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[2000] NSWIRComm 102
Industrial Relations Commission (NSW)
2000-07-05
Schmidt J, Marks J
Original judgment source is linked above.
Industrial Relations Commission of New South Wales in Court Session
CITATION : Dr Payne v The University of Sydney & Anor [2000] NSWIRComm 102 APPLICANT: Dr John Ernest Payne
PARTIES : FIRST RESPONDENT: The University of Sydney
SECOND RESPONDENT: Central Sydney Area Health Service FILE NUMBER: 4798 of 1997 CORAM: Schmidt J CATCHWORDS : Unfair contract - competing notices of motion - whether or not an agreement in settlement had been reached in conciliation proceedings - whether agreement had been vitiated by fraud or misrepresentation on the part of the respondents - should the applicant be held to his agreement - unrepresented litigant - waiving legal privilege - permanent stay of proceedings or positive orders in the terms of the deed LEGISLATION CITED : Industrial Relations Act 1996 Masters v Cameron 91 CLR 353 CASES CITED : Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Limited (1986) 40 NSWLR 622 Waltons Stores (Interstate) Limited v Maher (1998) 164 CLR 387 Harvey v Phillips (1956) 95 CLR 235 HEARING DATES: 11/02/1999; 11/03/1999; 11/04/1999; 04/04/2000; 04/05/2000; 05/24/2000; 05/25/2000 DATE OF JUDGMENT: 07/05/2000
APPLICANT: Dr John Ernest Payne (Applicant in person)
LEGAL REPRESENTATIVES: RESPONDENTS: Mr I Neil of counsel SOLICITORS: Minter Ellison
JUDGMENT:
MATTER NUMBER 4798 OF 1997 DR JOHN ERNEST PAYNE v THE UNIVERSITY OF SYDNEY & ANOR Application under s106 of the Industrial Relations Act 1996
1 This judgment concerns two competing notices of motion filed by Dr Payne, the applicant, and the University of Sydney and Central Sydney Area Health Service, the respondents in the proceedings. The notices of motion concerned whether or not the matter was settled between the parties in conciliation proceedings conducted before Justice Marks in October 1998 and whether Dr Payne is entitled to proceed with his claim against the respondents in those circumstances. 2 The orders sought in Dr Payne's notice of motion were: '1. The matter be brought before the President.
3 The orders sought in the respondents' notice of motion were: '1. A declaration that the proceedings herein were settled in conciliation proceedings before his Honour Justice Marks conducted pursuant to section 109 of the Industrial Relations Act 1996, on 27 & 28 October 1998 on the terms set out in a Deed of Release a copy of which is annexure "J" to the affidavit of Catherine Frances Clarke sworn 29 April 1999 herein and at the proceedings herein be dismissed.
(a) dismissing the application in the proceedings herein; or
(b) on the agreed terms for settlement as set out in the Schedule to this Notice of Motion.
4 The principal proceedings were initiated by Dr Payne in August 1997 under s106 of the Industrial Relations Act 1996 ('the Act'). The initiating process sought orders in relation to: '(1) An order declaring that the contract and/or arrangement and/or conditions and/or collateral arrangements relating thereto whereby the Applicant as Senior Lecturer in the Department of Surgery at the University of Sydney performed work as a Colorectal and Renal Transplant and Vascular Access Surgeon at the Repatriation General Hospital at Concord were and are unfair.
(2) An order declaring void in whole or in part or varying in whole or in part, either ab initio, or from some other time the contracts and/or arrangements and/or the conditions and/or collateral arrangements relating thereto whereby the applicant, as Senior Lecturer in the Department of Surgery at the University of Sydney performed work as a Colorectal and Renal Transplant and Vascular Access Surgeon at the Repatriation General Hospital at Concord.
(3) An order that the Respondents pay to the Applicant an amount of $132,579.90 plus interest being an amount equivalent to a computation of professional private practice fee income on an averaged annual calculation of $28,860.90 lost to the Applicant arising from the loss to him of his professional private practice in Colorectal and Renal Transplant and Vascular Access Surgery at the Repatriation General Hospital at Concord.
(4) An order that the Respondents pay to the Applicant an amount to be assessed for the loss and damage sustained by the Applicant as set out in paragraphs D(2) to (5) below.
(5) An order that the Respondents pay the Applicant's costs of and incidental to these proceedings.
(6) Such further and/or other relief and such further and/or other orders as the Commission may deem just in the circumstances.
