Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Clonda v NSW Squash Limited; Clonda v Squash Australia Limited [2020] NSWCATAD 116 Hearing dates: 10 and 31 March 2020 Date of orders: 30 April 2020 Decision date: 30 April 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: (1) The application to dismiss the matter under section 59 of the Civil and Administrative Tribunal Act 2013 is dismissed. (2) Ms Clonda's application is to be listed by the Registrar of the Tribunal for directions. Catchwords: PROCEDURAL RULINGS- dismissal of proceedings by Tribunal when matter settled. Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Cases Cited: GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR622 Masters v Cameron [1954] HCA 72; (1954)91 CLR 353 Prenc v Stojcevski [2016]NSWCATAP244 Texts Cited: Carter J.W : Cases and Materials on Contract Law in Australia ; 6th Edition 2012, Lexis Nexis Butterworths, Sydney Category: Procedural and other rulings Parties: NSW Squash Limited – Applicant Squash Australia Limited- Applicant Dawn Moggach – Applicant Alexia Clonda – Respondent Representation: Counsel: Mr M Baroni ( First and Second Applicant) Solicitor: Ms C Ingleton( First and Second Applicant) Mr C Barnes (Third Applicant) File Number(s): 2019/00299993; 2019/00300080 Publication restriction: Nil REASONS FOR DECISION 1. These proceedings concerned an interlocutory application for the Tribunal to dismiss complaints of discrimination made by Ms Clonda against the 3 Applicants for dismissal, on the basis that the Tribunal should be satisfied that the complaints had already been settled. 2. In this matter, the Tribunal has referred to the three Respondents to Ms Clonda's complaints to Anti-Discrimination NSW (ADNSW) as the Applicants. This is because the matter deals with their application for the Tribunal to dismiss Ms Clonda's complaints. Background to Application 1. In February 2019, Ms Alexia Clonda lodged complaints with the President of the Anti-Discrimination NSW (the President and ADNSW) alleging that she had been discriminated against by NSW Squash Limited, Squash Australia Limited and Dawn Moggach in the area of employment, on the grounds of homosexuality. Ms Clonda also alleged she had been victimised. The President referred the complaints to the New South Wales Civil and Administrative Tribunal (the Tribunal) under section 93C of the Anti-Discrimination Act (ADA) as the complaints could not be conciliated. 2. The matters were referred to mediation at a case conference on 23 October 2019. The mediation took place on 25 November 2019 with a Tribunal appointed mediator. The parties signed terms of settlement prepared at the mediation. The Current Dispute 1. The current dispute arises out of differing characterisations of what the terms of settlement mean for the complaints. The Three Applicants to this application (the Respondents to the complaints) assert that the terms of settlement are evidence that the matter was settled at the mediation conference. Ms Clonda says that settlement was subject to her receiving a mutually acceptable deed. Ms Clonda says she has not received a mutually acceptable deed with input from all 3 Respondents to her complaints. Ms Clonda is not satisfied with some of the clauses in the deed. As a result, Ms Clonda wishes to proceed with her complaints in the Tribunal. The Applicants assert that the Tribunal's role is finished as the matter has been settled and it should now be dismissed under section 59 of the Civil and Administrative Tribunal Act 2013 (CATA). 2. For the reasons that follow, I have decided that the matter has not been settled. I have also decided that the matter should not be dismissed under section 59 of CATA. Statutory framework Section 59 CATA Tribunal's powers when proceedings settled (1) The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if-- (a) the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and (b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. (2) The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement. 1. The Tribunal understands that it needs to be satisfied of 3 matters in dealing with this application to dismiss the complaints: 1. the terms of the agreed settlement are in writing, signed by or on behalf of the parties; 2. the terms of the agreed settlement are lodged with the Tribunal; and 3. the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. 1. No contest was raised by any of the parties as to the third requirement that the Tribunal would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement. The Applicants' submissions 1. The first two Applicants for dismissal provided written submissions to the Tribunal which were supplemented by oral submissions made by counsel at the hearing. Ms Moggach's representative told the Tribunal that she substantially agreed with those submissions. 2. The handwritten terms of settlement signed at the mediation were before the Tribunal as was a draft deed of release. 