Industrial Relations Commission New South Wales Medium Neutral Citation: Xie trading as Ocean City Chinese Restaurant v Liang [2012] NSWIRComm 44 Hearing dates: 21 May 2012 Decision date: 30 May 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: (1) The Court declares that on 4 November 2011 as a consequence of further discussions and negotiations between the parties that day the parties made a binding agreement to perform the agreed terms in accordance with the handwritten document that is annexed to Ms Xie's affidavit and marked "B" and that, at the time, the Court (Kavanagh J) was advised by the parties of the terms of settlement and the parties' agreement that the Matter (IRC 1382 of 2009) and Appeal (IRC 1498 of 2011) had been settled by way of conciliation and had been reduced to writing. (2) The Notice of Motion is referred to the Full Bench. (3) Costs are reserved. Catchwords: DECLARATIONS - APPEAL - Interlocutory proceedings - Application for declaratory relief and consequential orders relating to alleged failure by respondent on the motion to comply with terms of settlement of a recovery of money claim and an appeal - Defence by respondent of non est factum - Held defence not available - Declaration granted - Matter referred to Full Bench Legislation Cited: Civil Procedure Act 2005 Industrial Relations Act 1996 Cases Cited: Equuscorp Pty Ltd and Anor v Glengollan Investments Pty Ltd (2004) 218 CLR 471 Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited [2009] NSWCA 186 Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 Heilpern v Anasco [2010] NSWSC 317 Jones v Dunkel (1959) 101 CLR 298 Liang v Xie [2010] NSWIRComm 185 Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 Petelin v Cullen 1975] HCA 24; (1975) 132 CLR 355 Saunders v Anglia Building Society [1971] AC 1004 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Category: Interlocutory applications Parties: Virginia Yue Yun Xie (also known as Yue Yun Xiao) trading as "Ocean City Chinese Restaurant" (Appellant/Respondent on Motion) Wei Wen Liang (also known as Raymond Liang) (Respondent/Applicant on Motion) Representation: Mr T J Dixon of counsel (Appellant/Respondent on motion) Mr R Moore of counsel (Respondent/Applicant on motion) Gary I Castle & Partners (Appellant/Respondent on motion) Haworth & Lexon Legal (Respondent/Applicant on motion) File Number(s): IRC 1498 of 2011 Judgment 1This matter concerns a notice of motion, filed in the context of appeal proceedings, seeking certain declaratory relief and consequential orders relating to a party's alleged failure to comply with the terms of settlement of a recovery of money claim. Some factual background is necessary. 2In Liang v Xie [2010] NSWIRComm 185, Marks J made certain findings in respect of claims by Wei Wen Liang for recovery of monies under ss 365 and 366 of the Industrial Relations Act 1996. The claims related to Mr Liang's period of employment at the Ocean City Chinese restaurant in Merimbula, a business conducted by Ms Virginia Yue Yun Xie. 3His Honour found in favour of Mr Liang and directed the parties to "bring in short minutes of order within one month of this date to reflect the impact upon the claim of the findings that I have made." Mr Liang's legal representatives calculated the amount owing as $51,907.47 before interest and costs. The matter came on again before Marks J on 22 February 2011 when his Honour directed that Ms Xie, who at that stage was represented by an agent, Mr Pearson, to provide her calculations as to the amount owing according to his Honour's judgment. 4There were further proceedings before Marks J on 8 April 2011 and 2 June 2011. On the latter occasion his Honour held that the amount owing by Ms Xie to Mr Liang was $59,479.28 before interests and costs. The matter was listed again for hearing on 8 July 2011 in relation to the question of costs, but there was no appearance by Ms Xie. 5On 24 August 2011, Marks J entered orders that Ms Xie pay to Mr Liang the amount of $59,479.28 plus interest in the amount of $14,934.60 plus costs (including costs on an indemnity basis from 8 April 2011). Order 5 of his Honour's orders required Ms Xie to pay the principal sum plus interest within 14 days. 6On 13 September 2011, Ms Xie filed an application for leave to appeal and appeal from the decision and orders of Marks J. On 14 September 2011, solicitors for Mr Liang wrote to Ms Xie's solicitors with an invitation to "seek an agreed position that can dispose of the Matter with finality." The parties purportedly agreed to the terms of a stay and Kavanagh J was advised of this on 15 September 2011. Also on that date the parties through their legal representatives agreed to consent orders that involved Mr Liang agreeing not to enforce the orders of Marks J made on 24 August 2011 and an undertaking by Ms Xie not to dissipate or otherwise deal with any assets held by her until further order of the Court. 