5 The grounds advanced in support of the orders sought included that Dr Payne had been appointed as a Senior Lecturer in the Department of Surgery at the University of Sydney and had performed work at the Repatriation General Hospital at Concord ('Concord Hospital'). He received a salary from both the respondents and, in addition, received fee income from his private professional practice at Concord Hospital. 6 Dr Payne had taken up an appointment as a Visiting Associate Professor of Clinical Surgery at the University of Southern California and alleged that after his return in about September 1991, the respondents had failed to allocate him 'hospital theatre time and such facilities as would enable the Applicant to continue to earn his professional fee income.' 7 Various money claims were advanced, including shortfalls in private practice fee income, loss of salary payable by the respondents 'for the tenure of the Applicant's employment', up to retirement at age 70, various claims advanced on a loss of opportunity basis and a claim of diminution in academic standing and professional reputation. 8 In support of these claims, reliance was placed upon the provisions of various statutes and awards, as well as upon Dr Payne's appointment in 1974, together with a July 1993 news release. 9 The matter came before the Registrar on a number of occasions and was also the subject of an unsuccessful conciliation conference before Peterson J on 30 April 1998. The matter was then allocated to Marks J for hearing and listed for 5 days in October 1998. The parties later agreed that his Honour would be asked to chair a further conciliation conference and that the hearing would proceed, if the conference failed. 10 Marks J acceded to that request and on 27 and 28 October 1998 the matter came on for further conciliation. On 28 October, his Honour signed a certificate under s109 of the Act, certifying that he had conducted a conciliation conference and that agreement had been reached in the matter. The file notes that the conciliation had been successful, the matter had been concluded and the file returned to the Registry on 28 October. 11 It was common ground between the parties that his Honour's view that the matter had been settled accorded with an announcement made during the conciliation proceedings by Mr Goot of counsel, who then appeared for the first respondent, the University of Sydney. 12 While the agreement was reached in a separate discussion between the parties' legal representatives, there was no doubt that both Dr Payne and his legal representatives, Mr Murphy and Mr Pearce of counsel were all present when the settlement was announced to Marks J, as was Mr Kimber of counsel, then appearing for the second respondent, the Central Area Health Service, together with various representatives of the respondents, including Ms Clarke and Dr Stewart. No-one disagreed with the announcement made by Mr Goot, that the matter had been settled. 13 In accordance with the normal practice of the Court, the conciliation conference had been conducted in private. Discussions had taken place in various sessions over the two days, in some of which Dr Payne and the representatives of the respondents had participated, others between the parties' legal representatives alone and some during which Justice Marks had been present, with both parties or with either the applicant and his legal advisers or with the respondents' representatives and their legal advisers. 14 The announcement of the settlement made by Mr Goot did not appear in any transcript, no transcript of the conference having been kept. Again, contrary to Dr Payne's submissions there was nothing untoward, unusual or sinister about this. It accorded with the ordinary practice of this Court. 15 The parties had also discussed the reduction of the terms of the settlement to writing. Mr Goot expressed the view that the terms of the deed could be settled that day, Mr Pearce doubted that this could be achieved. A deed of release was thereafter prepared by Mr Goot, who discussed it with Mr Kimber and then provided it to Mr Pearce. Various alterations to the deed were later discussed and agreed. 16 Dr Payne later refused to execute the final terms of the deed and, in due course, Mr Pearce and Mr Murphy ceased to act for him. 17 Dr Payne represented himself in these proceedings. Mr I Neil of counsel appeared for both respondents. 18 After the competing notices of motion were listed for hearing, Dr Payne filed a number of other notices of motion. In some of them, Dr Payne sought to have his claim determined on the merits and sought that the Court provide him with other forms of relief, on an interim basis. For instance, on a number of occasions, Dr Payne sought orders in relation to payment for work which he was performing at Royal North Shore Hospital, work not dealt with in the initiating summons or the agreement in question. I declined to entertain those later motions until these applications were heard and determined. 19 Other notices of motion were filed by Dr Payne, in order to comply with various directions, such as those made in relation to documents which Dr Payne sought to have produced and allegations of fraud and misrepresentation which he sought to advance during the course of the proceedings. 20 Numerous documents were tendered by the parties and in the respondents' case evidence was called at the hearing from Maxwell Kimber, barrister; Robert Goot, barrister, James Pearce; barrister; Catherine Clarke, Assistant University Solicitor of the University of Sydney; and Gregory Stewart, Director of Health Services, Central Sydney Area Health Service. All of these witnesses were present when the settlement was announced by Mr Goot on 28 October. 21 Dr Payne also gave evidence. He was also present when that announcement was made.
The conduct of these proceedings 22 The hearing which was listed for three days in November 1999, did not conclude and was adjourned for further hearing in April and then May 2000. 23 When the hearing commenced, Mr Neil proposed and Dr Payne agreed, that the most practical approach to the hearing was for the respondents to go first, it being their case that there had been an agreement concluded at the conciliation in October 1998, which prevented the orders sought in Dr Payne's notice of motion being granted. I acceded to that proposal and the hearing advanced in that way, although Dr Payne complained, when making his closing submissions, that the respondents were to be given an opportunity to reply to his submissions. 24 Dr Payne advanced this complaint by reference to an explanation given to him at an earlier stage of the proceedings, as to how the proceedings would be conducted. That explanation was given in a context where it was Dr Payne who would be putting his case first. Given that this course was later departed from, in the way I have outlined, there was no proper basis for the complaint later made by Dr Payne. The ordinary approach to the conduct of the hearing was pursued, albeit given that Dr Payne was representing himself, he was given a number of liberties to depart from the ordinary processes of the Court and the directions which had been given as to the preparation of the case for hearing. 25 The case opened for the respondents was that the settlement was announced by Mr Goot in these words: '"The matter has been settled and I will be preparing a deed which will set out the terms of settlement as agreed between the parties. The deed will be provided to the other parties this afternoon and we will then return to Court so that the summons can be dismissed".
26 Mr Pearce, responded with words to this effect: "I don't think that you will be able to finalise the deed this afternoon. Mr Goot replied: "All the terms have been agreed, it is just a matter of recording and attending to the recitals to the deed".'
