SUPREME COURT OF QUEENSLAND

1. McMURDO P: I agree with the reasons for judgment of Thomas JA and with his proposed order.

2. THOMAS JA: This is an application for extension of time in which to appeal against a decision of Atkinson J given 23 July 2001.

3. The applicant appeared in person. She is legally qualified and informed the court that she had been admitted to practice in Victoria. The affidavits indicate that she has a lengthy psychiatric history and that in and around the period when she was preparing to file a notice of appeal on 21 August 2001, she was consulting a medical practitioner for “various medical problems that affect her general functioning.”

4. She advanced lengthy submissions seeking to explain the delay including alleged error on her part in calculating the day. In the event, her lateness in filing a notice of appeal was only one day. In circumstances like these, the Court would have no hesitation in granting the necessary extension of time, unless of course it considered the appeal to be plainly hopeless. I therefore turn to that question.

Circumstances

5. The applicant brought an action in the District Court based upon an incident in which she was involved at Jupiters Casino in 1992. It was brought against various defendants, the first two of which may be taken as representing the interests of the Casino, and the remaining three of which are police officers and the State of Queensland. Quinlan Miller & Treston were the solicitors for the first two defendants and the Crown Solicitor represented the third, fourth and fifth defendants. In due course the matter was heard and determined by Forde DCJ who dismissed the applicant’s action on 31 March 2000. She filed a notice of appeal against that decision (within time) on 27 April 2000. Various steps were then taken by the parties including the preparation of submissions, and there was some disputation about the contents of the appeal book. Correspondence ensued between the various parties on the subject of settlement of the appeal. The question in issue is whether the applicant and the respondents, in the course of that correspondence, reached a binding compromise agreement under which the applicant agreed to discontinue the appeal.

6. That issue came before Atkinson J when the respondents sought a declaration that the appeal had been compromised, and an order that it be stayed. On 23 July 2001 her Honour decided that issue adversely to the applicant. It is against that decision that she now wishes to appeal, and with respect to which she needs an extension of time.

Correspondence with Quinlan Miller and Treston

7. On 22 February 2001, by which time the appeal had been pending for about 10 months, Quinlan Miller & Treston wrote to the applicant and drew her attention to her then current liability in respect of the trial costs, and to the incurring of further costs in defending the appeal.  They also drew attention to their submission that her appeal lay only with the leave of the court and foreshadowed an intention to proceed with an application to strike out the purported appeal.  The letter continued –

“Nonetheless, our client is minded to finalise this matter in an effort to avoid incurring further expense which may, or may not be recoverable from you.  In that regard, our client is willing to make a commercial offer of settlement without any admission of liability.  We therefore advise that the first and second respondents hereby offer to bear their own costs of this action (including the trial) incurred to date in exchange for your immediate discontinuance of the appeal against the first and second respondents and your signing of a Discharge in their favour.

This offer is made on a without prejudice basis and is open for acceptance for a period of seven (7) days only.  We advise that this will be our client’s only offer of settlement in this matter and should you reject this offer, we are instructed to proceed with the defence of the appeal and vigorously pursue recovery from you of any costs incurred in doing so, as well as the costs of trial.”

8. On the same day the applicant, without any reference to Quinlan Miller & Treston’s offer, wrote to those solicitors in the following terms –

“I believe that your client is responsible for causing injury to me and I would be prepared to accept a sum of $50,000, in full and final settlement of this matter, with each party to bear it’s own costs.”

9. This was rejected by Quinlan Miller & Treston on the same day (22 February 2001), in the following terms –

“We acknowledge receipt of your facsimile dated 22 February 2001.  Your offer is rejected.”

10. On 1 March 2001, by direct e-mail apparently sent at 5:42pm, the applicant wrote to Quinlan Miller & Treston as follows –

“I refer to your client’s offer of settlement dated 22 February 2001, whereby you indicate that your client is offering to  (sic) bear their own costs of this action (including the trial) incurred to date in exchange for my immediately discontinuing the appeal against the first and second respondents and signing a Discharge in their favour.

I advise that I am prepared to accept this offer and await the receipt of your discharge in this regard.”

11. The same day, at 6:08pm, those solicitors replied as follows –

“We acknowledge receipt of your e-mail to Jamie Miller of our office of 1 March 2001.  We confirm that you have accepted our client’s offer of 22 February 2001.  We will prepare the relevant Discharge and forward it to you by mail on Monday 5 March 2001.”

12. On 6 March, Quinlan Miller & Treston forwarded a Discharge and Notice of Discontinuance under cover of the following letter –

“We refer to your e-mail of 1 March 2001 and to our response by e- mail of the same date.

