Consideration of merits
57 In my view whether leave should be granted to appeal the primary judge's finding that a contract was formed on 18 March 2014 is resolved primarily by consideration of the question of whether any alleged statement was made by the Commissioner in the presence of the Western Power representatives to the effect that Ms Shockthorap had only 14 days in which to bring an application in court.
58 It is important to note Western Power's submissions on this issue before the Federal Circuit Court:
30. The First Respondent submits that the facts in this matter do not support either of the above exceptions, because:
(a) the guidance which the Applicant claims she received from the Commissioner occurred in a private conference, to which the First Respondent was not a party therefore it could not have known or become aware of the alleged mistake; and
(b) the First Respondent did not induce or encourage the Applicant to hold any alleged mistaken belief.
31. The First Respondent submits that the Court must make a finding that any misinformation the Applicant may have received from the Commissioner does not void the 2014 Agreement.
(footnote omitted)
59 In support of its submission at [30(a)], Western Power referenced the evidence of Ms Shockthorap referred to above, that:
[The Commissioner] told me that if I did not accept the offer, I would have to initiate proceedings in Federal Court within 14 days of the conference to continue my claim.
60 What is said at [30(b)] of the submissions is no more than a submission.
61 A difficulty with the submission as cited by the primary judge is that read in the chronological context of all of the statements repeated at [20] of these reasons, and taking into account the File Note, it is by no means clear that Ms Shockthorap asserted that such conversation took place at a point in time of the mediation when the Western Power representatives were not present. Ms Shockthorap does not say it occurred in a private conference (or that there was a single conversation). The File Note (which was in evidence before the primary judge) arguably supports a reasonable inference that there was at least some discussion about access to the Federal Court in the presence of the Western Power representatives and it would not be unreasonable to infer that such discussion may have included a reference to the 14-day time limit on such access (as to the drawing of reasonable inferences see in particular Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372 at [122]-[135]). Western Power's affidavit evidence was otherwise silent on this factual issue.
62 The primary judge in considering the question of whether Western Power was aware of the Commissioner's alleged statement recited the submission at [30] and [31] and then said (at [38] of the reasons):
The applicant's evidence in her affidavit of 19 February 2018 (page 8) is that the first respondent was not present when the alleged advice concerning 14 days was given to the applicant by the Commissioner. There is no evidence to suggest that the first respondent was aware of the Commissioner's alleged guidance. There is, in these circumstances, no basis for a finding of unilateral mistake.
63 The reference by the primary judge to page 8 of Ms Shockthorap's affidavit is a reference to the Complaint. Having reviewed the Complaint carefully, it seems to me that the only extract that may have supported the primary judge's finding is the emphasised sentence from [3] of the Complaint that is included in these reasons at [31] above, that is:
[3] When the Respondent was removed from the conciliation room and I was asked by [the Commissioner] what I was seeking as remedy I retrieved spreadsheets I had again spent a number of hours preparing.
64 However, when the Complaint is read as a whole (including the balance of [3] and [4]), there would seem to be a question as to whether that sentence qualifies all advice provided by the Commissioner or only that referred to in [3] of the Complaint. There is nothing specific in the Complaint to the effect that other advice or guidance, such as that referred to in [4] of the Complaint and elsewhere, including about the 14-day period, was also given at a time when Western Power was not in the room.
65 I also note that there is a lack of clarity as to the extent to which the Commissioner's alleged guidance about the 14-day period was relied upon before the primary judge. In light of the fact that Western Power explicitly sought a finding relevant to the question (see [31] of its submissions referred to at [59] of these reasons), the fact that it made submissions before the primary judge on the point, and the fact that the primary judge dealt with the issue in his reasons and made certain findings (at [37]-[38] of his reasons), it is at least arguable that there are real questions as to whether or not Western Power was aware of that alleged guidance, the effect of an apparently artificial deadline for proceedings on Ms Shockthorap's consideration of the offer and the impact (if any) those matters may otherwise have on the primary judge's decision as to the agreement. It is not necessary or appropriate to attempt to resolve those questions or the appropriate inferences that might be drawn from the evidence that was before the primary judge. It suffices to say that in the circumstances I have outlined, I am satisfied that the decision is attended by sufficient doubt to warrant reconsideration on appeal.