27 The respondents' case was that Dr Payne was present when this announcement was made and neither he nor his counsel demurred from that announcement and the respondents acted upon it. Marks J later issued a certificate under s109 of the Act recording that the matter had been resolved by agreement and closed the file on that basis. Mr Goot prepared a deed on the basis of the note he made at the conference of the terms of the agreement. It followed that the agreement reached was oral and that Mr Goot's notes were written evidence of its terms. After the deed had been settled in subsequent discussions, Mr Goot returned his brief and disposed of his notes. The various versions of the deed therefore constituted the best evidence of the parties' oral agreement and its later variation. 28 It was not until 17 December 1998 that Dr Payne informed the respondents that he would not abide by the agreement. The respondents had, in the meantime, been acting in accordance with the agreement and refuted Dr Payne's right to resile from it. 29 Mr Neil alerted Dr Payne in his opening to various judgments upon which the respondents would rely, including Masters v Cameron 91 CLR 353 at 360 and Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Limited (1986) 40 NSWLR 622 at 627. It was submitted that the question of whether a binding agreement had been reached between the parties had to be ascertained objectively from what the parties said and did in the context of the surrounding circumstances and could not depend upon what Dr Payne later asserted his subjective intentions were. 30 It was also put that even if a concluded contract could not be found, the Court would conclude that on the basis of his conduct, Dr Payne would be estopped from departing from the agreement announced to the Court on 28 October, because he had either expressly or by implication induced the respondents to accept that such an agreement existed as the basis upon which they thereafter conducted themselves. In this respect Waltons Stores (Interstate) Limited v Maher (1998) 164 CLR 387 was relied upon. 31 As the case developed it became evident from Dr Payne's approach that three issues lay between the parties. The first was whether or not an agreement in settlement of the matter had been reached on 28 October. If the answer to the first question was positive, the second issue which required determination was whether that agreement had been vitiated by fraud or misrepresentation on the part of the respondents. If this issue was decided against the case Dr Payne advanced, the third question to be determined was whether or not Dr Payne should be held to his agreement. 32 Dr Payne cross examined the respondents' witnesses as to various matters, including the processes adopted at the conciliation conference. He was also particularly critical in his own evidence and submissions as to the fact that during the conciliation, which extended from 27 to 28 October, on occasions his legal representatives spoke to the respondents' representatives in his absence. This included when the agreement in settlement of the matter was reached. It was suggested that in some way, this was contrary to the requirements of rule 251 of the Court's rules, which require that there be effective means of communication established for the conciliation. 33 I observe at this point that this aspect of Dr Payne's case was not made out. The proper conclusion to be drawn from the evidence as to the procedures adopted at the conciliation conference was that they were consistent with procedures commonly adopted by members of this Court when conducting conciliation conferences under s109 of the Act. There was no basis established upon which it could be concluded that as a result of such procedures Dr Payne suffered any difficulty at the conference in either communicating with his legal advisers, they communicating with the respondents' representatives, or any of them communicating with Marks J. 34 During the course of Dr Payne's cross examination of the respondents' witnesses, a question arose as to whether Dr Payne intended, in his own evidence, to open the subject of the instructions which he had given Mr Pearce and Mr Murphy, in which event Mr Neil foreshadowed that if Dr Payne did so, he would regard Dr Payne as having waived his legal professional privilege in such communications and would consider calling Mr Pearce to give evidence in reply. 35 After considering his position, Dr Payne waived such privilege and requested that the respondents call Mr Pearce before he gave his own evidence. The respondents acquiesced in that request and arranged for Mr Pearce to be called to give evidence.
The evidence 36 I turn then to the evidence. The evidence was that apart from Dr Payne, it was the common understanding of all of those who gave evidence and who were present at the conciliation proceedings in October 1998, that an agreement in settlement of the matter was reached on that day and that the settlement was later documented in the deed prepared by Mr Goot. 37 Mr Pearce's evidence was that during the conciliation on 28 October, Dr Payne had instructed he and Mr Murphy to accept the offer which the respondents had made, that they had met with the respondents' legal advisers and had done so, that the parties had then announced the settlement to Marks J and that the agreement had later been documented by Mr Goot in the deed, which the parties' legal representatives had later settled. 38 Dr Payne advanced various versions of what had transpired. In summary, his evidence was that he had not finally agreed to any terms of settlement on 28 October because he first needed to obtain tax advice on two options which had been canvassed in the discussions the previous day, before he was in a position to make a final decision. That advice was not received until 17 November. In the meantime, consistent with the fact that no final agreement had been reached, there were discussions and agreements between the parties as to various amendments to the position reached at the conclusion of the conference on 28 October. It followed that no agreement had been reached on that day. 39 The other witnesses also gave evidence about the discussions which took place after the settlement was announced as to a variety of matters, which led to further amendments to the deed. All of these changes appear to have improved the position of Dr Payne. 