[2021] FWCFB 6004

The attached document replaces the document previously issued with the above code on 15 September 2021.

At paragraph [17], in the second line, the section of the Act referred to has been corrected to section 587(1)(c).

Associate to Vice President Catanzariti

Dated 16 September 2021.

Fair Work Act 2009
s.604—Appeal of decision

Toby Tucker
v
State of Victoria (State Revenue Office)
(C2020/7705)

Appeal against decision [2020] FWC 5252 of Deputy President Young at Melbourne on 30 September 2020 in U2019/8416 - permission to appeal granted - appeal upheld

[1] Mr Toby Tucker (the Appellant) lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (the Act), for which permission to appeal is required against a decision 1 (the Decision) of Deputy President Young (the Deputy President) issued on 30 September 2020 dealing with an application by the State of Victoria (State Revenue Office) (the Respondent) that the Appellant’s application for an unfair dismissal remedy be dismissed pursuant to s 399A(1)(c) of the Act, or alternatively, pursuant to s 587(1)(c) of the Act.

[2] In the Decision, the Deputy President found that a binding settlement agreement had been reached between the parties. Accordingly, the Deputy President concluded that the Appellant’s application for an unfair dismissal remedy had no reasonable prospects of success and dismissed his application pursuant to s 587(1)(c) of the Act.

[3] This matter has an unusual history both in the Commission and in other courts with related proceedings. This appeal itself has been the subject of a number of interlocutory applications and hearings. We will outline the relevant interlocutory proceedings in greater detail further below. After the conclusion of all interlocutory matters, directions were set for the filing of material by the parties. The parties agreed to having the matter determined ‘on the papers’, namely on the written submissions of the parties without the need for an oral hearing. Accordingly, pursuant to s 607(1) of the Act, the appeal was conducted on the basis of written submissions only.

[4] For the reasons that follow, permission to appeal is granted and the appeal is upheld.

Decision under appeal

[5] The Deputy President began the Decision by outlining the procedural and factual background of the matter. We have extracted that part of the Decision below:

“[2] Mr Toby Tucker was formerly employed by the SRO.

[3] Mr Tucker’s employment with the SRO was terminated on 19 July 2019 for serious misconduct. On 30 July 2019 Mr Tucker made application for an unfair dismissal remedy in accordance with section 394 of the Act (proceeding U2019/8416) (Application).

[4] On 29 August 2019, the Commission issued directions for the filing of materials by the parties. At that time, Mr Tucker was self-represented. The SRO has at all material times been represented in the Application by Maddocks. Subject to the supervision of Mr Ross Jackson, Partner, Ms Alison Gallaher, Associate, has had carriage of the Application on behalf of the SRO. Ms Gallaher has been assisted by Ms Courtney Ford, Lawyer.

[5] On 3 October 2019 the SRO made application for confidentiality orders in relation to material filed by Mr Tucker in the Application. An interim confidentiality order was issued on 15 October 2019 (Confidentiality Order).

[6] On 22 October 2019 Mr Tucker made application for orders that the SRO produce certain documents (Production Application). A mention hearing was listed for 14 November 2019 in relation to the Production Application.

[7] The Application was listed for arbitration hearing on 20 and 21 November 2019.

[8] On 6 November 2019, by Form F53 Notice of Representative Commencing to Act, Patron Legal commenced representing Mr Tucker in the Application.

[9] On 8 November 2019 the parties participated in a member assisted conciliation, however, the Application was not settled. At the conciliation the SRO was represented by Maddocks and Mr Tucker was represented by Patron Legal.

[10] On 13 November 2019, Mr Francis of Patron Legal wrote to the Commission in the following terms:

“Dear Associate

I refer to tomorrow’s telephone mention before the Deputy President.

The parties have today progressed negotiations and have reached an in-principle settlement of this matter, pending execution of a deed.

In the circumstances, the parties respectfully request that tomorrow’s telephone mention be vacated.

Please do not hesitate to contact me if you have any queries.”

(Francis Email)

[11] Accordingly, the mention hearing in relation to the Production Application and the subsequent arbitration hearing was vacated and a notice of listing confirming this was sent to the parties on 15 November 2019.

[12] The SRO submits that a binding settlement agreement was reached between the parties on 13 November 2019.

[13] It is uncontested that Mr Tucker has not executed a deed of settlement in relation to the Application, has not filed a notice of discontinuance nor have any settlement monies been paid to him.

[14] By application dated 10 June 2020 the SRO seeks that the Application be dismissed pursuant to section 399A(1)(c) on the basis that Mr Tucker has unreasonably failed to discontinue the Application after a settlement agreement has been concluded. In the alternative, the SRO seeks that the Application be dismissed pursuant to section 587(1)(c) of the Act on the basis that the parties reached an agreement to settle the Application and, consequently, the Application has no reasonable prospects of success (Dismissal Application).