7On 30 September 2011, Mr Liang's solicitors wrote to Ms Xie's solicitors with an offer of settlement that was said to be "equivalent to an offer of $111,871.62" and that was inclusive of GST, interest and costs. Costs were calculated at $44,000 plus GST. There was also provision for the payment of the principal sum and the interest in instalments over the period of 12 months. 8On 4 November 2011, in conciliation proceedings before Kavanagh J, a handwritten document was prepared that purported to finalise the appeal proceedings on the basis, inter alia, that Ms Xie would pay Mr Liang $90,000 inclusive of GST, costs and interest. Ms Xie and Mr Liang's solicitor signed the document. At the time counsel and her solicitor represented Ms Xie. The document was in the following terms: BEFORE THE INDUSTRIAL COURT OF NEW SOUTH WALES No IRC 1498 of 2011 VIRGINIA YUE YUN XIE (aka YUE YUN XIAO) Appellant WEI WEN LIANG (aka RAYMOND LIANG) Respondent THE PARTIES AGREE TO FINALISE THE PROCEEDINGS ON THE FOLLOWING BASIS 1Stay continues on terms agreed until Friday 2 December 2011 or until disolved (sic) 2.The appellant will pay the respondent the sum of $90 000 inclusive of GST, costs and interest to the trust account of the respondent. 3.Upon receipt of the amount in 2, the parties will execute consent orders disposing of the appeal in terms that the appeal be dismissed with no order as to costs. 4.The parties will prior to the payment in 2 sign a Deed of Release releasing the appellant from all matters arising out of the respondent's employment with the exception of workers compensation. APPELLANTSOLICITOR FOR THE RESPONDENT [signed][signed] 9On 13 December 2011, at a mention of the matter, there was no appearance by Ms Xie. However, Ms Xie's solicitor indicated to the Court that there was a dispute between the parties as to the terms of settlement. The Court ordered that Ms Xie attend the following day. 10On 14 December 2011, there was still no appearance by Ms Xie, but Ms Xie's solicitor tendered a medical certificate dated 14 December 2011 and a letter from Ms Xie to the Independent Commission Against Corruption. Ms Xie's solicitor also informed the Court that Ms Xie had paid monies into her firm's trust account in the sum of $90,000. Kavanagh J ordered that the monies be retained in the trust account and were not to be dealt with until the matter came back before the Court. 11On 30 January 2012, Mr Liang filed his notice of motion that is the subject of these proceedings. The motion seeks the following orders: 1.A Declaration that on 4 November 2011 as a consequence of further discussions and negotiations between the parties that day the Matter and Appeal was settled and that the Court was advised by the parties of the terms of settlement and the parties agreement and that the Matter and Appeal had been settled by way of conciliation and had been reduced to writing. 2.An Order that the Appellant provide to the Respondent a Deed of Release for the Respondent's execution within 7 days as set out in paragraph 4 of the Agreement. 3.An Order that the Respondent provide to the Appellant an executed Deed of Release as provided pursuant to Order 2 to him within 14 days. 4.An Order that the Appellant upon the receipt of the executed Deed from the Respondent pay forthwith to the Respondent the sum of $90,000 as set out in paragraph 2 of the Agreement by instructing that the monies currently held on her behalf in the Trust Account of Employment Lawyers Australia controlled by Ms Godfrey, solicitor be transferred to the Trust Account of the Respondent's solicitors. 5.An Order that upon confirmation of the receipt, clearance and authorised disbursement of the sum of $90,000 from the Respondent's solicitors Trust Account to the Respondent to her Honour's Associate the Court in Chambers will make the Orders set out in paragraph 3 of the Agreement namely the Appeal be dismissed with no order as to costs. 6.An Order that to permit sufficient time in which Orders 2, 3, 4 and 5 may be complied with the terms of the Stay continue for a period of 28 days and dissolved upon the making of final orders. 7.An Order that the Appellant pay the Respondent's costs of and incidental to this Motion as agreed or in default as assessed within 28 days. 8.Such further or other order as appears appropriate to the honourable Court upon the hearing of this Motion. 