McLachlan v Sydney Trains

Summary and analysis of evidence

1. In this section of the judgment I deal with the factual aspects of the evidence which require detailed analysis. I first summarise the documentary evidence, including the two medico-legal reports, the settlement correspondence and the complying agreement. I then identify the witnesses who were called and summarise their evidence before giving my conclusions on the areas of factual dispute.

Documentary evidence

1. PIRS assessment: Under the Guidelines (see [8] above), impairment arising from psychiatric injuries is assessed using the Permanent Impairment Rating Scale ("PIRS"). The PIRS contains six categories, each of which evaluates an area of functional impairment: 1. self-care and personal hygiene; 2. social and recreational activities; 3. travel; 4. social functioning (relationships); 5. concentration, persistence and pace; and 6. employability.
2. The method for calculating a person's WPI under the PIRS is described in the Guidelines as follows: Using the PIRS to measure impairment 11.13 Rating psychiatric impairment using the PIRS is a two-step procedure: 1. Determine the median class score. 2. Calculate the aggregate score. Determining the median class score 11.14 Each area of function described in the PIRS is given an impairment rating which ranges from Class 1 to 5. The six scores are arranged in ascending order, using the standard form. The median is then calculated by averaging the two middle scores eg: Example A: 1,2,3,3,4,5 Median Class = 3 Example B: 1,2,2,3,3,4 Median Class = 2.5 = 3* Example C: 1,2,3,5,5,5 Median Class = 4 *If a score falls between two classes, it is rounded up to the next class. A median class score of 2.5 thus becomes 3. . . . Median class score and percentage impairment 11.16 Each median class score represents a range of impairment, as shown below: Class 1 = 0-3% Class 2 = 4-10% Class 3 = 11-30% Class 4 = 31-60% Class 5 - 61-100% Calculation of the aggregate score 11.17 The aggregate score is used to determine an exact percentage of impairment within a particular median class range. The six class scores are added to give the aggregate score.
3. The median class score and the aggregate score are then converted to a percentage WPI using the following table:
4. As can be seen from the table, to reach the 15% WPI threshold, an injured worker would need a median class score of at least 3 and an aggregate score of at least 15.
5. Report of Dr Clark: Dr Clark diagnosed Mr McLachlan as suffering from chronic PTSD derived from his work for ST. Dr Clark also conducted a WPI assessment using the PIRS. He summarised his findings in the table reproduced below:
6. Under the Guidelines, when calculating WPI an assessor may make an adjustment for the effects of prescribed treatment. Noting that Mr McLachlan had been prescribed psychotropic medication, and was consulting with a psychiatrist and psychologist, Dr Clark made an adjustment of 1%. This brought Mr McLachlan's total WPI to 18%.
7. Report of Dr Tanveer Ahmed: Dr Ahmed also diagnosed Mr McLachlan with PTSD and conducted a WPI assessment using the PIRS. He summarised his findings in the table reproduced below:
8. On Dr Ahmed's assessment, the class scores as listed in ascending order were 2, 2, 2, 2, 3, 4. The average of the two middle scores was 2. On an aggregate score of 15, this resulted in a WPI of 8% (see the table at [28] above). Instead, Dr Ahmed listed only five class scores: 2, 2, 2, 3, 4. Averaging the third and fourth numbers produced 2.5, rounded up to 3 according to the PIRS guidelines. With a class score of 3 instead of 2, the aggregate score of 15 produced a WPI of 15%.
9. Settlement correspondence and complying agreement: Starting on 13 January 2020, the following email exchange took place between Mr Gabriel and Turks: Mr Gabriel, 13 January at 9:58am: I note the assessment of 15% WPI. Is your client making an offer from [sic] s 66 based on that assessment? Mr White, 13 January at 10:05am: We have sought our client's instructions in respect of the claim pursuant to section 66 and advise you once we are in receipt of those instructions. Mr Gabriel, 16 January at 2:22pm: Please advise of your client's position asap. We intend to lodge an ARD with WCC if matter cannot be resolved within 7 days.
10. On 17 January at 2:44pm, Mr Krieg responded by email: I have instructions to offer your client a resolution of his lump sum compensation claim in respect of 15% WPI. This is to be on the basis of a deemed injury date being 6 September 2018. I look forward to your response to the offer above.
11. There was no documentary evidence recording or describing the instructions from Transport NSW to make this offer. It appears that the instructions were given orally to Mr White and passed on by him to Mr Krieg. I refer further to Mr White's evidence about this below.
12. Mr Gabriel obtained instructions to accept the offer. He drafted a complying agreement on 20 January, which was executed by Mr McLachlan on 23 January. The terms of the complying agreement recorded the deemed date of injury as 1 July 2018.
13. On 24 January Mr Gabriel sent a letter to Turks: We refer to previous correspondence and enclose the following signed settlement documents: 1. Complying Agreement dated 23 January 2020; 2. Medicare Notice of Settlement; 3. Medicare Notice pursuant to Section 23A. We look forward to receipt of a copy of the signed Complying Agreement from you.
14. On 31 January the following email exchange took place between Mr Krieg and Mr Gabriel: Mr Krieg, 31 January at 3:08pm: Reference is made to your letter dated 24 January 2020, in which you notified us of your client's acceptance of an offer in respect of 15% WPI. This was on the basis of the medical report of Dr Tanveer Ahmed, dated 6 December 2019, in which he provided an assessment of 15% WPI. However, upon review of his WPI assessment, it appears that Dr Ahmed made an error in his assessment. From his report, the aggregate of the classes scored is 15. Dr Ahmed indicated that the median class was 3, however, based on his scores, it is actually 2. In consideration of the above, Dr Ahmed's assessment should have been 8% WPI. The mistake made by Dr Ahmed led to an offer of 15% WPI being made to your client in error. A supplementary report is being obtained from Dr Ahmed in order to clarify the issue but until that report is received, the offer made on 17 January 2020 is formally withdrawn. Mr Gabriel, 31 January at 3:47pm: With respect your offer has been accepted and cannot be withdrawn.