[15] Mr Tucker opposes the Dismissal Application and contends that no binding settlement agreement has been reached between the parties.

[6] The Deputy President then turned to consider the evidence before her. Negotiations to settle the Application have a lengthy history. There are two letters of 12 November 2019 and 13 November 2019 that are of particular relevance to the parties’ attempts to settle the matter.

[7] The letter of 12 November was sent by Mr Francis of Patron Legal to Maddocks. It was in the following terms:

“In light of the fact that the matter is listed for hearing next week, our client wishes to propose a final attempt to settle this matter before the parties commence preparation in earnest.

We note that your client, even if it succeeds in defending Mr Tucker’s claim, is unlikely to be able to recover its costs of the UD Proceeding. Those costs are likely to be substantial.

Further, it is our view that the interests of each of the parties are not going to be advanced by the public ventilation of the factual matters that form the basis of the dispute.

To that end, and to save the parties the time and expense of continuing the UD Proceeding, our client is prepared to settle the UD Proceeding on the basis that your clients pays to him the sum of $[redacted]. This settlement will be on a no-admissions and confidential basis.

This offer to settle the UD Proceeding is open until 5:00pm tomorrow Wednesday 13 November 2019.

If you wish to discuss this matter please do not hesitate to contact our firm.”

(12 November Letter)

[8] On 13 November 2019, Maddocks wrote to Patron Legal. That letter was marked “Without prejudice save as to costs” and was in the following terms:

“We refer to your letter dated 12 November 2019 and your client’s offer to settle the Proceeding set out in that correspondence (Offer).

Subject to your client’s agreement to execute a deed of release in relation to the settlement of the Proceeding, the terms of the Offer are accepted in principle by the State.

Save for formalities, the deed of release (to be drafted by us) will record the following terms:

1. That the state will pay Mr Tucker (or as directed by him) the sum of $[redacted] (less any taxation which must be withheld by law);

2. That the payment of the settlement sum is made with an express denial of liability by the State and may not be relied upon by the Applicant as any admission of liability by the State;

3. The settlement, the terms of settlement and all correspondence and communications leading to or relating to the settlement shall remain confidential to the parties and cannot be disclosed or communicated to any other person other than with the written consent of the other party or as required by law; and

4. Subject to the payment of the settlement sum, the parties will consent to an order that the unfair dismissal proceeding be dismissed with no right of reinstatement.

We look forward to your prompt response regarding the above.”

(13 November Letter)

[9] Ms Ford gave evidence that at 5.12pm on 13 November 2019, she received a telephone call from Mr Francis (Telephone Conversation). Her evidence, given under cross examination is as follows: 2

“So, on 13 November I sent an email attaching an emailed letter, 5.03pm, that was with the approval of Mr Jackson and that was sent to Mr Francis. Then I received a phone call approximately 10 minutes later from Mr Francis and we had a conversation. Mr Francis said to me I’ve received your letter in the email, we accept the terms of settlement and now that we’re agreed I propose writing to the Commission and informing of that and with your client’s approval asking that the mention hearing tomorrow morning be vacated…”

[10] In the proceedings before the Deputy President, the Appellant submitted that Ms Ford’s evidence was inadmissible hearsay and ought be given minimal weight. The Deputy President’s findings in relation to Ms Ford’s evidence of the telephone conversation are critical to the matter at hand. Her findings are set out below:

“[25] Mr Tucker’s evidence does not address the Telephone Conversation. Accordingly, he does not adduce any evidence which directly contests the Telephone Conversation or its contents. Rather, he submits that Ms Ford’s evidence constitutes inadmissible hearsay and irrelevant evidence not corroborated by any contemporaneous documentation or evidence from Mr Francis. In oral submissions Mr Tucker submitted that Ms Ford’s “subjective” evidence regarding the Telephone Conversation ought be given “zero to minimal weight”. Under cross examination Ms Ford conceded that she would have made a file note of the Telephone Conversation, the call would be recorded on a telephone log and that the Telephone Conversation would, in the ordinary course, be billable and would therefore be itemised on an invoice. Ms Ford’s explanation for the failure to produce any of these documents in her evidence was that they were subject to legal professional privilege. In oral submissions Mr Tucker submitted that I ought infer from the absence of any of these documents being produced by Ms Ford that the Telephone Conversation did not occur. I reject those submissions. Firstly, Ms Ford gave clear and consistent evidence. I consider she was a credible witness. Secondly, Ms Ford gave direct evidence of a conversation to which she was a party. It is not hearsay evidence. Thirdly, Ms Ford’s evidence is unquestionably relevant. The SRO submits that it was in this conversation that a binding settlement agreement was reached. Fourthly, whilst I consider it would have been prudent for the SRO to have waived privilege and produced the file note of the Telephone Conversation, and in light of the matters disclosed in Ms Ford’s evidence find the rationale for not doing so curious, I would require considerably more before I was prepared to infer that Ms Ford, a legal practitioner, gave false evidence under oath to the Commission. Fifthly, Ms Ford’s evidence as to the Telephone Conversation was not challenged in cross examination. Sixthly, it is clear that it was for Mr Tucker to call Mr Francis. No criticism can be made of the SRO for not doing so. Mr Tucker did not call Mr Francis to give evidence to dispute Ms Ford’s evidence of the Telephone Conversation or its contents. Finally, I consider Ms Ford’s evidence is consistent with the Francis Email subsequently being sent at 5.32 pm. Mr Tucker contends that the Francis Email is wholly inconsistent with and contrary to Ms Ford’s evidence. I address this contention below in the context of the Francis Email. Accordingly, I accept Ms Ford’s evidence. I therefore find the Telephone Conversation occurred and that its content was as attested to by Ms Ford.”

