2025 WAIRC 00423
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2025 WAIRC 00423



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
FRIDAY, 6 JUNE 2025, THURSDAY, 12 JUNE 2025



DELIVERED
:
FRIDAY, 18 JULY 2025



FILE NO.
:
M 23 OF 2024



BETWEEN
:
DR. MAURICE WALSH


CLAIMANT





AND





THE SHIRE OF VICTORIA PLAINS


FIRST RESPONDENT





AND





SEAN FLETCHER


SECOND RESPONDENT

CatchWords : INDUSTRIAL LAW – Determination of preliminary issue – Whether the parties reached a binding settlement agreement at a pre-trial conference – If a binding settlement agreement was reached, the effect of any agreement on the claim – Turns on own facts
Legislation : Industrial Relations Act 1979 (WA)
Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA)
Case(s) referred
to in reasons: : Englisch t/as Alpine Property v Sully [2021] VSC 434
Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141
Sully v Englisch t/as Alpine Property [2022] VSCA 184; (2022) 406 ALR 456
Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd [1995] NSWCA 166; (1995) 7 BPR 14,551
Farrell v Super Retail Group Ltd [2024] FCA 1515
Ebbott v Arriba Corporate Pty Ltd [2025] FWC 1604
Cardtronics Australasia Pty Ltd v FX Investments Australia Pty Ltd [2020] FCA 218
Mpinda v Fair Work Commission (No 2) [2024] FCA 692
Result : The preliminary issue determined
Representation:
Claimant : Ms J. Flinn (of counsel) as instructed by Butcher Paull & Calder
Respondents : Mr S. Pack (of counsel) as instructed by Kennedys



REASONS FOR DECISION
Background
1 In March 2024, Dr Maurice Walsh (the claimant) lodged a claim against the Shire of Victoria Plains (the Shire) and three officers of the Shire alleging that they collectively breached s 97A of the Industrial Relations Act 1979 (WA) (the IR Act) by taking damaging action against him where he says he made employment-related inquiries or complaints during his employment (the Claim).
2 The claimant sought orders from the Industrial Magistrates Court (IMC), which included damages or compensation for the alleged damaging action taken and the imposition of a pecuniary penalty under s 83E of the IR Act.
3 Following the lodging of a response from all respondents on 3 May 2024, where the respondents did not admit the whole of the Claim, the Claim was referred to a pre-trial conference (PTC) before the Clerk of the IMC (the Clerk) pursuant to reg 16 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (the Regulations).
4 The purpose of a PTC, amongst other things, is to give the parties an opportunity to settle the case. Regulation 17 of the Regulations.

5 Regulation 18(1) of the Regulations provide the general duties and powers of the Clerk at a PTC, which includes the explanation to be given to an unrepresented party, and to assist the parties in any attempt to settle the case.
6 On 20 June 2024, a PTC was held before the Clerk where the claimant was represented by a lawyer, Michael Baldwin (Mr Baldwin), and the respondents were represented by two lawyers from Kennedys, Mr Alen Sinanovic (Mr Sinanovic) and Ms Anna Blanks (Ms Blanks).
7 It is uncontroversial that the PTC was held in two parts: the first part was a joint session with all parties, their lawyers and the Clerk present (Joint Session); and the second part was a private session with each party and their lawyers in separate rooms with the Clerk ‘shuttling’ between the two private rooms (Private Session).
8 The respondents contend that they and the claimant reached a binding settlement agreement (BSA) at the PTC, which resulted in the disposition of the Claim. The claimant disputes that a BSA was reached. The respondents in asserting the existence of a BSA has the onus of proving on the balance of probabilities that a BSA was made at the PTC and was intended to have immediate effect.
9 On 17 April 2025, the IMC ordered the question of whether a BSA had been reached be determined as a preliminary issue, Regulation 7(1)(j) of the Regulations empowers the IMC to give judgment against a claim after a decision is made on a separate trial of a preliminary issue.
in the following terms:
(a) On 20 June 2024 at a pre-trial conference, did the parties reach a BSA with immediate effect?
(b) If a BSA with immediate effect was reached, what were the terms of the BSA?
(c) If a BSA with immediate effect was reached, was it enforceable or void?
(d) What is the effect of the determinations or outcomes of the issues in (a), (b) and (c) above on the claimant’s claim?
(the Preliminary Issue).
10 The Preliminary Issue was programmed to a hearing with the parties relying upon witness statements as evidence adopted at the hearing. Save for Mr Baldwin, the witnesses were also cross-examined on their witness statements at the hearing.
11 It is not disputed that there were no notes taken by the witnesses of the outcome at the PTC.
Summary of the Claim
12 The Claim was amended in August and November 2024 (the Amended Claim). There are facts disputed by the respondents in the Claim. However, for the purposes of providing context, I will briefly summarise the Claim, accepting that some of the finer details may not wholly accord with the parties’ positions.
13 It is important to note that at the time of the PTC, the Claim had not been amended and was limited to a claim under s 97A of the IR Act. The Amended Claim introduced new causes of action, including alleged contraventions of the Local Government Officers’ (Western Australia) Award 2021 and alleged contraventions of the Minimum Conditions of Employment Act 1993 (WA).
14 The claimant commenced employment with the Shire on 11 November 2022 in the role of Principal Building Surveyor pursuant to the terms and conditions contained in a letter of appointment of the same date.
15 The claimant was employed on a permanent part-time basis to work a set number of hours per week and was paid on an hourly basis.
16 In or around June 2023 and January and February 2024, the claimant says he made a number of employmentrelated complaints, which he says: (1) resulted in the altering of his position to his disadvantage; and (2) on 27 February 2024, resulted in his employment with the Shire being terminated.
17 The claimant alleges that the altering of his employment position and the later termination of this employment was taken either in whole or in part because he made the employmentrelated complaints.
18 Along with the Shire, the Claim named Sean Fletcher (Mr Fletcher), the Shire Chief Executive Officer (CEO), Pauline Bantock (Ms Bantock), the Shire President, and Colin Ashe (Mr Ashe), the Shire Deputy CEO, as respondents. The claimant sought civil penalties against all respondents.
19 Just over a month after the PTC, on 29 August 2024, Ms Bantock and Mr Ashe were removed as respondents to the Claim.
The PTC
20 Mr Fletcher, Ms Bantock and Mr Ashe gave evidence on behalf of the respondents and Mr Baldwin was summoned by the respondents to give oral evidence at the hearing of the Preliminary Issue.
21 The claimant gave evidence on his own behalf.
22 Approximately 10 days prior to the PTC, the claimant instructed Mr Baldwin to represent him at the PTC. The claimant and Mr Baldwin both attended the PTC.
23 Mr Fletcher, Ms Bantock and Mr Ashe also attended the PTC, along with lawyers Mr Sinanovic and Ms Blanks, also instructed to act on behalf of the Shire.
24 The PTC was conducted by the Clerk, Ms Susan Bastian.
25 There were some differences in the accounts by witnesses about what occurred or what was said at the PTC, although there were many similarities.
Engagement of Mr Baldwin
26 Mr Baldwin is a legal practitioner who has practiced exclusively in employment and industrial law for approximately 20 years. He operates his own firm, Baldwin Legal. Mr Baldwin gave evidence of his experience in employment and industrial law.
27 Mr Baldwin was instructed to act for the claimant approximately 10 days before the PTC. Mr Baldwin received instructions from Ben Matthews (Mr Matthews), an Industrial Relations Consultant, to act and he recalled Mr Matthews wanted to settle the claimant’s claim. Mr Baldwin understands his role in ‘mediations’ is to draft an ‘advice’ for a client on the prospects of their case and advise them accordingly. He considers litigation the last option and settlement of a case the best option. In his experience, more than 95% of matters settle at mediation, although if a client wants to go to trial, then so be it. Mr Baldwin said he makes a judgment as to what is ‘reasonable’ in settlement offers (based on the range of decisions for penalties and damages) as against the litigation ‘costs’.
28 Mr Baldwin met the claimant approximately one hour before the PTC and they attended together. The claimant also came to his office either one or two days before the PTC.
29 Mr Baldwin made no notes of the PTC and gave his evidence from his own memory. He was aware of the claimant’s settlement expectations.
Joint Session
30 At the Joint Session, it was generally agreed from all of the evidence that the Clerk discussed the PTC, and the parties were informed that the purpose of the PTC was to get a settlement. The Clerk also informed the parties the discussions at the PTC were confidential and she may have asked the parties to confirm their understanding.
31 The Clerk asked the claimant to present his case and the respondent’s lawyer, Mr Sinanovic, made a statement in response on behalf of all of the respondents. There was some sharp discussion between Mr Baldwin and Mr Sinanovic concerning the state of the ‘pleadings’, which applied to all of the respondents.
32 There was no or limited discussion about settlement during the Joint Session.
33 There was an indication by Mr Baldwin during the Joint Session that Mr Ashe and Ms Bantock be ‘removed’ or ‘dismissed’ as parties to the Claim, with Mr Baldwin’s evidence being that the focus should be on the actions of the CEO rather than the other individual respondents (that is, Mr Ashe and Ms Bantock). Exhibit 1 – Witness Statement of Sean Fletcher dated 15 May 2025 at [13]; Exhibit 3 – Witness Statement of Pauline Bantock dated 23 May 2025 at [5]; Exhibit 4 – Witness Statement of Colin Ashe dated 15 May 2025 at [7].

