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[2025] QSC 129
This matter concerned the issue whether either party had made a valid final written offer capable of acceptance as required by s 292 Workers’ Compensation and Rehabilitation Act 2003. Sullivan J held that neither party accepted the other’s offer with the unintended and perverse consequence that there was no binding settlement.
Sullivan J
9 June 2025
After participating in a compulsory conference pursuant to Ch 5, Pt 6 Workers’ Compensation and Rehabilitation Act 2003, the claimant (via his litigation guardian) and WorkCover mutually exchanged what they intended to be their respective final written offers as required by s 292 of the Act. Each party contended that they had duly accepted the other’s offer; and that the matter was settled by accepting the other offer first. [4], [5].
A dispute arose, and the issues were threefold:
1.Which party, if any, accepted the other’s offer?
2.In the event a party was found to have accepted an offer, did s 293 of the Act operate so that no binding contract came into existence, despite an offer’s acceptance?
3.If the answer to the second question was “no”, then was there a binding contract between the parties prior to a s 59(2) Public Trustee Act 1978 sanction? [8]–[10].
Relevantly, the claimant’s final written offer was for $1.8 million but contained this clause:
“If WorkCover’s Written Final Offer is more than the Claimant’s Written Final Offer, the Claimant hereby accepts WorkCover’s Written Final Offer”. [19].
WorkCover's final written offer was for $2 million. [21]. WorkCover sent an email accepting the worker's offer shortly after the physical exchange of offers. [23]. Approximately half an hour later, an email was sent on the claimant’s behalf advising that he had accepted the WorkCover offer, as it was higher than his offer. [24]. Subsequently, the parties corresponded further, with each asserting that they had accepted the other party’s offer. [25].
His Honour held that there had been no settlement, noting as follows:
(1)That the parties had contractually agreed at the compulsory conference as to the process to be adopted in order to make final written offers under s 292(2) Workers’ Compensation and Rehabilitation Act 2003. As part of that agreed process the conference was adjourned in order to facilitate the making of the offers in accordance with the statutory requirement. [44]–[45].
(2)It is not the case that s 292(2) Workers’ Compensation and Rehabilitation Act 2003 requires that a simultaneous physical exchange of offers occur. That was something which was specifically contemplated by the parties as an additional requirement for the making of the offers, with a view to providing each party with a “theoretically equal opportunity to accept the other party’s offer”. [46].
(3)That s 292 Workers’ Compensation and Rehabilitation Act 2003 stipulates that the parties ensure that each makes a final written offer to the other party “that would dispose of the claim if the offer…were accepted.” In the current matter, that was exactly what the parties agreed would occur in order to dispose of the claim (if the offer was accepted). As matters eventuated, and contrary to what had been agreed to, the exchanged worker’s offer was not an offer which was able to be accepted by WorkCover, resulting in disposal of the claim. [48]–[49]. That was predominantly due to its inclusion of the clause which accepted WorkCover’s offer if it was higher, which rendered his offer non-compliant with the statutory process.
(4)That the agreement necessarily had an implied term to the following effect: “…no offers supplied under the agreed process can be accepted unless both parties have exchanged with each other final written offers which, if accepted, would dispose of the claim, as required by s 292 Workers’ Compensation and Rehabilitation Act 2003”. [50].
(5)Due to the implied term neither party was at liberty to accept the other’s offer. As far as WorkCover was concerned, there was no alternative offer in existence for it to accept. In terms of the worker, given he had failed to exchange a final written offer as required by s 292(2) it necessarily followed that he was able to accept the compliant final written offer which had been made by WorkCover. Settlement did not occur. [61]–[63].
In addition, his Honour commented on these secondary matters:
(1)An offeree does not need to be made aware of all of the terms of an offer prior to their accepting it. [66].
(2)Nothing prevents either WorkCover or claimants from building into their offers a specific mechanism for acceptance. According to contract law, an offeree is able to express how a particular offer is to be accepted. By way of example, the offer might contain a provision which stipulates that an offer can only be accepted in writing by way of an authorised representative signing an acceptance provision attached to the offer, and then returning a copy of that acceptance document to the legal representative of the offeror. Section 292 Workers’ Compensation and Rehabilitation Act 2003 does not operate to preclude such a contractual provision from being part of a final written offer. [83]–[84].
(3)Section 293 of the Act does not preclude a binding contract of settlement coming into existence before the execution of a discharge. [86].
(4)Here, the claimant was legally incompetent and required a litigation guardian. In the event the exchange of offers had resulted in a valid acceptance, a binding contract could have arisen prior to any sanction required by s 59(2) Public Trustee Act 1978. [146].
Disposition
Since there was no offer accepted by either party, each of their originating applications were dismissed and the Court heard the parties as to costs.
A Jarro