McCoy v Chandler [2005] NSWCA 235 | Case summary

REASONS FOR DECISION Background 1 Mrs. Donna McCoy, the applicant, lodged a complaint dated 18 May 2007 with the Anti-Discrimination Board ("ADB") on 29 May 2007, against her then employer, Dairy Farmers (Australian Co-Operative Foods Ltd) ("the Dairy Farmers complaint"). Those proceedings were settled on 7 March 2008 and Mrs. McCoy withdrew her complaint. That withdrawal was accepted by the ADB and the Dairy Farmers complaint was terminated pursuant to section 92A of the Anti-Discrimination Act 1977 ("the AD Act") (see letter ADB to parties in the Dairy Farmers Complaint 7 March 2008). 2 Mrs. McCoy had on 19 November 2007 lodged a complaint against Nigel Chandler, one of her co-workers at Dairy Farmers ("the Chandler complaint"). The Chandler complaint was declined as lacking in substance by the ADB on 21 January 2008. On 13 February 2008 Mrs. McCoy requested that the Chandler complaint be referred to the Administrative Decisions Tribunal pursuant to section 93A. On 11 March 2008 Needham J SC granted Mrs. McCoy leave to proceed in the ADT. 3 The Chandler complaint commenced as one of victimisation alleging that Mr. Chandler had written an anonymous letter to Mrs. McCoy's husband. The complainant's points of claim dated 16 October 2008 also included a complaint of sexual harassment. Mrs. McCoy sought the payment of damages and costs. 4 The matter was listed for hearing before the ADT on 7 November 2008. The complainant was not represented at the hearing however the respondent was represented by Ms Fiona Hancock of counsel. The transcript of the matter shows that the Tribunal adjourned the matter to 3rd December 2008 for withdrawal. Subsequently Mrs. McCoy informed the Tribunal that a deed of release had not been signed and that she was receiving no further communication from Mr. Chandler. 5 The Tribunal listed the matter for further hearing on 27 March however this date was vacated at Mr. Chandler's request. 6 The matter was then listed for hearing before the Tribunal, constituted by the current panel on 14 April 2009 after a further request for adjournment from Mr. Chandler was refused. Prior to the commencement of the hearing on 14 April 2009 the Tribunal questioned the parties as to what had occurred on the previous occasion of 7 November 2008 and since. Both parties agreed that they had left the Tribunal on 7 November believing that the matter had been resolved. The Tribunal then adjourned the matter setting a timetable for the parties to make submissions as to whether the Tribunal still had jurisdiction to hear the matter - given what had occurred on 7 November 2008. The Tribunal undertook to publish its decision after those submissions had been received. 7 In the interim those submissions have been provided and the transcript of the 7 November 2008 obtained by the Tribunal. 8 The transcript of 7 November 2008 shows that the Tribunal conducted some preliminary matters with the parties including ruling that the complaint about which leave had been granted to proceed in the Tribunal was solely of victimization - and did not include a complaint of sexual harassment. The Tribunal then adjourned to allow the parties to undertake settlement discussions. The parties returned and advised the Tribunal that the matter had been settled and Mr. Chandler admitted that he had sent the letter to Mrs. McCoy's husband that was the basis of the victimisation complaint. He then apologised for his behaviour. 9 The Tribunal has sought to understand what was in the mind of the parties at the hearing before the Tribunal on 7 November 2008.The transcript of the resumed proceedings on 7 November 2008 after the Tribunal had adjourned to allow the parties to conduct settlement negotiations is extracted below. "APPLICANT: I can advise that we have settled the matter-- GROTTE: Well done. APPLICANT: --through negotiations. GROTTE: Well, done, you've obviously spent the time wisely so-- APPLICANT: Yes. GROTTE: --that's wonderful so what orders do you want the Tribunal to make? HANCOCK: There's four parts to the deed, there's the usual non disclosure material which I will need to draft up. GROTTE: Can you speak up, sorry, Ms Hancock, it's the air conditioning and it's buzzing. HANCOCK: Yes, sorry, buzzing-- GROTTE: Is it the case then that you want the Tribunal to make orders, is it the case that it's withdrawn, resolved withdrawn and that you have a private deed of release between the two of you? HANCOCK: I think withdrawn by Mrs McCoy but before we can