40 Dr Payne's evidence as to his understanding as to whether an agreement was reached was at odds with that of all of the other witnesses, as well as the settlement announced on 28 October, the certificate later issued by Marks J, the notation made on the Court file and the conduct of both the respondents and Dr Payne thereafter. Having considered all of the evidence, I take the view that the inescapable conclusion is that a binding agreement in settlement of the matter was reached on 28 October, which was evidenced by the deed which the parties later settled. 41 That a number of variations to the deed were later agreed does not detract from that conclusion. In terms of the possible classes of contract described by the High Court in Masters and in Baulkham Hills Private Hospital, the correct construction of the agreement was that the parties intended to be immediately bound by the oral agreement reached on 28 October, which they proposed later to document in a more formal way. 42 A compromise binding upon a party can, of course, be made by that parties' legal representatives, they having implied authority to enter such agreements on behalf of their clients, even where there is no express authority given. (See the discussion of the High Court in Harvey v Phillips (1956) 95 CLR 235 at 243). 43 It was only at the very end of these proceedings that Dr Payne raised in his submissions that the agreement had been reached, contrary to his instructions to his legal advisers. It is pertinent to observe that this submission was only made after Dr Payne had had an opportunity to consider the written submissions Mr Neil had provided, which addressed the law on such circumstances. 44 Here the agreement was made when the parties' legal representatives met together on 28 October, when Dr Payne was not present. The settlement was then announced to Marks J in Dr Payne's presence. It is, of course, relevant that Dr Payne was not present when his legal advisers entered into the agreement. However, Dr Payne's conduct was itself consistent with his understanding that he had agreed to that settlement. His submission, made at the end of the hearing, that he had instructed his legal representatives on 28 October not to agree to a final settlement, had no foundation even in the evidence Dr Payne himself gave and was inconsistent with Mr Pearce's evidence. 45 Because Mr Pearce was called by the respondents, Dr Payne had the opportunity to cross examine him. He did not put to Mr Pearce that he had given instructions limiting the authority which he and Mr Murphy had to agree to a settlement. There was no evidence that Dr Payne had given any notice of such a limitation to the respondents. The purpose of the conciliation conference was, of course, to endeavour to settle the matter. When Mr Goot announced the settlement, neither Mr Pearce, Mr Murphy nor Dr Payne demurred. 46 Dr Payne's explanation for his silence in his final submissions, was that he had remained silent because Mr Pearce was his spokesman at the conference. That Dr Payne did not take immediate steps to alert the respondents that his legal advisers had agreed to a settlement, contrary to his instructions, makes it difficult to accept that he had given such instructions. Indeed, it suggests the contrary, that the announcement made was consistent with the instructions he had given to accept the offer he had received. Nor was there evidence that Dr Payne later raised with either Mr Murphy, Mr Pearce or the respondents that his lawyers had acted contrary to his instructions in agreeing to the settlement reached. 47 That there were, in fact, no such instructions was further corroborated by subsequent events, which included Dr Payne on 30 November seeking payment of long service leave in advance from the respondents, in accordance with the agreement, weeks before he advised the respondents in December that he would not execute the deed. 48 When that advice was given by Dr Payne, it was advanced in a context where he suggested to Ms Clarke that he should have been given a 'cooling off' period in relation to the agreement which had been reached. The evidence was that there had been no earlier discussion of such a notion. If it had been the case that the agreement made in October had been reached contrary to his instructions, one would have expected Dr Payne to have told Ms Clarke so, at least at this point. That he did not, also tends to suggest that no such instructions had been given. Conversely, that he raised with Ms Clarke the need for a cooling off period, also confirmed that he understood an agreement to have been reached. 49 Mr Neil submitted that Dr Payne had been opportunistic in his approach to this case, seeking to use to his own advantage conduct of the respondents in furtherance of the agreement by which they regarded themselves as bound, in order to later advance an argument that no agreement had been reached at all. The force of that submission was overwhelming. The way in which, at the end of the case, Dr Payne raised in submissions, his evidence then having been concluded, that the agreement had been reached contrary to his instructions to Mr Pearce and Mr Murphy, was but another example of such opportunistic conduct. 50 Dr Payne's approach in these proceedings to the conduct of Mr Pearce and Mr Murphy was also equivocal, to say the least. At some stages he accused them, and indeed the respondents' counsel, Mr Goot and Mr Kimber, of the most heinous conduct. Dr Payne's submission in closing was that: 'First of all my position is that I did withdraw or restrict my counsel and my lawyer's ability to finalise anything because there were options of a lump sum which would have been much more beneficial to me and I have to say that in the situation where they may have been acting in good faith - and I have to say I am not trying to criticise Mr Murphy or Mr Pearce in this because I honestly believe, whatever Mr Neil says about my attitude towards them, I honestly believe that they are honest, genuine people who were acting in good faith but they were deliberately misled by the existence of these applications of these contracts and in that situation they may have tried to overrule my withdrawal or restriction of their authority because they thought they were right and if they don't know, that's not their fault, but if it can be subsequently shown that they were misled, I don't believe this section should apply in that way.'
