Macatangay v New South Wales Department of Education and Training

Industrial Relations Commission (NSW)|2005-02-28|Before: Walton J, Staff J

CITATION: Macatangay v New South Wales Department of Education and Training [2005] NSWIRComm 69

APPELLANT Miguela Macatangay PARTIES: RESPONDENT New South Wales Department of Education and Training

CORAM: Walton J Vice-President; Staff J; Patterson C

LEGISLATION CITED: Industrial Relations Act 1996

Abalos v Australian Postal Commission (1990) 171 CLR 167 Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 CASES CITED: Masters v Cameron (1954) 91 CLR 353 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588

HEARING DATES: 02/28/2005 EXTEMPORE JUDGMENT DATE: 02/28/2005

APPELLANT Miguela Macatangay In person

LEGAL REPRESENTATIVES: RESPONDENT Mr S Benson of counsel Solicitor: Ms S Butler Department of Education and Training

4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice-President STAFF J PATTERSON C 28 February 2005

MIGUELA MACATANGAY v NEW SOUTH WALES DEPARTMENT OF EDUCATION AND TRAINING

Application by Miguela Macatangay for leave to appeal and appeal against a decision of Commissioner Macdonald given on 25 June 2004 DECISION (EX TEMPORE) [2005] NSWIRComm 69

1 Miguela Macatangay ("the appellant") was employed by the New South Wales Department of Education and Training as a (Mobile High School) mathematics teacher on 19 July 1999, having previously been engaged in 1998 as a casual mathematics teacher.

2 The background to the application brought pursuant to s 84 of the Industrial Relations Act 1996 in which the appellant sought relief from threatened dismissal, was that by letter dated 5 August 2002, the respondent called upon the appellant to show cause why her appointment as a teacher should not be annulled. The appellant made representations to the respondent.

3 On 4 September 2002, the appellant lodged an application for relief in relation to threatened dismissal (the s 84 application).

4 Conciliation was unsuccessful and five days were fixed for the hearing of the matter, being 24 to 28 March 2003.

5 On 13 March 2003, Ms B K Charlton, Acting Senior Legal Officer for the respondent, received a telephone call from the applicant's counsel regarding a possible settlement of the matter.

6 The Department provided a "without prejudice" offer of settlement to Mr Capsanis care of the applicant's solicitor Ms N Miniano-Markovski, who was overseas at the time. The letter forwarded by facsimile was dated 20 March 2003.

7 On that day a number of lengthy discussions occurred between Mr Capsanis, a solicitor (whose role in these proceedings was of significant contention), and the respondent concerning the appellant's application.

8 It was essential to the appellant's case that Mr Capsanis did not act as her solicitor and did not have any authority to act on her behalf in settlement negotiations whether as an agent or otherwise.

9 On 20 March 2003, an amended offer of settlement was forwarded by the respondent to Mr Capsanis.

10 Relevantly, the letter from the NSW Department of Education and Training to Mr Capsanis dated 20 March 2003 contained the following: ... The Department is prepared to resolve the proceedings on the following basis. The Department will: 1. Rescind the Applicant's annulment provided the Applicant tenders her resignation effective from the same date as the annulment;

not take action to place the Applicant's name on the confidential list of staff not be employed by the Department in government schools or TAFE provided that the Applicant: i. supplies the Department with a written undertaking not to seek employment as a teacher with the Department; and

ii. returns to the Department any letter(s) of approval to teach casually that have been issued to her by the Department. The written undertaking required of the Applicant in accordance with item 3(i) does not extend to TAFE NSW. This undertaking would not preclude the Applicant from applying for employment as a teacher with TAFE NSW. 4. take administrative action to give effect to the provisions of clause 3(i) and (ii);

if requested, issue the Applicant with a standard statement of service which will include the words "ceased employment with the Department whilst services were under review. This offer is also conditional on the parties confirming this agreement in a Deed of Release which would also include provisions for the: 1. confidentiality of the agreement;

agreement for both parties to meet their own costs in the proceedings to date. ...