34 Mr Fletcher said the respondents’ lawyers said that he (Mr Fletcher) should not remain a party. Exhibit 1 at [15].

35 Subsequent to this, there was a brief disagreement with the Clerk as to whether Mr Ashe and Ms Bantock should remain at the PTC. However, both did remain at the PTC until the end of both the Joint and Private Sessions. Notably, no orders were made at the PTC dismissing the Claim as against Mr Ashe and Ms Bantock.
36 Mr Ashe said Mr Sinanovic raised the question about whether the claimant was seeking employment, and the claimant took a while to answer that he was not seeking employment. Exhibit 4 at [11].

37 The Joint Session went for about 40 minutes before the parties and their lawyers separated for the Private Session, which lasted approximately two hours and 15 minutes. There may have been some discussion by the Clerk about how the Private Session would work.
Private Session
Mr Baldwin’s Evidence
38 Once the parties split into the Private Session, Mr Baldwin said that the Clerk came back with a particular monetary offer, which he says was conveyed via Mr Sinanovic. He recalls the amount was $30,000 and there were no other terms that went with this. The mechanism was to be discussed by a Deed of Settlement (a Deed), and it would include all of the usual clauses, such as confidentiality and non-disparagement. It was expected that a Deed be drawn up and that the drafting of a Deed is uncontroversial. He did not discuss what would be in a Deed but expected it would include reference to full and final settlement; certain waivers; warranties; payment; non-disparagement; and confidentiality.
39 There was no discussion about the character of the claimant’s dismissal that Mr Baldwin could recall. However, this might be seen in a Deed’s recitals along with time served and a reference to certain words to say how the matter was resolved.
40 Mr Baldwin’s recollection of the offer made to the claimant was that the claimant considered he was entitled to more than the offer of $30,000, and the claimant struggled to come to terms with an offer of $30,000 based on previous advice he had been given (by possibly another lawyer).
41 However, by the end of the PTC, Mr Baldwin said the claimant agreed to the offer of $30,000.
42 Mr Baldwin exited the Private Session room and went to speak to Mr Sinanovic in the other Private Session room and informed him that the parties had an agreement. Mr Sinanovic told him that he (Mr Sinanovic) would draft a Deed.
43 Mr Baldwin said he was in the other Private Session room with the respondents for about one minute and he was there to deliver the message. He described the one minute as amicable. He acknowledged the other people in the room but denied there was any physical gestures.
44 Thereafter, Mr Baldwin said to the claimant to wait and to go down in the lift without the respondents. Mr Baldwin said he and the claimant spoke amicably, but it was a difficult decision for the claimant to make (to accept the offer). From his perspective, he and the claimant left on good terms given the difficult decision the claimant had to make about the agreement.
45 On the Monday after the PTC, Mr Baldwin received a Deed from Kennedys and he sent the Deed to the claimant by email at 11.47 am. The Deed had no concerns for him and was in keeping with the agreement.
46 Mr Baldwin ceased to act for the claimant on 26 June 2024.
47 Mr Baldwin was not cross-examined.
Mr Fletcher, Ms Bantock and Mr Ashe – common evidence
48 Mr Fletcher’s, Ms Bantock’s and Mr Ashe’s evidence of their recollection of the Private Session was very similar. Each was asked questions in cross-examination suggesting they may have colluded in some way or adopted each other’s witness statements; however, I am satisfied they did not.
49 From their perspective the Private Session was straightforward with the Clerk ‘shuttling’ between the Private Session rooms conveying information between the parties, including references to amounts of money.
50 It is consistent with Mr Baldwin’s evidence that the claimant wanted a significant amount of money, but the respondents initially offered an amount lower than $30,000.
51 At some point, when the Clerk returned to speak to the respondents, Mr Fletcher said he put forward an offer of $30,000 on the basis that the claim would be settled and the claimant would stop making disparaging remarks on social media. Mr Fletcher said the Clerk indicated it might take more than that to settle the Claim. The Clerk went to communicate the respondents’ offer to the claimant and Mr Baldwin. Exhibit 1 at [25].

52 There was more ‘shuttling’ by the Clerk, but Mr Fletcher maintained the offer to the claimant was $30,000. Exhibit 1 at [27].

Mr Fletcher
53 Once in the Private Session, Mr Fletcher said the Clerk explained the process a bit more. He informed the Clerk, he was happy to settle the matter on the day (meaning at the PTC).
54 According to Mr Fletcher, after he said that the offer of $30,000 ‘would stand’, the Clerk went back to the claimant and Mr Baldwin. When the Clerk came back to the respondents’ room, she informed the respondents that an agreement had been reached. The Clerk said the claimant’s lawyer would come into the respondents’ room, but the claimant did not want to do so. Exhibit 1 at [29].

55 Mr Fletcher said the conversation with Mr Baldwin was short and amicable and he shook Mr Fletcher’s hand. There was a discussion about putting the agreement in writing and that the respondents’ lawyers would prepare it. Exhibit 1 at [30] to [31].

56 Mr Fletcher said there was no doubt in his mind that an agreement had been reached but there would be something to sign off on. Exhibit 1 at [32].

57 Following the PTC, on 21 June 2024 at 9.32 am, Mr Fletcher sent an email to Shire councillors recounting his understanding of the outcome of the PTC (the Email).
58 The salient parts of the Email include:
In short, the claim was settled. The decision encompasses the following:
· $30,000 lump sum payment to Dr Walsh. This will be paid by the Shire’s insurers directly to lawyers in this matter (Kennedy’s) for disbursement…;
· Dr Walsh is to submit a letter of resignation from the Shire. This was agreed by me and thus changes his status from a termination by the CEO to one that is a voluntary departure;
· The Deed of Settlement and Release to be confidential and binding, including Dr Walsh not being able to make disparaging and public comments…
Early on in proceedings, Dr Walsh’s lawyer did amend the claim and had [Ms] Bantock and Mr Ashe removed as named parties.
Dr Walsh’s lawyer argued that I should be the remaining named party… Our lawyers refuted this statement… Our lawyers also made the case that it didn’t make sense to have me named as a party to the claim… By the end of Dr Walsh’s submission, his lawyer withdrew me as a named party…
From there, the [Clerk] worked with both sides to reach the final outcome, as set out above.
Just so that it is clear:
· This matter was settled amicably. Exhibit 2 – Unredacted Annexure 1 to the Witness Statement of Sean Fletcher dated 15 May 2025 being an email dated 21 June 2024.