Witnesses

1. There were two witnesses called to give evidence at the hearing. Mr Gabriel was called for the plaintiff and Mr White for the defendant. Both witnesses were cross-examined.
2. In his affidavit, Mr Gabriel explained that he first looked at the report of Dr Ahmed on 13 January 2020, after the Christmas break. He said that upon review, he noted that the plaintiff's WPI was recorded as 15%, but he did not take any particular notice of how Dr Ahmed came to that assessment. Nor did he undertake his own calculations to satisfy himself of its accuracy.
3. Mr Gabriel was cross-examined extensively on this point. He was asked first whether he was familiar with the Guidelines. He said that he was, but only to a limited extent. He did, however, accept that he was familiar with the six PIRS categories and the assessment of WPI.
4. Mr Gabriel was then asked generally whether, when he received medico-legal reports, he looked at how assessors approached the calculation of WPI. Mr Gabriel's answer was, in effect, that this was not his usual practice. The following exchange took place: Q. I take it whilst you say you don't read every word, you would read them carefully just to make sure that the doctor hasn't made some error or taken a history of something that you were not aware of that you would need to clarify with your client; all of those things a practitioner would do in the normal course of practice. I take it you would do those things? A. I wouldn't say I would read every part of the report, no. Q. Would you read the PIRS criteria? A. No, not all of it necessarily. Q. For example, just dealing with the first of them which is self care and personal hygiene. Do you see that? A. Usually I would just skip to the end where the percentage is at the end and look at the total percentage provided. Q. How could you know if you just skip to the end whether the doctor has made an assessment which is consistent with your instructions in relation to your client's disability if you just go to the final number? How could you possibly know whether - A. The final number is what is important. . . . Q. So is it your evidence Mr Gabriel that what you do when you get one of these medical reports is you just go to the final number and you don't have any regard to what informs that final number? A. I look at the final percentage and if it is a good assessment, then I go by that.
5. Mr Gabriel was then asked specifically about Dr Ahmed's report and the table reproduced at [32] above: Q. If you go to page 18, which is where [Dr Ahmed] sets out the PIRS categories? Do you have that? A. Page 18, yes I have got that. Q. That is in summary form what the doctor thinks about the categories. Is your evidence that you wouldn't have looked at that? A. No, I didn't look at that. . . . Q. But you looked at the number. That is on the same page? A. I looked at the last number which was the percentage given, the whole person impairment, yes. Q. So you looked at the 15 but you did not read one word above that line? A. No, I just looked at the percentage and it was a good percentage, 15, which is what my client needed.
6. Mr Gabriel was then asked about his professional responsibilities to his client: Q. … looking at the substance of the report; wouldn't you be doing your client a disservice if you didn't know whether what Dr Ahmed had to say might have been inaccurate, and your client may well have had more rights, or at least to know why Dr Ahmed and Dr Clark had different opinions? A. I guess. I guess it would have been a disservice, yes.
7. Mr Gabriel was also cross-examined about the deemed date of Mr McLachlan's injury. He explained that when he initially consulted with Mr McLachlan, he was instructed that his last date of employment with ST was 1 July 2018. As a result, Mr Gabriel recorded 1 July 2018 as the deemed date of injury on NSWCL's internal systems.
8. Counsel for ST referred Mr Gabriel to his letter dated 1 October 2019 which initiated the s 66 claim. In the letter, Mr Gabriel recorded the nominated date of injury as being 6 September 2018. He said that while he had taken that date from the insurer's letterhead, he did not necessarily agree with it. He acknowledged that there was no record of the defendant having ever accepted 1 July 2018 as the deemed date of injury.
