FEDERAL COURT OF AUSTRALIA

Shockthorap v Electricity Network Corporation [2019] FCA 619

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal is granted but does not extend to any argument that the first respondent abandoned any agreement entered into between the parties in March 2014.

2.    The time for filing a notice of appeal is extended to 24 May 2019.

3.    Unless the parties file submissions seeking different orders within seven days, the costs of the application for an extension of time and for leave to appeal be reserved for determination in the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant, Ms Shockthorap, seeks an extension of time and leave to appeal from the decision of the Federal Circuit Court of Australia ordering summary dismissal of her general protections application brought under the Fair Work Act 2009 (Cth): Shockthorap v Electricity Network Corporation t/a Western Power [2018] FCCA 1706.

2    In short, Ms Shockthorap's claim was dismissed summarily under s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) on the basis that the primary judge was satisfied that there was no real dispute that the parties had already entered into a settlement agreement with respect to her claim.

Extension of time

3    The principles with respect to an application for an extension of time for leave to appeal are well established.

4    Ms Shockthorap was required to file her application for leave to appeal within 14 days of the date on which the judgment was pronounced: r 35.13 Federal Court Rules 2011 (Cth). She filed her application 20 days after judgment was pronounced and therefore requires an extension of time to appeal.

5    The relevant considerations in deciding whether to grant an extension of time are the reasons for the delay, any prejudice to the defendant and the merits of the application: Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 186; (1984) 3 FCR 344 at 348-349; Deputy Commissioner of Taxation v Revolve Limited [2012] FCA 555 at [3], [7]-[8].

6    In her affidavit in support of her application for an extension of time and leave to appeal, Ms Shockthorap acknowledged that the application for leave had been filed out of time. She explained that she is self-represented and she misunderstood the rules as to the required time frames, believing the time for appeal to be either 21 or 28 days. Although she attempted to contact Legal Aid to assist in filing the application on 13 July 2018 (the last day of the 14-day period), difficulties in contacting Legal Aid meant that she was not able to obtain this assistance and she was forced to complete and file the requisite forms by herself.

7    The first respondent, Western Power, opposes the grant of an extension and contends that at all material times after judgment was delivered Ms Shockthorap was in receipt of legal advice, albeit that she lodged the application in this Court on her own part and without a solicitor on the record.

8    The extension of time is short and the explanation is credible. I am unable to determine a dispute as to the nature of any advice that Ms Shockthorap may have received about the time period for leave to appeal. There is no evidence she received advice from a lawyer about that question and she denies that she received any. Ultimately, in the circumstances of this case whether or not the extension should be granted is dependent on an assessment of the overarching merits of the application.

Principles on application for leave to appeal

9    An order for summary judgment under s 17A of the Federal Circuit Court of Australia Act is taken to be an interlocutory judgment for the purpose of s 24(1A) of the Federal Court of Australia Act 1976 (Cth): Dennis v Commonwealth Bank of Australia [2018] FCA 1908 at [9].

10    An applicant may not appeal from the primary judge's decision to dismiss the application for summary judgment unless the Court grants leave to appeal: s 24(1A) of the Federal Court of Australia Act. In the proposed appeal, the appellant would be required to demonstrate some legal, factual or discretionary error on the part of the primary judge: Dennis at [11] and cases cited therein.

11    The Court has a discretion as to whether to grant leave to appeal from an interlocutory judgment, but generally leave will not be granted unless the decision in question is attended with sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398–399; Minogue v Williams [2000] FCA 125 at [19]. Whilst a 'tight rein' should be kept on appeals concerning common interlocutory decisions on points of practice, leave will more readily be granted where, as here, the interlocutory decision effectively determines a substantive right: Decor Corporation at 400, cited in Waters v Commonwealth of Australia (Australian Taxation Office) [2017] FCA 1199 at [11].

12    The principles are not to be applied as if they represent some 'hard and fast rule': Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [29]. Each case must be considered on its merits. A 'sufficient doubt' must mean a doubt that is sufficient in the circumstances. Interlocutory orders cover a spectrum from those concerned solely with mechanical orders (such as case management orders and practice and procedure orders) to those which may, for one reason or another, have a significant impact upon the scope and outcome of proceedings and which ought to be given consideration on appeal: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at [43]-[44].