12On 9 February 2012, the matter returned before Kavanagh J. Ms Xie had been required to attend, but failed to do so. Ms Xie's solicitor handed to the Court a copy of an email from Ms Xie to her solicitor alleging the solicitor had a conflict of interest and that the solicitor should cease to act for Ms Xie. The solicitor then filed a Notice of Ceasing to Act. On 23 April 2012, Gary Ian Castle, solicitor, acting for Ms Xie, filed a Notice of Change of Solicitor. Evidence 13The evidence relied upon by Mr Liang in support of his Notice of Motion consisted of an affidavit of Alexander Wong filed on 30 January 2012. Mr Wong referred to an earlier affidavit (13 December 2011) of Ms Carrie Lee, who had the carriage of the matter on behalf of Mr Liang before Mr Wong took it over. Ms Lee's affidavit confirmed that she was present on 4 November 2011 when the purported agreement was made with Ms Xie. Ms Lee confirmed that present at the conciliation proceedings were Ms Xie's counsel and solicitor. Ms Lee recounted the unsuccessful steps she had taken with Ms Xie's solicitor to finalise a Deed of Release reflecting the parties' agreement. Ms Lee said she had been advised by Ms Xie's solicitor on 2 December 2011 that he had prepared the Deed, but that Ms Xie had not given her approval to forward the Deed to Mr Liang's solicitor. Ms Lee indicated that as at 13 December 2011 no monies had been paid into her firm's trust account. 14Mr Wong confirmed that as at 27 January 2012 no monies had been paid by Ms Xie into the trust account of his firm and no Deed of Release had been provided to Mr Liang for him to sign. 15Ms Xie filed an affidavit on 27 April 2012. In her affidavit Ms Xie accused Mr Liang's counsel of bullying her and of her own counsel and solicitor as being of no assistance. Ms Xie alleged she was told by her counsel to make an offer and although she did not wish to do so, said she was "scared" and was "having trouble thinking". She said she thought she had to do what her counsel advised and that was to make an offer. Ms Xie said she had a support person with her, Mr Noel Clinton, who was told to "shut up" by her own counsel and by Mr Liang's counsel. 16Ms Xie said she was shown the handwritten document set out earlier in the judgment, and that: They talked to me about the document. I can't remember what they said. I can't remember if they read it to me. I tried to read it. I found it very difficult to read because of the handwriting. I didn't fully understand it. I thought that the document meant within 28 days I could either pay Raymond Liang or alternatively proceed with the appeal. Had I known that the document meant that I had to pay Raymond $90,000 I would not have signed it. ... I felt that I had to sign the document quickly. I knew that if I signed it I could go. I was scared and confused and I wanted to leave these people and go home. I signed the document. ... On the way home I talked to Noel about what had happened and how upset I was with my lawyers. Noel and I were very upset that he hadn't been allowed to help me. I can't remember what we said exactly but I know we talked about me trying to get a loan in the next 28 days, and deciding if I wanted to give Raymond the money or go to appeal. The important thing for me is that I understood that I still had the choice whether to pay the money or appeal. ... 17Ms Xie also stated in her affidavit: There was no interpreter with me on 4 November 2011. I thought because I had legal people I didn't need one. ... I do not want to pay the money to Raymond. I want to have my appeal heard by the Court. I did get a loan from the Commonwealth bank and the money is in Kelly's [Kelly Godfrey, Ms Xie's former solicitor] trust account, but I do not want it to be given to Raymond until I have the chance to appeal. 18On 15 May 2012, a further affidavit of Ms Lee was filed. The affidavit was in response to Ms Xie's affidavit of 27 April 2012. In her affidavit Ms Lee deposed: (a)that she was present when Ms Xie executed the document purporting to resolve the dispute in the presence of Mr Moore, Mr Liang's counsel, and Ms Xie's legal representatives Mr Latham of counsel and Ms Kelly Godfrey solicitor. Also present was Mr Clinton; (b)that there was no bullying of Ms Xie or Mr Clinton either by her own counsel or counsel for Mr Liang; that Mr Clinton was unnecessarily interrupting the discussion between the parties and Mr Moore said to him: I have no problem with you staying in the room but as you are not a party and appear to be intent on rehashing all that has gone before I will if you continue to interrupt request that you leave". At about this time, Mr Latham said words to the effect: "Please, just be quiet Noel and do not interrupt". (c)that "Mr Moore then put a proposal to Mr Latham with a view to settling the proceedings and Mr Latham requested that Mr Moore and I leave the courtroom so