… Agreement – whether a binding agreement to settle
Mr Guy was injured during the course of his employment with Von Bibra Motors. The claim proceeded to a compulsory settlement conference and was unable to be resolved.
The parties exchanged mandatory final offers of settlement in accordance with Section 292 of the Workers’ Compensation Rehabilitation Act 2003 (Ql). Those offers expired on 14 November 2022.
On 16 December 2022, Mr Guy’s solicitor wrote to WorkCover’s solicitor indicating that if WorkCover agreed to reopen its mandatory final offer (of $200,000 clear of the WorkCover refund plus regulation costs) it would be accepted by Mr Guy.
On the morning of Tuesday 22 December 2022, WorkCover solicitor wrote to Mr Guy’s solicitor agreeing to reopen WorkCover’s mandatory final offer ‘on the basis that the costs are agreed at the same time’, noting Mr Guy’s entitlement to regulation costs and requesting a list of Mr Guy’s outlays. The list of outlays was provided by Mr Guy’s solicitor that afternoon.
About two hours later, WorkCover’s solicitor confirmed its willingness to resolve the claim for the MFO offer of $200,000 plus regulation costs, rejected the offer to settle regulation cost/outlays made by Mr Guy’s solicitor and made a counter offer to settle regulation costs (for $4500) with the proviso that: ‘assuming your client agrees with our client’s assessment of costs please have him execute the attached release and discharge.’
The solicitor for Mr Guy did not respond to WorkCover’s solicitor and on the morning of Tuesday 3 January 2023, WorkCover solicitor wrote to them advising that as cost had not been agreed there was no settlement and as the 60-day period to commence proceedings from the compulsory conference had expired, WorkCover’s offer was formally withdrawn.
Six days later, on the morning of Monday 9 January 2023, My Guy’s solicitor purported to accept WorkCover’s offer, indicating that they would arrange for the signing of WorkCover’s release and discharge immediately. It was met with a response from WorkCover’s solicitor, indicating that it’s offer had been withdrawn and Mr Guy’s claim was statute barred.
Mr Guy’s new solicitors brought the present application seeking orders that there had been a binding agreement to settle between the parties.
Decision
1. Application dismissed;
2. Applicant to pay the respondent’s costs on the standard basis.
Porter KC DCJ, decision delivered 18 August 2023 (ex tempore).
Ratio
After considering the correspondence between the parties, Justice Porter determined the objective meaning of WorkCover’s offer made on 22 December 2022 to be conditional upon there also being an agreement as to the amount of the regulation costs. His Honour found that none of the following correspondence between the parties lead to a different conclusion.
Further, His Honour found that WorkCover’s counter offer to settle regulation outlays for $4,500 made on 22 December 2022 was capable of being accepted but was simply not accepted by Mr Guy’s solicitor until after the offer was withdrawn by WorkCover on 3 January 2023.
Whilst His Honour did state that an agreement to settle the claim for $200,000 clear of the WorkCover refund plus regulation costs was not uncertain, that was not the actual offer made by WorkCover’s solicitors on 22 December 2022 which was to resolve the claim by ‘reopening the offer of $200,000 clear plus regulation costs on the basis that the costs are agreed at the same time.’
Having a regard to the objective meaning of the email exchanges between the parties, His Honour found that they did not give rise to a binding agreement, noting WorkCover’s reopening of its mandatory final offer was subject to there being agreement to and certainty about regulation costs. As that offer was never accepted until after it had been withdrawn (which was after the expiration of Mr Guy’s 60-day, post-conference limitation period), WorkCover was under no obligation to make it again.
This compensation law case note appears courtesy of Travis Schultz & Partners (TSP), where the author, Trent Johnson, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law case notes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.
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