Fair Work Act 2009
s.604—Appeal of decision

Appeal against decision [2017] FWC 4015 and order PR595184 of Deputy President Sams at Sydney on 7 August 2017 in matter number U2016/12864; whether binding settlement agreement made; offer and acceptance; permission to appeal granted; appeal upheld; decision and order quashed

[1] Mr Subeg Singh has applied for permission to appeal and appealed a decision of Deputy President Sams issued on 7 August 2017 1 (Decision). The Deputy President dismissed Mr Singh’s application for an unfair dismissal remedy under s.587(1)(c) of the Fair Work Act 2009 (Act).

[2] Mr Singh was employed by Sydney Trains as a Team Leader and had worked for Sydney Trains for 34 years prior to his dismissal on 30 November 2016. Mr Singh was dismissed following a lengthy investigation into two safety incidents on 1 August 2015 which Sydney Trains contended were significant breaches of its safety policies, procedures and guidelines relating to working in a safety critical location.

[3] The application for permission to appeal and the appeal were heard on 6 September 2017. At the hearing, Mr Oshie Fagir of counsel appeared with permission for Mr Singh and Mr Michael Seck of counsel appeared with permission for Sydney Trains.

Decision

[4] The Decision concerns an application made by Sydney Trains for Mr Singh’s unfair dismissal application to be dismissed under s.399A(1)(c), or alternatively s.587(1)(c), of the Act on the basis that a binding settlement agreement had been reached between the parties.

[5] The Deputy President ultimately found that:

“[63] For all the above reasons, I am satisfied that the parties had ‘reached finality in arranging all the terms of their bargain and intend[ed] to be immediately bound to the performance of those terms, but at the same time propose[d] to have the terms restated in a form which will be fuller or more precise, but not different in effect’.

…

[66] As I have found that the parties reached agreement in their email exchanges of 13 and 16 February 2017 and I am satisfied that the agreement was of the first or second category discussed in Masters v Cameron, I am persuaded that I should exercise my power under s 587(1)(c) of the Act to dismiss the application on the basis that it has no reasonable prospects of success. An order to this effect will be issued in conjunction with this decision.”

Background

[6] The parties through their solicitors engaged in extensive written communications in the period between 13 February 2017 and 27 March 2017 in an attempt to reach a settlement of Mr Singh’s unfair dismissal application against Sydney Trains.

[7] On 13 February 2017, the solicitors for Mr Singh, Walter Madden Jenkins Solicitors, sent a letter to the solicitors for Sydney Trains, Bartier Perry Lawyers. The letter was marked “Without prejudice save as to cost” and stated as follows:

“We refer to the above and advise we are instructed to settle the application on the following terms:

1. The Applicant is re-employed by Sydney Trains in the position of Team Leader;

2. Upon re-employment, the Applicant performs administrative tasks only, and does not perform any work on the tracks;

3. Unless required by Sydney Trains, the Applicant is not to perform any work which would entitle him to be paid overtime and/or penalty rates (for example, on call duties or weekend work);

4. The Applicant is to receive no back pay or any benefits including leave entitlements for the period 11 November 2016 to the date of re-employment;

5. The Applicant is subject to any coaching, mentoring, training and development, increased professional, administrative or educational supervision, counselling, retraining, personal development or performance enhancement agreement Sydney Trains considers appropriate.

6. Each party pay their own costs.

Please advise whether the offer is acceptable to your client by close of business on Wednesday, 15 February 2017.”

[8] On 15 February 2017 at 4:59pm, Ms Amber Sharp, solicitor, of Bartier Perry Lawyers, sent an email to Ms Pippa Austin, solicitor, of Walter Madden Jenkins Solicitors. The email was marked “without prejudice” and was in the following terms:

“I'm optimistic that we'll be able to resolve on the terms proposed. Unfortunately, it now looks unlikely I'll receive instructions before close of business.

Would your client be willing to extend the timeframe until l0am tomorrow?”

[9] On 15 February 2017 at 5:19pm, Ms Austin responded by email to Ms Sharp’s email as follows:

“Tomorrow morning is fine - I will be in a conciliation first thing but will be back in the office at about 11.”

[10] On 16 February 2017 at 9:45am, Ms Sharp sent an email to Ms Austin marked “Without prejudice” in the following terms:

“I am instructed that Sydney Trains accepts the offer dated 13 February 2017 subject to the following qualifications:

1. with respect to paragraph 1, re-employment will attract payment at the Team Leader rate but is subject to Mr Singh passing any category 3 medical assessment which is applicable to the role into which he is re-employed;

2. with respect to paragraph 2, the following words are added "or any safety critical environments"; and

3. parties to enter into a deed of release, drafted by us, including the usual provisions with respect to confidentiality.

Please confirm this is suitable and we will proceed to prepare the deed of release.”

[11] On 16 February 2017 at 11:44am, Ms Austin sent an email to Ms Sharp in the following terms:

“That is great news. My client is coming in this afternoon to go through these terms- do you have a draft Deed you are able to send me please? If it is not complete that is fine, just so we can go through the major terms with him today.”

[12] On 16 February 2017 at 1:02pm, Ms Sharp sent an email to Ms Austin in the following terms:

“Thank you for your email.

For the purposes of your meeting this afternoon, I attach a draft deed. Please note that I have not yet obtained instructions on the deed from my client, so it may be subject to amendment.

Don't hesitate to give me a call if you have any questions or would like to discuss.”

[13] On 16 February 2017 at 2:32pm, Ms Austin sent an email to Ms Sharp in the following terms:

“Thank you for the Deed.

I advise my client has instructed me to settle the application in principle based on the Deed you provided to me.

There are however a few (what I consider to be) minor alterations and I will send an updated version to you shortly for you to get instructions from your client.