(Footnotes omitted) (Emphasis added)

[11] Ms Ford then gave evidence that on 14 November 2019, she spoke with Mr Francis by telephone in relation to two queries he had in relation to the terms of the deed to be prepared. The first query was whether the Respondent would pay the settlement sum to the Appellant without deduction of taxation and the second was whether it was necessary to include a term that the Application be dismissed by consent with no right of reinstatement, as opposed to the Appellant filing a notice of discontinuance. Ms Ford’s evidence was that in relation to the first query, she told Mr Francis she doubted the settlement sum could be paid without the deduction of taxation but that she would seek instructions. Regarding the second query, Ms Ford’s evidence is that she told Mr Francis that dismissal by consent order was a necessary term that the Appellant had agreed to on 13 November 2019. The Deputy President noted that this part of Ms Ford’s evidence was not challenged, and she accepted it.

[12] Furthermore, Ms Gallaher gave evidence that following his telephone conversation with Ms Ford, Mr Francis telephoned her on 14 November 2019. Ms Gallaher’s evidence is that Mr Francis advised her that the Appellant would prefer to file a notice of discontinuance and that he wanted the settlement sum paid to Patron Legal’s trust account without deduction of tax. Ms Gallaher said that she confirmed that the Respondent required the matter be dismissed by consent order as agreed and that she would seek instructions regarding the payment of the settlement sum. Again, the Deputy President noted this evidence was not challenged and accepted it.

[13] The Deputy President then considered the rest of the evidence which was in relation to events that occurred after the 14^th of November 2019. 3 The events that occurred after the 14^th of November 2019 are not challenged on appeal and as such, we will not reproduce the Deputy President’s findings in relation to that evidence here.

[14] After considering the evidence, the Deputy President identified the legal principles in relation to offer and acceptance of a settlement proposal and whether a binding settlement agreement has been made. 4 These legal principles are well-trodden and we will not repeat them. The Deputy President then outlined each party’s submissions5 before she considered whether an agreement had been made on 13 November 2019.

[15] The Deputy President found that the 13 November Letter constituted a counter-offer to the 12 November Letter, which was capable of acceptance. The Deputy President accepted Ms Ford’s evidence that in the Telephone Conversation, this counter-offer was accepted by Mr Francis, as the Appellant’s legal representative at the time, by saying “we accept the terms of settlement…”.  6 The Deputy President considered it of no consequence that the formalities of the deed remained to be discussed. She reiterated again, that the 13 November Letter constituted a counter-offer which was accepted, unconditionally, by Mr Francis in the Telephone Conversation.7 Accordingly, the Deputy President found that an agreement was made between the parties on 13 November 2019 on the terms set out in the 13 November Letter.

[16] Having found that an agreement had been reached between the parties, the Deputy President then considered whether the agreement was binding. Her consideration dealt with a range of matters, including the usage of the phrase “pending the execution of a deed” in the Francis Email, post-agreement conduct of the parties, the use of the words “in principle” settlement in the Francis Email and other communications, communications regarding the terms of the agreement, correspondence regarding other applications before the Commission and delay. After considering, at length, the numerous matters before her, the Deputy President concluded that the parties entered into an agreement on 13 November 2019 on the terms set out in the 13 November Letter. The Deputy President found that the agreement is of the first class of agreements identified in Masters v Cameron 8 and accordingly, was binding. The Deputy President considered that in the event she was wrong, then the agreement was also capable of falling into the second class of agreements identified in Masters v Cameron and was nonetheless binding.

[17] Accordingly, the Deputy President found that the Appellant’s Application had no reasonable prospects of success and dismissed it pursuant to s 587(1)(c) of the Act.

Principles of Appeal

[18] 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. 9  There is no right to appeal and an appeal may only be made with the permission of the Commission.

[19] Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 10 The public interest is not satisfied simply by the identification of error,11 or a preference for a different result.12 In GlaxoSmithKline Australia Pty Ltd v Makin 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 issue 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...” 13

[20] 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. 14 However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.