51 When the inconsistency in his submissions was drawn to his attention, Dr Payne withdrew one particularly critical aspect of his written submissions, to which his attention had then been expressly drawn, but no others. He then went on to explain that 'I can't help feeling that while Mr Pearce and Mr Murphy were acting in good faith, they did things that I could not accept but I think they thought they were right at the time.' 52 At the end of the day, I must determine whether I prefer the evidence of Dr Payne or that of Mr Pearce on whether or not Dr Payne instructed his lawyers to accept the offer he received on 28 October. Having regard to all of the matters I have mentioned, I have concluded that Mr Pearce's evidence must be preferred, particularly given that Dr Payne's own later conduct corroborated this version of what transpired thereafter. The only conclusion which is properly open is that Dr Payne's submission that he had given instructions to his legal advisers not to settle the matter, must be rejected. 53 Dr Payne also raised in his evidence and submissions his need to obtain tax advice from his accountant, Mr Huthnance, before he agreed to any final terms as supporting the conclusion that no final agreement could have been reached. He relied on Mr Murphy's notes, made on the afternoon of 27 October, to corroborate this evidence. That note was prepared in a context where two options had been discussed by the parties that day. Both involved Dr Payne not returning to work for the University. Mr Pearce's evidence was that the second option, which involved Dr Payne's employment continuing until his 60th birthday, had emerged on 27 October from contentions then being advanced on Dr Payne's behalf. Both options were discussed by Dr Payne with Mr Pearce and Mr Murphy after the conference on 27 October. Dr Payne took the notes with him on 27 October to consider and he met again with Mr Pearce and Mr Murphy the following morning, before the conference with Marks J resumed. Then discussed by Mr Pearce, Mr Murphy and Dr Payne was written advice on tax issues, which Mr Huthnance had provided in the meantime. 54 Dr Payne conceded in his final submissions, that later on 28 October, Mr Pearce and Mr Murphy had strongly advised him to accept the offer made by the respondents at the resumed conciliation conference. It cannot be doubted that this advice was given in the context of the advice Mr Huthnance had already provided, which they had earlier discussed with Dr Payne. The evidence of Mr Goot, Mr Kimber, Dr Stewart and Ms Clarke was that no suggestion had ever been made, that the agreement reached was conditional on further tax advice being obtained. In the light of all the evidence it must be concluded that the settlement reached was not conditional on Dr Payne later obtaining tax advice. 55 Dr Payne's evidence was that he sought further tax advice from Mr Huthnance when he received the deed on 6 November and received that advice on 17 November. At that time he plainly concluded that the agreement reached on 28 October was disadvantageous and he did not wish to be bound by it. He sought to explain why it took him until 17 December to advise the respondents that he did not agree to what he regarded only to be an offer made on 28 October, when he had received further tax advice on the offer from Mr Huthnance on 17 November. None of that explanation was credible. There was, for instance, no explanation as to why, in those circumstances he did not advise the respondents of that position immediately and to the contrary, on 30 November sought payment of long service leave in advance, in accordance with the agreement which had been reached. 56 In the context of all of the evidence, including Dr Payne's own conduct, the inevitable conclusion must be that the agreement reached was in accordance with Dr Payne's express instructions. Here, even if the proper view was that no binding agreement had been reached on 28 October, given Dr Payne's subsequent conduct, where he permitted the respondents to act in accordance with the terms of an agreement by which they regarded themselves as bound, to their detriment and his benefit, Dr Payne should be estopped from now seeking to depart from its terms.
Allegations of fraud and misrepresentation 57 In considering Dr Payne's allegations that any agreement reached on 28 October should be vitiated because of the respondents' conduct, it is relevant to have regard to the way in which this allegation arose and was pursued in the proceedings. 58 On 22 September, the matter had been listed to deal with two summonses for production issued by the respondents and a further notice of motion filed by Dr Payne, which sought to raise a number of matters, including relevantly, the question of the production of various documents. There were objections by the respondents to the production sought, including on the basis of relevance. The parties being unable to agree with each other, the question of production was listed for hearing on 27 October. That hearing was vacated at the request of Dr Payne. 59 When Dr Payne was later cross examining Ms Clarke at the hearing in November, he advanced the suggestion that at the conciliation conference, the respondents had misrepresented his position as to tenure in his hospital appointment, by a failure to disclose unidentified documents. This was a suggestion which also arose after Mr Neil had opened his case and had gone to the law relevant to such matters. This development thereafter gave rise to some difficulty in the further conduct of the hearing, Dr Payne then seeking another opportunity to pursue the question of production of such documents. 60 Dr Payne was an unrepresented litigant, a position which the Court sought to accommodate. Accordingly, I asked the parties to discuss the allegation of misrepresentation or fraud which had arisen in the context of this request. They did so and exhibit 8 was prepared by the respondents, in order to reflect their understanding of what Dr Payne was advancing. 61 The hearing had been fixed for 3 days, but did not complete, although the respondents had concluded calling their evidence. When the question of further programming was discussed, Dr Payne was directed to furnish written particulars of what he was alleging as to misrepresentation, in addition to what was contained in exhibit 8, by 29 February 2000. He was also directed to file and serve, within 7 days, a list of the documents he was asking the respondents to produce. A further 2 days hearing was then fixed on the basis that Dr Payne would, in the meantime, put on an affidavit in reply and would consider whether he would call evidence from Mr Murphy, as to which he was to give the respondents notice. 