David Glen Pollock v Wroe and Rolfe Pty Limited [1994] ACTSC 51 (31 May 1994)

SUPREME COURT OF THE ACT

DAVID GLEN POLLOCK v. WROE AND ROLFE PTY LIMITED
No. SC574 of 1993
Number of pages - 4
Contract

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Contract - accord and satisfaction - negotiations by counsel - conflicting accounts - no new question of principle.

Workers' Compensation Act 1951 (ACT)

HEARING

CANBERRA, 16 May 1994
31:5:1994

Counsel for the Plaintiff: Mr R Livingstone

Instructing solicitors: Lander and Co

Counsel for the Defendant: Mr G Richardson

Instructing solicitors: Macphillamy Cummins and Gibson

ORDER

THE COURT ORDERS THAT:
The application for leave to amend the Defence be refused.

DECISION

HIGGINS J This matter commenced as an application by Notice of Motion on behalf of the defendant to amend its Defence to plead accord and satisfaction. It was agreed between the parties that the issue raised by that proposed Defence should be separately tried forthwith.

2. The alleged accord and satisfaction arises from events which occurred on 21 February 1994. The background to those events was that in addition to these proceedings there was an application made by the plaintiff in the Magistrates Court for an award pursuant to the Workers' Compensation Act 1951 (ACT). It was listed for hearing before Magistrate Somes on 21 February 1994.

3. The defendant's solicitor, Mr Kenneth Cush, deposed to various conversations with Mr David Lander, the solicitor for the plaintiff, and counsel briefed by him, Mr Christopher Ryan. His recollection of the first of those conversations was as follows,

CUSH: I note that Dr McGrath has indicated that your fellow is fit to
return to work and it seems to me that this presents us with an
opportunity to settle both the workers compensation proceedings and
the common law.
LANDER: I'm not sure we'll be in a position to settle the common law.
He has been doing the odd job here and there but his doctor has given
him a certificate to indicate he is unfit until March. I have Chris
Ryan briefed as Counsel.
CUSH: Perhaps you ought to talk to Counsel as I note that Mr Pollock
(the plaintiff) wants to go to Tamworth and get involved in the
glazing business.
LANDER: I have a letter from my client's father (or father-in-law)
which indicated that there may still be restrictions on his ability to
work because the first question an employer will ask is whether or not
somebody has an injured back or whether they had been on workers
compensation.
CUSH: You ought to discuss that with Counsel and perhaps we can
settle it.

4. The matter was then mentioned before Magistrate Somes who stood it down in the list to enable discussions between the parties to take place. Mr Cush had briefed Mr Greg McNally as counsel for the defendant. After Magistrate Somes left the bench, there was a further conversation,

CUSH: Common law in this matter is a little bit complicated because
my client may be able to get a contribution from the NRMA. I think
your common law is weak. I have sent documents across to Shayne
O'Reilly at the NRMA this morning and maybe we can get an agreement
with them to try and settle it.
RYAN: How is it the NRMA is involved?
McNALLY: It is because the injury arose out of the use of a motor
vehicle. Why don't Ken and I sit down and work out an offer?
CUSH: That's no good. I need to be able to go to the NRMA with a
figure. (To Ryan) Why don't you get instructions and put an offer?

5. Mr McNally then left the area.

RYAN: I put $50,000.00 without instructions.
CUSH: That's no good. Can you talk to your client and get
instructions?
RYAN: OK.

6. Mr Ryan and Mr Lander then left the area and entered a robing room with the plaintiff and his wife.

7. After 10 or 15 minutes, Mr Cush motioned to Mr Ryan, who was then in apparent conversation with the plaintiff, his wife and Mr Lander. Mr Cush and Mr Ryan went to an adjacent robing room and spoke again,

CUSH: Do you have those instructions?
RYAN: Yes, the wife is the one who is running the matter.
CUSH: I will need to speak to Shayne O'Reilly at the NRMA and I think
she is over at the AMP Building. Just to clarify the point, is it
$50,000.00 inclusive?
RYAN: $50,000.00 plus. This is a no 'bullshit' offer.
CUSH: Do you want to do it by Forms 27 and 28 with a common law
release?
RYAN: We've already got Supreme Court proceedings on foot and we can
do it by Order 42 rule 11.
CUSH: Fine, I'll talk to Shayne O'Reilly.

8. In fact, though he left to speak to Ms O'Reilly, Mr Cush could not find her. He returned to court and rang his client for instructions. Having received certain instructions, Mr Cush then approached Mr Ryan and Mr Lander. The following conversation happened,

CUSH: The offer is accepted and we can mention it in Court at some
suitable time. I will prepare the necessary documents and get them to
you within seven days. I will file a third party notice today against
the NRMA.
RYAN: Mrs Pollock wants to make a phone call to her family.
LANDER: She's checking to see the settlement is OK.
CUSH: What are you trying to tell me?
RYAN: The fifty is definitely on the table.
CUSH: Yes, it's been accepted.