Consideration

[21] As aforementioned, this matter has had a long and unusual history. This appeal itself has been the subject of several interlocutory matters.

[22] The Appellant lodged his form F7 notice of appeal on 15 October 2020. On 21 October 2020, the Appellant lodged his appeal book along with an application that the Commission receives further evidence and information (the F1 Application), an application for an order requiring a person to attend before the Commission (the F51 Application) and an application for an order for production of documents, records or information to the Commission (the F52 Application).

[23] We will outline the way in which each of these applications was dealt with further below. However, before the Full Bench dealt with these issues, we first had to deal with a threshold issue of representation, as the Appellant had opposed the Respondent’s application for representation made pursuant to s 596 of the Act.

Representation

[24] By email correspondence dated 2 November 2020, the Appellant indicated that, inter alia, he opposed the Respondent’s application to be represented by a legal representative made under s 596 of the Act. The Appellant requested that the issue of representation be determined as soon as possible and on the papers. At this point in time, a hearing date had already been set and directions were made for the filing of material by the parties. Given the Appellant’s request that the issue of representation be dealt with promptly, the Full Bench vacated the directions made at the time and invited submissions from the parties regarding the Respondent’s application to be legally represented.

[25] On 26 November 2020, this Full Bench issued a decision in Tucker v State of Victoria (State Revenue Service) 15 granting permission for the Respondent to be legally represented.

The F52 Application

[26] Having dealt with the threshold issue of representation, the Full Bench then sought to deal first with the F52 Application before dealing with the F1 and F51 Applications. The Appellant, through the F52 Application, was seeking for the production, by Maddocks, of the following material:

1. The invoice/s referred to in the oral evidence of Courtney Jayne Ford at Ts PN-183

2. The file note/s referred to in the oral evidence of Courtney Jayne Ford at Ts PN-156.

3. Any other documents or communications referring or relating to the phone call referred to in the oral evidence of Courtney Jayne Ford at Ts PN-144.

[27] Item 1 above will henceforth be referred to as “the Invoice” and item 2 above will henceforth be referred to as “the File Note”. In summary, as we have outlined above, Ms Ford gave evidence, in the proceedings at first instance, that she would have made a file note of the Telephone Conversation and, being billable work, there would have been an invoice itemising the Telephone Conversation. The Appellant sought, by his F52 Application, for production of the File Note and Invoice and any other documents or communications referring or relating to the Telephone Conversation.

[28] Directions were then set for the parties to file material in respect of the F52 Application. On 14 December 2020, an order was issued requiring the Respondent to produce the documents sought in the F52 Application (the F52 Order). At the Appellant’s request, a decision 16 containing detailed reasons regarding the issuance of the F52 Order was published on 4 January 2021.

[29] On 18 December 2020, Maddocks produced the materials specified in the F52 Order. Relevantly, the Invoice produced by Maddocks was heavily redacted. On 21 December 2020, the Appellant made submissions asserting that Maddocks had failed or refused to comply with the F52 Order. The Appellant sought to have the F52 Order set aside on the basis that a second order be issued in a different form. The Full Bench denied the Appellant’s request to set aside the F52 Order and indicated the Appellant would need to make a further application for the production of documents he sought.

[30] Accordingly, on 21 December 2020, the Appellant filed an F52 application for an order for the production of documents to the Commission (the Further F52 Application). Prior to this, the Respondent had indicated it would oppose the F1 and F51 Applications which were still on foot and, following the filing of the Further F52 Application, the Respondent indicated that it would also oppose the Further F52 Application.

The F1, F51 and Further F52 Applications

[31] On 21 January 2021, a Telephone Mention was conducted before the Commission to deal with the F1, F51 and Further F52 Applications. At the mention, the parties consented to address only the F51 and Further F52 Applications in their submissions. Accordingly, the Full Bench dealt only with the F51 and Further F52 Applications.

[32] The Appellant’s F51 Application sought orders requiring Mr Francis to attend the Commission to give evidence. The Appellant’s Further F52 Application sought orders requiring the production of the Invoice in its unredacted form.

[33] On 4 March 2021, two orders were made, in respect of each of the F51 and Further F52 Applications. The order in relation to the F51 Application required Mr Francis to attend the Commission to give evidence (the F51 Order). The order in relation to the Further F52 Application required the production of the Invoice in its unredacted form to the Full Bench on a confidential basis (the Further F52 Order). A decision 17 containing detailed reasons in respect of both applications was published on the same date.

[34] In compliance with the Further F52 Order, Maddocks produced the Invoice in its unredacted form to the Full Bench on a confidential basis on 9 March 2021. On 15 March 2021, the Appellant wrote to the Commission requesting access to the Invoice in its unredacted form. On the same day, the Respondent wrote to the Commission to confirm that it maintained its objections to the Appellant inspecting the Invoice on the basis of client legal privilege. The Respondent requested that, if the Full Bench were to release the Invoice to the Appellant, that reasons for doing so be published and that it be given the opportunity to consider the reasons and be heard before the Appellant inspects the invoice.