3. In summary, the first and second Applicants submitted that as a consequence of the mediation the complaint was settled. The terms of settlement were reduced to writing. This document was signed by the Applicants and the Respondent collectively. Clause 4 of the settlement document provided that the parties would execute a mutually acceptable deed of release. The deed had been provided to Ms Clonda within seven days of the settlement as required by the terms of settlement. Ms Clonda was required by the terms of settlement to return the deed within a further seven days. Ms Clonda did not return a signed deed. Rather she advised Ms Ingleton solicitor that she had not been able to retain counsel and was unable to comment on or execute the deed. The Applicants contacted Ms Clonda again enquiring as to the status of the deed, but she did not contact the Applicants further about the deed. In the interim, Ms Clonda requested that the Tribunal take further action to progress the hearing of the complaints. The Applicants pressed the Tribunal that the matter had in fact been settled at the mediation on 25 November 2019 and sought that the matter be listed to enable the Tribunal to dismiss it under section 59 of CATA. 4. The Applicants rejected Ms Clonda's concerns that she had felt intimidated at the mediation conference because the Applicants' legal representative took an adversarial approach. It was not clear which representative took an adversarial approach. The mediator had asked Ms Clonda whether she wished to proceed with the mediation without legal representation and she had agreed to do so. The terms of settlement reflected what Ms Clonda had sought. The Applicants referred specifically to the reference in the terms of settlement at clause 3 to the verbal statement of regret made personally to and accepted by Ms Clonda by the Applicant solicitor. Ms Clonda had not advised the solicitor Ms Ingleton that the deed was unacceptable to her. There was no evidence by Ms Clonda to support any of her claims. 5. The Applicants submitted that it was clear that NCAT had the power to make the orders set out in the terms of settlement. The terms of settlement had been lodged with the Tribunal through the mediator. There was no evidence that the settlement was void or should be otherwise set aside. It was irrelevant how the agreement was reached see Prenc v Stojcevski [2016]NSWCATAP244. 6. There was no evidence that Ms Clonda had been stressed. Ms Clonda did not experience special disadvantage as recognised in the case law which may have seriously affected her capacity to judge or protect her own interests. There was no evidence that the other parties had taken advantage of any such special disadvantage. Ms Clonda's submissions 1. Ms Clonda submitted that she had been at a disadvantage at the mediation as she was not legally represented, and she felt intimidated by the legal representatives of the other side. She considered that the handwritten terms of settlement were a basis of a deed to be provided. 2. Ms Clonda referred to the contents of: * clause 1 which refers to "a mutually acceptable deed of release"; and * clause 4 which states that "The terms of this settlement will be subject to a mutually acceptable deed of release to be executed by the Applicant and all of the Respondents:" 1. Ms Clonda asserted that on this basis, provision of a mutually acceptable deed of release was a condition of the settlement of the matter. 2. Ms Clonda relied upon the High Court's analysis of the words "subject to contract" in the matter of Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353 as analogous to the expression "a mutually acceptable deed of release to be executed by the Applicant and all of the Respondents" in the terms of settlement. Ms Clonda submitted that the third situation identified by the High Court applied. That is, that the clause postponed formation of the contract. None of the parties were bound to proceed with the transaction since formation of the contract was conditional on execution of the document (the deed of release). 3. Ms Clonda submitted that she understood that final settlement of her complaint would occur if and when the deed's terms were mutually agreed and signed by all the parties. This had not happened. She did not regard the matter as having been settled on the day. Her letter of 2 December 2019 made it clear that she considered that settlement was a work in progress and that she was waiting on a response from Squash Australia and the solicitor for Ms Moggach to the deed. Her understanding was that upon signing the deed, the proceedings would then be settled and until then they were not settled. She was concerned when she had received the draft deed. There were extra provisions in it which were not contained in the terms of settlement. For instance, the non-disparagement clauses were not satisfactory. Further