66 Taking into account the consequences of the interlocutory decision for Ms Shockthorap, I am also satisfied that there would be substantial injustice if leave to appeal were not granted. I do not consider Western Power's prejudice as to costs already incurred outweighs that substantial injustice.
67 As anticipated above, I note that Ms Shockthorap refers to evidence that was not before the primary judge. She purports to give some evidence by affidavit that expands upon what was previously said about the mediation, in particular that she recalls that the 14-day time frame was discussed more than once and that she recalls it being discussed at around the same time as the issue of a certificate was discussed (she also seeks to rely on the two emails to which I have referred above in support of her submission that no formal agreement was made on 18 March 2014).
68 Whether or not an appeal court has regard to such evidence will depend upon an application being made and determined at the appropriate time. The principles are well known: see NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42]; Wills v Australian Broadcasting Corporation [2009] FCAFC 6 at [52]-[55]. There may be real doubt as to whether or not fresh evidence will be admitted on appeal. However, there must at least be a prospect that some of it will be admitted. The power to receive fresh evidence is discretionary. I do not consider that the question of whether or not such new evidence is admitted on appeal operates in the circumstances of this case to alter my view that leave should be granted.
69 For completion, I am also of the view that regardless of the question as to the 14-day time period, there is sufficient doubt about whether or not an agreement was entered into on 18 March 2014 to justify reconsideration of the primary judge's findings on appeal, including a reconsideration of the admissibility of evidence of communications in the period after March 2014. Again, it is not appropriate to resolve those questions at present. I am prepared to accept there is room for argument about the primary judge's conclusion, having regard to the matters raised by Ms Shockthorap and referred to at [51(3)] above, and the principles as to the potential admissibility of evidence of subsequent conduct to inform the question of whether or not there has been an agreement formed by the parties: see generally the application of such principles in Vassallo Construction Pty Ltd v Andergrove Lakes Pty Ltd [2014] FCA 862 and the summary of the principles in Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2018] FCA 174 at [11]-[18] (undisturbed on appeal: Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2018] FCAFC 205 at [13]).
70 However, the question of abandonment raised by Ms Shockthorap in her submissions only arises if there was otherwise a valid contract formed in March 2014. I am not satisfied that the issue of abandonment was raised squarely before the primary judge. In any event, I do not consider that the subsequent correspondence supports an argument as to abandonment.
71 Whether abandonment is shown is characterised as an objective test based on the conduct of the parties. The nature of the inquiry to be made when it is alleged that the parties to a contract have abandoned that contract was discussed in Fazio v Fazio [2012] WASCA 72 and Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd [2014] VSCA 32. See National Australia Bank Limited v Sayed (No 4) [2015] NSWSC 420 at [69]-[70] and Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 at [40].
72 In Fazio, Murphy JA said at [74]:
The abandonment of a contract, in the sense of the mutual release of future obligations, being an inferred agreement, does not depend upon the subjective intention of the parties, but upon whether their conduct (both acts and omissions) viewed objectively manifests an intention to discharge the contract: Summers v The Commonwealth [1918] HCA 33; 25 CLR 144, 151-152; Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 [2], [40], [57]; DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; 138 CLR 423; Marminta Pty Ltd v French [2003] QCA 541 [21]-[22].
73 In my view, on the assumption that an agreement was made on 18 March 2014, then there is nothing in the evidence of subsequent conduct of Western Power that manifests an intention that it no longer considered such agreement to be binding.
74 The subsequent negotiations between the parties covered a shifting ambit of claims and it is not surprising that Western Power put forward a range of proposals that might see all arguments resolved at once. Western Power made it clear from 10 April 2014 that it considered there was already a binding agreement. I do not consider the evidence would justify a finding that, having made its position clear, Western Power's later attempts to settle the ambit of disputes undermined the veracity of the pre-existing agreement. Having carefully considered the correspondence, I am not satisfied there is any reasonable prospect of a claim on the basis of abandonment succeeding and I would not grant leave to pursue an appeal point that relies on abandonment.