Cyril v SERCO Australia Pty Ltd [2024] NSWDC 348

District Court New South Wales

Medium Neutral Citation: Cyril v SERCO Australia Pty Ltd [2024] NSWDC 348 Hearing dates: 23 – 24 April 2024 Date of orders: 24 April 2024 Decision date: 24 April 2024 Jurisdiction: Civil Before: Neilson DCJ Decision: See par [35]. Catchwords: Application to enforce a settlement – Whether contract made between the parties to settle an action – On objective analysis such a contract made – Enforcing the agreement – Mechanisms available where party refuses to execute a deed. Legislation Cited: Civil Procedure Act 2005 Cases Cited: Kerry Albert Pty Ltd trading as Kerry Albert & Co v Fuller [2018] NSWDC 254 [58] to [69]. Gomes vs Price Family Investments Pty Ltd [2022] NSWDC 313, [29] to [30]. Texts Cited: Nil. Category: Principal judgment Parties: Plaintiff – Simexwell Cyril Defendant – SERCO Australia Pty Ltd Representation: Counsel: Plaintiff – Self-represented. Defendant – Wotton + Kearney.

Solicitors: Plaintiff – Self-represented. Defendant – Dinkha, O. File Number(s): 2022/00352014 Publication restriction: Nil.

Judgment

Background 1. HIS HONOUR: By a motion, notice of which was filed on 7 February 2024, the defendant seeks to enforce a settlement of these proceedings which it says occurred on 7 July 2023. The background of the proceedings before me is well summed up by the plaintiff himself in a letter he sent to the Judicial Registrar on 18 July 2023. It is this: "On 11 November 2016, I was charged with two criminal offences by the NSW Police and later that day I was granted conditional bail [by] the Court. The NSW Police also informed the Department of Immigration and Border Protection of my arrest, later that day, after granted conditional bail [by] the Court[,] the two Australian Border Force officers met me at Manly Police Station. After an interview by the officers my temporary visa was cancelled, as a result of this I became [an] unlawful non-citizen and was detained, then immediately taken to Villawood Immigration Detention Centre (VIDC) and handed over to the defendant. This is [a] brief history. On 14 December 2016, I was escorted by the defendant's officers to attend Downing Centre Local Court (DCLC) for a mention in relation to the criminal charges. On this day the matter was adjourned to 9 January 2017. On 9 December 2016, while detained in lawful custody, without an authorisation from the officer of the Department I was escorted to the DCLC and given [into] the custody of officers of Corrective Services NSW who kept me in the court cell. The day before when I was informed of the escort [the] next day, I have told the defendant's officers that I do not have a Court date the next day. On the day of escort, I said to the escort officers that I cannot attend the Court without the Legal Aid lawyer and to call Legal Aid to confirm the date before [the] escort. I also showed them the Court Attendance Notice which states that my Court date is January 2017, but I was convinced by them that the Court Attendance Notice is wrong and [I was] escorted". 1. By Statement of Claim filed on 22 November 2022, the plaintiff brings an action against the defendant who was the provider of detention services to the then Department of Immigration and Border Protection at Villawood, claiming that the events of 9 December 2016 amounted to false imprisonment and assault and battery. An Amended Statement of Claim was filed on 19 May 2023 but that only alleges further events and gives further particulars of what happened both prior to and on 9 December 2016. 2. The defendant has never filed a defence. It did however file a Notice of Appearance on 20 December 2022. The matter was then dealt with by the Judicial Registrar in the Online Court. The defendant appears to have been eager to settle the plaintiff's claim. On 25 May 2023 the defendant's solicitor sent to the solicitors then acting for the plaintiff, O'Brien's, a "without prejudice save as to costs" Calderbank letter containing an offer with the following terms: 3. Firstly, the defendant was to pay $20,000 in full and final settlement of the plaintiff's claim against the defendant inclusive of damages, costs, and expenses. That offer was made without any admission of liability. The method proposed was that the parties were to enter into a confidential Deed of Settlement and Release in which the plaintiff provided a full release, discharge and indemnity to the defendant covering the entire period that the plaintiff was detained at Villawood between 11 November 2016 and 24 March 2020. Once the Deed had been effected, the proceedings were to be dismissed with each party bearing his or its own costs. 