11 On 21 March 2003, Mr Capsanis, having advised the respondent orally the previous day that the matter had settled, forwarded a facsimile to the respondent confirming that the matter was settled and that he would notify the Commissioner's Assistant of the settlement. The facsimile to the Commissioner's Assistant (formal parts omitted) was in the following terms: I wish to confirm my conversation with Sylvaine a short time ago that the above proceedings have settled in principle and it's intended to file a notice of discontinuance on behalf of the Applicant as soon as practicable after finalisation of documentation (Deed of Release). Therefore, by consent, it is requested the hearing dates commencing Monday 24/3/03 be vacated & the parties be excused from attending. Many thanks. (Sgd) J P Capsanis.

12 On 8 April 2003, the respondent forwarded a deed of release to Mr Capsanis.

13 The respondent subsequently contacted Mr Capsanis on a number of occasions during April and May 2003 regarding execution of the deed of release.

14 On 26 May 2003, the appellant advised the respondent that she was no longer legally represented in this matter and was intending to have the matter returned to the Industrial Relations Commission of New South Wales.

15 After the matter was re-listed on 12 June 2003, the respondent filed a notice of motion seeking the following orders: 1. That these proceedings be dismissed; or in the alternative 2. That the proceedings be permanently stayed; and 3. ... 16 The grounds and reasons were stated as follows: 1. These proceedings were listed for hearing for five (5) days from 24 to 28 March 2003. 2. Following negotiations between the legal representatives of both parties a binding agreement was entered into by the parties on 21 March 2003 in settlement of the proceedings. 3. As a consequence of the binding agreement the Applicant's legal representative communicated the fact that the proceedings had been settled to the Industrial Relations Commission on 21 March 2003 and sought the vacation of the hearing dates. 4. It is an abuse of process to permit the Applicant to resile from this agreement. The Respondent relied on this agreement in consenting to the vacation of the hearing dates which occurred at such a late date and therefore resulted in the Department incurring considerable legal costs. 17 Commissioner A Macdonald heard the notice of motion on 20 February 2004. Evidence was given by Ms B Charlton, Mr J Capsanis and the appellant. All were cross examined.

18 In his decision, the Commissioner made the following findings at [46] - [49]: [46] As Ms Macatangay has not provided evidence to demonstrate that some of the twenty-two points represent one or more new terms inconsistent with the agreement contained in annexure A, then the Commission forms the view that the contents of the deed of release does not provide a basis for Ms Macatangay to argue that she is not bound by the agreement (annexure A) entered into by her on 20 March. [47] The Commission has already concluded that Ms Macatangay gave instructions to Mr Capsanis to settle her s 84 claim on the basis of annexure A. This instruction was oral and was given by her to him late on Thursday, 20 March. This acceptance was then communicated by Mr Capsanis to Ms Charlton by telephone on the same day. Mr Capsanis followed up on this "oral settlement" by confirming the same by facsimile the next day (annexure B). [48] In Masters v Cameron, there is set out the circumstances in which the High Court of Australia found a binding agreement could be said to have come into existence at law through the contract negotiations of parties. (see paragraph 26 above) Mr Benson submitted that the circumstances of the case before the Commission fell into the first of the three categories identified by Masters v Cameron although there were certain terms in the proposed deed of release that would be contingent upon the formal execution of the deed of release and, as such, this conduct of the parties fell into the second category identified by Masters v Cameron. The Commission considers that the conduct of the parties and in particular the conduct that took place on 20 March per the instructions of Ms Macatangay was such, that a binding agreement was entered into on 20 March and no evidence was brought to show that the subsequent deed of release had new terms inconsistent with the terms of settlement made between the parties on 20 March. [49] Accordingly, having considered all of the evidence, the Commission grants the first Order stipulated in DET's Notice of Motion, being an order that Ms Macatangay's s 84 application be dismissed.