that he could discuss the proposal with his client. Mr Moore and I then left the courtroom and sat on chairs outside the courtroom in the corridor"; (d)that there followed a series of meetings outside the courtroom between the respective legal representatives in an endeavour to negotiate a settlement. Offers and counter offers were made. Ms Lee deposed: Mr Latham then put the following position to Mr Moore and me in words to the following effect: "My client wants this all over as soon as possible and is not interested in paying by instalments. She advises me that she will pay an amount to your client of $90,000 within 28 days and requires a Deed of Release to settle everything, other than any workers' compensation issues". Mr Latham confirmed to Mr Moore that the Deed would be "on the usual terms". Mr Moore then said words to the following effect: "If you are able to get $95,000 paid within 28 days that may be acceptable to our client. See how you go". Mr Latham then went back into the courtroom. Mr Moore and I continued to stay in the corridor. (e)Ms Lee deposed to what then followed: When he [Mr Latham] returned to speak with us he said words to the following effect: "Ms Xie will not increase her offer. It is her final offer to settle on the terms I outlined to you before". Mr Moore said: "Does she have the money to pay within 28 days?" Mr Latham said: "She tells me she can get a loan and pay it within 28 days. She does not want to pay by instalments". Mr Moore then said: "Leave it with us and we will get some instructions". I then telephoned Mr Liang and obtained instructions to settle on that basis. Mr Moore then called Mr Latham to the corridor and we advised Mr Latham that Ms Xie's offer had been accepted by Mr Liang. Mr Latham said words to the effect: "Good. Come in and we better draw up some agreed terms". Mr Moore and I then joined the other persons including Ms Xie in the courtroom again and the document was drafted with Mr Latham drawing up the document. Throughout this process Ms Xie was present. Mr Latham then explained the settlement to Ms Xie in our presence by reading out the terms that had been agreed and saying that this was to be done "within 28 days". Ms Xie then signed the document and I signed on behalf of my client Mr Liang. Mr Moore said words to the effect: "We'd better tell the Judge it has been resolved and the Appeal has now been settled on agreed terms" and Mr Latham agreed with this. Mr Moore and Mr Latham then approached the Judge in Chambers. A short while later Mr Moore and Mr Latham returned with copies of the document for both parties. I understood that the original document was left with the Judge. Mr Moore confirmed before we left that Ms Godfrey would be sending the draft Deed to me including the consent orders to be executed and we then all left the courtroom. My recollection is that Ms Xie, Mr Clinton, Ms Godfrey and Mr Latham took the lift to the ground floor and Mr Moore and I walked down the stairs. 19None of the deponents were required for cross-examination. Submissions of Mr Liang 20The essence of Mr Liang's position on the motion is contained in the following paragraphs of his written submission: It is the submission of the Applicant on the Motion, Mr Liang that when the parties were at Court on 4 November 2011, an agreement was concluded between them. This agreement was binding upon them. The settlement reached settled not only the Appeal but all matters otherwise existing between them save for any residual workers' compensation rights. Further, the Appellant personally executed the agreement well aware of the terms of settlement. Before the entry into the agreement she had the benefit of both solicitor and counsel and knew what was required of her following her entry into the agreement to perform the agreement and effect the settlement. ... The Deed required by paragraph 4 [of the purported agreement made on 4 November 2011] and the entry into it by Mr Liang was for the sole benefit of the Appellant in that Mr Liang was to release her from any further matter or claim and it can be inferred that inclusion of this paragraph within the agreement was a provision insisted upon by the Appellant for her benefit. To deliberately not provide the Deed for execution by Mr Liang after the agreement was first made is of particular concern particularly given the period that has now passed. ... It is appropriate that Ms Xie be ordered to pay the costs of Mr Liang in relation to the attendances on 13 and 14 December 2011 before the Court and of and incidental to the Motion as agreed or accessed within 28 days on an indemnity basis. In the alternative, if the Court was not minded to make Orders in terms of the Consent Orders in the