We confirm that you have accepted our client’s offer of 22 February 2001 and enclose (*) the relevant Discharge and Notice of Discontinuance herein for your execution and return as soon as possible. 

We look forward to hearing from you.”

13. On the following day (7 March) the applicant replied in the following terms –

“I refer to your discharge and having perused it, find it’s terms unacceptable.  I look forward to you vigorously defending this matter at trial and any other action you may contemplate taking to strike the matter out.”

Correspondence with Crown Solicitor

14. On 26 February 2001 the Crown Solicitor wrote to the applicant as follows –

“I advise that my clients are prepared to offer to settle this matter on the basis that each party walk away bearing their own costs.  This means that you agree to discontinue the appeal in respect of this matter and agree to bear your own costs of the action at first instance and the appeal proceedings to date and my clients, the Third, Fourth and Fifth Defendants, will do likewise that is, agree to the discontinuing of the appeal and bear their own costs incurred in respect of this matter at first instance and on appeal to date.

Please note that this offer will remain open until 4pm Friday 2 March 2001 after which time it will lapse.”

15. On the same day the applicant wrote to the Crown Solicitor in the following terms –

“I refer to the above matter and advise that I would be willing to accept the sum of $50,000 in full and final settlement of this matter with each party to agree to bear their own costs although I believe the quantum is likely to be in excess of this sum.”

About 5 minutes later she sent a further letter to Crown Solicitor as follows –

“I refer to my offer to settle this matter just faxed to you and advise that this was offered on a ‘once only basis’ and I suggest that you confer with the 1st and 2nd Respondents who have stated their position already.”

16. The following day the Crown Solicitor rejected the applicant’s offer in the following terms –

“I refer to your facsimile transmission of 26 February 2001 and note your advice that you are willing to accept the sum of $50,000.00 in full and final settlement of this matter.

I am instructed to reject your offer of settlement.”

On the same day the applicant then sent a further facsimile transmission acknowledging the Crown Solicitor’s reply and stating that “there was really no need to inform me of your position.”

17. On 1 March the applicant sent the following letter to the Crown Solicitor –

“I refer to your offer of settlement dated 26 February and advise that I accept the terms of the offer that each party bear their own costs in relation to both the trial and the appeal if I agree to discontinue the appeal.”

18. On 6 March the Crown Solicitor replied as follows –

“I refer to your facsimile transmission of 1 March 2001 and confirm that you have accepted my client’s settlement offer of 26 February 2001 namely, that this matter has settled on the basis that each party walks away bearing their own costs incurred in respect of this matter at first instance and on appeal.

Please find enclosed, for execution, a Deed of Discharge.  I look forward to receiving the executed discharge as soon as possible.

I note the solicitors for the First and Second Defendants have forwarded to you a Notice of Discontinuance for signing and return together with a discharge on behalf of their clients.”

19. Subsequently, the applicant indicated that she found the discharge to be unacceptable and rejected the Crown’s contentions that a compromise had been effected. She declined to sign any document that would permit the appeal to be discontinued or dismissed.

Issues

20. The issues which the learned trial judge identified as having been raised by the applicant included –

1. The terms of agreement were not intended to have binding effect.

2. The conduct of the solicitors was oppressive and intimidatory, and that there was evidence of duress, undue influence and unconscionability.

3. Acceptance by e-mail is not capable of creating contractual relations.

4. The terms of the discharges are unsatisfactory.

5. The words used in the applicant’s e-mail fall short of an unequivocal acceptance of offer.

21. The terms of the applicant’s extensive written arguments on appeal range somewhat more widely than this. But it seems to me that the three most important questions that she wishes to raise on appeal are these -

1. Was a binding compromise effected by the correspondence from Quinlan Miller & Treston?

2. Was a binding compromise effected by the correspondence with the Crown Solicitor?

3. Did the circumstances disclose a defence of the kind identified in Commercial Bank of Australia Ltd v Amadio?^[1]

Discussion

22. One of the applicant’s major points in relation to the first question is a submission that Quinlan Miller & Treston’s offer of 22 February had expired before she accepted it at 5:42pm on 1 March. She says that she received the offer at 2:41pm on 22 February, and that the seven day period therefore expired at 2:41pm on 1 March.  To this submission there are several answers.

23. Although there are exceptions, the law does not in general recognise fractions of a day.^[2]

“..the law in reckoning time by days ordinarily takes no account of fractions of a day.  The result is that, whenever a period of days has to be computed from an act or an event that occurs within the space of a day, a decision must be made whether to start the reckoning from the beginning or the end of that day.  Much the same question arises when a period is to be calculated up to the time when an act is done or an event happens.