13    In this case, it cannot be disputed that the summary dismissal, whilst interlocutory, has a significant effect on the proceedings: it means that Ms Shockthorap is denied the ability to further pursue her claim.

Facts

14    In order to assess the merits of the prospective appeal it is necessary to set out in some detail the matters that came before the primary judge.

Initial dispute with Western Power

15    Ms Shockthorap was employed as a contractor to Western Power and had performed work in Western Power's contact call centre as a casual employee.

16    On 19 February 2014, Ms Shockthorap filed a non-dismissal general protections claim against Western Power in the Fair Work Commission (FWC) on the basis that she had been overlooked for permanent employment because of the amount of unpaid carer's and bereavement leave she had taken, and that she had later been dismissed because of that leave and because she had made a complaint.

The mediation conference

17    There was a mediated conferral between the parties in the FWC on 17 March 2014. Western Power was represented by two lawyers and a client representative. Ms Shockthorap did not have a lawyer present.

18    Aspects of what occurred at that mediation are not in dispute. For example:

(a)    the mediation commenced with a joint session, and then the parties were separated for discussions with the Commissioner. Although not said expressly, it is apparent that there was then a further joint session (apparent from references in Western Power's evidence to matters said by the Commissioner to Ms Shockthorap, from references to matters said by Western Power's lawyers and from a file note referred to below);

(b)    the mediation concluded on the basis that Western Power offered to pay Ms Shockthorap a settlement sum of $5,000 (gross) on a non-admission basis and provide a letter of regret in full and final settlement of Ms Shockthorap's claim;

(c)    Western Power's lawyer said that it would leave its offer open until 10.00 am the following day (there is a conflict in the evidence as to which lawyer made the statement but nothing turns on that for present purposes);

(d)    there would be a deed of settlement that would include 'the usual terms regarding confidentiality and non-disparagement'; and

(e)    the Commissioner asked Ms Shockthorap to advise him if she accepted the offer.

19    According to Western Power, the Commissioner also said that the purpose of the settlement deed was not to renegotiate the settlement but rather to reflect the common understanding of the parties.

20    Ms Shockthorap's evidence before the primary judge included the following (Ms Pole being one of Western Power's lawyers):

4.    In relation to paragraph 19 of Ms Pole's Affidavit, I agree that [the Commissioner] asked me to advise his associate if I accepted the offer and made reference to a deed. However, I do not recall [the Commissioner] making comment on the purpose of the deed.

5.    I did not consider the offer to be fair.

6.    [The Commissioner] told me that if I did not accept the offer, I would have to initiate proceedings in Federal Court within 14 days of the conference to continue my claim.

7.    I was very confused about what to do, so I asked for some time to think about it. Ms Pole said I had until 10am the following day to accept the offer or it would be 'off the table'.

21    Western Power provided by way of evidence a copy of a file note of the mediation, recorded by Ms Pole (File Note). Relevantly, the File Note covers both those parts of the mediation where it seems all parties were present, and the parts where confidential or privileged discussions were held between only Western Power and its lawyers (with or without the Commissioner present). The notes of those latter parts of the mediation have been redacted.

22    Relevantly, the last two pages of the File Note read as follows:

Where we will take it from here

WP will leave offer on table until 10am tomorrow

- expression of regret

- $5,000

- FF settlement of all emp. Matters

- Deed     -    Confidential

-    non-disparagement [can't say anything to third parties that is offensive against WP]

Advise associate if accept - Allion draw up Deed.

Deed    - not for purpose of renegotiating

- so know common understanding

Can go to Fed Court if wish

Circs of application

Muddy one - no certainty for other party.

(emphasis added)

23    At 9.24 am the following day (18 March 2014), Ms Shockthorap sent the following email to Western Power's legal representatives and the Commissioner's associate:

Dear [Commissioner],

I have decided to accept Western Power's offer.

Kind regards,

Laura.

24    Shortly after on the same day, Western Power's legal representatives immediately sent the following email to Western Power:

Please see the below email from Laura Shockthorap accepting Western Power's offer.

