Isermann v Professional Property Inspections Pty Ltd
[2025] QIRC 63
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- Unreported Judgment
- Isermann v Professional Property Inspections Pty Ltd[2025] QIRC 63
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Isermann v Professional Property Inspections Pty Ltd[2025] QIRC 63
Isermann v Professional Property Inspections Pty Ltd[2025] QIRC 63
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Isermann v Professional Property Inspections Pty Ltd & Anor [2025] QIRC 063 |
PARTIES: | Isermann, Debra (Complainant) v Professional Property Inspections Pty Ltd (First Respondent) & Hancock, Karen (Second Respondent) & Hancock, Noel (Third Respondent) |
CASE NO: | AD/2023/141 |
PROCEEDING: | Application in existing proceedings |
DELIVERED ON: | 3 March 2025 |
HEARING DATE: | 24 February 2025 |
MEMBER: | Power IC |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – APPLICATION IN EXISTING PROCEEDINGS – APPLICATION TO DISMISS – where Respondent made settlement offer to Complainant at conciliation conference – where Complainant considered offer over four days – where Complainant advised that offer was accepted – whether final agreement reached following acceptance of offer – where settlement precludes continuation of claim. |
LEGISLATION: | Anti-Discrimination Act 1991 (Qld), s 174C, s 189 Industrial Relations Act 2016 (Qld), s 451 |
CASES: | Australian Postal Corporation v Gorman [2011] FCA 975 Masters v Cameron (1954) 91 CLR 353 Mouketo v State of Queensland (Metro South Hospital and Health Service) [2016] ICQ 025 Zoiti-Licastro v Australian Taxation Office (2006) 154 IR 1 |
Reasons for Decision
- [1]The Respondents filed an Application in existing proceedings on 16 October 2024 seeking to have the Complainant's substantive claim dismissed on the grounds that a settlement had been made between the parties.
- [2]The Complainant filed the following submissions in summary –
- The offer was accepted before the Complainant had signed an agreement.
- An email was sent to the Commission from Daniel Catanzaro regarding CCTV footage which provided an inconsistent explanation as to how the different version of the footage came to be.
- The CCTV footage should have been provided in full to the parties.
- The Complainant did not sign the agreement emailed to her and notified the Respondents and the Commission on 3 September 2024 that she had changed her mind due to new evidence and not agreeing to the terms in the deed of release.
- On 12 September 2024, some 9 days later, the Third Respondent deposited $500 in the Complainant's bank account.
- [3]The Respondents filed the following submissions in summary –
- At the Conciliation Conference on 15 August 2024 the Respondent made an offer to settle the matter.
- The Applicant requested that she be given 4 days to consider the offer, other options, and to discuss the matter with outside parties.
- On 19 August 2024, 4 days following the Conference, the Applicant emailed the Commission and stated that she agreed to the offer made at conciliation to finalise the matter and bank account details were provided.
- On 3 September 2024, the Commission sent the Applicant an email confirming her acceptance.
- The Complainant's submissions for this application state that she agreed to take the offer.
Consideration
- [4]The question to be determined in this Application is whether an agreement had been reached between the parties to resolve the complaint. There is no dispute as to the relevant facts in this matter. The question of whether a binding agreement had been reached is a question of law.
- [5]The Complainant filed the substantive complaint in the Queensland Human Rights Commission following which a conciliation conference was held involving the parties. The matter did not resolve at conference and was subsequently referred to the Queensland Industrial Relations Commission ('the QIRC') for determination.
- [6]A conciliation conference was held at the QIRC on 4 March 2024 following which orders were issued for the filing and serving of relevant documents.
- [7]On 15 August 2024, a further conciliation conference was held at the QIRC during which the Respondents made an offer to the Complainant to settle the complaint. The Respondents agreed to allow the Complainant 4 days to consider the settlement offer and respond.
- [8]On 19 August 2024, the Complainant sent an email to the QIRC Registry ('the Registry') and the Respondents stating the following -
I agree to the offer made by the respondents at conciliation, to finalise the matter.
I understand an order will be drawn up by the QIRC, funds to be deposited as below.
