected. This is because despite the reference to "the current NCAT proceedings", in our view it could not be regarded as a "confidential communication between the party and another person… for the dominant purpose (emphasis added) of preparing for or conducting the proceedings." Rather, the dominant purpose of the communication was to instruct the agent to confirm that an agreement previously reached in a mediation would be performed.
16. As such, it constituted a statement or admission after the mediation had concluded that: 1. there was a settlement agreement; 2. that the Settlement Agreement would be performed; and was therefore admissible as evidence in the application to dismiss the proceedings before the Tribunal.
17. There is a further reason why the email is not protected. As set out above, there was a conversation between Mr Ahmad and the Respondent's lawyer on 5 March 2014, after the email was sent, as recorded in the lawyer's letter dated 7 March 2014.
18. This conversation intentionally disclosed the content of the email and confirmed "the settlement agreement would be honoured".
19. Consequently, any protection to a confidential communication was waived by disclosure of the terms and substance of the information and the email of 5 March 2014 and the conversation between Mr Ahmad and the Respondent's lawyer was therefore admissible. In those circumstances, submissions that the email contained information that was at the time considered confidential are without merit.
20. It follows that even if the Settlement Agreement was not, of itself, admissible following its execution and the conclusion of the mediation, the terms of it were subsequently adopted by the parties after the mediation. This is because the exchange of correspondence on 5 March 2015 and the telephone call from Mr Ahmad to the Respondent's lawyer on that day amounted to an affirmation or confirmation of an earlier agreement. These statements and conduct made the terms of it admissible as the relevant statements were not made "in the course of the mediation".
21. Finally, the Appellants submitted that even if the email was admissible as evidence, it was not an email from the Second Appellant and could "only affect the rights of the First Appellant".
22. As indicated above, and as evident from the documents, both the letter from the Respondent's lawyer dated 5 March 2014 and the email from Mr Ahmad dated 5 March 2014 were copied to the Second Appellant, Mr Jamal Gebara. Mr Ahmad's email used the expression "we are going to honour the obligation". Having regard to the history of the proceedings before the Tribunal, the fact of mediation and who attended the mediation on 27 February 2014, and the joint representation by Mr Soltan, there was evidence before the Tribunal which enabled it to conclude that both Appellants were bound by the statements made in the email.
23. Consequently, any challenge to the decision of the Tribunal would be on a question other than a question of law and leave would be required.
24. However, the Appellants have not sought leave appeal on this question: see item 12 B of the Notice of Appeal.
25. As no error of law has been demonstrated and no leave to appeal has been sought, this ground fails.

Admissibility of Mediation Agreement

1. In the Appeal Panel's view it is unnecessary to determine whether or not the Mediation Agreement is admissible given the conclusions it has reached above.
2. Insofar as it contains terms that operate as "machinery" provisions of the Settlement Agreement, for the reasons outlined above the admissibility of the Mediation Agreement would depend on whether or not a settlement agreement was in fact concluded.
3. Further, having regard to the Appeal Panel's determination as to the terms of the Settlement Agreement, it is not necessary to consider any terms of the Mediation Agreement that might necessarily be incorporated in determining whether there was a binding settlement agreement and if so between whom.
4. In any event, insofar as the Tribunal concluded by reference to the Mediation Agreement that the Second Appellant was both a party to the Mediation Agreement and a party to the Settlement Agreement, no relevant error has been shown in the decision made.

Other matters

1. It is necessary to briefly deal with three other issues.
2. Firstly, the Appellants contended that s7 of the RL Act rendered void the Mediation Agreement because it sought to exempt the Settlement Agreement from the operation of s69 of the RL Act.
3. As the Appeal Panel has have found above, the Settlement Agreement is not rendered inadmissible by reason of s69 of the RL Act and this submission fails.
4. Secondly, the Appellants contend the Respondent's lawyer has breached Solicitor's Rule 34.1. This rule relates to: 1. making statements "which grossly exceed the legitimate assertion of rights or entitlements of the solicitor's client" or which misleads or intimidates the other person; 2. using tactics that go beyond legitimate advocacy and which are designed to embarrass or frustrate another person.
5. A reading of the communications between the parties to which we have referred above demonstrates this submission is without merit.
6. Thirdly, the Appellants contend they were denied procedural fairness because they were not given an opportunity to make submissions concerning the conclusion at [30] of the Reasons and the case of Ciavarella.
7. In so far as the appellants suggest the Tribunal found at [30] of the reasons "that the Settlement Agreement was created 'following mediation'", this is not what paragraph [30] says. Rather, that paragraph sets out what was decided in Ciavarella.
8. In so far as the appellants submit that a court or tribunal has an obligation to identify every case to which it might refer and allow a party to make submissions on every case, this is an incorrect statement of the law.
9. In Collins v. Urban [2014] NSWCATAP 17, the Appeal Panel held in respect of procedural fairness in hearings before the Tribunal, that s 38(5)(c) of the NCAT Act requires that the Tribunal "take such measures as are reasonably practicable ... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": Collins at [40]. It is a right to make submissions on the issues to be determined.
10. A requirement to afford procedural fairness does not impose an obligation on a decision maker to give advance notice of every legal authority it will have regard to or rely on in coming to its decision. Indeed the ordinary workings of the judicial system invariably include a reference in decisions to cases not referred to by the parties to the litigation.
11. Kioa v West 159 CLR 550 at 627 makes it clear that procedural fairness is a requirement for a decision-maker to adopt a reasonable process but it is not reasonableness at large as to process. In the circumstances of this case it is an obligation to take steps to ensure that the Appellants had a fair opportunity to present their case.
12. In this regard the appellants were afforded an opportunity to make submissions on the issue of whether, upon the proper construction of s69 of the RL Act, the Settlement Agreement was admissible in proceedings in the Tribunal.
13. Accordingly, this ground fails.

Conclusion

1. Section 72 of the RL Act provides that the Tribunal may: 1. declare rights and liabilities of the parties under law, whether any consequential relief is or could be claimed or not (see s 72(f)(5) of the RL Act; and 2. may make such ancillary orders as it considers necessary for the purpose of enabling an order under this section to have full effect (s 72(2) of the RL Act).
2. The effect of the declaration by the Tribunal in order 1 made 4 April 2014 was that there was a binding settlement agreement arising from the Settlement Agreement.
3. No suggestion was made in the appeal that the Tribunal did not have power to make such a declaration and, having regard to the construction of the Settlement Agreement and the parties thereto, no error in making the declaration and an order dismissing the proceedings has been established. Accordingly, the appeal should be dismissed.
4. Further, it should be noted if there was no mediation with the Second Appellant at all because he did not in fact participate, then the Second Appellant's application may otherwise have been dismissed because of: 1. the provisions of s 68 of the RL Act required mediation; and 2. the Second Appellant failed to comply with the Tribunal's directions to mediate.

Orders

1. The Appeal Panel makes the following orders: 1. Appeal dismissed; 2. Any application for costs is to be filed and served within 7 days from the date of these orders. Any application is to include written submissions and any other material to be relied upon in support of the application. 3. The party against whom any application for costs is made must file and serve any submissions and material in reply within 14 days from the date of these orders. 4. The applicant for costs is to file any submissions in reply within 21 days from the date of these orders. 5. The submissions by the parties are also to address the question of whether or not any application for costs should be dealt with on the papers and whether the Tribunal should make an order to allow this to occur.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 24 September 2015 - Delete a full stop in case name DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 September 2015