Given what Ms Shockthorap was initially seeking by way of compensation, and Western Power's potential exposure in this matter, this is a fantastic outcome for Western Power.

Please confirm if you would like me to prepare a draft deed of settlement and release for your review, or if you would prefer to prepare the first draft using Western Power's template deed?

(original emphasis)

25    An internal email from Western Power circulated after receipt of this email (the date is unclear but it seems to be on or about the same date) relevantly provides:

Hi All

I have good news Laura has accepted our offer to settle her claim for $5000 which is a very small settlement given the matter. We will organise the paperwork and she will have to sign it to accept the offer which means she cannot discuss it with anyone or make any disparaging comments about Western Power.

We also have to keep confidential.

26    I interpolate to note that the two emails set out immediately above were not in evidence before the primary judge. I will return to this issue below.

The Deed of Settlement and Release

27    On 20 March 2014, Western Power's legal representatives emailed Ms Shockthorap a Deed of Settlement and Release (Deed).

28    Upon receiving the Deed, Ms Shockthorap refused to sign it. She engaged a legal practitioner to communicate with Western Power's legal representatives.

29    Ms Shockthorap said the following about those matters in evidence before the primary judge:

8.    I was disappointed with the process followed at Fair Work Commission conference. After the conference I went straight home and went to sleep as I was not feeling well physically and emotionally.

9.    I did not seek any legal advice because I relied upon advice given by [the Commissioner] in the conference.

10.    In relation to paragraph 21 of Ms Pole's Affidavit [which referred to Ms Shockthorap's email of 18 March 2014] I say that I sent an email 34 minutes before I understood the offer from the First Respondent would expire saying "I have decided to accept Western Power's offer" in circumstances where I was proceeding on the basis that it had been misrepresented to me that I only had 14 days within which to take the alternative course of making an application to the Court. In those circumstances I judged that I would not have time, within 14 days, to accumulate the financial capacity to hire a lawyer to represent me in Court proceedings which I would be required to commence within that time. I formed the view, following my experience in the conciliation process that I would need legal representation to adequately present my case if it proceeded to Court. In calculating my financial incapacity to hire a lawyer within the 14 day time frame I believed was required to complied with, I took into account that I had just lost my job and I had a child to look after. I attach hereto marked with letter, "a" copy of the email.

11.    I understood that nothing was set in stone until I knew what the terms of the agreement actually were.

12.    When I received the deed and read through it, there was a clause in it that said I agreed that I had obtained independent legal advice. Up until then, I did not know that I would be agreeing to that. I contacted a couple of free legal services and it was then that I found out that I had six years to file my claim, not 14 days like [the Commissioner] had said.

30    On 26 March 2014, Western Power's legal representatives emailed a letter to Ms Shockthorap's representative. After setting out the factual background, this letter provided:

We are instructed that our client is not prepared to make any further settlement offer to Ms Shockthorap.

The agreement that was reached between the parties on 18 March 2014 represents a binding, enforceable contract between the parties. It was an accord and satisfaction of Ms Shockthorap's claim. As a result, Ms Shockthorap's claim against our client has now been extinguished.

We draw your attention in that regard to the numerous legal authorities in support of this position, in particular, the Federal Court appeal decision in Australian Postal Corporation v Gorman [2011] FCA 975.

We are instructed to put Ms Shockthorap on notice that, if she fails to sign and return the Deed of Settlement and Release, our client will write to [the Commissioner] and ask that he advise Ms Shockthorap that her claim has no reasonable prospects of success pursuant to section 375 of the Fair Work Act 2009 (Cth). Further, if Ms Shockthorap attempts to proceed with her claim in the Federal Circuit Court or the Federal Court, our client will apply to have Ms Shockthorap's claim summarily dismissed as having no reasonable prospects of success, pursuant to the relevant Court Act and Rules. In the event that our client is put to the cost of making such any such application, our client will be seeking to recover those costs from Ms Shockthorap.

We ask that you put the above to Ms Shockthorap with your strong recommendation that she executes the deed and discontinues her claim against our client.