[35] On 25 March 2021, the Commission wrote to the parties, indicating the Full Bench was of the view that entries in the Invoice commencing 12 November 2019 through to 28 November 2019 be made available to the Appellant. Furthermore, the Respondent was informed that if it sought certain entries to not be included on the basis of legal professional privilege or any confidentiality order then it should make an application to the Full Bench.

[36] On 8 April 2021, the Respondent filed submissions which, inter alia, maintained its objection to providing the Invoice to the Appellant on the basis of legal professional privilege. In the alternative, the Respondent submitted that should the Full Bench consider that a further version of the Invoice be produced to the Appellant, then a number of further redactions should be made to entries on the Invoice and that it would be provided to the Appellant subject to the making of confidentiality orders proposed by the Respondent.

[37] On 9 April 2021, the Appellant wrote to the Commission to indicate that he opposed the Respondent’s application and sought access to the Invoice.

[38] On 12 April 2021, the Full Bench indicated to the parties that it was of the view that the alternative course proposed in the Respondent’s submissions of 8 April 2021 was the appropriate course to take regarding the Invoice. Accordingly, on 16 April 2021, the Full Bench issued the confidentiality order sought by the Respondent. An order requiring the Respondent to provide the Invoice with the further redactions to the Appellant was also issued on the same day.

[39] On 23 April 2021, a video hearing was conducted before the Full Bench in order for Mr Francis to give his evidence. The nature of Mr Francis’ evidence and the material produced by the various F52 Applications will be outlined in further detail below.

[40] On 30 April 2021, the Appellant filed another Form F1 Application and his own witness statement, attaching an Amended Notice of Appeal. By the Form F1 Application, the Appellant sought to have paragraph [3] of his witness statement be admitted in evidence. The Appellant also sought leave to file the Amended Notice of Appeal.

[41] On 7 May 2021, the Respondent wrote to the Commission and indicated that it had no objection to paragraph [3] of the Appellant’s witness statement being admitted as evidence by the Full Bench. The Respondent submitted that the Appellant’s application for leave to file the Amended Notice of Appeal be refused. Furthermore, the Respondent indicated that it consented to the documents produced by Maddocks and the evidence given by Mr Francis being accepted by the Full Bench on appeal. As such, the original F1 Application of 22 October 2020 need not be addressed on appeal.

[42] On 10 May 2021, the Appellant replied, by way of email, to the Respondent’s submissions regarding the Amended Notice of Appeal.

[43] On 11 May 2021, the Full Bench indicated to the parties that the Appellant’s application to file the Amended Notice of Appeal was denied, with reasons to follow in this decision. Accordingly, we will set out those reasons further below. On the same date, directions were set for the filing of materials by the parties. As aforementioned, this appeal was conducted on the basis of written submissions. The Full Bench has had full regard to the fresh evidence before it and the submissions of the parties.

The evidence before the Full Bench

[44] Before we turn to consider the issues on appeal, it is first necessary to summarise the fresh evidence on appeal. The fresh evidence currently before us is the material produced by Maddocks, the evidence given by Mr Francis at the hearing on 23 April 2021 and paragraph [3] of the Appellant’s witness statement filed on 30 April 2021.

i. The material produced by Maddocks

[45] The material produced by Maddocks consists of the following:

1) A file note dated 14 November 2019 of a telephone call between Ms Ford and Mr Francis.

2) A partially redacted version of the Invoice.

3) An email from Ms Ford to the Respondent at 5.39pm on 13 November 2019.

4) Emails from Ms Gallaher to the Respondent’s witnesses in the unfair dismissal proceeding at 7.51pm and 7.53pm on 13 November 2019.

[46] We will deal first with items 3 and 4 above. Item 3 is simply an email from Ms Ford to the Respondent, forwarding the Francis Email to them with a short covering email drawing the Francis Email to its attention. Item 4 consists of two emails sent by Ms Gallaher to the Respondent’s witnesses informing them that an in-principle settlement had been reached between the parties and informing them they would no longer be required for the hearing of the unfair dismissal matter. The email sent at 7.51pm indicated to the witnesses that the parties have not yet signed a deed of release but that Maddocks expected this to occur the following day. We do not consider that anything turns on this but have included it for completeness.

[47] We will now turn to the Invoice. The partially redacted Invoice contains only the entries commencing 12 November 2019 to 28 November 2019. The “Rate” and “Value” columns have been redacted. Accordingly, the invoice shows the date of entries made, by whom they were made, a short narration regarding the entries and the time spent on the relevant entry. Following the further redactions sought by Maddocks, certain entries have had their narrations redacted. There is an entry dated 13 November 2019 by Ms Ford with the following narration:

“Telephone calls with James Francis of Patron Legal regarding confirmation of in-principle settlement and necessary correspondence to the Commission.”