59 The cross-examination of Mr Fletcher, Ms Bantock and Mr Ashe went along similar lines.
60 In cross-examination, Mr Fletcher said he understood the Shire was the only party left after discussions at the PTC, but he did not recall if Mr Baldwin released him in the Joint Session or made any comments about disparaging remarks. Mr Fletcher agreed he was a named party to the Deed.
61 Mr Fletcher did not recall any discussion about the timing of any payment to be made to the claimant, although he said it may have been general, rather than specific in nature. Mr Fletcher had no recollection of any discussion about the Deed containing terms relevant to confidentiality and release of the parties from further claims. He expected that the reference to non-disparagement would be in the Deed.
62 When referring to ‘the claim’ settling in his witness statement, Mr Fletcher meant the IMC claim (or the Claim).
63 Mr Fletcher said the situation (at the end of the PTC) seemed positive and an agreement had been reached and that was the end of the matter, with a Deed to be prepared thereafter.
Ms Bantock
64 Ms Bantock said the Clerk came and went from the Private Session room quite a few times, with the Clerk asking the respondents questions about settlement. Ms Bantock said the respondents wanted a ‘clause in the agreement to prevent the parties from making disparaging comments, as the Shire had previously experienced the distribution of disparaging text messages around the Shire regarding the matter.’ Exhibit 3 at [8].

65 An offer of $30,000 was made to the claimant. The claimant would also submit a letter of resignation, and his termination status would change to voluntary departure, and the parties would not make disparaging comments. Exhibit 3 at [9].

66 Ms Bantock said the respondents were told by the Clerk and Mr Baldwin (when he came into their room) that ‘we had a conclusion.’ Exhibit 3 at [10].
Her firm understanding was an agreement had been reached and that the settlement payment, resignation and a Deed were to follow. Exhibit 3 at [11].

67 In cross-examination, Ms Bantock confirmed that in the Joint Session, she understood the conversation between the claimant’s lawyer and the respondents’ lawyers that she would be ‘dropped’ from the matter, and nothing was expressed in return for that.
68 She was of the view that while things were still in limbo (as a result of the proceedings), the Claim had come to a resolution even without a Deed. The Deed was a fuller version, and she highlighted points in her statement.
69 Ms Bantock said there may have been discussions between Mr Fletcher and Mr Sinanovic about a term in the Deed concerning the release and discharge of the parties in future proceedings, but she assumed this was a standard matter. She asked the Clerk for a non-disparagement clause to be included in the Deed.
70 Ms Bantock agreed the $30,000 had not been paid to the claimant, but she said this was not related to the claimant not signing the Deed, but because the claimant had reneged on the agreement already made.
Mr Ashe
71 Mr Ashe said that after the Clerk had gone back and forth between the rooms two or three times, the respondents put forward an offer of $30,000. The claimant would also be allowed to resign, and a Deed would be entered into which would set out that the Claim could not be discussed. Exhibit 4 at [16].

72 Mr Ashe said that this offer was presented to the Clerk by Mr Sinanovic at the direction of Mr Fletcher. Exhibit 4 at [17].

73 Mr Ashe said that the Clerk took the offer to the claimant and Mr Baldwin. Mr Baldwin then came into the respondents’ room with the Clerk and said words to the effect that they were happy to settle. The claimant did not return to the respondents’ room. Exhibit 4 at 18].

74 Mr Ashe said Mr Fletcher and Mr Sinanovic shook Mr Baldwin’s hand. Exhibit 4 at [19].

75 In his mind, the matter was resolved. A verbal agreement had been reached. There was some tidying up with a Deed and a resignation letter but from his perspective this was the end of the matter. Exhibit 4 at [20].

76 In cross-examination, Mr Ashe said he did not recall any discussion on the timing of the payment to the claimant, the provision of a notice of discontinuance or reference to the release or discharge of the parties.
77 Mr Fletcher, Ms Bantock and Mr Ashe all state that on 21 June 2024, Mr Sinanovic sent to them a draft Deed, to which they responded to him that they had no concerns with its contents. Exhibit 1 at annexure 2, Exhibit 3 at annexure 1, Exhibit 4 at annexure 1.

Claimant
78 The claimant corrected his witness statement to include the words ‘you will need to resign’ after ‘discuss your matter with anyone’ at paragraph 22. Exhibit 5 – Witness Statement of Maurice Walsh dated 21 May 2025.

79 The claimant’s evidence about the Joint Session generally accords with the respondents’ evidence, including that Mr Baldwin said words to the effect that Ms Bantock and Mr Ashe are ‘dropped’ from the Claim.
80 Once the parties split into the Private Session, the claimant states the Clerk left their room with the respondents, and a short time later came back to their room whereupon there was an exchange between he and the Clerk, as follows:
Clerk: What do you want?
Me: I want my contract paid out.
Clerk: No, no, no you’ll never get that. A six month pay out is the highest compensation able to be awarded to you should the matter go to trial. What do you earn a month?
Me: $10,000.
Clerk: You’ll only be entitled to $30,000 because your matter is not serious, you didn’t get [redacted by the Court] in the workplace. Exhibit 5 at [17].

81 The claimant said that Mr Baldwin did not say anything in response to what the Clerk said to him. Based on what the Clerk is purported to have said to him, the claimant felt he had no choice and said ‘okay’ and he believed that the maximum amount which could be claimed was six months of wages. Exhibit 5 at [18] to [20].

82 The claimant said the Clerk left their Private Session room again and when she came back, she said words to the effect:
You’ll be sent a document, and you have to agree to it and sign it.
You won’t be permitted to discuss your matter with anyone and you won’t be able to take your complaints to the Corruption and Crime Commission once you sign the document. You should just forget about everything and go back to working at the Shire of Laverton. You should know that all CEOs talk to each other.
This matter has taken a long time today and I have other things to do. Exhibit 5 at [22].

83 The claimant said his understanding was that he was going to have to consider the document he would be sent by email which would contain the proposed settlement, and if he signed it, he would get $30,000. Exhibit 5 at [23].

84 The claimant said the Clerk then left their Private Session room and the Clerk did not ask them to go into the respondents’ Private Session room. He said Mr Baldwin did not say he wanted to go into the other Private Session room to speak with Mr Sinanovic or the respondents, and the claimant did not say he did not want to go into the other Private Session room. Further, the claimant says he was with Mr Baldwin the entire time of the PTC and there was no opportunity for Mr Baldwin to go into the other Private Session room without the claimant knowing about it. Exhibit 5 at [24] to [26].

85 The claimant says he and Mr Baldwin left the PTC together and he did not sign anything on the day.
86 On 24 June 2024, the claimant was sent an email with an unsigned Deed by Mr Sinanovic, which was marked ‘Without Prejudice until Executed’. The claimant says he did not agree to the terms in the Deed and did not sign it. Exhibit 5 at [27].

87 The only matter discussed at the PTC was an amount of money. Other matters in the Deed were not discussed with him at the PTC, and they were not matters to which he agreed to as he says he was not even aware of them. Exhibit 5 at [29].

88 Thereafter, the claimant states in detail the matters he says he did not agree to at the PTC, including setting out in detail the contents of the Deed he did not agree to or says was discussed with him. Exhibit 5 at [30] to [40].
This included the provision of a letter of resignation.
89 In summary, the claimant denies the contents of the Deed were discussed with him or that he agreed to its contents at the PTC.
Claimant – Post-PTC Conduct
90 On 23 June 2024 at 2.54 pm, the claimant sent an email to the IMC Registry in which he sought clarification of the requirement to submit a Form 28 by Mr Baldwin. In this email, the claimant says he spoke with Mr Baldwin ‘on Wednesday at 9.06 pm’ for 34 minutes. It is reasonable to infer this was on 19 June 2024 as the PTC was on Thursday, 20 June 2024. The claimant questions why a further Form 28 was required, where one had already been filed with the IMC, and requests a copy of the newly filed Form 28. Exhibit 5 at Annexure 4, page 80 to 81.

91 The claimant does not raise any issue with respect to the PTC, including any issue with respect to the offer of $30,000 or any Deed.
92 On 24 June 2024 at 3.46 pm, the IMC Registry responded to the claimant’s email. Exhibit 5 at Annexure 4, pages 78 to 79.