19 It is that decision which is the subject of this appeal.

20 We turn firstly to consider the Commissioner's findings of fact.

21 The essential finding of the Commissioner was that the appellant gave instructions to her agent at the time, Mr Capsanis. The Commissioner further found the appellant gave instructions to settle and an agreement was thereby reached.

22 As the case unfolded before us, it became clear that the appellant focused her attack upon the Commissioner's decision based upon a contention that there was an absence of capacity and instruction for Mr Capsanis to reach a settlement on her behalf. The appellant conceded that Mr Capsanis had reached an agreement with the respondent which was reflected in five terms contained in the letter of 20 March 2003. Thus, whilst the appellant continued to challenge the deed of release, advancing some submissions concerning Masters v Cameron (1954) 91 CLR 353, she did not contest, at the end of the day that an agreement had been reached by Mr Capsanis, (expressed in the letter of 20 March 2003), albeit without her authority. It is also clear from her oral submissions that the issues the appellant had with the deed of release did not concern the five terms earlier agreed.

23 Bearing in mind those considerations, and, having reviewed the evidence as to the settlement of proceedings at first instance, we consider that it was entirely open for the Commissioner to reach a conclusion that an agreement had been reached which would be binding on both parties provided Mr Capsanis had the requisite authority to enter into such an agreement on behalf of the appellant.

24 Turning to that issue, it is clear that the contest brought by the appellant was as to findings of fact made by the Commissioner. Some of the appellant's submissions strayed into matters not in evidence and we have not had regard to them. As to those matters that are in evidence, some preliminary observations should be made.

25 In Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32 at 44, Wright J President, Walton J Vice-President, (Schmidt J dissenting) observed: Some additional considerations may arise where the findings of fact are based substantially upon perceptions formed by a trial judge as to the credibility of a particular witness or witnesses. It has frequently been observed that a trial judge possesses a considerable advantage over an appeal court by virtue of having seen and heard the witnesses give evidence and it would be wrong to overlook "the subtle influence of demeanour" upon the resolution of conflicts between evidence: see, for example, Jones v Hyde (1989) 85 ALR 23 at 27-28, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. In Devries, it was held (at 479) "that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact": see also Outboard World Pty Ltd (t/as Budget Waste Control (Sydney)) v Muir (1993) 51 IR 167 at 179; Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 at 154.

26 In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) & Ors (1999) 160 ALR 588: Kirby J expressed the view (at 614-615) that cases such as Abalos v Australian Postal Commission (1990) 171 CLR 167 did not alter the traditional view of the role of an appellate court. This has always been to respect the opportunity of a trial judge to observe the witnesses who have given evidence but the application of this principle requires an analysis of the actual advantages enjoyed by a trial judge. His Honour concluded (at 620) that there may be some cases in which an appellate court cannot overcome the advantage of the trial judge in having observed the witness, but this conclusion is "true of a relatively limited class of case: basically those where the decision depends upon resolving a clash of critical oral testimony, oath against oath".

27 This is not one of those limited class of cases.

28 In our view, the findings that Mr Capsanis had acted for the appellant and under her instructions in reaching an agreement to settle the proceedings at first instance were open to the Commissioner on the evidence and should not be disturbed on appeal. Indeed, having heard the appellant today and having reviewed the evidence at first instance, we have no doubt the Commissioner was correct in finding that Mr Capsanis had acted as the appellant's agent (either through her solicitor or directly) and in that capacity had received instructions from the appellant resulting in him negotiating an agreement approved by her. It is reasonably clear that the agreement, and Mr Capsanis' authority, was only later sought to be impugned when the deed of release was produced (and where the appellant seemed to take issue with some elements of the recital which touched on the earlier issues as to her probationary status).

29 We therefore consider that leave to appeal should be refused and we so order.

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