As we have an agreement in principle, I also propose to email the Associate to Sams DP advising we have settled subject to the parties signing a Deed and the matter can be removed from the list, with leave to restore if necessary in the unlikely event there is a disagreement about the Deed. I will copy you into that email.”

[14] On 16 February 2017 at 2:37pm, Ms Sharp sent an email to Ms Austin in response which provided “Many thanks for your email. That all sounds great.”

[15] On 16 February 2017 at 3:11pm, Ms Austin sent an email to the Associate to Deputy President Sams (cc Ms Sharp) in the following terms:

“I am writing to advise the above matter has settled in principle, subject to the parties signing a Deed of Release, and thus I make application for the hearing dates of 20 and 21 February and 2 and 3 March 2017 to be vacated. I understand this application is by consent of both parties, and I have copied into this email Ms A Sharp of Messrs Bartier Perry. I also respectfully request the parties be granted leave to restore the matter in the unlikely event we are unable to agree upon the Deed.”

[16] On 16 February 2017 at 3:18pm, Ms Austin sent an email to Ms Sharp in the following terms:

“Please see attached the draft amended Deed.

To avoid any confusion I have removed any reference to the date Mr Singh was terminated in Recital C, the reason being that Mr Singh actually filed his application before he was finally terminated (he filed before his dismissal had been reviewed internally with Transport NSW). Because he did that, there was first a jurisdictional objection to his application which all went away once the review was unsuccessful, and the removal finally took effect on 30/11. In my view, the reference to the date of termination matters not for the purposes of the Deed.

For ease of reference, the suggested amendments are in red.”

[17] The amendments that Ms Austin had made to the Deed provided by Ms Sharp on 16 February 2017 were as follows:

(a) deleting the words “on [insert date]” from Recital C;

(b) adding the words “statutory superannuation contributions or work injury damages” to the end of the definition of “Claims” in clause 1.1; and

(c) adding the words “As a full-time permanent employee, working from the Sutherland Satellite Depot” to clause 2.1(a) before the words “at the pay rate of Team Leader”.

[18] On 23 February 2017 at 5:19pm, Ms Sharp sent an email to Ms Austin in the following terms:

“Thank you for your email, and my apologies for the delay in coming back to you.

I have no concerns about your proposed amendment below.

I am taking instructions on the balance of the proposed amendments in the Deed, but in the meantime, I have been instructed that "Sutherland Satellite Depot" is a safety critical environment for the purposes of clause 2.1 (a) of the· Deed. On that basis, I'm awaiting instructions in relation to alternative re-employment opportunities.

I apologise for the delay and will revert as soon as I'm able.”

[19] On 3 March 2017 1:59pm, Ms Sharp sent an email to Ms Austin marked “without prejudice” in the following terms:

“I'm pleased to say I now have instructions from Sydney Trains in relation to a role for Mr Singh.

I attach the amended Deed. You will see that:

• I have accepted all of your proposed amendments, except in relation to the role

• At paragraph 2.1(b)(iii), I have inserted the role

Please don't hesitate to let me know if you have any questions or would like to discuss. Otherwise, I look forward to receiving a copy of the deed executed by your client.”

[20] The amendments Ms Sharp made to the Deed were to add a new clause 2.1(b)(iii) in the following words “initially as Administrative & Resource Co-ordinator, Fleet Maintenance, Engineering & Maintenance Directorate, or comparable position, initially working at 477 Pitt Street, Sydney (Central).”

[21] On 6 March 2017 at 1:09pm, Ms Austen sent an email to Ms Sharp in the following terms:

“Would you mind obtaining a position description for the Administrative & Resource Co-ordinator setting out the tasks Mr Singh would be required to perform. Could you please also confirm this position has the same pay rate as Team Leader.

Could you please also confirm what is meant by "initially working at 477 Pitt Street, Sydney"- is there a possibility Mr Singh could be transferred to another location without any notice to him? If so, could you please advise which location he may be transferred to.

I will then come back to you with some instructions.”

[22] On 8 March 2017 at 9:59pm, Ms Sharp sent an email to Ms Austen in the following terms:

“Thanks for your email of 6 March 2017.

In response:

1. I attach a position description.

2. Team Leader pay rate is specified in the deed (clause 2.1 (a))

3. "Initially" at 477 Pitt Street is a reference to the fact that Sydney Trains will be vacating those premises in the next year or more, and future staff locations will be determined closer to the time.

Don't hesitate to let me know if you have any further questions or would like to discuss.”

[23] On 22 March 2017, Walter Madden Jenkins Solicitors ceased acting for Mr Singh.

[24] On 27 March 2017, Mr Singh sent a letter to Bartier Perry Lawyers in the following terms:

“I have terminated my instructions to the lawyers that had been acting for me in the above matter. If you have not already received a Notice of Ceasing to Act from my former lawyers, you will soon do so.

I am not prepared to execute the settlement deed in the form that Sydney Trains has provided, albeit that I still wish to settle the matter.

I will now be represented by an industrial advocate.

It seems sensible to seek another settlement meeting with Sydney Trains before notifying SDP Sams that the matter needs to be listed for hearing to see whether my concerns about the terms proposed by Sydney Trains can be resolved.

I am prepared to attend your offices for the purpose of such a settlement meeting.

Please advise by return email whether Sydney Trains is prepared to agree to such a meeting and, if so, please advise a date, time and location suitable to Sydney Trains.

If satisfactory terms can be agreed at the meeting, I will be prepared to execute a written settlement agreement at the conclusion of the meeting.”

Appeal

Grounds of appeal

[25] Mr Singh relies on the following grounds of appeal:

“The Deputy President erred in finding that the parties had reached a binding agreement to settle the proceedings and, as a result, erred in summarily dismissing the proceeding. Specifically, the Deputy President erred by accepting Sydney Trains's submissions that:

1. Agreement was reached notwithstanding that Sydney Trains's purported acceptance did not correspond to the applicant's offer.