9. Mr Gabriel was then asked whether he noticed that ST's offer of 17 January was made on the basis that the deemed date of injury was 6 September 2018. He said that he did not pay any particular attention to the nomination of that date.
10. In his affidavit, Mr White explained that he arranged for Mr McLachlan to be examined by Dr Ahmed for two purposes. The first was to seek Dr Ahmed's opinion as to whether certain treatment claimed by the plaintiff was reasonable and necessary. The second was to conduct a WPI assessment for the plaintiff's claim for lump sum compensation.
11. Mr White said that it was his usual practice to review medical reports when he received them, but that he did not, when reviewing Dr Ahmed's report, check the calculation of the median class score. Like Mr Gabriel, he said that he just accepted Dr Ahmed's conclusion of 15% WPI. He said that at the time, he was more concerned about the treatment dispute than he was about the WPI assessment.
12. Mr White stated that after he received the report of Dr Ahmed, he discussed it with Mr Denkha. His recollection was that he only provided advice to Mr Denkha about the claim for treatment, not the WPI assessment.
13. Mr White also said that he had a conversation with Mr Denkha on or around 17 January 2020 about Mr Gabriel's request for an offer. Mr White did not give a detailed version of the conversation, but made it clear that it was Mr Denkha who instructed him to make an offer of 15% WPI to settle the claim.

Conclusions

1. Counsel for Mr McLachlan contended that ST had failed to prove that the offer was a mistake. Neither Mr Denkha nor Mr Bhandari was called to give evidence at the hearing. Counsel submitted that an adverse inference should be drawn in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298. Counsel did not dispute that Turks had been mistaken. Counsel argued however that, in the absence of any evidence from those giving instructions, a mistake made by the Turks should not be imputed to ST.
2. I do not accept these submissions. Properly understood, the report was to the effect that ST was not liable for compensation at all. It is not credible that those giving instructions on behalf of ST were aware that the 15% WPI calculation was wrong but instructed Mr White to make an offer on that basis anyway. The very fact that an offer was made suggests that they did think that 15% WPI represented Dr Ahmed's opinion. I decline to draw the inference sought. I am satisfied that the offer was made in error.
3. I now turn to Mr Gabriel's state of mind. The case was on the cusp; even a very slight reduction in Dr Clark's aggregate score would see Mr McLachlan's WPI fall below the 15% threshold. Especially in such a case, Mr McLachlan was entitled to expect that his solicitor would consider the opposing doctor's assessment carefully. What was Mr McLachlan paying for if not for that?
4. The text of Dr Ahmed's report was markedly less favourable to Mr McLachlan than Dr Clark's. It might be thought that reading it would naturally have caused an experienced practitioner to wonder why the calculated WPI was so close. The calculation error was clearly discernible on the face of the report and would have been revealed even by a cursory check.
5. I did not understand Mr Gabriel to dispute this. He candidly accepted in cross-examination that he should, in the proper discharge of his duties to his client, have detected the error. The question is whether I should believe him when he said that he did not in fact do so.
6. The obviousness of the error, and Mr Gabriel's speed in soliciting an offer based on the report, give rise to a circumstantial case. But having seen Mr Gabriel give evidence, I accept what he said. Unfortunate as it may be, I found it credible that he looked only at the ultimate number and did not even look at the rest of the report. Indeed counsel for ST only faintly put that Mr Gabriel should not be believed.
7. In reaching my conclusion, I am influenced by the fact that neither the solicitors at Turks, nor the claims managers at NSW Transport, who equally should have noticed the error, did not do so. In the circumstances, I accept that in moving quickly to solicit an offer and in pressing for an urgent response Mr Gabriel was only acting efficiently in the conduct of the claim.