agreement so as to conclude this Appeal but was to find that there existed a binding agreement the Court should make the declaration sought and move to permanently stay the appeal together with making the cost orders sought. Submissions for Ms Xie 21For Ms Xie, it was essentially submitted: (a)there was a critical lack of understanding on the part of Ms Xie of the document that was presented to her to sign. There was a mistake as to the nature of the document through no fault of her own. (b)the defence of non est factum is applicable: Petelin v Cullen [1975] HCA 24; (1975) 132 CLR 355 at 359-360; Equuscorp Pty Ltd and Anor v Glengollan Investments Pty Ltd (2004) 218 CLR 471 at [33]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [46]; Ford by his Tutor Beatrice Ann Watkinson v Perpetual Trustees Victoria Limited [2009] NSWCA 186 at [38]; Heilpern v Anasco [2010] NSWSC 317 at [19]; (c)Ms Xie had the benefit of interpreters at most of the Court appearances. The reason for this was obvious: she was labouring under a relevant disability concerning her ability to understand the legal proceedings as they were conducted in English. However, at the critical moment when Ms Xie signed the document, no such interpreter was on hand to assist. (d)The circumstances leading up to her signing the hand written document in person were such that she was unable to understand the purport of the instrument. The Motion should accordingly be dismissed: section 73 of the Civil Procedure Act 2005. Consideration 22Ms Xie relied on the defence of non est factum ('it is not [my] deed'). That is, in signing the purported settlement agreement, Ms Xie was unaware of its true nature and, accordingly, ought not be bound to it. It was submitted that Ms Xie was bullied and consequently scared and confused, she was effectively prevented from consulting Mr Clinton who was present to support her, she did not have a good command of English, she found the document "very difficult to read because of the handwriting" and "didn't fully understand it", no interpreter was present to assist her as had been the case in earlier proceedings and she believed that the document she had signed provided for the option of either paying Mr Liang the amount of money referred to in the document or pursuing the appeal. 23Reliance was placed on the leading Australian case of Petelin v Cullen. The case involved an appeal from the Supreme Court of New South Wales Court of Appeal that allowed an appeal from an order by Helsham J dismissing a suit for specific performance brought against the appellant in respect of the alleged exercise of an option to purchase land. The appellant spoke little English and could not read English: 356-357. 24Helsham J found that the appellant signed the extension of the option on his property in the belief that it was a receipt, unaware that it was an extension of the option, having been told by the purchaser's agent that he "must sign" the document. His Honour also found that the appellant did not read the document and that he was incapable of reading and understanding it. Helsham J dismissed the suit on the ground that the appellant had made out the defence of non est factum in relation to the alleged extension in writing of an option on which the respondent relied as creating the contract in respect of which the suit was brought. 25The Court (Barwick CJ, McTiernan, Gibbs, Stephen and Mason JJ) dealt with the non est factum principle at 359-361: The principle which underlies the extension of the plea to cases in which a defendant has actually signed the instrument on which he is sued has not proved easy of precise formulation. The problem is that the principle must accommodate two policy considerations which pull in opposite directions: first, the injustice of holding a person to a bargain to which he has not brought a consenting mind; and, secondly, the necessity of holding a person who signs a document to that document, more particularly so as to protect innocent persons who rely on that signature when there is no reason to doubt its validity. The importance which the law assigns to the act of signing and to the protection of innocent persons who rely upon a signature is readily discerned in the statement that the plea is one 'which must necessarily be kept within narrow limits' (Muskham Finance Ltd v Howard [1963] 1 QB 904 at 912]) and in the qualifications attaching to the defence which are designed to achieve this objective. The class of persons who can avail themselves of the defence is limited. It is available to those who are unable to read owing to blindness or illiteracy and who must rely on others for advice as to what they are signing; it is also available to those who through no fault of