2. Agreement may be reached on the basis that parties are ad idem in relation to the purportedly “essential” terms of the agreement, notwithstanding that the parties were not ad idem in relation to purportedly “minor” terms.

3. The parties' subjective intentions, as manifest by their conduct, are relevant in determining whether a binding agreement had been reached.

4. The question of the position to which Mr Singh (applicant below) was to be reinstated as a “minor” term of the parties' agreement.”

Mr Singh’s submissions

[26] In relation to permission to appeal, Mr Singh submitted that permission should be granted for the following three reasons:

(a) First, the decision is disharmonious not only with other decisions of the Commission but with contract law principles generally. It involves a departure from the orthodox approach to contract formation;

(b) Second, the error involves a question of law of general importance, namely, whether a binding agreement is made by a purported acceptance which proposes new conditions; and

(c) Third, it would be a serious injustice if Mr Singh were denied an unfair dismissal remedy in circumstances where there the decision at first instance was erroneous.

[27] In relation to the first appeal ground, Mr Singh submits that on any orthodox application of contractual principles it could not be found that a settlement agreement was reached between the parties in circumstances where Sydney Trains purported to accept an offer of settlement but subject to qualifications. 2 Mr Singh contends that when the relevant principles of offer and acceptance are applied to the present case there is no unequivocal and unqualified acceptance but rather Sydney Trains’ purported acceptance in an email on 16 February 2017 at 9:45am expressly proposed three new conditions and it was therefore not an acceptance but a counter-offer.3 In oral submissions Mr Fagir submitted that none of the three qualifications were for Mr Singh’s benefit or purely for his benefit.4

[28] Mr Singh further submits that Sydney Trains simply ignored the basic principles of offer and acceptance and distracted the Commission with references to Masters v Cameron 5 and other authorities concerned with questions of completeness and certainty. Mr Singh contends that the question was not whether the parties intended to be bound immediately or bound only on signing of a formal document nor was the question one of completeness or certainty. Those questions do not arise unless and until there is, in fact, an agreement and if there was no offer and precisely corresponding acceptance, there was no agreement to be tested for completeness, or certainty.6

[29] Relevant to appeal ground one, Mr Fagir in oral submissions made the point that the case that was put to the Deputy President was that a settlement agreement had been formed by the settlement offer of Mr Singh contained within a letter dated 13 February 2017 being accepted by Sydney Trains with qualifications in an email on 16 February 2017 at 9:45am. Mr Fagir says that there was no submission put by Sydney Trains to the Deputy President that there was an agreement formed at some later date. 7 Mr Fagir also contends that Sydney Trains’ submissions should be rejected so far as they put a new case on appeal that there was either an acceptance by Sydney Trains of Mr Singh’s counter-offer in an email on 16 February 2017 at 2:32pm or an agreement that emerged organically from the entirety of the parties' correspondence.8 Mr Fagir submits that it is clear from the correspondence that there was no unequivocal acceptance of an offer between the parties. The communications were subject to further qualifications including Sydney Trains’ solicitor obtaining instructions on the deed, Mr Singh’s solicitor proposing alterations to the deed, Sydney Trains not agreeing to one of the proposed alterations in relation to the depot to which Mr Singh would be redeployed and the parties reserving leave to restore the unfair dismissal application in the case there was a disagreement about the deed.9

[30] In relation the second appeal ground, Mr Singh submits that the taxonomy of “essential” and “inessential terms” proposed by Sydney Trains and its suggestion that the email on 16 February 2017 at 9:45am was effective to create a contract despite the disagreement on some terms, because there was agreement on the allegedly “essential” terms, is manifestly contrary to principle. 10 In oral submissions Mr Fagir submitted that when assessing whether there has been an offer and acceptance it is irrelevant whether a qualification is as to a major issue or a minor one, or an essential or inessential term. Rather, any deviation from the offer vitiates acceptance.11

[31] In relation to the third appeal ground, Mr Singh submits that the subjective views of the parties are irrelevant and the Deputy President, although he formally embraced the requirement of objectivity, erred in considering at some length the parties’ various actions after 16 February 2017 as evidence of their subjective understanding of their positions. Mr Singh says that the approach taken was contrary to the principle that the question of whether an offer has been made and effectively accepted depends on an objective view of the facts and circumstances. 12

[32] In relation to the fourth appeal ground, Mr Singh submits that the Deputy President’s conclusion that an agreement had been reached because the parties were ad idem on the “essential” features of a settlement agreement was wrong and should be corrected by the Full Bench. 13

Sydney Trains’ submissions

[33] Sydney Trains contends that the grounds relied on by Mr Singh in the notice of appeal do not enliven the public interest, and permission to appeal should be refused for the following reasons:

(a) First, the appeal does not raise matters of importance and general application and the Decision involved the application of uncontroversial principles to the particular facts of the case;

(b) Second, there is not a diversity of decisions at first instance as to the circumstances where a settlement agreement has been made so that guidance from the Full Bench is required or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters; and

(c) Third, no arguable case of appealable error has been demonstrated.