Acceptance of ST's offer

1. The contention is that Turks' email of 17 January 2020 was an offer to settle Mr McLachlan's claim on the basis of 15% WPI, and that the offer was accepted by Mr Gabriel in his letter of 24 January enclosing the signed version of the complying agreement. The immediate difficulty with this contention is that the 17 January email referred to the offer being made on the basis of a deemed injury date of 6 September 2018, whereas the complying agreement provided that the relevant date would be 1 July 2018. The debate between the parties revolved around this issue.
2. Counsel for Mr McLachlan pointed out that the inclusion of the 6 September date in Turks' email of 17 January was not the result of any specific instructions from ST. Counsel also submitted that 6 September was an unrealistic date because Mr McLachlan was in hospital at the time. In any event the precise date was not important. The real subject matter of the agreement was the 15% WPI.
3. Counsel argued that I should apply the decision of Burchett AJ in Zreika v QBE Workers Compensation [2005] NSWSC 573. That case also concerned an informal settlement offer made on behalf of the respondents in a workers' compensation claim (although under an earlier statutory regime). It was argued for the respondents (the defendants in the proceedings in this Court) that the purported acceptance of the offer did not give rise to a contract, because of the need to bring various other documents into existence to give effect to the settlement, including a deed of release.
4. His Honour rejected this argument. He was satisfied that offers which used the language of "all-up settlement" were commonly made between practitioners in the area. An offer in such terms would (at [9]): … be understood as requiring the named documents to be drafted by the insurer's lawyers in a reasonable form. The implied agreement as to who would draft the documents and that they would be drafted reasonably, similar documents being commonly provided for in settlements and drafted in the same way, was expected to overcome the difficulty the defendants now assert.
5. I do not accept counsel's premise. Whether or not specific instructions were obtained to include the date is irrelevant. The test for the formation of a contract is an objective one, based on the communications between the parties. Nor, in my opinion, does it matter whether or not the injury date was something which had to be specified in the offer in order to achieve contractual certainty. The 6 September date was in fact a term of the offer and Mr McLachlan's case cannot succeed unless he accepted it.
6. In any event the Guidelines required the date to be specified in the complying agreement (see [11] above). Even if they had not done so, I accept counsel for ST's submission (which reflected the evidence of Mr White) that the difference between the two dates was significant from ST's point of view. The offer date gave a lesser scope than the complying agreement date for Mr McLachlan to make a further claim arising out of his PTSD. Whether he actually contemplated making such a claim is beside the point.
7. For these reasons, it is not open to the Court to order by way of specific performance that ST execute the complying agreement signed by Mr McLachlan on 23 January. That agreement does not reflect the precise terms of the offer made by ST.
8. When this emerged in final submissions as a possible obstacle, counsel relied on an alternative prayer for relief. If I was not prepared to decree execution of the complying agreement signed by Mr McLachlan, I could treat the covering letter of 24 January as an acceptance of ST's offer and decree execution of a fresh complying agreement which reflected the terms of that offer. That fresh agreement would specify the date of injury as 6 September 2018 and otherwise contain all of the particulars in the agreement executed by Mr McLachlan. In doing so I would, counsel submitted, be following the same general approach as Burchett AJ followed in Zreika.
9. I accept that the Court could in a proper case order the execution of a complying agreement in such a form. That would be an instance of specific performance in the strict sense: see J C Williamson Ltd v Lukey (1931) 45 CLR 282 at 297. The question is whether there is a sufficient contractual foundation for doing so.
10. In Zreika, the settlement agreement was oral. The employer's representative made an offer on an "all-up settlement" basis. The worker's representative accepted. The employer's representative stated that the matter had settled and the insurer would send the documents in due course.
11. The present case is different. The offer and putative acceptance took place by correspondence, and the acceptance was never confirmed by ST. Mr Gabriel's letter of 24 January did not in terms accept the offer in Turks' email of 17 January. It simply enclosed the complying agreement, as signed by Mr McLachlan, and asked for that to be countersigned and returned by way of "settlement".
12. In my view the fact remains in this case that the terms of the offer and terms of the "acceptance" did not coincide. The effect of the "acceptance" was to reject the offer of 17 January and put back a counter-offer of settlement in accordance with the complying agreement signed by Mr McLachlan: Carter, J W, Contract Law in Australia (7th ed, 2018, LexisNexis Butterworths) at [3-19]. That counter-offer was never accepted by ST.
13. This makes it unnecessary to consider whether Mr Gabriel's letter of 24 January enclosing the complying agreement, contemplating as it did the execution of a formal contractual document, was of binding effect before execution of that document: see Masters v Cameron (1954) 91 CLR 353 at 360-361.