[48] The entry in and of itself, does not support Ms Ford’s evidence given in the matter at first instance that Mr Francis said words to the effect that the Appellant accepted the terms of settlement contained in the 13 November Letter. Nor does the entry demonstrate that words to this effect were not said. We note that there are numerous other entries on the invoice after the 13^th of November 2019, the significance of this will become clear later in this decision.

[49] Turning now to item 1 above, we note that this is purportedly a file note dated 14^th November 2019. Therefore, it is not a file note that records the Telephone Conversation which took place the previous day on 13^th November 2019. Accordingly, we conclude that, contrary to Ms Ford’s oral evidence in the matter below, the File Note does not exist. What has been produced by Maddocks is in fact a file note of a telephone conversation between Ms Ford and Mr Francis that took place the following day on 14^th November 2019. This file note does not corroborate Ms Ford’s oral evidence that Mr Francis accepted the terms of settlement. What it does indicate is that Ms Ford spoke with Mr Francis regarding the issues, previously canvassed above, surrounding the payment of the settlement sum without deduction of tax and the discontinuance of the matter by consent orders rather than by the filing of an F50 Notice of Discontinuance. There is also reference to a trust account and that the Respondent was not comfortable with paying the settlement sum as a lump sum. As such, we do not consider that the file note is evidence that Mr Francis accepted the settlement terms put forth by the Respondent; all it shows is there were further outstanding issues to be resolved between the parties.

ii. The evidence of Mr Francis

[50] At the hearing on 23 April 2021, Mr Francis gave evidence regarding the Telephone Conversation. Given the amount of time that had elapsed since the Telephone Conversation took place, Mr Francis relied on contemporaneous file notes of the Telephone Conversation; one dated 13^th November 2019 and one dated 14^th November 2019. Both file notes were tendered into evidence.

[51] Mr Francis’ evidence is that an in-principle agreement had been reached between the parties and that a draft deed would be progressed. When Mr Francis was asked about his understanding of the phrase in-principle agreement, he gave the following answer: 18

“Well, it means that, broadly, the matter appears to have been, to some extent, agreed on a path forward but certainly, I don’t consider that it would mean a final agreement, especially in circumstances where she’s talking about a draft deed that would need to be progressed and reviewed and all the other things that happen with deeds”

[52] Mr Francis was also asked if his file note dated 13^th November 2019 recorded that he said “We accept the terms of settlement”. Mr Francis indicated that it did not. We have had the benefit of seeing the file note of 13 November 2019 and it reflects the oral evidence given by Mr Francis. Furthermore, Mr Francis gave evidence that, to his recollection, he did not say the words “We accept the terms of settlement” to Ms Ford and, in his view, an agreement had not been concluded between the parties.

[53] On cross-examination, counsel for the Respondent put to Mr Francis that he said words to the effect of “We accept the terms of settlement and now that we’re agreed, I propose writing to the Commission and informing of that. And with your client’s approval asking that the mention hearing tomorrow morning be vacated.” 19 Mr Francis indicated that he did not have a record of himself saying those words nor could he recall saying that he accepted the terms of settlement.20

[54] Mr Francis also gave evidence as to the events that occurred on 14 November 2019. His evidence largely reflects the evidence given in the matter below by Ms Ford and Ms Gallaher; that there were still issues regarding the taxation of the settlement sum and the manner in which the unfair dismissal proceedings would be discontinued to be resolved by the parties. Mr Francis’ file note of 14 November 2019 supports the oral evidence given by him.

[55] In summary, Mr Francis’ evidence is that the matter was settled in principle only and that there were still issues to be resolved regarding the deed. The two issues to be resolved related to the taxation treatment of the settlement sum and the Respondent’s firm requirement that the unfair dismissal matter be discontinued by consent orders rather than by filing a notice of discontinuance.

iii. The Appellant’s witness statement

[56] As aforementioned, paragraph [3] of the Appellant’s witness statement was accepted into evidence with the Respondent’s consent. It reads as follows:

“I have not received any costs disclosure pursuant to section 177 of the Legal Profession Uniform Law (entitled “Disclosure Obligations regarding settlement of litigious matters”) from Mr Francis and Patron Legal, my former lawyers, or anyone else, concerning Fair Work Commission Proceeding Number U2019/8416.”

[57] The Appellant attached an Amended Notice of Appeal to his witness statement and sought leave to file it in the Commission. We have previously denied him leave to file the Amended Notice of Appeal. In summary, the Appellant’s proposed amendments to the Notice of Appeal are as follows:

•  An amendment to Ground 2(b) to add the further contention that the Deputy President should have found that Ms Gallaher breached various duties as a solicitor and the Model Litigant Guidelines.