[34] In relation to appeal grounds one, two and four, Sydney Trains submits that the Deputy President concluded that the parties had reached a binding settlement agreement based on the totality of the surrounding circumstances, including the communications on 13 February 2017 and 16 February 2017 at 9.45am, supported by the subsequent correspondence between them and taking into account the commercial and industrial context of the conduct. Sydney Trains submits that Mr Singh focuses narrowly and wrongly on whether there is a precise correspondence between Mr Singh’s offer on 13 February 2017 and Sydney Trains’ acceptance of the offer on 16 February 2017 at 9.45am. Sydney Trains contends that this improperly limits the boundaries of the inquiry in determining whether a valid contract had been made. The task is to ascertain from the exchange of communication whether a reasonable person would infer or deduce that the parties have entered into a legally binding contract by reference to all the circumstances. 14

[35] Sydney Trains submits that Mr Singh’s use of the expression “counter-offer”, to describe where a party rejects an offer from the other party and makes a fresh offer on different terms, is not a useful concept in all circumstances because it assumes that there is a binary approach between offer/acceptance and offer/rejection. Sydney Trains says that the courts have adopted a much more flexible approach and have held that it is not appropriate in all cases to have a mirror of a matching offer and acceptance of the essential terms to conclude a bargain. This approach accommodates the commercial reality that parties do not repeat in precise terms the same elements of the offer upon acceptance but may add more detail which does not affect the terms of the offer. 15 In oral submissions, Mr Seck submitted that one is not limited to trying to identify in precise terms what was the offer and what was the acceptance and it is not always appropriate in the circumstances to apply the rigid analysis of offer and acceptance.16

[36] Nevertheless, Sydney Trains submits that the email on 16 February 2017 at 9.45am did not constitute a counter-offer rejecting Mr Singh’s offer made on 13 February 2017 for the following the following reasons: 17

(a) First, Sydney Trains’ email did not use, in terms or effect, the expression “offer” or “counter-offer” but rather stated that it “accepts” Mr Singh’s offer subject to certain clarifying details which did not alter or detract from the essential terms of the offer. The use of the word “accepts” is strongly indicative that a binding agreement had been made. Nothing in the language suggests that Sydney Trains had rejected the offer. The additional details of the acceptance merely went to the machinery of working out the details of the agreement regarding the position but did not revoke the offer;

(b) Second, Sydney Trains’ email simply set out expressly what would, due to its common law and statutory obligations to ensure Mr Singh was not re-deployed into a position which posed risk to his health and safety, have applied as a matter of law in the absence of express agreement. These details did not comprise additional terms departing from Mr Singh’s offer but were included, for the avoidance of doubt, so that there was no misapprehension as to the basis of Mr Singh’s re-employment;

(c) Third, nevertheless the additional terms could not amount to a rejection of an offer as they were made for the benefit of Mr Singh as they ensured he would be placed in a job which would avoid risk to his health and safety; and

(d) Fourth, in order to make a binding agreement, there need only be an agreement on the essential terms and no precise correspondence between offer and acceptance is required to make a valid agreement so long as the parties have reached consensus on the critical parts of the bargain.

[37] Further, Sydney Trains submits that even if its email on 16 February 2017 at 9.45am is found to be a counter-offer, it is plain that Mr Singh’s solicitors accepted that counter-offer in the subsequent emails later in the day, in particular, Mr Singh’s solicitor’s email at 2.32pm, for the following reasons:

(a) it was communicated that a settlement had been reached “in principle” between the parties;

(b) the differences between the parties were “minor” issues concerning the deed which indicates that agreement had been reached on the essential terms; and

(c) the hearing dates would be vacated given the parties had reached agreement in principle. 18

[38] Mr Seck submitted in oral submissions that the balance of the email correspondence between the parties goes to working out the terms of the particular deal but there was a category one Masters v Cameron settlement based on the totality of the correspondence up to 2:32 pm on 16 February 2017. 19

[39] In relation to appeal ground three, Sydney Trains submits that Mr Singh’s contention that the actions of the parties constituted no more than “evidence of their subjective understanding of their positions”, and is therefore irrelevant, is a mischaracterisation of the evidence. Sydney Trains contends that the cumulative effect of the email correspondence shows that each of the parties had proceeded to prepare a deed of release on the ground that an agreement had been reached based on a common understanding on the essential terms and such evidence is objective and not subjective in nature. Further, Sydney Trains says that to the extent that the Deputy President had regard to subjective view of the parties, this applies a long line of authority which holds that where the intention of the parties is equivocal, the conduct or correspondence subsequent to the alleged offer and acceptance can be relied upon to show whether or not a contract has been made. 20

Permission to appeal

[40] An appeal under s.604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 21 There is no right to appeal and an appeal may only be made with the permission of the Commission.

[41] Section 400 of the Act applies to this appeal. Section 400 provides:

“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”

[42] In the decision of the Full Court of the Federal Court in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 22 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.23 In GlaxoSmithKline Australia Pty Ltd v Makin24 a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters” 25

[43] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 26 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.27

[44] We are satisfied that it is in the public interest grant permission to appeal in this matter. We are of the view that the appeal raises important questions pertaining to the correct approach to the determination of whether a binding settlement agreement has been reached between the parties. We consider this to be an important matter which has general application and therefore attracts the public interest. Further, for the reasons set out below, we are persuaded that the Deputy President erred in finding that the parties reached a binding settlement and there would be an injustice if Mr Singh were prevented from pursuing his application for an unfair dismissal remedy. It is on these grounds that permission to appeal is granted in the public interest.

Legal principles in relation to offer and acceptance of a settlement proposal

[45] The central issue in this appeal requires consideration of whether the Deputy President correctly applied legal principles relevant to the question of whether a binding settlement agreement had been reached between Mr Singh and Sydney Trains.

[46] Chief Justice Bathurst of the New South Wales Supreme Court explained the relevant principles concerning intention to create legal relations in the following way in Pavlovic v Universal Music Australia Pty Limited: 28

“It is well established that the question of whether the parties intended to bind themselves to a contract is to be determined objectively, having regard to the intention disclosed by the language the parties have employed: Masters v Cameron [1954] HCA 72; 91 CLR 353 at 362. In cases such as the present, which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communications between the parties in their context and the parties’ dealings over the time leading up to the making of the alleged contract. This involves consideration of the subject matter of the communications: Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 550. As was said by Mahoney JA and McHugh JA in Air Great Lakes Pty Ltd v KS Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309, that includes consideration of what the parties said or wrote (at 334, 337).”