get to that there are two other parts of the deed which require Mr Chandler to do things this morning before the Tribunal. One is to make an admission and apology, admission, one apology before the Tribunal to Mrs McCoy. So, maybe if he can do that, he's satisfied those two arms of the deed and then Mrs McCoy can say that the claim is withdrawn subject to me sending her a deed of release and then if I don't send she can re-list it if you don't hear from her it's withdrawn. GROTTE: Okay. APPLICANT: Yes, sorry, just before Nigel starts just to clarify as well, there are a few segments to it. There's the admission, the - the apology and the deed but there's also costs and damages that we've agreed to which will actually form part of the deed. GROTTE: Yes, but that-- APPLICANT: That we'll negotiate between ourselves. GROTTE: Yes, the deed of release is between the parties, the Tribunal doesn't need to be involved in that. APPLICANT: Yes - okay, okay, so then do - just then set down a date, I think we did this in a previous one where we set down a date-- GROTTE: You set down a date in about a month's time-- APPLICANT: --that we've got to get it finalised. GROTTE: --in about 4 weeks time and in that time you finalise the agreement and then you just list it for essentially dismissal and on that morning you just need to send in a letter saying the matter is resolved and withdrawn. APPLICANT: So, can we actually get that date whilst we're here? GROTTE: Yes, we'll give you a date today. APPLICANT: Okay. GROTTE: I'll give you the date first and then we can deal with Mr Chandler, it's - would it be ready by 26 November because I'm actually - I've got a list of case conferences that day I can just list it in the morning at 9.30 for dismissal. HANCOCK: Yes, I think so. APPLICANT: Could I possible ask - could I possible ask that it's either the day before or a couple of days before or a couple of days later. DISCUSSION FOR SUITABLE DATE GROTTE: I will just place it in the list for 3 December. APPLICANT: Thank you, so I just need to make sure that - that we get the deed finalised between ourselves and I make a submission to Tribunal to state that it's settled, dismissed, is that correct, by - by 3 December. GROTTE: That's right. HANCOCK: So, do we attend personally day? GROTTE: You don't have to attend personally; as long as the Tribunal has a letter from the applicant that says that the matter is resolved and is withdrawn then that is sufficient for the member who I think will be Ann Britton on that day, Deputy President Ann Britton. She will just look at the paperwork and then simply dismiss the complaint. HANCOCK: Thank you. APPLICANT: So, what I'll do I will cc you in on that after we get the deed signed. HANCOCK: Thank you. GROTTE: I said it was 3 December didn't I? APPLICANT: Yes. GROTTE: So, Mr Chandler, where are you going to speak from, do you want to take the witness box or do you want to just speak with--? HANCOCK: I think if I just take a role backwards. GROTTE: All right, thank you. CHANDLER: I just want to say yes, I did write the letter and I apologise to both Donna and Tom for all pain caused and - and am extremely so. APPLICANT: Thank you. GROTTE: Well, thank you and thank you for resolving it, it's well done. So the matter has been formally adjourned until 3 December when it has been listed for dismissal. ADJOURNED UNTIL WEDNESDAY 3 DECEMBER 2008 LISTED FOR DISMISSAL" 10 When questioned by the Tribunal on 14 April 2009 as to why no Deed of Release had been entered into Ms McCoy indicated that she had not consented to certain aspects of the Deed provided to her by the Respondent. She had objected and heard no further from the Respondent or his Counsel. The Respondent indicated that he had no means to pay the agreed damages and hence had not done so. 11 This Tribunal then raised with the parties the concern that it may not have had jurisdiction to consider Mrs McCoy's complaint of sexual harassment and victimisation on the basis that the matter had already been resolved between the parties on 7 November 2008. The Tribunal asked the parties to consider the effect of decision of the Administrative Decisions Tribunal on 5 December 2005 reaffirmed by the Administrative Decisions Tribunal Appeal Panel on 4 September 2006 Sebastian v Rail Infrastructure Corporation & anor (EOD) [2006] NSWADTAP 44 (4 September 2006) and affirmed by the Supreme Court in Sebastian v ADT and 2 Ors [2007] NSWSC 437 (7 May 2007). 