Debra Isermann.
[BSB number and Account number]
- [9]On 21 August 2024, the Registry sent the following email to the Complainant–
Dear Ms Isermann,
Thank you for your email confirming that you are accepting the Respondent's offer. The Commission does not make an "order" to this effect. In the usual course, the Respondent will prepare a deed for you to sign and then the funds will be deposited.
Once the funds have been deposited, please ensure to sign and file a Form 27 – Request to discontinue proceedings.
…
- [10]Mr Daniel Catanzaro sent an email to the Registry and parties on 27 August 2024 regarding the provision of CCTV footage to the parties. The Complainant replied to Mr Catanzaro in an email including the Registry as a recipient.
- [11]The Registry sent the following email to parties on 28 August 2024 –
Dear Parties,
We refer to the below correspondence from Mr Catanzaro and Ms Isermann. The correspondence has been placed on file.
The Commission is of the view that this matter has finalised as Ms Isermann has accepted an offer to resolve the matter from the Respondents. If this is no longer the case, please urgently advise.
…
- [12]On 30 August 2024, the Complainant emailed the Registry outlining her concerns that the CCTV footage had been edited. The intent of the email is unclear, with the Complainant outlining circumstances which led to her "missing the deadline to [sic] on the settlement".
- [13]The Respondents' legal representative subsequently emailed the Registry on 30 August 2024 confirming their view that an agreement had been reached and advising that the next step is for the Complainant to send through the executed deed of release.
- [14]On 3 September 2024, the Registry sent the following email to the Complainant –
Dear Ms Isermann,
Subsequent to the conciliation conference held before Commissioner McLennan, you emailed the Industrial Registry that you accepted the resolution of the matter in the terms outlined by the Respondents, including the payment of monies to you and your agreement to file a Form 27 – Request to discontinue proceedings.
As you have accepted to resolve the matter, when will you return the signed deed to the Respondents' Representatives?
…
- [15]On 3 September 2024, the Complainant emailed the Registry stating that the email from Mr Catanzaro indicated that the CCTV had been tampered with and that she had received this email "after [she had] agreed to take the settlement".
- [16]On 9 September 2024, the Complainant emailed the Registry seeking to have the matter relisted.
- [17]The Registry emailed the parties on 9 September 2024 confirming that the matter had reallocated to another Commissioner for determination.
- [18]On 12 September 2024, the Complainant advised that the Respondents had deposited the amount agreed upon into the Complainant's nominated bank account.
- [19]On 16 October 2024, the Respondents filed this Application seeking to have the claim dismissed on the basis that it had been settled.
- [20]Section 189 of the AD Act provides that an agreement between parties is enforceable as if it were an order of the tribunal after the terms of the agreement have been filed with the tribunal. In circumstances where this had not occurred, the purported settlement cannot be enforced as an order of this Commission. It is therefore necessary to consider whether a settlement has been reached in accordance with the criteria in Masters v Cameron.[1]
- [21]In Masters v Cameron, the High Court considered whether an agreement had been made in the following terms –
…
Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three cases. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. Or, secondly, it may be a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal document. Or, thirdly, the case may be one in which the intention of the parties is not to make a concluded bargain at all, unless and until they execute a formal contract.
In each of the first two cases there is a binding contract in the first case a contract binding the parties at once to perform the agreed terms whether the contemplated formal document comes into existence or not, and to join (if they have so agreed) in settling and executing the formal document; and in the second case a contract binding the parties to join in bringing the formal contract into existence and then to carry it into execution. Of these two cases the first is the more common. Throughout the decisions on this branch of the law the proposition is insisted upon which Lord Blackburn expressed in Rossiter v Miller (1878) 3 App Cas 1124 when he said that the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, show that they continue merely in negotiation.[2]
…
- [22]In Mouketo v State of Queensland (Metro South Hospital and Health Service),[3] President Martin (as His Honour then was) considered that it "is an ordinary consequence of an agreement being reached at a conference of this type that the terms be recorded in writing" when determining that an agreement made in similar circumstances was a binding agreement as outlined in Masters v Cameron.[4]
- [23]It seems to me that the agreement between the parties in this matter can reasonably be considered as falling into the second category outlined in Masters v Cameron. An offer had been made by the Respondent that had been accepted by Complainant for valuable consideration. There was no suggestion of further negotiations, with the parties' intention to simply bring the deed into existence and carry it into execution. In these circumstances, the parties are bound by the terms of their agreement as a binding instrument.