Mistake

1. Given my conclusion that there was no binding contract to settle the claim, the question of relief against mistake does not strictly speaking arise. But for completeness I propose to consider the arguments presented to me on this point.
2. On my findings, there was a clear mistake in making the offer of 17 January. This was a mistake about the WPI score resulting from Dr Ahmed's examination of Mr McLachlan. The error was apparent on the face of Dr Ahmed's report. However, I have found it was not known to ST, and I am not satisfied that Mr Gabriel was aware of it.
3. In order to understand the cases on which counsel relied it is necessary first to refer to the High Court decision in Harvey v Phillips (1956) 95 CLR 235. In that case the High Court discussed the principles which apply to the enforcement of compromises affected by mistake.
4. The plaintiff, Mrs Harvey, was offered a settlement at the hearing of her case. Her lawyers and supporters placed her under a great deal of pressure to accept. Eventually she told her counsel that she would do so. Counsel communicated this to the defendant's representatives and orders were made accordingly. Mrs Harvey then changed her mind.
5. The High Court concluded that there was no power to set aside the compromise or intercept the formal entry of judgment. The Court emphasised that Mrs Harvey had, however reluctantly, given instructions to accept the offer. The Court distinguished the facts from three categories of case (at 242-243, citations omitted): (1) "It is not a case of misapprehension or mistake made by counsel in consenting to an order or settlement". (2) "It is not a case where the assistance of the Court is sought or invoked to carry a compromise into effect which otherwise could not be enforced by the party relying upon it. In such a case the assistance may be refused on grounds not necessarily sufficient to invalidate a simple contract". (3) "It is not a case where a compromise has been agreed upon by counsel acting only in pursuant of his apparent or implied authority from his client but, owing to a mistake or misapprehension, in opposition to his client's instructions or in excess of some limitation that has been expressly placed on his authority. In such a case, at all events until the judgment or order embodying the compromise has been perfected, an authority exists in the Court to refuse to give effect to or act upon the compromise and perhaps to set it aside".
6. The Court then set out the rationale, quoting from Lord Atkin in the House of Lords and then continuing in their own words (at 243): … if in fact counsel has had his authority withdrawn or restricted the courts will not feel bound to enforce a compromise made by him contrary to the restriction, even though the lack of actual authority is not known to the other party". It is said that this power of the courts is to be exercised as a matter of discretion when in the circumstances of the case to allow the compromise to stand would involve injustice in view of the restriction on counsel's authority.
7. The Court then continued (at 243-244): But in the case of a compromise which is made within the actual as well as apparent authority of counsel a court does not appear to possess a discretion to rescind it or set it aside. The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like.
8. The second sentence is often quoted on its own, without the context provided by the first one. That context is important. It shows that the rule stated in the second sentence is not absolute. In particular, the analysis which precedes the first sentence recognises that at least one exception is clearly established, namely where a compromise is made by mistake by counsel having ostensible, but not actual, authority. In such a case the court is indeed entitled to set the compromise aside in circumstances which would be insufficient to set aside a simple contract.
9. One of the circumstances in which a simple contract may be set aside to which Harvey v Phillips refers is mistake. The relevant equitable doctrine, as it applies to unilateral mistake, was considered by the High Court in Taylor v Johnson (1983) 151 CLR 422. Counsel for ST relied on that case.
10. In Taylor v Johnson the owner of 10 acres of land offered to sell it for $15,000, rather than $15,000 per acre as she intended. The offer was quickly accepted. This Court made an order for rescission. The appeal was dismissed. The High Court adopted the following proposition to dispose of the case (at 432): … a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.
11. Taylor v Johnson was referred to by Finlay J in the later case of Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528. Like this case, that case concerned an attempt to enforce a settlement on the terms of an offer which had been mistaken.