(original emphasis)

The Complaint

31    Also on 26 March 2014, Ms Shockthorap complained to the FWC about the Commissioner's conduct during the mediation (Complaint). The making of the Complaint is not of itself particularly relevant, but the primary judge relied on the terms of the Complaint and so it is important to set out parts of it in full:

3. When the Respondent was removed from the conciliation room and I was asked by [the Commissioner] what I was seeking as remedy I retrieved spreadsheets I had again spent a number of hours preparing. I attempted to explain to [the Commissioner] that my calculation were based on the difference between what I was paid and what I would have been paid had the respondent not breached the Act. The actual hours I worked differed greatly to the hours I was rostered to work due to being called in for emergency situations and/or overtime (I referred to both as overtime in conciliation), and the Respondent was basing their settlement offer on hours that I was rostered to work. As I was trying to recalculate those hours as requested by [the Commissioner] to double check my work was correct this was brushed aside in favour of the Respondent's method of offering settlement based on the hours of my usual roster. When I calculated at home, the number of overtime hours within the 12 (out of 24) months in dispute was close to 100 and many of those hours were on weekends, nights and public holidays. Considering the lowest rate of pay during these times is approximately $45 and the highest is around $75, that is a very big discrepancy to be brushed aside without allowing the evidence to be given in full.

4. [The Commissioner] advised me on certain elements of the process after conciliation should an agreement not be reached that I don't believe were correct. For example I was advised that the certificate would be issued with the date of conciliation on it and that I would have 14 days to lodge the application with the Federal Court. The Federal Circuit Court rules 2001 do state this in parts 45.06 & 45.07, however they relate only to unfair dismissal claims. My claim is general protections (adverse action) and discrimination, and part 45.08 of the rules for Federal Circuit Court do not require a certificate be lodged for these claims. Had I know that I had much longer than 14 days to prepare and lodge an application I would not have agreed to unfair settlement terms which may now be binding. The deed remains unsigned while I try to figure out if I can now legally revoke my agreement based on an unfair conciliation and the advice that I was given in it. This may take some time as I remain without representation.

There was also quite a lot of pressure placed on me to accept settlement even though I was obviously very uncomfortable with it. I commented a few times that I hadn't represented myself properly, and not having allowed me to present the evidence I don't believe that [the Commissioner] was in a position to be giving me advice on accepting terms and whether to proceed with my claim in Federal Court. I understand that taking matters to court is a stressful, costly and time consuming matter but it is very unfair to place pressure on an applicant to settle based on those reasons and without hearing all the evidence. Although I was permitted until the following morning to decide, this wasn't enough time for me to get legal advice and so I had to rely upon the information and opinions given by [the Commissioner]. I would add that I do not believe [the Commissioner] was intending to be harmful or malicious.

(emphasis added)

Negotiations post refusal to sign Deed

32    On 27 March 2014, Ms Shockthorap again informed Western Power's legal representatives that she would not be signing the Deed.

33    On 8 April 2014, Ms Shockthorap informed Western Power's legal representatives that she was awaiting a 'more appropriate settlement offer'.

34    On 10 April 2014, Western Power's legal representatives responded to Ms Shockthorap, saying:

As set out in our letter dated 26 March 2014, our client remains of the position that there is a binding agreement between the parties in relation to the settlement of this matter.

If you have an alternative proposal you wish to articulate please do so, including your calculation and justification for any alternative. However, our client remains ready to pay the settlement sum to you on receipt of the signed deed of settlement, whenever that may be.

35    On 22 April 2014, Ms Shockthorap responded by letter claiming $26,218.73 as the amount due, being the difference between payment as a contractor and permanent employment together with additional compensation for four breaches of the Fair Work Act. She followed up on that letter on 15 May 2014.

36    On 20 May 2014, Western Power's legal representative wrote offering to 'uphold the initial settlement offer of $5,000' and 'pay an additional settlement sum of $2,500 in settlement of further anticipated legal proceedings'.

37    On 11 June 2014, Ms Shockthorap responded by letter saying that she was seeking $28,374.10 as compensation for the difference in salary between a contractor and employee, $55,446.12 for breach of the Fair Work Act, and a letter of regret, 'in order to settle this matter'.