62 The question of the production of documents was listed for mention on 3 December, when it was reported that, by agreement, various documents had been produced by the respondents; that only two further documents were then sought by Dr Payne, although there was a question as to what they were precisely and that a question of relevance as to the documents remained. At that stage, Dr Payne foreshadowed calling evidence from a Dr Curteis and Mr Huthnance. The production of the outstanding documents was listed for hearing in February and Dr Payne was directed to file a final list of the documents, 7 days before the hearing. 63 Dr Payne provided a further list in a notice of motion, which went far beyond the two documents he had indicated in December he still pursued. Attached to the motion were various affidavits, including one sworn by Dr Curteis and another by Ms Vinski, a solicitor at one point retained by Dr Payne. Ms Vinski was called at the hearing in February, but Dr Curteis was not required. Their evidence was then received in relation to the question of the production of documents being dealt with and was marked exhibits 24 and 25. 64 In the course of his submissions, Dr Payne explained that the allegation of fraud, which he was advancing, were specified in paragraphs 3, 4, 6, 7, 8, 9, 11, 12, 13 and 14 of the reasons appearing in his notice of motion, which had been marked exhibit 29. 65 Judgment in relation to the question of production was given on the day of the hearing, I concluding that the documents then sought need not be produced, given that they went to the question of the correctness of Dr Payne's view that he held a tenured position; the relevance of that issue to the question to be decided in these proceedings not having been established; the breadth of the production then sought, given the stage the proceedings had reached and the way in which that issue had been pursued by Dr Payne. I also concluded that what would flow from the pursuit of such documents, particularly at that stage of the proceedings, would far outweigh any potential benefit to the proper administration of justice flowing from their provision. 66 At the hearing on 4 and 5 April, Dr Payne announced that he disassociated himself from the outline of the allegation he was advancing contained in exhibit 8 and said that the allegation of misrepresentation which he advanced related to documents identified in paragraph 2 of schedule 1 of exhibit 29, which had not been produced by the respondents, in light of my judgment as to that matter. Paragraph 2 of schedule 1 of exhibit 29 provided: 'The Terms notes, records, memoranda relating to an Application (24/6/86) and appointment (9/5/88) by the Applicant (and Professor R J Lusby) as visiting medical specialist, recorded by Dr O G Curteis in a file marked VMO appointment matters, oar visiting medical specialists employment, relevant to the 1987-1992 quinquennium, in a section for the second round of appointments.'
67 Dr Payne described this as the 'central allegation' and the other allegations he was advancing in this way: 'The other allegations are relating to the implications of the terms that haven't been disclosed as requested in paragraph (2) of schedule (1) of Exhibit 29, and also of the way in which the original applications(sic) forms were filled out by myself and Professor Lusby, who is in the courtroom, and also the allegations that flow from the implication that because other terms were valid, that I was a contractor, and relate to various payments that I allege should have been made to me, but the lack of disclosure of those terms is my essential allegation.'
68 Dr Payne advanced his submissions as to these matters on the basis that he and his lawyers had been misled by the respondents before or at the conciliation conference in October 1998. It was submitted that at the conciliation, Mr Kimber had relied upon application forms and had made statements which had induced Mr Pearce and Mr Murphy to believe that as a contractor, Dr Payne could be made redundant or severed under the terms contained in the deed later provided to him on 6 November. 69 Dr Payne submitted that the true position as to his tenure was set out in a file containing all justifications for appointments of medical officers, which were made in the 1987 quinquennium. Dr Payne then sought to rely upon exhibits 24 and 25, the affidavits of Ms Vinski and Dr Curteis, admitted in relation to the request for production which had earlier been refused, to provide an evidentiary basis for this submission. There was an objection to this course on various grounds, including Dr Payne's failure to give notice of his intention to rely on these affidavits, of their relevance and because neither witness was available for cross examination. 70 After considering his position, Dr Payne announced that he would not rely on either affidavit, but made an application that he be allowed to call Professor Lusby to give evidence. Professor Lusby happened then to be present in court instructing Mr Neil. Dr Payne explained that he wished to call Professor Lusby, to give evidence in relation to 'academic tenure at the University of Sydney and his appointment'. Dr Payne wished to rely upon paragraphs 1 and 2 of an affidavit that Professor Lusby had sworn in the proceedings, which had been filed by the respondents in preparation of the matter for the hearing before Marks J. 71 Again the question of relevance arose, the aspects of Professor Lusby's affidavit sought to be relied upon not touching on documents dealing with the terms upon which Dr Payne was appointed as an Honorary Visiting Medical Practitioner on the staff of Concord Hospital or his employment at the University of Sydney. After some exchange between the parties, 'in the interests of advancing the matter', Mr Neil was instructed to concede the admissions made in paragraphs 1 and 2 of Professor Lusby's affidavit of 8 December 1997, without making any concession as to the relevance of those admissions. Dr Lusby was thus not further required. His affidavit provided: '1. I am head of the University of Sydney Academic Surgical Unit at Concord Hospital. I took this appointment in 1983. As such I have the responsibilities for all university matters in the surgical division of Concord Hospital including undergraduate surgical teaching and university administration. I am responsible to the Dean of the Faculty of Medicine at the University of Sydney as the head of the academic unit. I also am appointed as an Honorary Visiting Medical Practitioner on the staff of Concord Hospital with clinical responsibilities treating vascular surgical patients. I am responsible to the Hospital Administration in my clinical role.