- [24]The Complainant used clear and unambiguous language in her email of 19 August 2024 when she stated, "I agree to the offer made by the respondents at conciliation, to finalise the matter". In the same email she provided the details of her bank account to allow the Respondents to deposit the agreed upon sum of money.
- [25]Whilst the email of 19 August 2024 refers to her understanding that the QIRC will make an order, there is nothing to indicate that the acceptance was predicated on further negotiations to be settled in the deed.
- [26]The Complainant did not refute the understanding that an agreement had been reached when emailed by the Registry on 21 August 2024, 28 August 2024, and 3 September 2024.
- [27]The Complainant's submission in relation to this Application states that she "did agree" with the settlement offered by the Respondents and outlined the various reasons that she "decided to take the offer". The Complainant states that she "accepted the offer, hoping [she would] never have to see either of the respondents again…".
- [28]The issue of whether the terms of the deed had been specifically agreed upon is not central to the question of whether a settlement had been reached. In Zoiti-Licastro v ATO,[5] the Full Bench of the Australian Industrial Relations Commission stated that a focus on the settlement document "misses the point", with the real question being what was agreed on the relevant date. The Full Bench determined that even if there were disputed terms in the subsequent agreement, the proper course would be for the party to simply indicate that they were not part of the agreement.[6]
- [29]Although the Complainant made submissions that there were terms in the deed provided by the Respondent with which she disagreed, these objections were not raised upon receipt of the deed as the reason the Complainant wishes to resile from the settlement. It is clear from the Complainant's emails that the basis upon which she determined to retreat from the settlement was the receipt of additional information contained in the email from Mr Catanzaro.
- [30]The Complainant's email to the Registry on 9 September 2024 describes at length the Complainant's dissatisfaction with the actions of Mr Catanzaro and her belief that the information provided in his email is evidence that the CCTV footage had been edited.
- [31]Whilst the Complainant may be of the view that information regarding the CCTV footage was relevant to her prospects in the substantive claim, the discovery of further potential evidence does not render the settlement invalid.
- [32]
…a valid and effective accord and satisfaction extinguishes the pre-existing cause of action and continued pursuit of an application based on such cause of action is clearly capable of being considered to be frivolous or vexation or without reasonable prospects of success.[8]
- [33]Applying the reasoning in Gorman, in circumstances where there has been effective accord and satisfaction, as was the case in this matter, the cause of action has been extinguished.
- [34]I am satisfied that the parties agreed to settle the matter on the basis that the Complainant discontinued the claim upon receipt of $500 from the Respondent, as evidenced by the email records between the parties and the Registry. The Complainant has then attempted to renege on the agreement by attempting to proceed with her claim. In these circumstances, it is not appropriate to allow the Complainant to proceed with her claim.
- [35]For the foregoing reasons, it is determined that the Complainant's claim was resolved by the agreement reached between the parties on 19 August 2024. Accordingly, there is no basis upon which the claim may proceed.
- [36]
Order
- [37]I make the following orders:
- The application is existing proceedings is granted.
- The substantive claim in AD/2023/141 is dismissed.
Footnotes
[1] (1954) 91 CLR 353.
[2] Ibid.
[3] [2016] ICQ 025.
[4] Mouketo v State of Queensland (Metro South Hospital and Health Service) [2016] ICQ 025, 18.
[5] (2006) 154 IR 1.
[6] Ibid, 12.
[7] [2011] FCA 975.
[8] Ibid, 33.
[9] In accordance with s 174C of the Anti-Discrimination Act 1991 (Qld) conferring jurisdiction on the QIRC to exercise powers under the relevant tribunal Act being the Industrial Relations Act 2016 (Qld).