38    On 16 June 2014, Western Power's solicitor responded stating that their client's position 'remains that your claim in this matter has been settled'.

39    On approximately 15 April 2015, communications resumed between the parties. Over the course of the next two weeks, Ms Shockthorap and Western Power exchanged offers and counter-offers. Western Power's offers referred to settlement of threatened Federal Circuit Court proceedings and an ongoing freedom of information request. The negotiations were unsuccessful.

The 14-day representation

40    It does not seem to be in issue between the parties that what was allegedly said by the Commissioner at the mediation (conciliation) about the relevant time period for instituting proceedings was incorrect. Whilst a party only has 14 days following conciliation to apply for an unfair dismissal application referred to in r 45.06 and r 45.07 of the Federal Circuit Court Rules 2001 (Cth), this does not apply to adverse action claims referred to in r 45.08, for which it is not necessary to lodge a conciliation certificate (see s 544 and s 778 of the Fair Work Act).

Application to Federal Circuit Court

41    On 5 June 2017, Ms Shockthorap filed a general protections application against Western Power in the Federal Circuit Court, and in response Western Power filed the summary dismissal application.

42    In support of its summary dismissal application, Western Power submitted that a settlement offer was made on 17 March 2014 by Western Power, and Ms Shockthorap's subsequent email of 18 March 2014 comprised acceptance of that offer, creating a binding settlement agreement. Accordingly, Western Power submitted that Ms Shockthorap's application should be dismissed as having no prospects of success because her rights had been extinguished and replaced by a new cause of action based on this settlement agreement.

43    Senior counsel for Ms Shockthorap submitted that the question of whether there was a concluded settlement agreement was a disputed factual issue which was to be determined on the evidence. This dispute was based on a difference of view between the parties as to whether the parties arrived at a position where they intended to enter into a binding contract by virtue of the 18 March 2014 email, and whether the parties' subsequent conduct was admissible to establish the legal consequences of the 18 March 2014 email.

Approach of primary judge

44    The primary judge noted that the intention of the parties was to be determined from the objective evidence and stated that the best objective evidence before him was the wording of the 18 March 2014 email, which he found was equivalent to 'I accept the offer' (at [33]).

45    The primary judge found that there was a binding agreement falling within the first type of agreement set out in Masters v Cameron (1954) 91 CLR 353 at 360, being a situation where the parties have reached finality in the terms of their bargain and intend to be immediately bound to the performance of those terms, which will be restated in a form which will be fuller or more precise (at [35]).

46    The primary judge also addressed submissions as to the issue of unilateral mistake based on Ms Shockthorap's claim that she relied upon the Commissioner's advice. Western Power submitted that in accordance with McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 408 and Taylor v Johnson (1983) 151 CLR 422 at 432, unilateral mistake does not void a contract except where a party to a contract knows of the mistake and deliberately sets out to ensure the other party does not become aware of the mistake. The primary judge concluded that Ms Shockthorap's Complaint was evidence that Western Power's representative was not present when the Commissioner's advice was given, and that there was no evidence to suggest that Western Power was aware of the Commissioner's advice (at [38]). Accordingly, the primary judge concluded that there was no basis for a finding of unilateral mistake (also at [38]).

47    As a consequence, the primary judge found that the terms of the agreement reached on 18 March 2014 established that there was a concluded agreement between them (at [41]). The primary judge did not consider it was necessary to have regard to evidence of events after 18 March 2014 as an unambiguous agreement was concluded on that date. The primary judge accepted Western Power's submission that subsequent discussions did not affect the outcome because Ms Shockthorap had not established that the April 2015 negotiations were inconsistent with a concluded agreement, as they did not themselves result in a concluded agreement.

48    The primary judge therefore ordered summary dismissal of the application (at [42]).

Ms Shockthorap's proposed grounds of appeal

49    Ms Shockthorap has acted for herself on this application. The proposed grounds of appeal are:

(1)    The primary judge erred in finding that:

(a)    a binding and enforceable agreement existed between the parties;

(b)    the First Respondent had no knowledge of the Applicant's mistake;

(c)    the Applicant's claim had no reasonable prospect of success; and that

(2)    Disallowing the matter to be tried is a miscarriage of justice.