9. Mr Cush went away from the other two at that point. Later Mr Ryan approached him and said,

RYAN: Mr Pollock and his wife will not settle.

10. The matter was then adjourned to enable the issue as to whether a compromise had been effected to be litigated.

11. Mr Ryan's version of the conversation up to the commencement of his conference with the plaintiff and his wife was not materially different. However, the conversation following was recounted quite differently. I will set it out as Mr Ryan deposed to it.

CUSH: What's happening? I haven't been able to get to the NRMA yet.
RYAN: We are still talking with Mrs Pollock. She is the client for
these purposes.
CUSH: What forms? 27, 28 and common law indemnity.
RYAN: Common law proceedings have been issued, it would have to be on
the basis of consent orders, Order 42. But it is a no 'bullshit'
figure. If you don't think there is any point in going to see about
it, don't.
CUSH: OK. I'll go and see. Is that exclusive of costs?
RYAN: Oh yes of course.

12. The difference over this conversation is as to whether Mr Ryan did or did not say that he had instructions to put the offer under discussion or whether he merely indicated that the offer was still being considered by the plaintiff and his wife.

13. It is common ground that Mr Cush then departed, ostensibly to obtain instructions.

14. There is some difference over the conversation following Mr Cush's return. Mr Ryan's version is as follows,

CUSH: I haven't been able to get the NRMA but we'll meet the
$50,000.00 and recover from them. So your offer is accepted. We'll
have to file a third party notice but that can happen in seven days.
RYAN: There was no offer. I was still talking with the Pollocks.
LANDER (arriving): Mrs Pollock is making a phone call to her father.
CUSH: We've got a binding agreement.

15. Mr Cush subsequently suggested a settlement of $60,000.00 inclusive of costs, to compromise the dispute then apparent but it was not acceptable to the plaintiff.

16. Mr Lander denied that he had said of Mrs Pollock "She's checking to see the settlement is OK". It was his recollection that he had said as to Mrs Pollock's phone call, "She's just calling someone she wishes to check something with".

17. Both Mr Cush and Mr Ryan were cross-examined.

18. Neither of them had made a note of the relevant conversations at or shortly following their occurrence but, of course, notes were made after it became apparent that there was a dispute as to whether settlement had been achieved. Mr Cush asserted that his recollection was of the precise words used. Nevertheless, in cross-examination the phrase "Yes, the wife is the one who is running the matter" became "Yes. The wife's running the matter".

19. It is clear that Mr Cush, not unnaturally, recalled the effect, as he understood them, of the words Mr Ryan used. In my view, his account should not be accepted as being a precise recounting of the words used. I do accept, of course, that Mr Cush believes that his account is as accurate a recounting as he can make it.

20. Mr Ryan was less certain of his recall. Where he had deposed to Mr Cush saying, "What's happening? I haven't been able to get to the NRMA yet", he agreed it could have been "What is going on? Do you have those instructions?".

21. He also agreed that during that conversation he may well have said something to the effect that "The 50,000 is on the table". He did say that if such a phrase was used it would have indicated that acceptance by the plaintiff of such an offer was still open.

22. I was satisfied that Mr Ryan was, also, doing his best accurately to relate what had passed between himself and Mr Cush.

23. I am satisfied that at the conclusion of the conversation about whether Mr Ryan had instructions concerning the offer he had earlier proposed, Mr Cush believed that Mr Ryan had made such an offer. I am satisfied Mr Ryan did not believe he had made an offer other than, of course, an offer to get instructions. He clearly regarded the conversation prior to Mr Cush's departure to get instructions as directed towards clarifying the proposal in question.

24. Indeed, only a very slight change in the words recounted by Mr Cush would lead to a different result in their effect.

25. I am faced with two different recollections, each genuinely entertained, where either one party ineptly failed to make clear his position and, indeed, conveyed the opposite impression, or the other misunderstood him or failed to clarify a possible ambiguity. It seems to me impossible to say which is more likely. Therefore, as the onus is on the defendant to establish, on the balance of probabilities that Mr Ryan's words, even if inadvertently uttered or formulated, constituted an offer duly accepted by Mr Cush, it follows that the defendant must fail on the issue raised by the amended Defence.

26. The best course to give effect to my decision is now to strike out of the Defence the amendment allowed previously in terms of paragraph 2 of the Notice of Motion.

27. I will hear the parties as to costs.