12. The circumstances of the offer were unusual. The proceedings came before a Deputy Registrar for an issues and listings conference. Both the plaintiff and the defendant were represented by junior solicitors. In a conference room outside the court the solicitors exchanged offers. The plaintiff's offer was $227,000. The defendant's counter-offer was $90,000, which the plaintiff's solicitor immediately rejected.
13. The solicitors then went into the courtroom. The Registrar provided them with forms on which to write any settlement offers they wished to make. The defendant's solicitor did not take this up. The plaintiff's solicitor did. She completed two copies of the form, giving one to the Registrar and the other to the defendant's solicitor.
14. On the form the plaintiff's solicitor wrote a settlement figure of $127,000. This was a mistake; she had intended to write $227,000 which was the amount of the offer which she had initially made on the plaintiff's behalf.
15. The solicitor for the defendant did not look at the form and simply put it into his file. Later, the solicitor with carriage of the matter, a Mr de Greenlaw, found the offer on the file. Within a matter of days he sent a letter to the plaintiff's solicitors purporting to accept the offer of $127,000. They replied that it was a mistake but Mr de Greenlaw ignored them. An application was made on behalf of the defendant to have judgment entered in the plaintiff's favour in the sum of $127,000 and the proceedings disposed of. That application was refused.
16. The plaintiff before Finlay J contended that the defendant's representatives had been fully aware of the mistake and had taken advantage of it. Reliance was placed on Taylor v Johnson. But Mr de Greenlaw denied that he had realised that the $127,000 was a mistake and his Honour was not prepared to disbelieve him. Accordingly his Honour concluded that the Taylor v Johnson claim failed on the facts.
17. The plaintiff's alternative contention was based on what were described as "special rules for the compromise of litigation". His Honour referred to various authorities, including Neale v Gordon Lennox [1902] AC 465 (a decision relied on in the passage from Lord Atkin quoted by the High Court in Harvey v Phillips). Finlay J said of the case (at 536E): the House of Lords clearly held that a mistake made during negotiations which resulted in a contractual compromise of the proceedings entitled the plaintiff to have the agreement set aside and the cause restored to the list for trial.
18. After reference to further authority Finlay J concluded (at 538E): What I perceive to be the relevant principle in the category of cases into which this matter falls is that in an appropriate case, especially before judgment is made, the overriding interests of justice and the court's concern over its own procedure may mean that the court will not enforce a contract. Of course, contracts made during the court's process to settle, if they are bona fide and not affected by any error, will normally be enforced. But I repeat my previous observation that whenever parties agree to a compromise of litigation they do so subject to the procedures of the court which include the possibility that the court may consider it unjust to enforce the terms of settlement or that it is in the interests of justice that the matter proceed to trial.
19. Counsel for ST put his claim based on mistake in two ways. The first was based on a passage from the decision of the Court of Appeal in Roach v B&W Steel Pty Ltd (1991) 23 NSWLR 110.
20. That case concerned the application of a District Court rule which permitted the Court to set aside a judgment or order if it was given or made "irregularly, illegally or against good faith" (now embodied in the Uniform Civil Procedure Rules 2005 (NSW), r 36.15). The plaintiff commenced proceedings on a personal injury claim which was statute barred, making an application to the Court by notice of motion to extend the hearing date. The application was opposed; it came before the Court several times and was adjourned. Then it was listed and, by mistake, the defendant's representatives did not appear. Counsel for the plaintiff (who was unaware of the history) proceeded ex parte and obtained an extension order. The order was later set aside on the ground that it had been made "against good faith".