their own are unable to have any understanding of the purport of a particular document. To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. All this is made clear by the recent decision of the House of Lords in Saunders v Anglia Building Society ([1971] AC 1004 at 1019]). ... It is now settled beyond any shadow of doubt that when we speak of negligence or carelessness in connexion with non est factum we are not referring to the tort of negligence but to a mere failure to take reasonable precautions in ascertaining the character of a document before signing it. The insistence that such precautions should be taken as a condition of making out the defence is of fundamental importance when the defence is asserted against an innocent person, whether a third party to the transaction or not, who relies on the document and the signature which it bears and who is unaware of the circumstances in which it came to be executed. It is otherwise when the defence is asserted against the other party to the transaction who is aware of the circumstances in which it came to be executed and who knows (because the document was signed on his representation) or has reason to suspect that it was executed under some misapprehension as to its character. In such a case the law must give effect to the policy which requires that a person should not be held to a bargain to which he has not brought a consenting mind for there is no conflicting or countervailing consideration to be accommodated - no innocent person has placed reliance on the signature without reason to doubt its validity. ... The other element in the defence which requires to be mentioned is the necessity that the appellant should show that he believed the document to be radically different from what it was in fact. Once it is accepted that the primary judge could properly find that the appellant believed it to be a receipt, this point of contention disappears from the case. The respondent urged that the evidence was so slight as not to overcome the 'heavy' onus which rested with the appellant. The existence of that onus unquestionably was present to the mind of the primary judge when he came to assess the credibility of the appellant. But once he accepted the appellant's evidence the question of onus in our opinion was set at rest. 26In Saunders v Anglia Building Society [1971] AC 1004, Lord Reid's expression of the principle was in the following terms (at 1015-1016): The plea of non est factum obviously applies when the person sought to be held liable did not in fact sign the document. But at least since the sixteenth century it has also been held to apply in certain cases so as to enable a person who in fact signed a document to say that it is not his deed. Obviously any suchextension must be kept within narrow limits if it is not to shake the confidence of those who habitually and rightly rely on signatures when there is no obvious reason to doubt their validity. Originally this extension appears to have been made in favour of those who were unable to read owing to blindness or illiteracy and who therefore had to trust someone to tell them what they were signing. I think that it must also apply in favour of those who are permanently or temporarily unable through no fault of their own to have without explanation any real understanding of the purport of a particular document, whether that be from defective education, illness or innate incapacity. 27In Heilpern v Anasco, Brereton J discussed the defence of non est factum and stated at [19]: The availability of the defence of non est factum is not limited to those who are unable to read the relevant instrument due to blindness or illiteracy, but extends to those who, without fault on their part, are unable to understand the purport of the instrument. However, a party invoking the defence bears a heavy onus of showing (1) that he or she signed the document in the belief that it was of a nature radically different from its true nature; and (2) as against innocent persons, that this was not due to carelessness (in the sense of a failure to take reasonable precautions) on his or her own part. 28In my opinion, the defence of non est factum does not apply to Ms Xie. I say that for the following reasons: (a)I am not satisfied on the balance of probabilities that Ms Xie was incapable of understanding the purport of the settlement agreement signed by her on 4 November 2011. Whilst Ms Xie deposed that when she came to Australia in about 1990 she "could not speak, understand or write in English", Ms Xie did not state with any degree of specificity the extent to which she "could not speak, understand or write in English" in November 2011. Ms Xie did, from time to time, have the assistance