93 On 25 June 2024 at 3.13 pm, the claimant sent an email to the IMC Registry requesting a further opportunity to conciliate the Claim at a PTC. The claimant levelled complaints against the Clerk and Mr Baldwin. The gravamen of his complaints is summarised below:
(a) he felt that a ‘deal had already been done’ between the parties (excluding him) and that he was never going to be supported fairly at the PTC. He alleges he was placed under pressure by the Clerk and his lawyer to settle;
(b) his lawyer did not consult with him before ‘dismissing’ Mr Ashe and Ms Bantock from the Claim;
(c) the Clerk and his lawyer misunderstood the nature of the Claim and said he was only ever going to be eligible to a maximum payment of six months under ‘unfair dismissal laws’ when his claim was for damaging action, where damages are uncapped;
(d) the Clerk misinformed him that he could not make a complaint to the Corruption and Crime Commission, as he would be sworn to silence if he signed a Deed;
(e) the Clerk and his lawyer implored him to categorise his termination as a resignation, but he could not see the logic in this as colleagues in the local government sector were aware of his termination, and members of the Shire had not maintained confidentiality about the circumstance of his termination;
(f) the claimant said he was stressed and fed false information about what he was able to claim ‘which led to me verballing agreeing to the 1st and only offer put forward. He further says, ‘I thankfully did not sign a deed of settlement which I received yesterday via, and I will not sign it due the above comments that I have made above and the research after the conference that I have completed. I was under duress and not in an informed position to make a decision on a settlement at the time of mediation’; and
(g) the claimant requests a further PTC or to schedule the Claim for a trial. Exhibit 5 at Annexure 4, pages 77 to 78.

94 On 26 June 2024 at 7.54 am, the claimant sent an email to Mr Sinanovic stating:
(a) he will not sign the Deed and has been in contact with the IMC;
(b) the reasons for not signing the Deed include the misunderstanding by the Clerk and his lawyer about the nature of the Claim, where the Clerk misstated to him the maximum amount of compensation he was entitled to;
(c) he did not provide direction to remove Mr Ashe and Ms Bantock from the ‘third-party claim’ and they remain on the application;
(d) he has made a formal complaint about the way in which the PTC was conducted. He says he was stressed and provided with false information and the maximum compensation that could be ‘rewarded’; and
(e) he says:
The $30,000 settlement offer was considered by me under the prism of a maximum of around $60,000, which was based on wrong advice. This amount is not satisfactory nor considers the fact that I have lost a combined $200,000+ per annum income and planned on working another 5+ years in both part time roles. I also have additional information at hand from employees/contractors from other shires that supports my claim.
I was and still am willing to negotiate a fair and reasonable settlement and sign a deed of settlement but it won’t be for $30,000. Otherwise, the matter will be in the hands of the IMC/WAIRC and is still on foot. Exhibit 5 at Annexure 5, pages 82 to 83.

95 On 26 June 2024 at 3.37 pm, the IMC Registry sent an email to the claimant in response to his email dated 25 June 2024. The claimant was informed, amongst other things, that the Clerk has now referred to the Claim to trial, and that a further email would be sent to the parties about the next steps. Exhibit 5 at page 84.

96 On 28 June 2024, the IMC Registry sent an email to the parties informing them that as the Claim had not settled, the Claim had been referred to trial with a directions hearing to be listed before an Industrial Magistrate.
97 On 4 July 2024, and in response to the claimant’s email dated 26 June 2024, Mr Sinanovic sent an email to the claimant informing him of the respondents’ position on the Preliminary Issue. Mr Sinanovic also informed the claimant that Kennedys hold $30,000 in their trust account to be paid to him pursuant to the agreement reached at the PTC. He requested the claimant’s bank account details so as to transfer the funds. Mr Sinanovic stated:
We remain of the view that a Deed ought to be executed for the benefit of all parties, but repeat that the execution of a Deed has no bearing on the operation of the agreement reached.
We reserve all of our clients’ rights, including the right to rely on the operation of the agreement as a defence to these proceedings. Exhibit 6 – Email sent by Mr Sinanovic dated 4 July 2024 in response to Dr Walsh at page 1.