21. The plaintiff appealed against the setting aside of the extension order. It was argued that there had been no misconduct or dishonourable conduct in obtaining the order. But the Court of Appeal treated the previous dealings over the motion as equivalent to a representation that it would be dealt with on a contested basis and said (23 NSWLR at 113G-114B): It does not matter that the legal practitioner who acted to obtain the judgment or order was not aware at the time that his or her conduct was contrary to an earlier promise or representation made by or on behalf of the client. It would still be contrary to good faith for a client to attempt to retain the benefit of an order innocently obtained by his legal practitioner if it had been obtained contrary to a promise or representation binding on the client. Equity granted relief in cases of innocent misrepresentation because it was judged to be unconscionable for the representor to attempt to retain the benefit of a contract obtained however innocently through his misrepresentation once the truth was known. Similarly equity grants relief by way of rescission or rectification in respect of contracts entered into by one party under the influence of a material mistake if the other party "knows or ought to know" of that mistake: see Taylor v Johnson (1983) 151 CLR 422 at 432-433. Equity judged that it was unconscionable for one party to take advantage of an obvious and material mistake of another. This principle was applied by Finlay J in Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 in setting aside a settlement of litigation.
22. Before me, counsel submitted that in this passage the Court of Appeal laid it down that the Taylor v Johnson principle applies wherever one party makes a "material mistake" and the other party "knows or ought to know" of the mistake. On my findings, ST's mistake would seem to have been "material", and Mr Gabriel ought to have known of it.
23. With great respect, I question whether the passage relied upon by counsel accurately lays down the law applicable in this case. As we have seen, Finlay J did not decide Lewis by applying Taylor v Johnson. In fact he expressly stated that Taylor v Johnson did not apply on the facts before him.
24. Furthermore, it is true that in Taylor v Johnson the High Court referred (151 CLR at 432) to United States and Canadian authority granting equitable relief where the defendant "ought to" have known of the mistake. But the dispositive proposition adopted by the High Court does not require that the defendant "ought to know" of the plaintiff's mistake and nothing more; the defendant must be "aware of" the mistake and deliberately set out to ensure that the plaintiff does not discover it. As the Court explained at 433, that may mean that the equity applies where the defendant lacks "precise knowledge" of the "actual mistake" of the plaintiff because of "wilful ignorance", but only if that defendant deliberately tries to prevent the plaintiff from finding out.
25. The High Court's proposition also requires that the mistake be one about the "contents" of the contract, "in relation to a fundamental term" of it. That may include the "subject matter" of the term, but goes no further. Again the reference to United States and Canadian authority included a wider formulation of "material" mistake. But the High Court did not adopt that wider formulation as part of its decision.
26. If the Court of Appeal's statement of principle is binding as a matter of ratio, then I would be obliged to follow it despite these reservations. As White J (as his Honour then was) demonstrated in New Cap Reinsurance Corporation Ltd v A E Grant [2008] NSWSC 1015 at [71], that would be so even if I thought what the Court of Appeal said to be demonstrably contrary to High Court authority.
27. But I question whether the passage I have quoted is binding as a matter of ratio, so far as it applies to the equitable principles governing rescission for mistake. As already noted, Roach was a decision on the interpretation of the term "against good faith" in a rule of court. The case did not directly concern the scope of equitable doctrine. Furthermore, the Court concluded that even if the entry of judgment had not been "against good faith", it was "irregular" for the purpose of the rule: see 23 NSWLR 110 at 114-115.
28. For these reasons, if I had to reach a final decision in this question I would be inclined not to apply the passage from Roach in its terms. Instead I would go back to Taylor v Johnson itself.
29. On my findings, the High Court's dispositive proposition from Taylor v Johnson does not apply to this case. Although Mr Gabriel should have been aware of the mistake, in fact he was not; he was himself labouring under the same mistake.
30. What of the alternative ground on which Lewis was decided? That case fell squarely within category (3) from Harvey v Phillips. The mistake was a mistake by the plaintiff's solicitor. She never had authority from her client to offer $127,000. With respect, Finlay J was clearly justified by High Court authority in refusing to give effect to the settlement.