of interpreters in the proceedings, but chose not to have one present on 4 November 2011 and instead relied on her legal representatives and Mr Clinton who apparently conversed with Ms Lee in English. In relation to her conversations with Mr Clinton, Ms Xie did not suggest she had any difficulty in understanding him. Moreover, Ms Xie dealt with her legal representatives on various occasions directly and without the assistance of an interpreter; (b)although Ms Xie said she had difficulty reading the handwritten document, the document was read to her by her counsel; (c)Ms Xie said her understanding of the purported settlement agreement was that it provided her with the option of paying money to Mr Liang in settlement of the proceedings or pursuing the appeal. That understanding is "radically" different from the document's true nature and nothing in the document could be construed as providing such an option. It is, on the evidence, impossible to understand how Ms Xie could have understood that the agreement provided for the option of pursuing an appeal. The document contained the statement, in capitals that "THE PARTIES AGREE TO FINALISE THE PROCEEDINGS ON THE FOLLOWING BASIS" (emphasis added). The document stated that upon the respondent receiving $90,000 "the parties will execute consent orders disposing of the appeal in terms that the appeal be dismissed with no order as to costs"; (d)Mr Clinton did not provide an affidavit notwithstanding he could have corroborated Ms Xie's evidence as to his understanding of the purported settlement agreement, namely, the important issue of whether it was understood by Ms Xie as providing an option to continue to pursue the appeal and further that he was unable to assist Ms Xie because of alleged bullying by the legal representatives. It would have been expected Ms Xie would have called Mr Clinton to corroborate her understanding. According to Ms Xie's counsel, the only explanation for Ms Xie failing to do so was that Mr Clinton could not have added anything to Ms Xie's evidence because he had been bullied into keeping quite. However, that does not explain why Mr Clinton could not have been called to corroborate Ms Xie's understanding of the purported agreement in circumstances where Ms Xie had said in her affidavit: On the way home I talked to Noel about what had happened and how upset I was with my lawyers. Noel and I were very upset that he hadn't been allowed to help me. I can't remember what we said exactly but I know we talked about me trying to get a loan in the next 28 days, and deciding if I wanted to give Raymond the money or go to appeal (emphasis added). The important thing for me is that I understood that I still had the choice whether to pay the money or appeal (emphasis added). (e)given the above and the "heavy onus" on Ms Xie to establish the defence of non est factum and to bring any evidence that might support that defence, the Court is entitled to draw an adverse inference against Ms Xie in not calling Mr Clinton: Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (f)notwithstanding the evidence that Mr Clinton had been advised not to interrupt, when the parties separated and Ms Xie's counsel was outside the courtroom in discussions with the respondent's counsel regarding terms of settlement Ms Xie had the opportunity, and took it, to discuss the matter with Mr Clinton. Moreover, whilst the parties were separated Mr Clinton conversed with Ms Xie's counsel; (g)Ms Xie clearly understood the concept of settlement. Prior to 4 November 2011, Ms Xie had authorised her counsel to make a settlement offer of $65,000 to Mr Liang, but subsequently changed her mind about settlement when Mr Liang rejected that offer; (h)in the course of settlement negotiations on 4 November 2011, counsel for Ms Xie put a counter offer to the respondent's legal representatives and in doing so said words to the following effect: "My client wants this all over as soon as possible and is not interested in paying by instalments. She advises me that she will pay an amount to your client of $90,000 within 28 days and requires a Deed of Release to settle everything, other than any workers' compensation issues" (emphasis added). This evidence (by Ms Lee) was not challenged and there was no evidence to suggest that counsel was not acting according to instructions; (i)according to the affidavit of Ms Lee, following the making of the counter offer referred to above, the evidence was that counsel for Mr Liang said "If you are able to get $95,000 paid within 28 days that may be acceptable to our client. See how you go". Counsel for Ms Xie then went back into the courtroom. When counsel for Ms Xie returned he said words to the following effect: "Ms Xie will