she continued to experience the behaviour from the Respondents to her complaint which had prompted her complaints. The terms of settlement had not been lodged with the Tribunal as required by section 59. She had not lodged the terms of settlement with the Tribunal. Ms Clonda considered that the matter had not settled, and that the Tribunal should proceed towards the hearing of her complaints. The Tribunal's Consideration Findings of Fact 1. In reaching satisfaction about a matter under the CATA, the Tribunal adopts the standard of proof in civil proceedings set out in the Evidence Act 1995 – the balance of probabilities. Section 140 Evidence Act 1995 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account-- (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 1. The Tribunal must be satisfied on the balance of probabilities that the matter had been settled as submitted by the Applicants. 2. Ms Clonda did not give evidence at the hearing but provided written and oral submissions. 3. The Applicants relied upon 2 affidavits from Ms Ingleton, solicitor and her oral evidence. Ms Ingleton's statements of the sequence of events at the mediation and thereafter set out in her affidavit of 24 February 2020 were not contradicted. The Tribunal accepts that account of the events. The issue 1. The primary issue is whether the matter was settled at the mediation of 25 November 2019 as alleged by the Applicants and disputed by Ms Clonda. This is a mixed question of law and fact. 2. In determining whether the matter was settled at the mediation conference the Tribunal must take into account all the relevant circumstances. 3. The Tribunal notes the following circumstances. 4. Ms Clonda had been referred to LARS – the Bar Association's Legal Advice scheme for assistance prior to the mediation. The Tribunal understands that Ms Clonda was disappointed she did not have legal assistance at the mediation. At the same time the Tribunal understands that the mediator advised Ms Clonda that she could seek legal representation – but Ms Clonda chose to proceed with the mediation. 5. The Tribunal understands that for a certain period of time at the mediation the parties remained separate. The Tribunal is not satisfied on the basis of the evidence before it that Ms Clonda was deliberately intimidated by the representatives of the Applicants' at mediation. 6. The Tribunal notes the terms of settlement which were written on the day and signed by the parties. The Tribunal notes the contents of clause 1 which refer to "a mutually acceptable deed of release" and clause 4 which states that the terms of this settlement will be subject to a mutually acceptable deed of release to be executed by the Applicant and all of the Respondents. 7. The Tribunal notes that the terms of settlement record at clause 3 that Ms Clonda had accepted a verbal statement of regret provided to her on the date of this agreement. This supports a view that the matter had been settled and that the Respondents to the complaints had commenced completing their promises under the agreement. 8. The Mediator noted on a result sheet "Matter Settled". The Mediator's note states "A (Ms Clonda) will provide letters withdrawing all matters on or before 20 December 2019 once Deed of Release Executed." Evidence was not brought from the Mediator as to whether she considered that Ms Clonda intended that she had settled the matter at the conclusion of the mediation or whether she considered that the matter would not be settled until the Deed of Release was signed. 9. The representatives of the Applicants submitted that the matter had been settled at the mediation. 10. Ms Clonda's submissions cast the matter as a contractual issue, relying upon the wording of clauses 1 and 4, using the words in clause 4 of "subject to a mutually acceptable deed of release". Ms Clonda submitted that these words were analogous to the words "subject to contract" as analysed by the High Court in Masters v Cameron [1954] HCA 72; (1954)91 CLR 353. Subject to contract 1. Both parties referred to the analysis of the words "subject to contract" and the 3 categories of agreement set out in the High Court judgment in Masters v Cameron [1954] HCA 72; (1954)91 CLR 353 and a fourth category set out in more recent cases. 2. The Tribunal adopts this 4 category analysis of the "subject to contract" term set out in Masters v Cameron [1954] HCA 72; (1954)91 CLR 353 and GR Securities Pty Ltd v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSWLR 622 in Carter JW, Cases and Materials on Contract Law in Australia ; 6th Edition 2012, Lexis Nexis Butterworths, Sydney at paras 5-15 and 5-21. 3. The words "subject to contract" may mean: 1. There may be a concluded contract and the purpose of the document is simply formal. The contract is not conditional. 2. Although there is a concluded contract, that contract is conditional in the sense that there is no obligation to perform until the document (here the deed of release) is signed. 