[47] The present case does not involve complexities which often arise where contractual intention is inferred from behaviour, or is imputed. 29 Whether there was a legally binding settlement reached between Mr Singh and Sydney Trains involves interpretation of the express written communications between the parties' solicitors.

[48] An offer and acceptance must precisely correspond. The following principles are relevant to this requirement:

● An acceptance corresponds to an offer if it is an unequivocal acceptance of the terms offered. 30

● An acceptance is not an unequivocal acceptance of the terms offered if it deviates from the offer, even if that deviation is not material or important. However, as a qualification to this principle, if a new term is included in a purported acceptance of an offer and the new term is solely for the benefit of the offeror, then this can constitute a valid acceptance. 31

● An acceptance will be effective if it does not depart from the terms of the offer, but simply repeats in the offeree’s own words the effect of the offer. 32

● Acceptance will be effective if it sets out expressly what would be implied by law in the absence of express agreement. 33 For example, an offer may contemplate that, were it to be accepted, a document would be prepared to record its terms. In proposing that a deed be prepared as part of an acceptance of such an offer, the offeree would be stating that which would be implied by law arising from the terms of the offer, namely, that it would be documented in some formal manner.34

● Similarly, if a purported acceptance of an offer merely includes the “machinery of working out what was meant by the offer, it is on the same plight as a request for information”. 35 Such a request for information does not revoke the offer and may constitute acceptance of the offer.

[49] Ultimately the question is whether a “reasonable recipient of the acceptance would have regarded it as corresponding to the offer or whether they would have taken the acceptance to be qualifying the original offer such that it would amount to a counter-offer or, at any rate, not an unconditional acceptance of what was originally offered.” 36 Put another way, the language used by the offeree in their acceptance of the offer must be such as would convey to a reasonable person in the position of the offeror a clear and definite decision by the offeree to be bound by the terms of the offer, leaving nothing further to be negotiated.37

[50] A purported acceptance which does not correspond to the offer does not necessarily reject the first offer; it is, nevertheless, a counter-offer capable of acceptance. 38 A counter-offer accepted by the original offeror creates a binding agreement.39

[51] Conduct of the parties after the making of the supposed agreement is relevant. Such conduct may be considered in order to determine whether the prior dealings between the parties gave rise to a binding contract. 40

[52] The phrase “‘in principle’ agreement” or similar is often used when negotiating the settlement of litigation and generally indicates that there is no intention yet to enter into a binding contract. 41 However, such words must be construed in the context in which they appear and the commercial setting in which the parties were operating.42 In each case, “much will depend upon the individual circumstances of each case as to whether those words demonstrate that the parties had or had not reached a consensus on the essential terms of their bargain and whether they intended to be immediately bound by them”.43

[53] If parties who have been in negotiations reach agreement on terms of a contractual nature and also agree that those terms will be dealt with by subsequent formal documentation, there are several categories into which such negotiations fall. 44 First, the parties reach finality, intend to be immediately bound, and propose restatement of the terms of settlement in a fuller or more precise form but not different in effect. Secondly, the parties have completely agreed all terms but performance of one or more terms is conditional on execution of a formal document. Thirdly, the parties did not intend to make a concluded bargain at all, unless and until they execute a formal contract. Fourthly, the parties intended to be bound immediately and exclusively by agreed terms while expecting to make a further contract in substitution containing, by concept, additional terms.45

[54] When parties do reach an agreement of the first or fourth category referred to in Masters v Cameron and Baulkham Hills, they will be bound by the terms of their bargain, notwithstanding a later disagreement between the parties about the terms to be included in a deed or written agreement between them. 46

Consideration

[55] The Deputy President concluded that Mr Singh and Sydney Trains reached agreement in the email exchanges between their solicitors on 13 and 16 February 2017. 47

[56] There is no doubt that the offer made by Mr Singh on 13 February 2017 was capable of acceptance by Sydney Trains. In fact, Sydney Trains purported in the email from its solicitors dated 16 February 2017 to accept Mr Singh’s offer dated 13 February 2017, but its acceptance was expressed to be subject to three qualifications.

[57] The first qualification stated that Mr Singh’s re-employment was subject to him “passing any category 3 medical assessment which is applicable to the role in which he is re-employed”. Given that Mr Singh had included, as part of his settlement offer, that he be re-employed by Sydney Trains in the position of Team Leader, we consider this first qualification to be the expression of that which would be implied by law in the absence of express agreement. That is, if Sydney Trains had simply accepted Mr Singh’s offer of 13 February 2017, we are persuaded that an implied term of the agreement reached between the parties would have been a requirement that Mr Singh pass the applicable medical assessment for the position in which he was to be re-employed. Accordingly, the first qualification did not render the acceptance ineffective.

[58] The second qualification sought to amend paragraph two of the offer as follows: “Upon re-employment, the Applicant performs administrative tasks only, and does not perform any work on the tracks or [in] any safety critical environments.” By seeking to limit where Mr Singh could work on his re-employment, we consider that Sydney Trains proposed a term which deviated from the offer made by Mr Singh and was not solely for his benefit. We are also persuaded that such a term was neither implied nor a machinery provision; it would, if accepted, have had a material impact on where Mr Singh could have worked on his re-employment, including precluding him from working at the Sutherland satellite depot where he had worked for many years.