not increase her offer. It is her final offer to settle on the terms I outlined to you before" (emphasis added). Counsel for Mr Liang said: "Does she have the money to pay within 28 days?" Counsel for Ms Xie replied: "She tells me she can get a loan and pay it within 28 days. She does not want to pay by instalments". Following instructions received from Mr Liang his counsel indicated to Ms Xie's counsel that Ms Xie's offer had been accepted. At that point the purported settlement agreement was drawn up and the terms read out to Ms Xie. None of the foregoing evidence was challenged and there was no evidence that counsel was acting contrary to instructions; (j)it is highly unlikely that having understood the settlement agreement to provide the option of paying money to Mr Liang, but at the same time it maintained a right to appeal, that if Ms Xie was "unhappy" and "upset" with what occurred on 4 November 2011 and did not wish to settle that she would go to the trouble of obtaining a loan for a very significant amount of money, have it placed in a trust account and have her solicitor prepare a deed of release; (k)nothing in any of the evidence indicates that Ms Xie was misled by the respondent or his legal representatives; (l)nothing in any of the evidence indicates that Ms Xie's legal representatives acted other than in accordance with their instructions to compromise: see Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235. It was not contended by Ms Xie that she was so overborne by fear of persons present during the settlement negotiations, including her own legal representatives, that she was forced to sign the document under duress. Ms Xie's defence was non est factum. Whilst Ms Xie asserted that she was "scared and confused" by the conduct of the legal representatives it does not follow Ms Xie "signed the document in the belief that it was radically different from what it was in fact..." which is the test to be applied in relation to a defence of non est factum; (m)nothing in any of the evidence indicates that counsel for Ms Xie misunderstood his instructions and it was not submitted by the appellant that any such misunderstanding occurred; (m)despite her assertions she was "scared and confused" it is difficult to accept that Ms Xie, a person who had been running her own business for many years and who was faced with the prospect of paying out $90,000, would not have sought to confirm with her counsel or Mr Clinton her understanding that the option of pursuing the appeal was being maintained before signing the agreement if, indeed, that is what she thought at the relevant time. 29The present case is distinguishable from Petelin. In the latter case the Court at first instance (upheld by the High Court) accepted that the appellant spoke little English and could not read English and that he understood that was he was signing was a receipt for $50 after the grantee's agent said to him "sign it that you received $50". Having regard to those matters in the immediately preceding paragraph, the Court is unable to accept, on the balance of probabilities, that Ms Xie signed the document in the belief that it was radically different from what it was in fact. 30Given the Court's conclusion that the defence of non est factum is not available to Ms Xie and the Court's opinion that what occurred between the parties on 4 November 2011 fell into either the first or second class of cases (probably the first) described in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 at 360, a declaration to the effect of that sought in Mr Liang's notice of motion should be granted. That the Court may make a declaration of the type sought was not disputed, nor could it be given the terms of s 154 of the Act. 31However, the Court, which is acting under s 190A(1)(d) of the Industrial Relations Act, is concerned that it should not make any other orders that might be regarded as directly or indirectly disposing of the appeal. That is a matter for the Full Bench. 32Accordingly the Court makes the following orders: (1)The Court declares that on 4 November 2011 as a consequence of further discussions and negotiations between the parties that day the parties made a binding agreement to perform the agreed terms in accordance with the handwritten document that is annexed to Ms Xie's affidavit and marked "B" and that, at the time, the Court (Kavanagh J) was advised by the parties of the terms of settlement and the parties' agreement that the Matter (IRC 1382 of 2009) and Appeal (IRC 1498 of 2011) had been settled by way of conciliation and had been reduced to writing. (2)The Notice of Motion is referred to the Full Bench. (3)Costs are reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 May 2012