Ms Shockthorap's submissions in support of the proposed grounds

50    Ms Shockthorap's submissions traverse a range of matters, some of which are of doubtful relevance, such as her subjective view and past experiences to the effect that a contract is enforceable only when it is signed.

51    However, having considered her submissions carefully, and having regard to the fact that she is self-represented, it seems to me that the following arguments were articulated:

(1)    whether or not the Western Power representatives were present at the time of the Commissioner's alleged statement about the 14-day time limit is relevant to an assessment of the circumstances of the purported agreement and whether the agreement might be impugned;

(2)    the primary judge should not have found on the basis of the terms of the Complaint that the Western Power representatives were not present when there was other evidence that should have been taken into account in informing any such finding;

(3)    there was evidence that was inconsistent with a finding that the parties proceeded on the basis that an agreement was formed on 18 March 2014: this included the internal Western Power email of 18 March 2014 or thereabouts; the inclusion in the Deed of terms that Ms Shockthorap alleges went beyond what was discussed at the mediation, in particular an acknowledgment sought from her by the Deed as to legal advice in circumstances where the offer made on 17 March 2014 was left open until only 10.00 am on 18 March 2014;

(4)    there may be further evidence that would be uncovered by the trial process that might be highly relevant to the agreement;

(5)    taking into account these matters the primary judge ought not to have found that formation of a contract by the 18 March 2014 email was unambiguous;

(6)    the 2015 correspondence/negotiations supported a finding that Western Power abandoned any reliance on the purported agreement; and

(7)    the decision to summarily dismiss her claim was unjust, as there were facts in dispute that were not properly explored and considered.

52    With respect to her claim that the primary judge erred in finding that Western Power was not aware of the Commissioner's alleged guidance about the 14-day period given to her, Ms Shockthorap submits that the File Note recorded by Western Power's legal representative stating 'Can go to Fed Court if wish' suggests that it is entirely possible that Western Power was aware of the Commissioner's advice and did not correct it. Ms Shockthorap further submits that as Western Power had two lawyers present at the mediation, it should be inferred that they had the knowledge to be able to correct any mistake caused by the Commissioner's advice.

The respondent's submissions

53    Western Power submitted that Ms Shockthorap was re-agitating matters raised before the primary judge, that she failed to outline meritorious grounds and that, taking into account the principle that a tight rein must be kept upon interference with the orders of judges at first instance and the costs that have been incurred by Western Power, the application for leave should not be granted.

54    Western Power submitted that the primary judge found that the contextual factors raised by Ms Shockthorap cannot overcome the primary judge's finding that the 18 March 2014 email unambiguously established that there was a concluded agreement, and therefore there is no need to consider the surrounding circumstances.

55    With respect to the claim that the primary judge erred in finding that Western Power was not aware of Ms Shockthorap's mistake, Western Power submitted that Ms Shockthorap did not make submissions on the issue at the interlocutory hearing, and that the primary judge's conclusion that there was no basis for a finding of unilateral mistake was 'unambiguous' and 'unequivocal'.

56    As to Ms Shockthorap's submission that Western Power's subsequent conduct represented an abandonment, Western Power submitted that Ms Shockthorap's argument does not alter the primary judge's finding that the subsequent negotiations did not result in a concluded agreement and therefore do not affect the existence of an existing agreement.

Consideration of merits

57    In my view whether leave should be granted to appeal the primary judge's finding that a contract was formed on 18 March 2014 is resolved primarily by consideration of the question of whether any alleged statement was made by the Commissioner in the presence of the Western Power representatives to the effect that Ms Shockthorap had only 14 days in which to bring an application in court.

58    It is important to note Western Power's submissions on this issue before the Federal Circuit Court:

30.    The First Respondent submits that the facts in this matter do not support either of the above exceptions, because:

(a)    the guidance which the Applicant claims she received from the Commissioner occurred in a private conference, to which the First Respondent was not a party therefore it could not have known or become aware of the alleged mistake; and

(b)    the First Respondent did not induce or encourage the Applicant to hold any alleged mistaken belief.