[59] The third qualification proposed that the parties enter into a deed of release, drafted by Sydney Trains’ solicitors, including the “usual provisions with respect to confidentiality”. That Sydney Trains proposed the settlement agreement be recorded in subsequent formal documentation does not, of itself, establish that the parties did not intend to enter into a binding agreement on 16 February 2017. 48 However, Sydney Trains’ proposal that the settlement be confidential deviated from Mr Singh’s offer, which was silent on the question of confidentiality. It was therefore not an unequivocal acceptance of the terms offered and the new term (confidentiality) proposed was not solely for the benefit of Mr Singh. An obligation requiring each party to keep the terms of settlement confidential would be primarily for the benefit of Sydney Trains, particularly in a context where Mr Singh had been employed by Sydney Trains for 34 years, believed he had been unfairly dismissed, was seeking re-instatement, and was only prepared to settle the proceedings if Sydney Trains agreed to re-employ him.

[60] We reject Sydney Trains’ submission that the proposed confidentiality term was either implied or merely included the “machinery of working out what was meant by the offer”. Absent Mr Singh’s agreement to keep any settlement confidential, he would not have been under any obligation not to disclose the terms of the settlement to any third party, including his work colleagues at Sydney Trains. There is every reason to believe that Mr Singh may have wanted to make such a disclosure to his work colleagues upon his return to work following his long period of employment, his dismissal and a period of absence from the workplace. In those circumstances, it could not be said that confidentiality of the settlement agreement went without saying, regardless of the fact that as events transpired Mr Singh did later express a willingness to agree that the settlement be kept confidential. Mr Singh’s position in relation to confidentiality was not known by Sydney Trains at the time it purported to accept Mr Singh’s offer on 16 February 2017.

[61] Because the second and third qualifications proposed new terms which were not solely for the benefit of Mr Singh and the proposed terms were neither implied nor merely included the “machinery of working out what was meant by the offer”, Sydney Trains purported acceptance of the offer on 16 February 2017 was not effective. We are therefore satisfied that the Deputy President erred in concluding that Mr Singh and Sydney Trains reached agreement in the email exchanges between their solicitors on 13 and 16 February 2017. Our conclusion in this regard says nothing about the reasonableness or otherwise of any of the qualifications referred to in the communication from Sydney Trains’ solicitors dated 16 February 2017.

[62] The Deputy President focused on what he considered to be the “essential terms” of the settlement proposal and found that Sydney Trains’ “email acceptance of this offer” did not alter or replace any of the “essential terms”. 49 However, we consider that the Deputy President was led into error by Sydney Trains’ submissions in relation to “essential terms”. In some cases concerning a dispute about the existence of a binding contract it will be relevant to examine whether the parties have reached agreement on the essential terms of the contract. This issue may arise because one of the necessary elements of a contract is certainty of terms. That is, a contract must be clear and complete, at least in the essentials.50 Certainty is required only of essential terms, not inessential terms, with the result that a contract may be in existence even though the parties have reached agreement on the essential terms of their bargain but they have not discussed inessential terms. This principle concerning certainty of terms, however, is not determinative of the question whether parties have entered into a binding contract in circumstances where they have agreed on what may be regarded as the essential terms of their contract but they have discussed and either expressly disagreed or not reached agreement on other inessential terms. In those circumstances, the questions remain whether there is an offer and acceptance which precisely correspond and whether the communications between the parties and their conduct expressed, objectively, an intention to make a concluded bargain.51

Alternative argument by Sydney Trains

[63] Sydney Trains submits that, to the extent the Deputy President may have erred, the Full Bench may uphold the Decision on the basis that the email from Mr Singh’s solicitor sent to the solicitor for Sydney Trains at 2:32pm on 16 February 2017 accepted Sydney Trains’ counter-offer earlier that day. 52

[64] Mr Singh contends that Sydney Trains should not be permitted to make such an argument on appeal, given that it did not do so at first instance and Mr Singh would be prejudiced by such a case being run for the first time on appeal. We do not accept that argument. Having reviewed the submissions made at first instance before the Deputy President, we are satisfied that Sydney Trains did make submissions in relation to the correspondence exchanged after the email sent at 9:45am on 16 February 2017 to support its argument that a binding settlement agreement was reached. 53

[65] Accordingly, and in the circumstances of this case, we consider it is appropriate for this Full Bench to review the relevant correspondence and attachments thereto (summarised in paragraphs [7] to [24] above) and make a further decision in relation to the matter that is the subject of this appeal. 54 In doing so, we will apply the principles set out in paragraphs [46] to [54] above.

[66] We agree with Sydney Trains’ alternative characterisation of the email sent by its solicitors at 9:45am on 16 February 2017 as a counter-offer, which did not reject Mr Singh’s offer made on 13 February 2017, and the counter-offer was open for acceptance by Mr Singh.

[67] By email sent at 11:44am on 16 February 2017, Mr Singh’s solicitor expressed the view that Sydney Trains’ purported acceptance of the offer dated 13 February 2017, subject to three qualifications, was “great news”, albeit she had not been “through these terms” with Mr Singh. A request was then made by Mr Singh’s solicitor for a copy of the draft deed, so that she could “go through the major terms with him today”.

[68] A draft deed was sent to Mr Singh’s solicitor at 1:02pm on 16 February 2017, subject to the caveat that “it may be subject to amendment” because Sydney Trains’ solicitor had not “yet obtained instructions on the deed from” her client. The draft deed imposed obligations on Sydney Trains to, inter alia, re-employ Mr Singh, but its obligations in that regard were “subject to Mr Singh complying with the terms of this Deed”. 55 One of the terms of the deed with which Mr Singh had to comply was to execute the deed.56 The draft deed also included a term to the effect that no provision of the deed “or a right conferred by it can be varied except in writing signed by the parties”57 and an entire agreement clause, which stated that: “This document records the entire agreement between the parties and supersedes all previous negotiations, understandings, representations and agreements in relation to the subject matter of this document”.58 These three clauses59 of the draft deed indicate two things:

● First, contrary to Sydney Trains’ submissions, its counter-offer made at 9:45am on 16 February 2017 was no longer open for acceptance by Mr Singh, because it had been “superseded” by the draft deed; and