72 The hearing on 5 April later concluded on the basis that on the further hearing then fixed for 24 and 25 May, Dr Payne would conclude his evidence in chief and would be cross examined and the parties would then make their submissions. Dr Payne said, in response to a question put by Mr Neil as to whether, apart from any further documents which he might wish to tender, his case would then close, 'There are submissions. I don't know that there's any other evidence.' 73 On 24 April, Dr Payne however, wrote to my Associate, advising that he proposed to call Dr Curteis at the resumed hearing. When the hearing commenced on 24 May, it became apparent when Dr Payne made that application, that he had not put the respondents on notice of this intention. 74 Dr Payne sought leave to call Dr Curteis on the following day. That leave was opposed for various reasons, including relevance, the failure to give notice, the departure from the position announced at the end of the previous hearing in answer to Mr Neil's question and as a matter of justice as between the parties, given the stage that the proceedings had then reached. In all of the circumstances then prevailing, Dr Payne's application was refused. Dr Payne then concluded his evidence, was cross examined briefly and Mr Neil made his submissions. Dr Payne had almost concluded his submissions, when the hearing adjourned to the following day. 75 On 5 April, Dr Payne renewed his request for leave to call Dr Curteis. The respondents again maintained their objection to the leave, not only having regard to the time at which the application was made, the lack of notice given, the unfairness it would visit upon the respondents, but also on the ground of relevance. 76 Dr Payne's application for leave was in part advanced by way of complaint as to the conduct of the respondents' instructing solicitors, who he said had failed to inform him, contrary to the Court's rules, as to the identity of the solicitor instructing Mr Neil, so that he could give them notice of his intention to seek leave to call Dr Curteis before the hearing had resumed the previous day. Those complaints were refuted by Mr Neil, not only by reference to his own recollection of a conversation Dr Payne had referred to, but also by reference to other correspondence which Dr Payne had provided to the respondents' solicitors, without difficulty in the interim. Mr Neil also made reference to correspondence sent by those solicitors to Dr Payne, after the proceedings on 4 and 5 April, which identified the name and direct telephone and email address of the solicitor who Dr Payne complained had not provided him with her name or contact details. The respondents maintained their objection to Dr Payne being granted leave to call Dr Curteis. 77 Dr Payne did not deny having received the correspondence referred to by Mr Neil. He responded, however, by stating that he had deliberately decided not to ask for the matter to be relisted so that his application for leave to call Dr Curteis could be considered before the resumed hearing. 78 Also relevant to Dr Payne's renewed request was that when he renewed his application the position was that Dr Curteis was, in any event, not even then present in court and on Dr Payne's understanding, would not be available until later that morning. Dr Payne submitted, that he then took the view that Dr Curteis' evidence was 'critical' to his case and that if he were refused leave, he would appeal any decision made in the proceedings. 79 In all of these circumstances, the leave sought was again refused. Apart from all of the procedural difficulties outlined, which weighed most heavily against any discretion being exercised in Dr Payne's favour at that point of the hearing, Dr Payne also failed to establish what relevance Dr Curteis' evidence would have to the question of whether the respondents had failed to provide the documents in question, given that the affidavit of Dr Curteis upon which Dr Payne sought to rely did not even deal with such documents. As it transpired, Dr Curteis arrived at court some time later, shortly before Mr Neil completed his submissions in reply and the proceedings concluded. 80 I turn then to the question of whether the misrepresentation or fraud alleged by Dr Payne was made out on the evidence. The allegation was a serious one plainly, and must be established in the ordinary way, on the balance of probabilities. Here the proper finding on all of the evidence was that Dr Payne failed to establish the fraud or misrepresentation which he submitted provided a proper basis for the vitiation of any agreement reached between the parties on 28 October 1998. 81 On the evidence, there was plainly an issue between the parties as to tenure. Dr Payne himself raised it at the conciliation and it was a ground advanced in the initiating summons. Dr Payne cross examined Mr Pearce as to whether he had given him advice about his university contract and tenure. Mr Pearce's evidence was that he didn't know whether advice about his university contract and tenure had been 'specifically discussed' in terms of tenure, 'but I certainly gave you advice about your contract from time to time' and that he 'had a concern that under the terms of the relevant award you could be retrenched' on the grounds that 'there was no work for you to do,' this view being one advanced by the respondents. 82 It is, of course, neither misrepresentation nor fraud for parties to advance the different views which they hold about issues which arise in litigation between them, either at a hearing or in conciliation proceedings under s109 of the Act. 83 In such a case there is no general obligation falling upon either party to disclose all that is known to them about any issue. An obligation of disclosure may, of course, arise if a witness is asked relevant questions about the issue in the course of giving evidence, or if an obligation of disclosure arises in some other way, for example, through the processes of discovery or production of documents pursued by the parties in preparation of the case for hearing, in accordance with the Court's rules. 84 On the evidence in this case, Dr Payne has not established that the respondents had an obligation to produce the documents he finally identified as providing the basis for this allegation, prior to the conciliation conference in October 1998; that they had failed to produce such documents in accordance with that obligation or that they were otherwise wrongly withheld from him. That such documents existed is not clear, nor that they would, in any event, have established or tended to establish the tenure which Dr Payne asserted. 85 As I observed at one point to Dr Payne, even if he established that he held the tenure he asserted, neither he nor the respondents would have been precluded thereby from compromising his claim. He seemed to accept this observation, because his submissions were later developed on the basis that had the respondents not misrepresented his position as to tenure, Mr Pearce and Mr Murphy would have held out for a higher sum in settlement of the claim. Despite this shift, even if tenure of the kind Dr Payne believed in existed, his arguments paid no regard to the claims he was advancing in the case - particularly payment of salary to age 70 - and the effect which applicable award provisions had on the prospect of he being retrenched, a matter about which Mr Pearce had advised him and which was another issue in the proceedings, but which he seemed not to take into account. 