•  A new Ground 3 which contends that the Deputy President erred by accepting the evidence of Ms Ford. The Appellant contends that the Full Bench should find that Ms Ford perpetrated a deception in the matter at first instance in breach of the Act and various other professional duties.

•  A new Ground 4 that the Deputy President erred in accepting the Respondent’s “narrative” that a binding agreement was made on 13 November 2019. The Appellant contends that the Full Bench should find that the Respondent fabricated the narrative and perpetrated a deception upon the Commission.

[58] The amendments sought by the Appellant do not properly identify an error in the Deputy President’s decision at first instance. The Appellant is asking the Full Bench to make findings regarding serious allegations of misconduct by the Respondent and its legal representatives. They are not properly constructed grounds of appeal and as such, we have refused leave for the Appellant to file his Amended Notice of Appeal.

Was an agreement made on 13 November 2019?

[59] For what should have been a seemingly straightforward appeal as to whether or not a binding settlement was reached between the parties, this matter has become extremely complicated as evidenced by the lengthy interlocutory applications on appeal.

[60] In the Decision, the Deputy President considered, at paragraphs [81] – [84] whether or not the parties had reached an agreement on 13 November 2019. A fair reading of these paragraphs reveals that, in coming to the conclusion that the parties had reached an agreement, the Deputy President placed considerable weight on the evidence given by Ms Ford regarding what was said by Mr Francis during the Telephone Conversation. Most relevantly, the Deputy President made the following findings at paragraph [81]:

“As at November 2019 both parties were vigorously prosecuting their respective cases in relation to the Application. Both parties had filed submissions and evidence. Both parties had made interlocutory applications which were heavily contested by the other. A mention hearing was listed on 14 November 2019 at which time Mr Tucker’s application for orders to produce would be determined and a hearing was listed to commence six days after that on 20 and 21 November 2019. There was, as submitted by the SRO, a contest between the parties which was on the path towards a hearing and determination. It was in this context that the 12 November Letter and the 13 November Letter were sent. There is no doubt that the 12 November Letter was capable of acceptance by the SRO. The SRO’s response to that offer was the 13 November Letter. In my view, the 13 November Letter does not directly correspond to the 12 November Offer and introduces terms which would not be implied by law and which are not solely for the benefit of Mr Tucker. I consider the 13 November Letter is most appropriately characterised as a counter-offer. The SRO does not contest this characterisation of the 13 November Letter. That counter-offer was capable of acceptance by Mr Tucker. Ms Ford’s evidence, which I have accepted, is that Mr Francis, as Mr Tucker’s legal representative, accepted that counter-offer in the Telephone Conversation by saying “we accept the terms of settlement…”. That acceptance was therefore unambiguous, unconditional and directly corresponded to the counter-offer made. I consider the language used by Mr Francis was such as to convey to a reasonable person in Ms Ford’s position a clear and definite decision by Mr Tucker to be bound by the terms of the offer, leaving nothing further to be negotiated. For my part, I consider it is difficult to see how the words “we accept the terms of settlement” could be clearer or open to any other interpretation. Further, Ms Ford’s evidence is that it was her understanding from her conversation with Mr Francis that the parties had a binding agreement.”

(Footnotes omitted) (Our emphasis)

[61] From the above paragraph, it is clear that the Deputy President placed much weight on Ms Ford’s oral evidence that Mr Francis said words to the effect that he accepted the terms of settlement. It is not a stretch to say that the Deputy President’s conclusion that the parties made an agreement on 13 November 2019 is predicated almost entirely on her acceptance of Ms Ford’s oral evidence. As evidenced at paragraph [25] of the Decision, the Deputy President accepted Ms Ford’s evidence because she was of the view that a legal practitioner would not give false evidence under oath. This is an odd basis upon which to unequivocally accept a witness’s evidence, especially when, under cross-examination, Ms Ford has asserted that documentary evidence in the form of the File Note existed. In those circumstances, the File Note should have been put into evidence and indeed, the Deputy President should have exercised her powers under s 590 of the Act to require the File Note to be put into evidence. As we have previously found, a file note of a conversation between two legal representatives is not subject to legal professional privilege. 21 The Deputy President erred in finding that the File Note was subject to legal professional privilege. Had the Deputy President ordered the Respondent to produce the File Note, she would have found, as we have, that it does not exist.

[62] In any event, we have ordered production of the File Note and discovered that it does not exist. Furthermore, on appeal, Mr Francis has given evidence that he does not recall saying words to that effect. Nor do his contemporaneous file notes record him saying any words to that effect. Mr Francis’ view of the dispute between the parties, as at 13 November 2019, is that an in-principle agreement had been reached but that it was not a final agreement.

[63] The Deputy President’s conclusion that an agreement was reached was predicated entirely on Ms Ford’s oral evidence. That evidence is disputed by Mr Francis’ oral evidence and his contemporaneous file notes. Furthermore, as we have noted, Ms Ford’s oral evidence is not corroborated by a contemporaneous file note despite the oral evidence she gave to the contrary. In this case where the Appellant was unrepresented, it was open to and would have been preferable for the Deputy President to have called Mr Francis to give evidence.