● Secondly, the clauses are indicative of an intention on the part of Sydney Trains not to make a concluded bargain, unless and until the parties executed the deed. 60

[69] Next in the chain of correspondence is the email from Mr Singh’s solicitor to Sydney Trains’ solicitor sent at 2:32pm on 16 February 2017. A copy of this email is set out in paragraph [13] above. This is the email which Sydney Trains contends constitutes acceptance by Mr Singh of Sydney Trains’ counter-offer sent at 9:45am on 16 February 2017. We make the following observations in relation to this email:

(a) The first part of the second sentence of the email is indicative of an intention on the part of Mr Singh to bind himself immediately to a settlement of his application for an unfair dismissal remedy:

“I advise my client has instructed me to settle the application…”

(b) However, that sentence must be read in context and in light of the balance of the email. The sentence goes on to refer to Mr Singh’s solicitor’s instructions to “settle the application in principle based on the Deed you provided to me” [emphasis added]. The words “in principle” usually indicate that there is no intention yet to enter into a binding contract, but such words must be construed in context and much will depend upon the individual circumstances of each case; 61

(c) The reference in the email to Mr Singh having instructed his solicitor to settle in principle “based on the Deed you provided to me” [emphasis added] is significant, for it suggests, taken at its highest, a settlement in principle on the basis of the terms of the draft deed, rather than the terms of the counter-offer sent by Sydney Trains at 9:45am on 16 February 2017;

(d) In the next sentence of the email Mr Singh’s solicitor refers to what she considers to be a few “minor alterations” to the draft deed, but does not disclose what they are. The requirement for alterations to be made to the draft deed meant that the response was not an unequivocal acceptance of the terms offered in the deed. Mr Singh’s solicitor then states in her email that she will “send an updated version [of the deed] to you shortly for you to get instructions from your client”. That Sydney Trains’ solicitor is being requested to obtain instructions, obviously as to whether or not Sydney Trains agrees to Mr Singh’s alterations to the deed, suggests no binding agreement has been concluded. These words communicated that there was a plan about the way forward but not yet a final binding agreement; and

(e) The final paragraph of the email refers again to an “agreement in principle” and goes on to propose that Mr Singh’s solicitor will “email the Associate to Sams DP advising we have settled subject to the parties signing a Deed and the matter can be removed from the list, with leave to restore if necessary in the unlikely event there is disagreement about the Deed.” The reference to the parties “hav[ing] settled” is indicative of a binding agreement, but it is expressed to be “subject to the parties signing a Deed” and, importantly in our view, “leave to restore … if there is disagreement about the Deed”. We are persuaded that this part of the email would not convey to a reasonable person in the position of Sydney Trains a clear and definite decision by Mr Singh to be bound by the terms of the offer, leaving nothing further to be negotiated. Reserving leave to restore the matter would, in our view, indicate to a reasonable person in the position of Sydney Trains that there may be a hearing on the merits of Mr Singh’s application for an unfair dismissal remedy if any disagreement(s) about the deed could not be resolved. We do not accept Sydney Trains’ submission that leave to restore in these circumstances would be interpreted by a reasonable person in the position of Sydney Trains as leave to restore for the purposes of seeking assistance from the Commission to reach agreement on the terms of the deed, to enforce an alleged binding settlement, or for some other purpose. The reference in the email to the matter being “removed from the list” was a reference to the listing of the matter for hearing on 20 and 21 February and 2 and 3 March 2017. Viewed in that context, the ordinary meaning of the phrase “leave to restore” was restoration of the matter to the list for hearing. We consider that a reasonable person in the position of Sydney Trains would have construed it in that way.

[70] Later on 16 February 2017, Sydney Trains’ solicitor thanked Mr Singh’s solicitor for her email and expressed the view: “That all sounds great.” Mr Singh’s solicitor then communicated to the Associate to the Deputy President by email, a copy of which is set out in paragraph [15] above. In our view, that email supports the conclusion that the earlier email sent at 2:32pm did not constitute an effective acceptance of Sydney Trains’ counter-offer, principally because it refers to a settlement “in principle” and requests, by consent, that the imminent hearing dates be vacated, with leave to “restore the matter in the unlikely event we are unable to agree upon the Deed”. Those words do not disclose evidence of an intention on the part of the parties to be immediately bound. They indicate that the negotiations had not yet reached that stage.

[71] The balance of the communications between the solicitors for the parties relate to proposed amendments to the draft deed. It is clear from those communications that the parties could not reach agreement on the terms of the deed; the main sticking point was the location at which Mr Singh would work on his re-employment with Sydney Trains.

[72] The text and circumstances of the communications between the solicitors for the parties do not, for the reasons we have given, support Sydney Trains’ submission that the email from Mr Singh’s solicitors sent at 2:32pm on 16 February 2017 constituted an unequivocal acceptance of the counter-offer made by Sydney Trains.

[73] Further, the weakness in Sydney Trains’ alternative argument that a contract was made when Mr Singh accepted, at 2:32pm on 16 February 2017, Sydney Trains’ counter-offer is evident when one asks “what were the terms of the contract?” Mr Seck, counsel for Sydney Trains, submitted that the terms of the contract are what is recorded in paragraph [55(a) to (e)] of the Decision, where the Deputy President refers to what he considered to be the “essential terms”, together with re-employment to a non-safety critical role performing administrative tasks and the requirement for Mr Singh to pass a medical examination prior to his re-employment. 62 The “essential terms” are recorded in paragraph [55] of the Decision as follows:

“(a) Mr Singh was to perform administrative tasks only;

(b) a loss of entitlements to overtime or weekend penalties;

(c) no back pay or benefits from 11 November 2016 to the date of re-employment;

(d) further professional development, coaching and training; and

(e) each party to bear their own costs.”

