Contracts - Offer and acceptance - Agreements contemplating execution of formal document - Whether concluded contract - Terms were agreed in full - Failure to execute deed of release not determinative.

Tasmanian Civil and Administrative Tribunal Act 2020, s 89;

Workers Rehabilitation and Compensation Act 1988, ss 42, 132A.

Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72;

Braslin v K J Worbey trading as Southern Cartage & Excavators [1999] TASSC 139;

Elliot v Hobart City Council [2024] TASCAT 231;

K v Andrew Hunt t/a Tiger Towing [2023] TASCAT 41;

Kriketos v Livschitz [2009] NSWCA 96;

Sheehan v Zaslos [1994] QCA 145; [1995] 2 Qd R 210 (Court of Appeal).

The decision has been anonymised for the purpose of publication.

1. The worker made two referrals under the Workers Rehabilitation and Compensation Act 1988 (the Act), s 42. His employer contends that I must dismiss each referral because I have no jurisdiction to hear it. That is because the referrals were resolved by way of settlement. The issue that I need to decide is whether the parties' settlement is a binding contract such that the worker's claims under the Act have been extinguished.

1. The worker was a medical physicist working for the employer. Their employment relationship was an unhappy one. The worker made a workers compensation claim for a psychological injury, in respect of which he later filed a referral to the Tribunal under s 42 of the Act (W/2020/1225). Later again, he filed a second referral (W/2022/68). This was in respect of thyroid cancer which, he said, was caused by exposure to workplace radiation.
2. Like the parties' employment relationship, the litigation had a protracted and unhappy history. Lengthy settlement negotiations and interlocutory skirmishes ensued, in respect of which the worker and his employer were each represented by experienced solicitors. On 19 January 2024, the worker's then-solicitors wrote to the employer's solicitors and offered to settle the two referrals. The offer, which was in the following terms (omitting salutations and the worker's reasons why the offer should be accepted), was open for 21 days:

I am instructed to make an offer of settlement of both of [the worker's] claims and referrals. > > I am instructed to offer to settle both claims and resolve both referrals in exchange for payment of $[sum omitted] inclusive of all costs and disbursements, payable subject to a deed which provides for full and final release in relation to both injuries and claims. > > ...

3. Three days later, the employer's solicitors replied in the following terms (omitting salutations):

The Employer accepts the Worker's offer. > > I will draft the deed of settlement and have it emailed to you in the coming days. > > Kind regards, > > ...

4. The employer's solicitors subsequently provided a deed of release. The worker did not sign the deed as provided. Instead, he annotated and signed the deed and returned it to the employer's solicitors. The annotations read:

Signature only given with permanent inclusion of affidavit containing 78 points and 20 references title [worker's name], Radiation Injury Rebuttal Letter Number 2, 12/3/2024

5. The worker attached an affidavit affirmed by him on 12 March 2024. In it, he made allegations about radiation exposure and his employer's treatment of him.
6. Some months later, the worker's solicitors advised that they no longer had instructions. Correspondence between the parties and the Tribunal ensued. The parties were at a stalemate as to progressing the worker's two referrals.

1. The employer applies for each referral to be dismissed. It contends that the parties' exchange of correspondence on 19 and 22 January 2024 created a binding contract which crystalised on the employer's acceptance of the worker's offer. Helpful written submissions were filed.
2. The worker appears to dispute that, but made no submissions and does not point to any relevant facts which vitiate or militate against there being a binding agreement.

1. Section 132A regulates the settlement of a worker's outstanding entitlements to compensation. The section distinguishing between settlements within two years of the claim and settlements occurring after two years. The former must satisfy the criteria set out in sub-sections (3)-(8). The latter, such as the worker's two referrals, do not. (There are some additional provisions, such as sub-sections (9)-(13), but they are not relevant to the issue that I must decide.)
2. In Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72, the High Court referred to several classes of settlements that bind the parties. The employer relies on the second class, described by Dixon CJ, McTiernan and Kitto JJ at 360 as where:

[T]he parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document.

3. Their Honours described this, at 360, as "a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution".
4. Whether such a contract has been formed is determined by the parties' language and inferences drawn from their conduct: Sheehan v Zaslos [1994] QCA 145; [1995] 2 Qd R 210 (Court of Appeal) at 213. The parties' subjective intentions are irrelevant. However, their subsequent conduct may be relevant in addressing whether a contract has been formed: Kriketos v Livschitz [2009] NSWCA 96.
5. The principle in Masters v Cameron applies to workers compensation settlements provided that the requirements of s 132A have been met. There are several published examples of that. In Braslin v K J Worbey trading as Southern Cartage & Excavators [1999] TASSC 139 (Braslin), Cox CJ accepted as binding an agreement subject to the execution of a deed of release. Like these two referrals, the worker in that case had already agreed the terms of the settlement. Deputy President Clues reached the same conclusion in the factually similar matter of K v Andrew Hunt t/as Tiger Towing [2023] TASCAT 41. Deputy President Grueber reached the same conclusion in a factually dissimilar anti-discrimination matter; Elliot v Hobart City Council [2024] TASCAT 231. Notwithstanding that, each case must turn on its own facts.

1. While conduct occurring after the acceptance on 22 January 2024, such as the worker's notation on the deed, may be relevant, the inquiry is an objective one: did the parties completely agree upon the terms of their settlement when the employer accepted the worker's offer on 22 January 2024?
2. I am satisfied that they did. Based on their correspondence, I find that the parties had completely agreed upon the terms of their settlement and intended no departure from or addition to that. Those terms relevantly involved the employer paying the worker a sum of money. In exchange, the worker would sign a deed releasing the employer for any claims under the Act.
3. That they had not agreed the terms of a deed of release is, consistent with Cox CJ's observations in Braslin, not determinative. The terms of the settlement itself were agreed. The worker's offer did not refer to any caveats or annotations to a (at that time, hypothetical) deed. His offer referred only to "a deed which provides for full and final release in relation to both injuries and claims".
4. Moreover, there is no evidence that the worker's solicitors were not acting on his instructions between their making of the offer on 19 January and the employer's acceptance on 22 January. Indeed, the worker's solicitors' offer expressly referred twice to their instructions to make the offer.
5. While the parties continue to be in dispute, the issues before the Tribunal (that is, the substance of each referral) have been settled.

1. I accept the employer's submission that any claim that the worker purports to have has been extinguished. It follows that the Tribunal does not have jurisdiction to determine either referral. That being the case, each referral must be dismissed on the basis that it is misconceived or lacking in substance pursuant to the Tasmanian Civil and Administrative Act 2020, s 89(1)(a). The employer does not seek its costs.
2. I make the following order:
   • Dismiss referrals W/2020/1225 and W/2022/68.