[64] We would also note that the Respondent has quite firmly, and contrary to the usual practice, demanded that the unfair dismissal matter be settled by way of consent orders. The usual practice is that when such matters are settled, they are done so by way of a notice of discontinuance. The fact that the Respondent continued to push so vigorously for a term to be included in the settlement deed that the matter be discontinued by consent orders rather than by a notice of discontinuance demonstrates that there was still some doubt as to whether the matter had been settled. If the Respondent was so sure that an agreement had been reached, it could have simply paid the money to the Appellant and considered the matter settled. It has not done so. The extensive legal costs billed to the Respondent by Maddocks after the matter had allegedly settled on 13 November 2019 indicates that the matter was far from settled. Those entries are indicative that there were still matters to be sorted between Maddocks and its client and the respective parties in relation to any settlement.

[65] Furthermore, we note that in an earlier decision, Tucker v State of Victoria (State Revenue Office) 22 the Deputy President made the following observation at paragraph [16]:

“At the Mention both parties agreed that the Application, while the subject of an in-principle agreement, had not been finally resolved. Accordingly, it appears uncontested that a binding settlement agreement has not been reached and there is therefore still a matter before the Commission.”

[66] The above finding was made in May of 2020, and the Decision, published a few months later in September of the same year suddenly concludes that a settlement agreement indeed had been reached. The Deputy President made note of this in paragraph [102] of the Decision:

“The decision in the Set Aside Application was handed down on 18 May 2020. On the basis of the material before the Commission at that time, the decision found, as a preliminary matter, that no final binding settlement agreement had been reached between the parties. In light of all the material now before the Commission, that conclusion appears to have been premature and in error.”

[67] It is curious that, after making the observation that the parties had not finally resolved the matter, the Deputy President continued with the prosecution of the unfair dismissal application only to then form the view that the matter had been settled with finality. It is not entirely clear what fresh evidence was produced that caused such a drastic change in the Deputy President’s findings as to whether a binding settlement agreement had been reached. So far as we can tell, the only fresh evidence put before the Deputy President was the oral evidence of Ms Ford and Ms Gallaher. Ms Gallaher’s evidence does not go towards whether an agreement was reached on 13 November 2019. In relation to Ms Ford’s evidence, we have already indicated the problems with that evidence.

[68] The Deputy President has committed a significant error of law in finding that an agreement was reached between the parties on 13 November 2019. Accordingly, she has erred in finding that a binding agreement of the kind described in Masters v Cameron 23 had been made.

[69] We are satisfied that the appeal enlivens the public interest. There is an appealable error, being an error of law, within the Decision. Appellate intervention is both warranted and necessary to correct the error and allow the Appellant’s unfair dismissal claim to proceed.

Conclusion

[70] For the above reasons, we order as follows:

1. Permission to appeal is granted.

2. The appeal is upheld.

3. The Decision of Deputy President Young is quashed.

4. The matter is remitted to the Region 1 Regional Coordinator for reallocation.

[71] Given the history of this matter, if the parties wish to have a conciliation conducted before a Member of the Commission, they should advise the Full Bench within 7 days of the release of this decision.

VICE PRESIDENT

Final written submissions:

Appellant’s reply submissions 1 July 2021.

Printed by authority of the Commonwealth Government Printer

<PR734017>

 1   Tucker v State of Victoria (State Revenue Office) [2020] FWC 5252.

 2   Ibid at [23].

 3   Ibid [29] – [62].

 4   Ibid [63] – [73].

 5   Ibid [74] – [80].

 6   Ibid at [82].

 7   Ibid at [83].

 8   (1954) 91 CLR 353.

 9   Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 [17] per Gleeson CJ, Gaudron and Hayne JJ (Coal and Allied Operations Pty Ltd).

 10   O’Sullivan v Farrer (1989) 160 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] – [46].

 11   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [24]-[27].

 12   GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]-[27], Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

 13   [2010] FWAFB 5343, 197 IR 266 at [24] – [27].

 14   Wan v AIRC (2001) 116 FCR 481 at [30].

 15   [2020] FWCFB 6354.

 16   Tucker v State of Victoria (State Revenue Office) [2021] FWCFB 8.

 17   Tucker v State of Victoria (State Revenue Office) [2021] FWCFB 1188.

 18   Transcript of proceedings on 23 April 2021 at PN46.

 19   Transcript of proceedings on 23 April 2021 at PN145 – 146.

 20   Transcript of proceedings on 23 April 2021 at PN147.

 21   Tucker v State of Victoria (State Revenue Office) [2021] FWCFB 8 at [13].

 22   [2020] FWC 2593.

 23   (1954) 91 CLR 353.