31.    The First Respondent submits that the Court must make a finding that any misinformation the Applicant may have received from the Commissioner does not void the 2014 Agreement.

(footnote omitted)

59    In support of its submission at [30(a)], Western Power referenced the evidence of Ms Shockthorap referred to above, that:

[The Commissioner] told me that if I did not accept the offer, I would have to initiate proceedings in Federal Court within 14 days of the conference to continue my claim.

60    What is said at [30(b)] of the submissions is no more than a submission.

61    A difficulty with the submission as cited by the primary judge is that read in the chronological context of all of the statements repeated at [20] of these reasons, and taking into account the File Note, it is by no means clear that Ms Shockthorap asserted that such conversation took place at a point in time of the mediation when the Western Power representatives were not present. Ms Shockthorap does not say it occurred in a private conference (or that there was a single conversation). The File Note (which was in evidence before the primary judge) arguably supports a reasonable inference that there was at least some discussion about access to the Federal Court in the presence of the Western Power representatives and it would not be unreasonable to infer that such discussion may have included a reference to the 14-day time limit on such access (as to the drawing of reasonable inferences see in particular Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; (2008) 167 FCR 372 at [122]-[135]). Western Power's affidavit evidence was otherwise silent on this factual issue.

62    The primary judge in considering the question of whether Western Power was aware of the Commissioner's alleged statement recited the submission at [30] and [31] and then said (at [38] of the reasons):

The applicant's evidence in her affidavit of 19 February 2018 (page 8) is that the first respondent was not present when the alleged advice concerning 14 days was given to the applicant by the Commissioner. There is no evidence to suggest that the first respondent was aware of the Commissioner's alleged guidance. There is, in these circumstances, no basis for a finding of unilateral mistake.

63    The reference by the primary judge to page 8 of Ms Shockthorap's affidavit is a reference to the Complaint. Having reviewed the Complaint carefully, it seems to me that the only extract that may have supported the primary judge's finding is the emphasised sentence from [3] of the Complaint that is included in these reasons at [31] above, that is:

[3]    When the Respondent was removed from the conciliation room and I was asked by [the Commissioner] what I was seeking as remedy I retrieved spreadsheets I had again spent a number of hours preparing.

64    However, when the Complaint is read as a whole (including the balance of [3] and [4]), there would seem to be a question as to whether that sentence qualifies all advice provided by the Commissioner or only that referred to in [3] of the Complaint. There is nothing specific in the Complaint to the effect that other advice or guidance, such as that referred to in [4] of the Complaint and elsewhere, including about the 14-day period, was also given at a time when Western Power was not in the room.

65    I also note that there is a lack of clarity as to the extent to which the Commissioner's alleged guidance about the 14-day period was relied upon before the primary judge. In light of the fact that Western Power explicitly sought a finding relevant to the question (see [31] of its submissions referred to at [59] of these reasons), the fact that it made submissions before the primary judge on the point, and the fact that the primary judge dealt with the issue in his reasons and made certain findings (at [37]-[38] of his reasons), it is at least arguable that there are real questions as to whether or not Western Power was aware of that alleged guidance, the effect of an apparently artificial deadline for proceedings on Ms Shockthorap's consideration of the offer and the impact (if any) those matters may otherwise have on the primary judge's decision as to the agreement. It is not necessary or appropriate to attempt to resolve those questions or the appropriate inferences that might be drawn from the evidence that was before the primary judge. It suffices to say that in the circumstances I have outlined, I am satisfied that the decision is attended by sufficient doubt to warrant reconsideration on appeal.

66    Taking into account the consequences of the interlocutory decision for Ms Shockthorap, I am also satisfied that there would be substantial injustice if leave to appeal were not granted. I do not consider Western Power's prejudice as to costs already incurred outweighs that substantial injustice.

67    As anticipated above, I note that Ms Shockthorap refers to evidence that was not before the primary judge. She purports to give some evidence by affidavit that expands upon what was previously said about the mediation, in particular that she recalls that the 14-day time frame was discussed more than once and that she recalls it being discussed at around the same time as the issue of a certificate was discussed (she also seeks to rely on the two emails to which I have referred above in support of her submission that no formal agreement was made on 18 March 2014).

