BISHOP v EMORA PTY LTD [1997] IRCA 55

DECISION NO:55/97 TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - Submission that claims settled - Offer made to settle several claims for nominated total sum comprising itemised sub-totals - Whether offer still available for acceptance - Whether respondent could accept in relation to individual claims. Workplace Relations Act 1996, s 170EE ANNE BISHOP v EMORA PTY LIMITED No. NI.96/1600 and GRAHAM BISHOP v EMORA PTY LIMITED No. NI.96/1602 CORAM: WILCOX CJ PLACE: SYDNEY DATE: 7 FEBRUARY 1997 IN THE INDUSTRIAL RELATIONS COURT) OF AUSTRALIA ) No. NI.96/1600 ) NEW SOUTH WALES DISTRICT REGISTRY) BETWEEN: ANNE BISHOP Applicant AND: EMORA PTY LIMITED Respondent NO. NI96/1602 BETWEEN: GRAHAM BISHOP Applicant AND: EMORA PTY LIMITED Respondent CORAM: WILCOX CJ PLACE: SYDNEY DATE: 7 FEBRUARY 1997 EXTEMPORE REASONS FOR JUDGMENT (NO.1) WILCOX CJ: When these matters were called on today I was informed by Mr Davidson, counsel for the respondent, that they had been settled. Mr Chamberlain, on behalf of the applicants, disputed this. Mr Davidson then tendered certain correspondence, exhibit A. The first letter in the bundle is one sent by his instructing solicitors to the solicitor for the applicants on 21 October 1996. It refers to the claims that were then before the Court: unfair dismissal claims, a claim of breach of the Sex Discrimination Act and a claim for under-award payments. In respect of the unfair dismissal claims the statement was made: "You have conceded liability in relation to the unfair dismissal claims. In relation to that part of the claim we will accept $10,000 in relation to Graham Bishop and $10,000 in relation to Anne Bishop ($20,000 together)." In relation to the sex discrimination claim, the writer indicated his client would accept $20,000. There was then a computation of the under-award payments. The total of all items came to $108,109.70. This was described as:"Total settlement figure." The letter concluded with a statement: "Should the matter not settle and the judgment amount is equal to or better than our offer we will seek costs against you for bringing the matter to trial unnecessarily". There was no immediate response to that letter. On 17 December 1996 counsel for the applicant wrote to the solicitors for the respondent informing them that he had received instructions to proceed only on the unlawful termination claim. The parties apparently prepared the matter for trial on that basis. This morning, before the case was called on, a letter addressed to the applicants' solicitors was handed to their counsel. It reads as follows: "We refer to your offer of settlement dated 21 October 1996 and are instructed to accept settlement of your clients' claim in the total sum of $20,000 on the issue of unfair dismissal". Mr Davidson's contention is that the letter of 21 October should be read as an open offer to settle the two unfair dismissal claims for $20,000. He agrees the letter refers to other claims as well, and there is a total settlement figure; but his contention is, in effect, that the letter must be read as making a distributive offer in respect of each of the claims then being advanced. He says the sex discrimination claim and the under-award payments claim are no longer pressed; this leaves only the unfair dismissal claims, and there is an extant offer to accept $20,000 in satisfaction of both those claims. Mr Davidson says it was open to his client to accept that offer at any time, the offer never having been withdrawn. It seems to me there are two difficulties about that argument. The first is one of construction of the letter of 21 October. I do not agree it should be read as making a separate offer in respect of each element in the total claim. It is true that the writer broke up the total settlement figure in such a manner as to indicate what value was put on each element, but I think the words "total settlement figure" are significant. The offer was to accept that sum. If the respondent was unwilling to pay that total sum, but was prepared to settle elements of the total claim at the nominated figures, no doubt the letter would provide a convenient commencement for negotiations. But I do not think it was open to the respondent to pick elements of the total claim and accept them without accepting the whole settlement proposition. The second problem, as I see it, is that the offer was not accepted within a reasonable time. It is true it was never withdrawn, but there is an overriding principle that an offer that contains no time limit must be accepted within a reasonable time, and before a material change in circumstances. This offer was made 3˝ months ago, well before the trial date. The applicants must have incurred costs in recent times in preparing for trial. It seems to me that any acceptance of the offer needed to take place within a relatively short time after 21 October and before the applicants incurred the expense of preparing for trial. There may be a further objection to Mr Davidson's argument, on the basis of a material change of circumstances arising out of the abandonment of the other claims. It is conceivable the applicants were more ready to abandon the other claims because they thought their unfair dismissal claims would be valued at figures higher than those set out in the letter of 21 October. However, there is no evidence about that matter and I place no reliance on it. The other two reasons require me to rule that Mr Davidson's argument is flawed. The matters are not settled. They should proceed to hearing on the merits. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of Chief Justice Wilcox. Associate: Dated: 7 February 1997 APPEARANCES Counsel for the Applicant: K Chamberlain Counsel for the Respondent: J Davidson Solicitors for the Respondent: Ashton Steadman Date of hearing: 7 February 1997