98 In cross-examination, the claimant confirmed the orders sought in the Claim was for an amount of money. He agreed he hoped to reach a settlement at the PTC and engaged Mr Baldin to attend the PTC with him.
99 The claimant agreed the Joint Session went for about 30 to 40 minutes and, therefore, the Private Session went for a long time. He also agreed he was alone with Mr Baldwin from time to time when the Clerk went back and forth.
100 The claimant said the words in paragraph 17 of his witness statement were accurate and was ‘pretty much’ all that was said. The claimant said the Clerk came to the amount of $30,000 based on the figures he provided. The claimant agreed that he agreed to the amount of $30,000 and he agreed that he would be paid $30,000 and he would be required to ‘give up’ the Claim. He was not there for nothing.
101 The claimant agreed that if he accepted $30,000, the Claim would go away against the Shire and Mr Fletcher, although he accepted there were no formal orders made at the PTC ‘dropping’ Mr Ashe and Ms Bantock. However, he understood they would be ‘dropped off’ the Claim.
102 The claimant assumed the agreement would be conveyed to the respondents in the other room. He said the Clerk was gone for about 20 minutes and he was left alone with Mr Baldwin. The Clerk came back and the gist of the conversation was referred to in paragraph 22 of his witness statement. He understood the parties had reached an agreement.
103 The Clerk said he must sign the document that was going to be sent to him, but he agreed that no one said there would be a ‘cooling off’ period or any further negotiations on the content of the document.
104 He agreed a deal was done and it would be formalised in writing.
105 Unlike what was stated in his witness statement at paragraph 29, he agreed other matters were discussed at the PTC, not just an amount of money. He agreed the Clerk advised that he needed to resign but said this was the only time it was discussed. He agreed that his email to the IMC on 25 June 2024 suggests it was discussed more than once. Exhibit 5, annexure 4 at page 78.
The claimant maintained a resignation had no benefit for him.
106 In contrast to his evidence in paragraph 17 of his witness statement, the claimant struggled to accept that the offer of $30,000 was conveyed from the respondents by the Clerk. He found it hard to accept this was what happened. However, he agreed he accepted the offer of $30,000.
107 The claimant said the only time confidentiality was discussed was the conversation referred to in paragraph 22 of his witness statement, notwithstanding his comments to the IMC Registry in his email dated 25 June 2024. The claimant did not have an explanation for inconsistencies in when he says the issue of confidentiality was discussed.
108 The claimant agreed that he understood the Claim would be dismissed even if he did not understand the exact mechanism for how this would be done. He agreed there was no discussion about the legal costs of the Claim at the PTC and that he would receive $30,000 and no more. However, he understood that no one was paying the lawyers’ costs and understood this as a general concept.
109 The claimant was challenged on whether his ‘complaint’ is that the details were not fleshed out at the PTC and that this applies generally to the Deed.
110 The claimant disagreed that there was a conversation with the Clerk about the Shire saying things about him and things being said about the Shire with both parties being concerned.
111 The claimant maintained that Mr Baldwin did not leave his side during the entirety of the PTC. The claimant denied he could be in any way mistaken about this, notwithstanding the other witness evidence, including Mr Baldwin’s oral evidence to the contrary.
112 The claimant agreed that when he said the email with the Deed attached was sent by Mr Sinanovic, he meant the email was sent to Mr Baldwin, who then forwarded it to him.
113 The claimant agreed that he sent emails to the IMC Registry on 23 and 24 June 2024. It was proposed to the claimant that it was after he received the Deed on 25 June 2025 that he sent a ‘complaint’ to the IMC Registry on 25 June 2025, suggesting that was when he decided not to sign off on the deal made at the PTC. The claimant disagreed with this proposition.
114 The claimant agreed that the email to Mr Sinanovic dated 26 June 2024 was a summary of the email to the IMC Registry dated 25 June 2024. The claimant agreed an offer of $30,000 was made, he considered it and agreed to it.
115 The claimant was shown a copy of Mr Sinanovic’s response dated 4 July 2024 and confirmed that he never provided his bank details to the respondents’ lawyers.
116 In re-examination, the claimant said his evidence about money being the only topic of conversation discussed at the PTC needed to be seen in the context of the conversation detailed in paragraph 22 of his witness statement, and that it was really in reference to the matters not discussed detailed from paragraphs 30 to 40 of his witness statement.
Assessment of the Witness Evidence
117 Mr Baldwin was not cross-examined on his oral evidence. Mr Baldwin was reliant on his memory of what occurred at the PTC. Notwithstanding this and noting there were some minor inconsistencies in his evidence as compared to the evidence by other witnesses, there is no other basis upon which I find his evidence unreliable or untruthful. I accept his evidence albeit I also accept there may be some gaps in his evidence.
118 Mr Fletcher, Mr Ashe and Ms Bantock gave their evidence in a forthright and truthful manner. There were many things they did not recall, and I also accept their evidence was inconsistent on some minor and peripheral matters, such as whether Mr Baldwin shook hands with Mr Fletcher and/or Mr Sinanovic in the Private Session room.
119 For my part, the imperfect recollection of witnesses on whether someone did or did not shake hands is inconsequential to the Claim and does not in any way alter my assessment of the overall credibility and reliability of the witnesses’ evidence.
120 The consistent and important part of the evidence is that Mr Fletcher, Mr Ashe, Ms Bantock and Mr Baldwin, all stated that Mr Baldwin visited the respondents’ Private Session room without the claimant and informed the respondents and their lawyers that an agreement had been reached, and it was agreed Mr Sinanovic would prepare a Deed.
121 Further, to the extent Mr Fletcher, Mr Ashe and Ms Bantock used certain words to explain their recollection of events, such as ‘dropping’ them from the case or reference to a Deed being ‘binding’, this needs to be seen in the context of them being lay people obviously reliant upon information provided by the lawyers in attendance at the PTC. This does not impact upon their credibility and the reliability of their evidence and only speaks to their personal understanding.
122 The claimant’s evidence was problematic. I accept to some extent the claimant’s evidence truncates the time spent by the parties in the Joint Session and Private Sessions, but the overall tenure of his evidence is that the PTC occurred quickly. This is clearly not the case with the PTC taking just over three hours, and the Clerk ‘shuttling’ back and forth between the two Private Session rooms. During that time, the claimant was with Mr Baldwin on his own.
123 Further, the claimant’s evidence was selective. In his witness statement, he states the only matter discussed in the PTC was an amount of money, and he was not aware of the other matters in the Deed as they were not discussed or were discussed only once by the Clerk (albeit he was re-examined on this point and clarified his witness statement at the beginning of his evidence).
124 Yet in his email dated 25 June 2024 sent to the IMC Registry, the claimant complains about: being implored by the Clerk and his lawyer to categorise his termination as a resignation (resignation being referred to in the Deed); and being sworn to silence if he signed a Deed, including that he could not make a complaint to the Corruption and Crime Commission (confidentiality being referred to in the Deed). However, he makes no complaint about the contents of the Deed itself. He states that he did not agree at the PTC to instruct his counsel to file a Form 18 – Notice of Discontinuance or to otherwise discontinue the action (the language used in the Deed) but admitted in cross-examination that he understood he agreed to the payment of $30,000 and he would give up the Claim and the Claim would end.
125 In addition, in his email to Mr Sinanovic dated 26 June 2024, similarly, the claimant makes no complaint about the contents of the Deed, and, in fact, informs Mr Sinanovic that he is willing to ‘negotiate a fair and reasonable settlement and sign a deed of settlement’. Exhibit 6 at page 2 to 3.
Notably, he does not suggest he will sign a different deed of settlement or that there are terms in the Deed he will not agree to. The issues raised by the claimant to Mr Sinanovic are limited to the purported misleading information provided by the Clerk and Mr Baldwin and that an amount of $30,000 is, simply put, too low.
126 The claimant’s witness statement is his evidence about the lack of discussion on the contents of each clause of the Deed, some of which were, in fact, discussed at the PTC albeit not necessarily using the legal language in the Deed. The clauses of the Deed were considered ‘uncontroversial’ by his lawyer, Mr Baldwin, and Mr Baldwin said the Deed forwarded to him by Mr Sinanovic reflected the agreement reached at the PTC.
127 Tellingly, after the PTC and after receiving the Deed, the claimant makes no complaint about its contents or the lack of discussion on its contents, or his lack of agreement to its contents. The claimant’s complaint centres around the amount of money he agreed to, and the reasons why he says he was purportedly misled. The first time the contents of the Deed are raised is in the claimant’s witness statement for the Preliminary Issue, notwithstanding the claimant was on notice from 4 July 2024 that the respondents may seek to invoke the agreement they considered had been reached at the PTC.
128 Further, even when given an opportunity by the IMC to reconsider his evidence about Mr Baldwin attending upon the respondents’ Private Session room or not leaving his (the claimant’s) side, the claimant was intransigent to the possibility he may be mistaken. Given four witnesses, including Mr Baldwin, said that Mr Baldwin attended the respondents’ Private Session room, the claimant’s evidence that Mr Baldwin did not leave his side for the whole of the PTC, and therefore that there was no opportunity for him to attend the other Private Session room (ergo, Mr Baldwin did not meet with the other respondents) is mystifying.
129 At best for the claimant, this compounds the other problems with the claimant’s evidence as it relates to the overall credibility and reliability of his evidence. At worst for the claimant, the claimant has been untruthful on this issue where it might have consequences for him. Where it was not squarely put to the claimant that he was untruthful on this issue, I consider that his evidence as it relates to Mr Baldwin not leaving his side during the PTC, and by extension did not attend upon the respondents’ Private Session room, is a matter going to the credibility and reliability of his evidence.
130 Where the claimant’s evidence differs from other more reliable and credible evidence, I am satisfied that the other more reliable and credible evidence should be preferred. This also extends to the content of conversations purportedly in the claimant’s Private Session room with the Clerk.
Findings
131 Having regard to the credible and reliable evidence accepted by the court, I find as follows.
132 Mr Baldwin was instructed to represent and act on behalf of the claimant at the PTC. I find that Mr Baldwin acted in accordance with any instructions provided by the claimant. Contrary to out-of-court statements made by the claimant in his complaints to the IMC Registry, there was no suggestion in the hearing, nor was Mr Baldwin cross-examined on the issue, that Mr Baldwin acted otherwise than in accordance with any instructions provided by the claimant.
133 The PTC was held over three hours and rather than making one and only offer, the Clerk ‘shuttled’ between the two Private Session rooms with a final offer to settle made to the claimant in the amount of $30,000.
134 The final offer of $30,000 was conveyed by the Clerk to the claimant and Mr Baldwin in their Private Session room. The claimant understood that accepting the offer of $30,000 would require him to end the Claim against the respondents.
135 There were other terms discussed by the respondents with the Clerk, including the claimant’s termination being by way of resignation and not to disparage the Shire and its officers. However, I find that these other terms were intended to be incorporated in the Deed.
136 Some of these terms were discussed with the claimant in the Private Session room, including the recasting of his termination as a resignation, aspects of the settlement being confidential and the reduction of the agreement to writing.
137 Any agreement was to be reduced to writing by way of a Deed which also contained the mechanism for giving effect to the monetary settlement, along with other terms that were generally discussed at the PTC, including the claimant resigning from the Shire and maintaining confidentiality about the Claim.
138 The claimant accepted the offer of $30,000 and he understood that this would bring an end to the Claim. He understood he would sign a Deed.
139 The claimant’s acceptance of the offer of $30,000 was verbally conveyed to the respondents and the respondents’ lawyers by the Clerk and by Mr Baldwin. Mr Baldwin was authorised to convey the claimant’s acceptance of the $30,000 offer to the respondents and their lawyers and agreed on behalf of the claimant for the respondents’ lawyers to prepare the Deed giving effect to the agreement reached.
140 The respondents’ lawyers prepared the Deed and emailed a copy of the Deed to Mr Baldwin, who in turn, emailed a copy of the Deed to the claimant.
141 Mr Baldwin considered that the contents of the Deed reflected the agreement between the claimant and the respondents at the PTC.
142 The claimant refused to sign the Deed, he informed the IMC Registry and the respondents’ lawyers that he would not settle the Claim for $30,000 and requested the Claim be relisted for a further PTC or for trial.
143 In accordance with reg 22(b) of the Regulations, the Clerk listed the Claim before the Industrial Magistrate for trial.
144 The respondents’ lawyers hold in their trust account $30,000 to be paid to the claimant upon the claimant providing his bank account details to them.
Determination
Relevant Legal Principles
145 As identified by the respondents in their outline of submissions the question is whether the claimant’s acceptance of the respondents’ offer of $30,000 constituted a binding contract between them or whether it was merely an agreement to take part in further negotiations with a view to concluding a binding contract at some point in the future. Nurisvan Investment Ltd v Anyoption Holdings Ltd [2017] VSCA 141 at [100].