In the form the question is ordinarily now put it is whether the day of commencement of a period (or a day of its completion) is to be included or excluded in counting a given number of days.  As to that, there is no universal rule.  Where it is not prescribed by statute (as for example in the Interpretation Act of 1897 (N.S.W), s.35 (11)) the answer depends upon context and circumstances.”^[3]

24. It is true, as the applicant submitted, that there are some purposes for which the law will take note of fractions of a day, and she made reference to cases of that kind listed in Stroud.^[4] I have examined these cases, each of which has some special feature making it necessary to identify different parts of or times in a day, or to use different times in the day as reference points.  None of those examples is germane to the present situation which may fairly be described as unremarkable settlement negotiations. 

25. In earlier days a good deal of apparently conflicting authority emerged on the manner in which and the points from which and to which time should be reckoned. The problems, so far as interpretation of statutes is concerned, have largely been resolved by a statutory principle, such as s 38 of the Acts Interpretation Act 1954,^[5] in favour of excluding the day on which the beginning act or event occurs.  However, the rules in relation to commercial and private documents remain at large.  Prior to the advent of statutory rules governing the reckoning of times prescribed by statutes, little relevant distinction seems to have been drawn between the interpretation of public or private documents, and similar approaches are observable in relation to a reluctance to use fractions of a day, and in favour of excluding the day of the commencing act or event.  The decision of greatest influence in answering such questions seems to have been Lester v Garland.^[6]  In that case, Sir William Grant MR astutely observed that a general rule should not be laid down, because “whichever way it should be laid down, cases would occur, the reason of which would require exceptions to be made.”  His Lordship however considered the question whether the commencing day from which time should be reckoned should be included, and observed “upon technical reasoning I rather think it would be more easy to maintain, that the day of an act done, or an event happening, ought in all cases to be excluded, than that it should in cases be included.”  His Lordship further observed, “Our law rejects fractions of a day more generally than the civil law does…..the effect is to render the day a sort of indivisible point; so that any act, done in the compass of it, is no more referrible to any one, than to any other, portion of it; but the act and the day are coextensive; and therefore the act cannot properly be said to be passed, until the day is passed.”

26. Approaches consistent with those observations were adopted by Lord Esher in Re North;  Ex parte Hasluck,^[7] and by Jordan CJ in Ex parte Tooheys Limited; Re Butler.^[8]  The observations in those cases were made independently of any statutory interpretation act.

27. Similarly, in the Victorian decision of Watson v Issell^[9] Higginbotham CJ,^[10] having referred to Lester v Garland, continued –

“Consequently where an act has to be done within a certain period after a day mentioned that day is excluded from the computation  of time, and the time runs from the end of that day, and not from the beginning of it.  The last day, however, is included.  So the rule with reference to the interpretation of Acts and private instruments is the same as that which has been adopted by the Rules of Court in reference to time under the Rules.  In the present case the act was done within seven days if the day on which the judgment was given be excluded, as I think it should be.”

28. In my view the proper interpretation of the words, “..open for acceptance for a period of seven (7) days only” produces the result that the period expires at the end of the seventh full day after receipt of the document.

29. None of the decisions referred to in note 4 above provide any reason to think that in the context of settlement negotiations of the kind in question here the parties should, as it were, set their clocks running at the precise moment when an offer is received and regard the offer as terminating at precisely the same time the prescribed number of days later. Such a view would open up fertile areas for unnecessary disputation, and would not be taken in the absence of good reason. In my view the only reasonable conclusion in relation to the correspondence set out above is that Quinlan Miller & Treston’s offer remained open for acceptance until the end of Thursday 1 March 2001.

30. There was no submission that the separate communications between the parties in relation to the applicant’s $50,000 offers had the effect of terminating the respective offers of the respondents. On their face the applicant’s offers are not presented as counter-offers to the respondents’ original offers, and those letters and the respondents’ replies thereto may be regarded as separate and discreet communications. In each instance both the applicant and the relevant respondent treated the respondent’s original offer as remaining open. In particular, the applicant’s letters of 1 March treated the original offers as still open, and the respondents by their subsequent conduct obviously agreed to treat those offers as having been still open.

31. A further and alternative answer to the applicant’s contention is that even if Quinlan Miller & Treston’s offer had expired on 28 February, the applicant’s letter of 1 March could be construed as an offer to settle on the terms mentioned in Quinlan Miller & Treston’s original letter.  If so construed, such offer was plainly accepted by Quinlan Miller & Treston soon after receiving it on 1 March.