68    Whether or not an appeal court has regard to such evidence will depend upon an application being made and determined at the appropriate time. The principles are well known: see NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42]; Wills v Australian Broadcasting Corporation [2009] FCAFC 6 at [52]-[55]. There may be real doubt as to whether or not fresh evidence will be admitted on appeal. However, there must at least be a prospect that some of it will be admitted. The power to receive fresh evidence is discretionary. I do not consider that the question of whether or not such new evidence is admitted on appeal operates in the circumstances of this case to alter my view that leave should be granted.

69    For completion, I am also of the view that regardless of the question as to the 14-day time period, there is sufficient doubt about whether or not an agreement was entered into on 18 March 2014 to justify reconsideration of the primary judge's findings on appeal, including a reconsideration of the admissibility of evidence of communications in the period after March 2014. Again, it is not appropriate to resolve those questions at present. I am prepared to accept there is room for argument about the primary judge's conclusion, having regard to the matters raised by Ms Shockthorap and referred to at [51(3)] above, and the principles as to the potential admissibility of evidence of subsequent conduct to inform the question of whether or not there has been an agreement formed by the parties: see generally the application of such principles in Vassallo Construction Pty Ltd v Andergrove Lakes Pty Ltd [2014] FCA 862 and the summary of the principles in Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2018] FCA 174 at [11]-[18] (undisturbed on appeal: Plankton Australia Pty Limited v Rainstorm Dust Control Pty Limited [2018] FCAFC 205 at [13]).

70    However, the question of abandonment raised by Ms Shockthorap in her submissions only arises if there was otherwise a valid contract formed in March 2014. I am not satisfied that the issue of abandonment was raised squarely before the primary judge. In any event, I do not consider that the subsequent correspondence supports an argument as to abandonment.

71    Whether abandonment is shown is characterised as an objective test based on the conduct of the parties. The nature of the inquiry to be made when it is alleged that the parties to a contract have abandoned that contract was discussed in Fazio v Fazio [2012] WASCA 72 and Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd [2014] VSCA 32. See National Australia Bank Limited v Sayed (No 4) [2015] NSWSC 420 at [69]-[70] and Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 at [40].

72    In Fazio, Murphy JA said at [74]:

The abandonment of a contract, in the sense of the mutual release of future obligations, being an inferred agreement, does not depend upon the subjective intention of the parties, but upon whether their conduct (both acts and omissions) viewed objectively manifests an intention to discharge the contract: Summers v The Commonwealth [1918] HCA 33; 25 CLR 144, 151-152; Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 [2], [40], [57]; DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; 138 CLR 423; Marminta Pty Ltd v French [2003] QCA 541 [21]-[22].

73    In my view, on the assumption that an agreement was made on 18 March 2014, then there is nothing in the evidence of subsequent conduct of Western Power that manifests an intention that it no longer considered such agreement to be binding.

74    The subsequent negotiations between the parties covered a shifting ambit of claims and it is not surprising that Western Power put forward a range of proposals that might see all arguments resolved at once. Western Power made it clear from 10 April 2014 that it considered there was already a binding agreement. I do not consider the evidence would justify a finding that, having made its position clear, Western Power's later attempts to settle the ambit of disputes undermined the veracity of the pre-existing agreement. Having carefully considered the correspondence, I am not satisfied there is any reasonable prospect of a claim on the basis of abandonment succeeding and I would not grant leave to pursue an appeal point that relies on abandonment.

Conclusion

75    Having regard to the short period of delay involved and the findings as to merits, an extension of time for leave to appeal from the decision of the primary judge is granted.

76    The proposed notice of appeal is in general terms. Cognisant that Ms Shockthorap is currently self-represented but that such position may change, it may be that amendments or particularisation of the appeal grounds are sought. It should be clear that subject to any further order, the ambit of matters that might be raised on appeal in accordance with this grant of leave is not to extend beyond the issues summarised at [51]-[52] and as addressed in these reasons, and is not to extend to the issue of abandonment.

77    Unless the parties seek a different order within seven days, the costs of the application for an extension of time and leave to appeal are reserved to the determination of the appeal court.

Associate:

Dated:    6 May 2019