146 The relevant principles have been stated in a number of cases. I adopt the stated principles in Englisch t/as Alpine Property v Sully [2021] VSC 434, which were restated with approval by the Victorian Court of Appeal in Sully v Englisch t/as Alpine Property [2022] VSCA 184; (2022) 406 ALR 456 (Sully) at [62] (Walker JA):
Whether an agreement is reached which is intended to be immediately binding falls to be determined objectively, having regard to the presumed or inferred intention of the parties. The parties’ objective intention is fact-based and to be determined having regard to all of the surrounding circumstances, including ‘by drawing inferences from [the parties’] words and their conduct’ and from the terms of the parties’ correspondence, such correspondence to be read in the light of the surrounding circumstances and having regard to the commercial context in which they were exchanged. The ultimate question to be answered is what each party, by its words or conduct, would have led a reasonable person in the position of the other party to believe.
The relevant intention or belief which is the subject of the Court’s assessment is that which obtained at the time an alleged agreement was made. The subjective intention or belief of a party is not determinative though it may be relevant.
In certain circumstances, regard may be had to the subsequent conduct of the parties. In Nurisvan Investment Ltd v Anyoption Holdings Ltd (Nurisvan), the Victorian Court of Appeal distinguished between ‘cases involving contracts that are said to have come into existence as a result of an exchange of correspondence of other communication between the parties’, and cases involving an agreement purported to be contained in a single document, and noted that regard may be had to conduct subsequent to an alleged agreement made in the former kind of case. In Queensland Phosphate Pty Ltd, a case involving an exchange of emails said to evidence a binding contract, the Victorian Court of Appeal held that regard may be had to subsequent communications between the parties: ‘(1) in order to see what was important or essential to the transaction; (2) as admissions; and (3) as probative of the parties’ contractual intention’. The parties agreed that this case was one in which the Court could properly have regard to subsequent conduct of the parties for these purposes.
In circumstances such as the present, where the parties agreed that they would prepare a written document setting out terms of agreement, the Court may consider the three categories of contract set out by the High Court in Masters v Cameron. These categories describe circumstances in which:
(a) the parties intend to be bound immediately, though expressing a desire to draw up their agreement in a more formal document at a later stage;
(b) the parties intend to be bound immediately, but may wish the operation of a particular clause or term to be delayed pending the drawing up of a more formal document; or
(c) the parties intend to postpone the creation of contractual relations until a formal contract is drawn up and executed.
Since Masters v Cameron was decided, Courts have recognised a fourth category — that being where the parties intend to be bound immediately by terms which they have agreed upon, whilst expecting to make a further contract in substitution for the first contract containing, by consent, additional terms.
Negotiations between parties falling within the first, second and fourth categories set out above indicate an immediately binding agreement notwithstanding a commitment to a further, more formal contract. By contrast, negotiations falling within the third category do not reflect an intention to be immediately bound and therefore no contract will be formed until the execution of the further and more formal written agreement.
The categories in Masters v Cameron — and the further fourth category — are taxonomic and should not distract from the fundamental inquiry with which the Court is engaged. That inquiry remains whether, in all the circumstances, the parties objectively intended to reach a binding agreement.
For an agreement to be made with immediate binding force, notwithstanding that a written instrument may be executed at a later time, the original oral agreement must be complete, certain and enforceable on its own terms. Relative completeness and certainty of contractual terms may be taken as indicators of the parties’ intention to be bound, in addition to fundamental aspects of an agreement without which the Court cannot enforce the agreement. However, and as is recognised in Masters v Cameron , parties may in their negotiations leave aspects of an agreement to be decided at a later date while agreeing to be immediately bound in respect of other, concluded terms. In distinguishing the issue of whether the parties intended to reach a concluded agreement and the issue of whether the parties’ agreement is enforceable assuming such an intention, the Victorian Court of Appeal in Nurisvan adopted the following passage from Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd:
It is to be noted that the question in a case such as the present is expressed in terms of the intention of the parties to make a concluded bargain: see, eg, Masters v Cameron (at 360). That is not the same as, although in a given case it may be closely related to, the question whether the parties have reached agreement upon such terms as are, in the circumstances, legally necessary to constitute a contract. To say that the parties to negotiations have agreed upon sufficient matters to produce the consequence that, perhaps by reference to implied terms or by resort to considerations of reasonableness, a court will treat their consensus as sufficiently comprehensive to be legally binding, is not the same thing as to say that a court will decide that they intended to make a concluded bargain. Nevertheless, in the ordinary case, as a matter of fact and commonsense, other things being equal, the more numerous and significant the areas in respect of which the parties failed to reach agreement, the slower a court will be to conclude that they had the requisite contractual intention.
(citations omitted)
147 To those principles, I would also add further comments of Kirby P in Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd [1995] NSWCA 166; (1995) 7 BPR 14,551 at 14,569:
Depending on the size, importance and complexity of the subject matter, the less formal the initial agreement, the less likely it will be that it was intended to be legally binding and enforceable.
148 Referring to this observation, Walker JA in Sully at [77] adds:
I accept that the oral nature of the agreement means it was less formal than a written agreement. However, as Kirby P observed, this factor falls to be assessed in light of the size, importance and complexity of the subject matter. In the present case the quantum of the agreement was small and the settlement terms were uncomplicated. Thus, I consider the oral nature of the agreement to be of limited weight.
149 In determining whether parties to an agreement intended to be immediately bound by an agreement it is permissible to have regard to the parties’ conduct and communications after the agreement had been reached. Sully v English t/as Alpine Property [2022] VSCA 184; (2022) 406 ALR 456 (Sully) at [90].
As observed by Lee J in Farrell v Super Retail Group Ltd [2024] FCA 1515 (Farrell), at [17]:
[T]he probative value of post-contractual communications lies ‘in the light they throw on the proper interpretation of earlier communications alleged to constitute the conduct.’ Discussing his own comments in Cardtronics Australasia Pty Ltd v FX Investments Australia Pty Ltd [2020] FCA 218 at [95] (other citation omitted).