3. The clause may postpone formation of the contract. Neither party is bound to proceed with the transaction since formation of the contract is conditional on execution of the document; and 4. The parties intend to be bound immediately but contemplate that a formal document may by agreement contain additional terms. 1. The Applicants submitted that the situation fell into areas 1, 2 and 4. That is that there was a concluded contract to settle the matter on the day at the mediation settlement. 2. Ms Clonda submitted that the third situation applied. The term "subject to the deed of settlement" meant that the parties were not bound to proceed with the settlement as the formation of the contract was conditional on the execution of the deed of release. 3. In its analysis of this third situation the High Court referred to: "cases in which the terms of agreement are not intended to have, and therefore do not have, any binding effect of their own". See Masters v Cameron [1954] HCA 72; (1954)91 CLR 353 at para [11]. 1. In that paragraph [11] Lord Blackburn referred in passing to the principles of contract law: "parties often do enter into a negotiation meaning that, when they have (or think they have) come to one mind, the result shall be put into formal shape…." 1. Some principles of contract formation indicate that there needs to be an offer made, acceptance of that offer and that the parties should be of the same mind- often referred to as "consensus ad idem". 2. To establish whether the parties were of the same mind, Carter suggests that one should undertake both an objective and a subjective analysis. See para[1-49] of J.W Carter p21 "First, whether there is a consensus in relation to the terms of a contract is determined objectively. Second, the view that an intention to create a legally enforceable contract is a necessary element in the formation of a contract. suggests a role for subjectivity. 1. Objectively it appears there was a consensus in relation to the terms of contract – evidenced by the content of the terms of settlement signed by the parties on the day. The mediator marked the result sheet as "matter settled". The Applicants' legal representatives were of a mind that there was a contract entered into by all parties to settle the matter. The correspondence to the Tribunal after the mediation by the Applicant representatives confirms this view. 2. It is difficult for the Tribunal to be certain of Ms Clonda's mind at the mediation conference. On one hand, she signed the terms of settlement and is said to have accepted a statement of regret provided to her on the day. Ms Clonda's actions after the mediation support the view that she considered that the matter had not been settled and that a mutually acceptable deed was necessary before she agreed to settle. That is, it appears that after the mediation, Ms Clonda sought legal advice, was unable to obtain it and then was not presented with a deed commented upon or explicitly agreed to by all of the Applicants. Ms Clonda's actions in attempting to obtain legal advice prior to the mediation and her response of 2 December 2019 that she was unable to sign the draft deed as she had not been able to obtain advice, are consistent with her submission that she considered that her settlement of the matter was contingent on the provision of a mutually acceptable deed signed by all parties. The Tribunal was not provided with a signed copy of the deed. 3. In these circumstances, the Tribunal is not satisfied that the parties were of the same mind on the day of the mediation. Clearly the Applicants considered that the terms of settlement reflected an agreement that the matter had been settled. matter. It would appear that Ms Clonda considered that the terms of settlement reflected an intention for the matter to be finally settled once there was a mutually acceptable deed of release and not until this time. Conclusion 1. Section 59 of CATA provides that the Tribunal may make orders dismissing Ms Clonda's application in relation to her discrimination complaints "to give effect to any agreed settlement reached by the parties in the proceedings". 2. The Tribunal is not satisfied on the balance of probabilities that the parties were "of the same mind" on the day of the mediation. The Tribunal is not satisfied that there was an agreement that the matter be settled on the day. 3. In these circumstances the Tribunal declines to dismiss Ms Clonda's application in relation to her complaints of discrimination. Decision 1. The Application made under section 59 is dismissed. Orders 1. The application to dismiss the matter under section 59 of the Civil and Administrative Tribunal Act 2013 is dismissed. 2. Ms Clonda's application is to be listed by the Registrar of the Tribunal for directions. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 April 2020