[74] However, no plausible explanation is given as to why confidentiality was not a term of the contract. It was certainly a term of the counter-offer made at 9:45am on 16 February 2017. Nor is any plausible explanation given as to why the prohibition on Mr Singh performing any work which would entitle him to be paid overtime and/or penalty rates, unless required by Sydney Trains, was not a term of the contract. It was the third term of the offer made by Mr Singh on 13 February 2017 and was not the subject of any of the three qualifications proposed by Sydney Trains on 16 February 2017. We consider that Sydney Trains’ submissions in relation to the terms of the alleged contract amount to an impermissible attempt to cherry pick a range of terms proposed at different times by different parties to come up with an agreement which may be workable.

[75] In the result, having regard to the whole series of communications between the parties in their context and the parties’ dealings over the time leading up to and after the making of the alleged contract, we are not satisfied that Mr Singh and Sydney Trains made a concluded agreement to settle Mr Singh’s application for an unfair dismissal remedy. While they were clearly desirous of reaching a settlement and their solicitors were confident of such a deal being struck, the communications between the parties’ solicitors did not express, objectively, an intention to make a concluded bargain, nor was there an acceptance which precisely corresponded to an offer.

Conclusion

[76] For the reasons set out above:

(a) permission to appeal is granted;

(b) the appeal is upheld;

(c) the Decision and Order PR595184 are quashed; and

(d) Sydney Trains’ application to dismiss Mr Singh’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr O Fagir of counsel for Mr Singh.
Mr M Seck of counsel for Sydney Trains.

Hearing details:

2017.
Melbourne (via Video Link):
September 6.

 1   [2017] FWC 4015

 2   Appellant’s submissions dated 30 August 2017 at [1]-[2]

 3   Appellant’s submissions dated 30 August 2017 at [6]-[10]

 4   Transcript at PN100

 5   (1954) 91 CLR 353

 6   Appellant’s submissions dated 30 August 2017 at [12]-[16]

 7   Transcript at PN8-17

 8   Transcript at PN39

 9   Transcript at PN53-89

 10   Appellant’s submissions dated 30 August 2017 at [17]

 11   Transcript at PN19

 12   Appellant’s written submissions dated 30 August 2017 at [18]-[19]

 13   Appellant’s written submissions dated 30 August 2017 at [20]-[21]

 14   Respondent’s written submissions dated 5 September 2017 at [4]-[8]

 15   Respondent’s written submissions dated 5 September 2017 at [9]-[10]

 16   Transcript at PN115-122

 17   Respondent’s written submissions dated 5 September 2017 at [12]-[15]

 18   Respondent’s written submissions dated 5 September 2017 at [16]-[18]

 19   Transcript at PN231

 20   Respondent’s written submissions dated 5 September 2017 at [19]-[20]

 21   Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ

 22   (2011) 192 FCR 78; 207 IR 177 (Lawler) at [43]

 23   O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Lawler at [44] -[46]

 24   [2010] FWAFB 5343; (2010) 197 IR 266 (GlaxoSmithKline)

 25   Ibid at [27]

 26   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30]

 27   GlaxoSmithKline at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28], affirmed on judicial review in Lawler; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28]

 28   [2015] NSWCA 313 (Pavlovic) at [15]

 29   See, for example, Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 (Brambles)

 30   Redowood Pty Ltd v Mongoose Pty Ltd [2005] NSWCA 32 (Redowood) at [84]

 31   Boreland v Docker [2007] NSWCA (Boreland) at [76]-[78]

 32   Boreland at [76]; Cavallari v Premier Refrigeration Co Pty Ltd (1952) 85 CLR 20 at 26-27

 33   Brookfield Australia Investments Limited v Lucas Stuart Pty Limited [2012] NSWSC 1130 (Brookfield) at [34]

 34   Brookfield at [30]-[31]

 35   Brookfield at [35], applying Howe v Connell [1997] NSWSC 432 and Stevenson v McLean (1880) 5 QBD 346

 36   Redowood at [76], applying Carter v Hyde (1923) 33 CLR 115

 37   Redowood at [84]

 38   Capital Securities No. 1 Pty Ltd v Saliba [2016] NSWSC 1093 (Saliba) at [77]

 39   Evans Deakin Industries Ltd v Queensland Electricity Generating Board (1984) 1 BCL 334

 40   Saliba at [53]-[54], applying B Seppelt & Sons Ltd v Commissioner for Main Roads (1975) 1 BPR 9147 at 9149 per Glass JA

 41   Stephenson v Dwyer [2006] NSWSC 1439 at [37]

 42   Donaldson Coal Pty Ltd v Pacific National (NSW) Pty Ltd [2007] NSWSC 1446 (Donaldson Coal) at [91]

 43   Donaldson Coal at [91]

 44   Masters v Cameron

 45   Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 (Baulkham Hills)

 46   Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 at [10]-[12]; Howe v Connell [1997] NSWSC 432

 47   Decision at [59] & [66]-[67]

 48   Masters v Cameron

 49   Decision at [55]

 50   Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429

 51   Cook v Taing [2014] VSC 428 at [89]

 52   Respondent’s written submissions dated 5 September 2017 at [18]

 53   Appeal Book at 39-47, particularly paragraphs [14] to [22] of Sydney Trains’ written submissions dated 12 July 2017

 54   Section 607(3)(b) of the Act

 55   Clause 2.1 (Benefits and Obligations): Appeal Book at 60

 56   Appeal Book at 64

 57   Clause 13 (Variation): Appeal Book at 63

 58   Clause 12 (Entire Agreement): Appeal Book at 62

 59   Clauses 2.1, 12 and 13

 60   Pavlovic at [100]

 61   See the authorities referred to in paragraph [52] above

 62   Transcript at PN172-186

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