150 The principal question is whether a reasonable person observing the PTC would have concluded that, by the end of the PTC, the claimant and the respondents had made a binding agreement. As recently observed by Deputy President Boyce in Ebbott v Arriba Corporate Pty Ltd [2025] FWC 1604 at [64]:
Where an offer and acceptance occurs, the task is to inquire as to what the reasonable person would deduce or infer from the objective evidence of the relevant interactions and exchanges between the parties. Such exchanges provide the objective framework of facts within which an agreement or contract came (or did not come) into existence, including the context in which the parties ‘presumed’ intention in that setting is to be drawn from. As Heydon JA said in Brambles Holdings Ltd v Bathurst City Council:
In the light of the above cases, it is relevant to ask: in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the [claimant] and a reasonable person in the position of the [respondent] think as to whether there was a concluded bargain?
(citations omitted)
Application of the Legal Principles to the Facts
151 For the following reasons, I find the respondents have discharged their onus in demonstrating the settlement agreement made at the PTC was immediately binding on the parties:
(a) the parties attended the PTC with a clear understanding that the purpose was to achieve a settlement;
(b) each party was represented by experienced employment lawyers. The claimant’s lawyer was instructed to act on behalf of the claimant at the PTC and there is no credible evidence he acted outside of any instructions;
(c) the respondents conveyed to the Clerk an offer of $30,000 to settle the Claim. This offer was conveyed to the claimant and his lawyer, and the claimant accepted the offer of $30,000 to end the Claim;
(d) the claimant’s acceptance of the respondents’ offer was conveyed to the respondents by the Clerk and separately by the claimant’s lawyer;
(e) there was no evidence that the claimant’s lawyer did not have the claimant’s authority to convey the claimant’s acceptance of the respondents’ offer to the respondents;
(f) given the Claim sought the payment of an amount of money, whether by compensation or penalty, and the Claim was resolved by the agreed payment of an amount of money, the most important matter had been addressed;
(g) notwithstanding the agreement terms had not been reduced to writing, the key oral settlement terms were the payment of an amount of money for the Claim to come to an end, leaving only the machinery for implementation of those terms to be worked out along with some ancillary terms such as the character of the claimant’s termination, confidentiality of the settlement and non-disparagement of the Shire;
(h) in conveying the claimant’s acceptance of the respondents’ offer to the respondents, there was no evidence or indication that there were further negotiations to be undertaken or that any agreement was ‘in principle’, or that the Claim remained unresolved in some way. To the contrary, the words said to be used by the Clerk and the claimant’s lawyer gave every indication that the Claim was finalised;
(i) when the claimant’s lawyer conveyed the claimant’s acceptance of the offer to the respondents in the respondents’ Private Session room, it was agreed the respondents’ lawyers would prepare a Deed, and the claimant’s lawyer understood any Deed would contain ‘uncontroversial’ terms such as confidentiality, warranties, full and final settlement etc; and
(j) the Deed was not intended to alter or expand upon what had already been agreed at the PTC.
152 That is, on the found facts, at the end of the PTC, the conclusion a reasonable person would reach is that the Claim had been resolved by way of the payment of an amount of money with the cessation of the Claim, and that this was immediately binding on the parties. To the extent there were other matters to attend to, this was to be done ‘in writing’, or by way of a Deed, but it did not change the finality of the settlement at the PTC.
Other Issues Raised
153 I also make some other observations.
154 As stated by Walker JA in Sully at [87] to [89], while it is ‘good’ common practice (for what now can be seen as obvious reasons) to reduce an agreement reached at a mediation to writing, where the parties do not so reduce their agreement, this does not necessarily lead to the conclusion that the parties did not intend to be immediately bound. But even if the absence of a written document signed by the parties was generally considered to support the idea that the parties do not intend to be immediately bound, it remains necessary to consider the departure from common practice in the particular case.
155 In this case, the purpose of attending the PTC was to settle the Claim. There was clear language used to convey the offer and acceptance of the offer. The settlement was uncomplicated with the principal issue involving an amount of money to finalise the Claim. The amount of money involved, while not small, was modest. The claimant’s lawyer and the respondents’ lawyers agreed that the respondents’ lawyers would prepare a Deed with the contents of the Deed considered ‘uncontroversial’.
156 The ‘uncontroversial’ nature of the contents of the Deed was later reflected in communications from the claimant, where his complaints were about things purported to have been said by the Clerk and his lawyer and being misled on certain issues. Thereafter, the claimant informs the respondents’ lawyers that $30,000 is, in essence, not a satisfactory amount and that he remains willing to negotiate a settlement and sign a deed of settlement, just not for $30,000.
157 The claimant submits that the failure by the respondents to pay him $30,000 is indicative of: first, the settlement was not intended to be binding, but was to be finalised upon the signing of the Deed; secondly, the Shire not implementing the terms of the settlement; and thirdly, where the Shire had his bank account details, it was unnecessary for this to be a term of the Deed or not to finalise any purported settlement.
158 The respondents’ answer to this is contained in Mr Sinanovic’s email dated 4 July 2024 responding to the claimant’s email dated 26 June 2024. Exhibit 6.

159 The claimant’s position in the email dated 26 June 2024 was unequivocal, where he states, ‘I have several reasons as to why I won’t be signing the deed and agreeing to the $30,000 settlement sum’ and ‘I was and still am willing to negotiate a fair and reasonable settlement and sign a deed of settlement but it won’t be for $30,000’. In response, Mr Sinanovic informs the claimant of the respondents’ position as to finality of settlement, and states:
We confirm we hold $30,000 in our trust account to be paid to you pursuant to the agreement reached at the conference.
We would be grateful if you would provide us with your bank account details for the purpose of transferring the settlement funds.
160 Thus, in respect of the first and second points raised by the claimant, the respondents’ position remained equally as unequivocal and the Shire had, in fact, made arrangements with its lawyers for the payment of the agreed $30,000 with the money held in trust with its lawyers for that purpose. In respect of the third point raised by the claimant, whether the Shire had the claimant’s bank account details is irrelevant. It is hardly surprising that the respondents’ lawyers wanted to confirm the claimant’s bank account details for the purpose of payment. It was open to the claimant to request the monies be deposited into any bank account he chose. However, by that time, the claimant had already decided to renege on his acceptance of the settlement amount, so providing his bank account details was hardly consistent with this new position.
161 In addition, the claimant had also sent an email to the IMC Registry telling the IMC to list the Claim for a further PTC or list a trial, whereupon the IMC Registry informed the claimant the Clerk had now referred the Claim to trial. Thereafter, the parties were informed that the Claim had been listed for a directions hearing before an Industrial Magistrate.
162 The claimant further submits that the procedure adopted by the Clerk and the IMC Registry in listing the Claim for a directions hearing for trial supports his contention that the settlement was not intended to be binding. With respect to the claimant, his contention is misplaced. The claimant’s email to the Clerk and the IMC Registry was, again, unequivocal; that is, he had no intention of abiding by the settlement arising from the PTC. In accordance with the Regulations, this left the Clerk with limited options. Having regard to the claimant’s assertions, it was entirely appropriate for the Claim to be listed before an Industrial Magistrate. The respondents were then required to abide by the Clerk’s decision and attend before the Industrial Magistrate and abide by the Court’s orders.
163 However, the respondents’ lawyers in the email to the claimant dated 4 July 2024 preserved the respondents’ position to rely upon the agreement at the PTC as a defence to the Claim. See also Sully at [101], where a similar procedure was discussed by the Victorian Court of Appeal and given limited weight in consideration of whether a binding agreement existed.
I also note that at the first directions hearing on 31 July 2024, Mr Sinanovic informed the Industrial Magistrate that the respondents ‘reserve [their] rights in relation to [their] position about the pre-trial conference’ and indicated it was open to the IMC to have a hearing on ‘that issue alone’.
164 The claimant emphasised that words used by the respondents in their witness statements indicates the respondents meant for any settlement to be non-binding until the Deed was agreed to and signed. As already stated, care needs to be taken with respect to lay people using words which may have meaning in a legal context where they do not intend to convey that same meaning. For example, in his email to other councillors the day following the PTC, Mr Fletcher refers to the Deed being ‘confidential and binding’ (emphasis added). I do not accept, nor did Mr Fletcher accept, that this meant any settlement was binding upon the Deed being signed or that the settlement at the PTC was conditional on the Deed being signed. His use of the word binding in the context of the Deed needs to be seen in the context of the whole email, which also refers to ‘the claim was settled’, ‘the decision encompassed the following…’, and ‘…the [Clerk] worked with both sides to reach the final outcome, as set out above’, and ‘[t]his matter was settled amicably’. Exhibit 2.