32. It is noted that the applicant’s submissions as to expiry of the original offer were only made in relation to Quinlan Miller & Treston’s letter of 22 February. No similar argument is open in relation to the offer made by the Crown Solicitor.

33. Whichever way the matter is looked at, on the face of the correspondence there is no uncertainty, no reason to think that there was any lack of intention to be bound and no reason to hold that a binding contract was not made. Even if it be assumed in favour of the applicant that the original offers were no longer available for acceptance on 1 March, it is inescapable that a contract was made by means of the applicant’s letters of that date and the following letters on behalf of the other parties.

34. It is unnecessary to re-state the arguments that were dealt with in the published reasons of Atkinson J in which consideration was given to whether or not particular forms of words during negotiations in third party claims produced an enforceable agreement or not. The case most relied on by the applicant was Giblin v Duggan^[11] where an alleged acceptance of an offer was held to have been a mere statement of intention.  That decision has subsequently been doubted in this Court in Morris v FAI General Insurance Company Limited.^[12]  Giblin was also considered “not “persuasive” in Duncan v Mendes,^[13] and was distinguished in Newton, Bellamy & Wolf v State Government Insurance Office (Qld).^[14]  Although it was not considered necessary in Morris to overrule Giblin, it is difficult to think that it would be decided the same way today.^[15]  In any event the relevant correspondence in Giblin is distinguishable from that here.

35. The submission that acceptance by e-mail was not capable of creating contractual relations was adequately dealt with by Atkinson J, and need not be further mentioned here.^[16]  It is also unnecessary to deal with submissions that the terms of the discharges were unsatisfactory.  Of course if the forms of discharge exceeded the requirements of what had been agreed, the applicant would not be obliged to sign them, but an argument on this question does not answer the question whether or not a binding agreement was made between the respective parties.

36. In her oral submissions the applicant emphasised that the appeal against Forde DCJ’s decision is very important to her, and that unless the present application is granted she will be shut out from pursuing that appeal. She also made many assertions in both written and oral argument that she did not intend to be bound and did not think that she would be bound, but in the end these assertions are not helpful to the legal analysis of the parties’ rights.

37. I have studied the earnest, careful and, well-expressed arguments that have been presented by the applicant, although I admit to some difficulty in isolating particular points of substance. I have however given particular consideration to the applicant’s submissions in relation to the possibility of an Amadio type defence.

38. The applicant contends that she raised duress and undue influence “not in the sense that they were specifically relied upon, but in the lead up to canvassing the types of doctrines which have the common feature of vitiating an otherwise valid contract should they operate to produce an ascendancy of power of one party over another.” She submits that there was an inequality of bargaining power and that the conduct of the stronger party was not consistent with good conscience in the circumstances. She further submitted that although there may have been some grounds for her relying on incapacity of a psychiatric nature, she chose not to proceed in that manner. Her submission proceeded to suggest that a recognised “way of a party ensuring that the onus is discharged is to ensure that a party has some independent legal advice.” However I do not think that the principle in Amadio can be stretched in obliging a party in adversarial negotiations to advise the adversary to seek independent legal advice.  The relevant negotiations in this matter occurred well after the applicant had identified herself as a litigant in person and, as it would seem, a litigant in person with legal qualifications. 

39. Another aspect of alleged unfairness, as mentioned in the applicant’s submissions is the inclusion by Quinlan Miller & Treston’s in their letter of 22 February, of statements that they intended to proceed with an application to strike out the appeal, and that if the offer was not rejected they were instructed to proceed to defend the appeal and vigorously pursue recovery of any costs incurred in doing so. There was nothing improper or unreasonable in their acting in this manner. When all the circumstances are examined there is nothing that suggests that an Amadio type defence, assuming it to have been identified, ought to have precluded the enforcement of the agreement that was made.

40. The applicant also contended that if any agreements were made they fell under the third category of contract described in Masters v Cameron ,^[17] and accordingly were not binding.  It is enough to say that that submission is without substance, for the reason stated by Atkinson J.

41. Although the applicant asserted otherwise, it is difficult to resist the conclusion that she knowingly made an agreement and soon afterwards repented having done so.

42. Having considered all of the applicant’s submissions, I have reached the view that there is no basis upon which the present appeal, if brought, could succeed, and that the grant of leave would merely protract and substantially add to the cost of its inevitable dismissal.

43. In these circumstances I would refuse the application for extension of time.

Order

44. Application for extension of time refused; applicant to pay respondent’s costs of application to be assessed.

45. CULLINANE J: I agree with the reasons of Thomas JA in this matter and the order proposed.