12 In the matter of Sebastian the Administrative Decisions Tribunal had determined that a new Tribunal did not have jurisdiction to hear the matter where the parties had entered into an agreement with written heads of agreement to resolve the matter that but had failed to reach agreement on a deed of release. By contrast in the current matter no document evidencing heads of agreement has been filed in the Tribunal although the parties had advised the Tribunal that the matter had been settled. Tribunal provided the parties with copies of the Sebastian decision of December 2005. 13 Each of the parties has provided this Tribunal with submissions as to the status of the current proceedings. The Applicant's submissions 14 Ms Mc Coy indicates in her submissions: I believe that the verbal agreement made between myself and Mr. Chandler on 7 November 2008 was not a binding agreement within the meaning described in Masters v Cameron High Court categories 1& 2. I believe our matter falls within category 3 and therefore remains in the ADT's jurisdiction. I therefore request that the ADT make a hearing date to hear the matter in full. The Respondent's submissions 15 Mr. Chandler submitted: 1. There was no agreement signed on 7th November 2008. With legal advice the deed with no signing and no agreement is not enforceable and not binding. 2. An apology was made on the 7th November to Donna McCoy and her husband in front of the tribunal. ……………… 3. I would ask that the Tribunal make a decision from the submissions. I find it very hard to make another listed hearing due to my children and work commitments. Findings 16 Both parties have submitted to the Tribunal that the matter has not been resolved. 17 The applicant referred to the High Court's judgement in the matter of Masters v Cameron (1954) 91 CLR 353 at 360. 18 In her judgement in Sebastian v ADT and 2 Ors [2007] NSWSC 437 (7 May 2007) Harrison J points out: "Masters has been helpfully summarised in Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 at [55] where Young CJ in Eq recapitulates the three categories as: "1. Where the parties have reached final agreement on the terms of their contract and agree to be immediately bound but wish to restate those terms in a fuller or more precise way in a formal document; 2. Where the parties have reached final agreement on all the terms and intend not to depart in any way from them but the performance of some part of the contract is made conditional on the execution of a formal contract; 3. Where the parties intend there not to be a concluded contract unless and until a formal document is executed." 7 In categories (1) and (2) the parties are bound at the time they reach agreement. In category (3) the parties are not bound by the agreement." 19 The Tribunal finds support in the submissions of the parties referred to above. for the proposition that the parties did not intend there be a concluded contract unless and until a Deed of Release had been entered into. The Tribunal also refers to the extract below from the transcript of the Tribunal's hearing in this matter on 7 November 2008 from the Respondent's Counsel Ms Hancock (Tribunal's emphasis) "HANCOCK: I think withdrawn by Mrs McCoy but before we can get to that there are two other parts of the deed which require Mr Chandler to do things this morning before the Tribunal. One is to make an admission and apology, admission, one apology before the Tribunal to Mrs McCoy. So, maybe if he can do that, he's satisfied those two arms of the deed and then Mrs McCoy can say that the claim is withdrawn subject to me sending her a deed of release and then if I don't send she can re-list it if you don't hear from her it's withdrawn." 20 This would confirm the Respondent's understanding that settlement was in part dependent upon Mrs McCoy's receipt of and satisfaction with the Deed of Release. This has not occurred. 21 Further it is apparent from the Respondent's actions since 7 November 2008 and his evidence before the Tribunal on 14 April 2009 that he has not considered himself bound by any "agreement" to pay certain amounts of money to Ms McCoy. Decision 22 The Tribunal finds that the parties did not understand the matter to be resolved until a Deed of Release had been entered into. This has not occurred. Both parties have now requested that the matter proceed to finalisation by the Tribunal. Orders

In the circumstances the Tribunal considers that the Tribunal continues to have jurisdiction in the matter to deal with Ms McCoy's complaint of victimisation.

McCoy v Chandler

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