4. On 16 June 2023, Ms Lee of the defendant's solicitors had a conversation with Ms Rauf of O'Brien's in which Ms Rauf said words to the effect of: "My client's major concern is the Deed and what it covers. My client and Counsel wish to make a counter-offer of $50,000 all inclusive. If that is accepted, my client will sign the Deed as proposed". 1. On 20 June 2023, Ms Lee sent another letter to Ms Rauf continuing the negotiations. She rejected the plaintiff's offer of $50,000 and made a counter-offer of $30,000 all-inclusive on the same terms as the defendant's initial offer of $20,000. 2. On 23 June 2023, Ms Rauf sent a "without prejudice save as to costs" email which included a counter-offer by the plaintiff of $45,000 all-inclusive on the basis that the plaintiff would sign a Deed that provided for a release, discharge and indemnity to the defendant in relation only to the incident that occurred on 9 December 2016 with a Notice of Discontinuance to be eventually filed in these proceedings. 3. On 30 June 2023, Ms Lee sent to Ms Rauf a further "without prejudice save as to costs" email offering to resolve the proceedings for $40,000 all-inclusive on the same terms as had previously been stipulated by the defendant. 4. On 4 July 2023, Ms Lee called Ms Rauf and they had a conversation to the following effect: Ms Lee: "I just wanted to touch base about whether you had instructions on our most recent offer and the proposed Deed. Our client's offers to date have been generous noting the facts around the pleaded incident, and have factored in the proposal for a Deed covering the plaintiff's entire detention period to give our client some comfort that there will be no further litigation against them". Ms Rauf: "I have briefly spoken with my client and need to speak to him further about your counter-offer. I can get back to you today. I can't say instructions will be received along the lines of what your client wants or if there is any flexibility with my client around that, but I accept the counter-offer is generous in light of the potential damages it would if it were to relate only to the pleaded incident". 1. On 4 July 2023, Ms Rauf sent a further letter, again "without prejudice save as to costs" which included a counter-offer of $40,000 all-inclusive on the basis that the plaintiff would sign a Deed that provided for a release, discharge and indemnity to the defendant in relation to the incident, the subject of the proceedings, on 9 December 2016 only, with eventually a Notice of Discontinuance to be filed in these proceedings. 2. On 5 July 2023, Ms Lee spoke with Ms Rauf again by telephone. This was on the same basis, that is without any prejudice to either party. According to Ms Lee a conversation occurred to the following effect: Ms Rauf: "My client is happy to sign a Deed covering the 9 December 2016 incident only but is not prepared to sign a Deed covering his detention period. If your client accepts that, then we can probably resolve the claim for $40,000 all inclusive". Ms Lee: "I don't understand why your client won't now agree to the Deed covering his whole detention period noting he initially agreed to that requirement when you first responded with a counter-offer to our letter of 25 May 2023". Ms Rauf: "Yes, I know, but now he doesn't want to agree to that as per our discussion yesterday". Ms Lee: "Okay. Well please obtain your client's instructions on our last offer and get back to me as soon as you can, so I can let my client know and seek updated instructions if required". 1. On 5 July 2023, Ms Rauf sent another piece of correspondence by email, again on a "without prejudice save as to costs" basis which included a counter-offer of $35,000 all-inclusive on the basis that the plaintiff would sign a Deed that provided for a release, discharge and indemnity to the defendant in relation to the incident, the subject of the proceedings, on 9 December 2016 only, with eventually a Notice of Discontinuance to be filed in the registry of this Court. 2. On 6 July 2023, there was another further conversation between Ms Lee and Ms Rauf on a "without prejudice" basis with words being said to the following effect: Ms Lee: "I have instructions to convey a settlement offer of $25,000 all inclusive in full and final settlement of the proceedings with the proposed Deed solely relating to the pleaded incident of 9 December 2016 which we considered is more than a reasonable offer". Ms Rauf: "Okay, thanks. I'll get some instructions". 