31. If the same discretion were available in the present case, there would be every reason to exercise it in ST's favour. There would be no prejudice to Mr McLachlan. He would be free to continue to pursue his claim on its merits. All he would have lost would have been the opportunity to benefit from a mistake by ST which his own solicitor should have detected.
32. But the facts of this case are not the same as those in Lewis. On the evidence, the mistake was not a mistake by Turks in giving effect to ST's instructions. The figure came from ST, which was labouring under the same mistake. Turks had actual, not merely ostensible, authority to make the mistaken offer. The case does not fall within category (3) from Harvey v Phillips.
33. Thus, it seems to me, neither of the submissions advanced by counsel for ST has been made out as a matter of clear and binding authority. But that is not necessarily the end of the matter.
34. As already noted, in Taylor v Johnson the High Court adopted a proposition framed by reference to the facts in order to dispose of the case. The Court left for later decision whether to extend the equitable doctrine to "material" mistakes, or mistakes of which the defendant "ought to have known" but was not in fact aware.
35. A further potential basis for equitable intervention left open in Taylor v Johnson would be common mistake. On my findings, both parties in this case were labouring under the same mistake about Dr Ahmed's opinion. In England the proposition that equity allows rescission for common mistake has been rejected, but its status in Australia remains subject to debate: see Heydon, J D, M J Leeming and P G Turner, Meagher, Gummow and Lehane's Equity Doctrines and Remedies (5th ed, 2015, LexisNexis Butterworths) at [14-080].
36. It is also possible that there are exceptions to the general rules about equitable intervention in compromises which extend beyond cases in Harvey v Phillips category (3). One unsolved mystery about the High Court judgment is whether there is also an exception for cases in category (2), and if so what its scope is. The category appears broader than category (3). But the judgment does not refer to any authority which would illustrate the relevant principle. It is also unclear whether category (1) extends beyond category (3).
37. The learned authors of Meagher, Gummow & Lehane's Equity Doctrines and Remedies state at [14-090] that, in addition to the principles which apply generally to unilateral (or common) mistake: there is an ancient and shadowy jurisdiction in equity to scrutinise compromises (that is, surrenders of doubtful claims for consideration) and set them aside where either or both parties were mistaken as to the strength or baselessness of the claim.
38. It is not clear why equity should have developed a special jurisdiction to review compromises for mistake on grounds which differ from those which apply to other classes of contract. Harvey v Phillips and other cases to which it refers were concerned with compromises effected through lawyers in the course of court proceedings. It may be that the special jurisdiction depends in some way upon the special professional obligations of lawyers acting in curial proceedings. On any view a detailed review of authority would have been required to be confident that the "ancient and shadowy" jurisdiction was available in the circumstances of this case.
39. The penumbral questions around Taylor v Johnson and Harvey v Phillips were not adverted to by counsel for either party. As I have indicated, it is not in the end necessary to decide the mistake issue. I therefore do not need to discuss the doctrinal uncertainties any further.

Conclusions and orders

1. I have concluded that: 1. no contract arose out of the communications between the parties' solicitors in January 2020; 2. it is not necessary to decide whether ST is entitled to relief against the consequence of mistake in making the offer of 17 January.
2. Mr McLachlan's claim fails and must be dismissed. ST's cross-claim does not arise and should be dismissed for that reason.
3. Mr McLachlan has been unsuccessful in the proceedings. I see no reason why costs should not follow the event. I propose to order that Mr McLachlan pay ST's costs of the proceedings, including the costs of the cross-claim. Any application for any different order by either party can be made in accordance with the Rules.
4. The orders of the Court are: 1. Dismiss the plaintiff's claim. 2. Dismiss the defendant's cross-claim. 3. Order that the plaintiff pay the defendant's costs of the proceedings, including the costs of the cross-claim.

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: 25 March 2021