86 Dr Payne faced obvious difficulty in establishing this aspect of his case, reflected in both the shifting articulation of the allegation and the way in which he sought to pursue it. 87 Given this difficulty, one of the curious features of Dr Payne's conduct of the case was that while on the last day of the hearing he announced that he had come to regard Dr Curteis' evidence as 'critical' to his case, not only had Dr Payne not put on any evidence from Dr Curteis, in accordance with the directions given for preparation of the case for hearing, no evidence had been put on from him when the matter had been prepared for hearing before Marks J. 88 Even when Dr Payne decided, late in the day, to call evidence from Dr Curteis, he did not take steps available to him to require Dr Curteis to attend to give evidence in April, having already been put on notice that if Dr Curteis was to be called he would be required for cross examination. Having then abandoned the decision to call Dr Curteis, he failed to put the respondents on notice of his later altered intention, indeed he deliberately decided not to seek leave of the Court to put on the further evidence which he sought to call prior to the resumed hearing and even then, did not take steps available to require Dr Curteis to attend when the hearing resumed. 89 While Dr Payne was an unrepresented litigant in the proceedings and both the Court and the respondents, in accordance with requests made of them by the Court, took that situation into account when consideration was given to requests made by Dr Payne for leave to depart from the ordinary processes and procedures of the Court, there was a limit to the liberties which, in fairness, could be extended to him. 90 Accommodation of the position of an unrepresented litigant cannot be such that, at the end of the day, justice is denied to the other parties to the proceedings, whose own position is, of course, affected by such accommodations. Dr Payne's approach to the calling of the evidence of Dr Curteis was such that the leave he sought had to be refused in the circumstances, having in mind not only the approach which he had adopted, but also the submissions which he advanced and the position taken by the respondents in relation to that approach.
Should Dr Payne be held to the agreement? 91 Courts may have a discretion to decline to enforce a compromise, if injustice would result from its enforcement. In Harvey, the High Court took the view that there was no such discretion where an agreement was made in settlement of the matter, where express instructions to settle the matter had been given, even as a result of moral pressure from a party's legal adviser. 92 Here, there was no basis established upon which it could properly be concluded that Dr Payne should be relieved from the agreement made on 28 October, particularly given the finding that he gave express instructions to Mr Murphy and Mr Pearce to accept the offer made. Dr Payne's conduct at the conference, and thereafter, was such that justice requires that he be bound by that agreement. 93 In these proceedings, it was made absolutely clear by Dr Payne that he regretted the bargain which he had made, given advice he later received from Mr Huthnance. Whether or not Dr Payne would in fact have been better off under terms other than those which were agreed on 28 October was not in issue in these proceedings. Dr Payne did not establish either that such other terms were available to him or that if they were, he would have been better off under them. He plainly believed that he would have been better off if he had received a lump sum payment. The basis of this belief was not clear, however, especially when regard was had to the actual advice given to him on 17 November by his accountants. 94 The Court cannot overlook the important public interest in parties adhering to the bargains which they make in settlement of proccedings which they have brought, thereby bringing litigation to an end. This must especially be the case when one side of the bargain has acted in accordance with the agreement reached and the other has benefited as a result. That was plainly the case here, where Dr Payne himself sought payment of long service leave in advance in accordance with that agreement, before he sought to repudiate it. Here, it cannot be overlooked that the bargain was made during a second attempt at conciliation before the Court, in circumstances where the matter was otherwise listed for hearing, where the all parties were legally represented and where the Court was informed of the settlement reached and then also acted in accordance with that advice.
Orders 95 The orders pressed by the respondents were put in the alternative, either a stay of the proceedings or otherwise positive orders in the terms of the deed. Given the course the litigation had taken, the respondents expressed a preference for the second approach, in order that there be certainty. The respondents, also confirmed that they continued to regard themselves as bound by the agreement and would act in accordance with it. 96 Dr Payne's submission was that in the event that his motion was not successful, a different course should be taken, namely that I should order the variation of the agreement reached on 28 October, in a number of respects, in accordance with s106 of the Act. That submission must, of course, be rejected. There is no such application before the Court and it is difficult to see how such an application could, in any event, be pursued under s106 of the Act. 97 I have given thought to the two alternatives advanced by the respondents and have concluded that the proper approach in these circumstances, given the nature of the parties' agreement itself, is to order the stay of the proceedings rather than to make positive orders in the terms of the deed. The effect of that approach will be that, like the respondents, Dr Payne will be bound to observe the terms of that deed notwithstanding that it has not been executed. This result will follow because I have found the deed to reflect the terms of the oral agreement reached by the parties, as later varied by them. 98 The final question is costs. The usual order would be that Dr Payne be required to bear the respondents' costs, as agreed or assessed. In the event that the parties are unable to agree on the question of costs, they have liberty to file any submissions which they wish to put as to costs, within 14 days of the date of this judgment. If that liberty is not exercised, the proceedings will conclude, without further order. 99 I finally note that this judgment is to be given after 4 July 2000, in order to accommodate a request made by Dr Payne. 100 For all of these reasons, I make the following orders:-
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.
Dr Payne
The University of Sydney & Anor
(1986) 40 NSWLR 622
(1998) 164 CLR 387
(1956) 95 CLR 235