1. On 6 July 2023, there was a further conversation between Ms Lee and Ms Rauf. And this was on the same terms as previously. The conversation was to this effect: Ms Rauf: "The plaintiff is happy the Deed issue has resolved. If you can come back with $30,000 all inclusive, the matter will resolve". Ms Lee: "Okay. I will get some instructions and get back to you". 1. There was then a further telephone discussion between Ms Lee and Ms Rauf later on 6 July, again on a "without prejudice" basis. According to Ms Lee, the following was the effect of the conversation: Ms Lee: "I'm instructed my client will agree to split the difference to settle the claim for $27,500 all-inclusive with the Deed just covering the pleaded incident". Ms Rauf: "I'll get some instructions". 1. On Thursday 6 July 2023, at 5.51pm Ms Rauf sent to Ms Lee an email on a "without prejudice" basis again to the following effect: "I am instructed to re-put the offer of $30,000 inclusive of costs on the basis of a Deed that provides release, discharge and indemnity to Serco only in relation to the incident on 9 December 2016 and a Notice of Discontinuance. I look forward to hearing from you". 1. On 7 July 2023, at 9.35am, Ms Lee sent the following email to Ms Rauf: "Thanks for your email. We are instructed to resolve the claim on the basis proposed below, but rather with a Dismissal of Proceedings and not a Discontinuance, together with the confidential Deed relating to the pleaded incident. I will ask James/Lara [other solicitors in Ms Lee's firm] to upload orders to the Online Court indicating the matter has resolved and to stand the matter over to the Noted Settle List if you agree?". 1. There was then the usual pleasantry at the end of the missive. One will note that that is not an acceptance of the offer made by Ms Rauf on 6 July 2023 at 5.51pm because it changes from a "Notice of Discontinuance" disposal of the proceedings with a "Dismissal of Proceedings". The difference is clear to a lawyer. A discontinuance is merely the withdrawal of proceedings, permitting, if the statute of limitation has not expired, the proceedings to be recommenced. A dismissal amounts to a verdict for the defendant. That means no further proceedings can be brought in respect of the same cause of action. However, given the date of the offer, 7 July 2023 at 9.35am, the statute of limitations for the incident on 9 December 2016 had well and truly expired. The distinction was one with little difference. 2. At 12.20pm, Ms Lee again sent an email to Ms Rauf. The body of that document is this: "We haven't yet heard from you and note orders are to be uploaded by 2pm. We will proceed on the basis that the claim is resolved unless you tell us otherwise. We [propose] to upload the following orders to Online Court: 1. Adjourn to Noted Settle List on xxx 2023; 2. Submission: The parties have only recently reached agreement to resolve the claim on the basis of dismissal of proceedings and a confidential Deed which is still to be drafted. Further time is required to finalise the proceedings. Please let us know urgently if you don't agree." 1. The urgency was clearly caused by the requirement that the orders were to be uploaded into the Online Court by 2pm on that Friday afternoon. On that Friday afternoon at 12.26pm, that is six minutes after the last communication, Ms Rauf replied to Ms Lee in this fashion: "I apologise for the delay in responding. We are content with the proposed orders. I will consent to them once they have been entered into the OLC". 1. And so it came to pass that the following was entered in the Online Court: a request submitted by Sean Emmett O'Connor on behalf of the defendant: "Request the matter to be adjourned to the Noted Settled List at Sydney. Additional order/s sought: • Note matter is settled. Reasons for submitting this request: • The parties have only recently reached agreement to resolve the claim on the basis of dismissal of proceedings and a confidential Deed which is to be drafted. Further time is required to finalise the proceedings. 7/07/2023, 12.42pm." 1. On the same day at 3.57pm, that order was consented to by Mr Peter O'Brien on behalf of the plaintiff. On 10 July 2023, at 7.47pm, the following orders were recorded by the Judicial Registrar: • "This matter is listed for directions (Case Managed List) on 28 July 2023 9.30am at Sydney. • This matter is adjourned to the Noted Settled List. • Vacate directions (Case Managed List) on 12/07/2023, 9.30am at Sydney. (1) Note matter is settled. (2) If consent order, consent judgment or notice of discontinuance is filed then enter prior-vacate listing. (3) Should parties fail to file a Settlement Document or fail to appear any listing the proceedings will be dismissed with liberty to approach and file documents to finalise the proceedings within 28 days."