165 Similar comments can be said of Mr Fletcher’s, Mr Ashe’s and Ms Bantock’s understanding of their continuing participation in the Claim, given the evidence of the discussion between the parties’ lawyers during the Joint Session. From their perspective, the claimant through his lawyer indicated the Claim against Mr Ashe and Ms Bantock would be ‘dropped’. Mr Fletcher’s evidence is that Mr Sinanovic argued he should also be ‘dropped’ from the Claim. However, again, as stated, there was no order made at the PTC for the Claim to be dismissed against Mr Ashe, Ms Bantock or Mr Fletcher, and, therefore, it was entirely reasonable for them as named respondents to be a party to a Deed. In addition, they were represented by lawyers, and it was also reasonable for them to rely upon any advice their lawyer may have given them on reducing the settlement to ‘something to be signed off on’. Limited weight can attach to the use of isolated words used by lay people in this context.
166 I should also note that the same can be said in relation to the claimant’s evidence in his witness statement about the content of a conversation in the Private Session room. Leaving aside the scandalous nature of the comment, it is questionable whether a quasi-judicial officer would make such a comment to a party in a settlement conference and for an experienced lawyer not to raise this as an inappropriate comment to make. It would also be surprising for an experienced employment lawyer to mistake the nature of their client’s claim, or not to correct a Registrar or clerk of the court if that person was similarly mistaken. Thus, I also place limited weight on some of the claimant’s recollection of comments he alleges were made during the Private Session.
167 The claimant referred to two decisions in detail: Mpinda v Fair Work Commission (No 2) [2024] FCA 692 (Mpinda); and Farrell.
Mpinda
168 Factually, Mpinda is different to this case. In summary, the factual differences in Mpinda includes:
(a) no agreement was made at a conciliation conference, but was later alleged to have been made in written and oral communications between the parties’ lawyers;
(b) the authority of Mr Mpinda’s lawyer to make a BSA on Mr Mpinda’s behalf was a significant issue in dispute, with Feutrill J finding, at [141], that the lawyer ‘was not authorised to put an offer to [the second respondent] that if accepted would form a binding settlement agreement through the agency of [the lawyer]’;
(c) further, his Honour also found, at [141], that the lawyer’s ‘authority was limited to obtaining agreement “in principle” to a settlement that would involve [the second respondent] providing Mr Mpinda with a reference and payment of $2,000. Any binding agreement was to be made in a written document that Mr Mpinda could review before signing and final agreement’;
(d) therefore, his Honour found at [142], that the lawyer exceeded his authority as Mr Mpinda’s agent;
(e) in making these findings, Mr Mpinda’s lawyer was cross-examined on certain issues, but in the main he and other lawyers were reliant upon the content of the written communications and any file notes made. The content of those communications included the use of words such as ‘alternative proposals’, and the lawyer ‘advised’ that Mr Mpinda was ‘prepared to settle the matter’; and
(f) there was no evidence the second respondent took steps to enforce the ‘agreement’ with Mr Mpinda, including payment of the monies or provision of a reference.
169 In this case:
(a) an agreement was reached at the PTC, where the purpose of the PTC was to settle the Claim;
(b) the essential term of the agreement being the payment of an amount of money to ‘end’ the Claim was agreed, the claimant accepts this occurred and he knew these terms formed the agreement;
(c) there is no evidence that Mr Baldwin exceeded his authority as the claimant’s agent and he was not cross-examined on any aspect of his representation of the claimant or his advice or substance of any advice or the content of any conversation;
(d) there were no contemporaneous notes of the PTC. The only document that may come close to this was Mr Fletcher’s email to the other Shire councillors the morning after the PTC summarising his recollection of the outcome of the PTC;
(e) there was no reference to any settlement agreement being ‘in principle’ or any indication by the claimant or his lawyer that any settlement agreement reached at the PTC required further negotiation or was made on a provisional basis or on the basis that a Deed was to be reviewed and signed, only that it was to be prepared by the respondents’ lawyers and forwarded to the parties for signing;
(f) the respondents arranged for the transfer of the settlement amount of $30,000 to their lawyers’ trust account for payment to the claimant upon confirmation of his bank account details; and
(g) the claimant and the IMC were on notice the respondents reserved their right to argue that the settlement agreed at the PTC was a bar to the Claim.
170 There is no evidence the claimant and the respondents made an agreement to agree in the future or that the parties intended not to make a conclusive agreement unless and until they executed a Deed, That is, this is not the third category of case referred to in Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353.
or that any agreement was in some other way provisional. This is not a case where the essential terms were vague, uncertain or incomplete. Mr Baldwin’s evidence was that the contents of the Deed were ‘uncontroversial’, and he was not challenged on this evidence. Further, and consistent with Mr Baldwin’s evidence, the claimant did not take issue with the contents of the Deed until he lodged his witness statement on 21 May 2025 for the hearing of the Preliminary Issue. In fact, well prior to that he positively asserted to the respondents’ lawyers that he would sign a deed of settlement (not a different deed), just not for $30,000.
171 The relevance of Mpinda, from the claimant’s perspective, appears to be Feutrill J’s comments as it relates to the proposed deed in paragraphs 155 to 170. However, as already set out, the facts that gave rise to those comments are very different to the facts in determining the Preliminary Issue, something his Honour recognises at, [14], where he states, ‘the resolution of the principal issues turn on findings of fact’.
Farrell
172 Similarly, Farrell is factually different to this case. Farrell involved a series of communications between legal counsel for both parties over a number of days, where proposed terms of an agreement were discussed. Suffice to say, the negotiations involved many disputed terms, involving the retraction of comments made by the claimant, an Australian Securities Exchange announcement and restraints preventing lawyers from acting against the relevant company.
173 The communication purporting to convey acceptance of an offer was in a text message where it was stated, amongst other things, ‘our clients have now accepted the offer subject to deed’. The response being, ‘[w]e will work on the documents now and revert asap.’
174 After this communication there was continuing protracted dispute over the content of the deed, with both parties’ lawyers levelling assertions at the other concerning its contents.
175 As observed by his Honour Lee J, ‘[t]his is not a case at the margins’ Farrell v Super Retail Group Ltd [2024] FCA 1515 (Farrell) at [116].
or a ‘“run-of-the-mill” dispute’. Farrell at [119].

176 In summary, his Honour, at [121], observed:
Viewed in the broader context (including the nature of the dispute; the sophistication of all involved; how the parties had previously turned their mind to the necessity of a formal agreement; and no one ever indicating a departure from this approach), it is difficult to understand why a reasonable person would not have readily understood that the parties and their legal representatives expected that any formal and final resolution was subject to embodiment in a formal deed.
177 Referring to the words ‘subject to deed’, his Honour stated, at [121] and [122]:
There is no reason why the common understanding which applies to those time-honoured words (being an overriding condition that what has been agreed must be regarded as the basis for a future contract, rather than a contract itself) should be displaced…
[with respect to the words], they were far from superfluous.
178 In oral evidence, the claimant’s lawyer in Farrell accepted that his client[s] was advised to make the acceptance subject to a deed, and his client[s] accepted that advice. His Honour stated, at [124]:
This is, in substance, the end of the case. A consensus had emerged, but it was subject to finalisation of a mutually agreeable instrument reflecting this consensus, which would then take effect as a concluded bargain. Other issues may be opened up when negotiations were being finalised, notwithstanding that a consensus had emerged on what were perceived to be the ‘in-principle’ or most significant points that had been discussed.
179 Having regard to the following six principles referred to in Farrell, at [15] to [20], and with respect to the claimant, the Claim was ‘run-of-the-mill’.
180 First, the Claim concerned the payment of money for alleged conduct by a former employer. It proceeded in the usual course to a PTC before the Clerk. The parties were represented. At the conclusion of the PTC, the claimant confirmed to his lawyer and to the Clerk acceptance of the offer of a payment of an amount of money to end the Claim. This acceptance was conveyed by his lawyer to the respondents and their lawyers, where the respondents’ lawyers then said they would prepare the Deed.
181 Secondly, and again with respect to the parties, the Claim did not involve sophisticated entities where the agreement concerned a significant transaction.
182 Thirdly, the claimant’s correspondence shortly after the PTC and receipt of the Deed did not refer to important terms and conditions not mentioned during the PTC. The claimant’s grievance after the PTC and receipt of the Deed was alleged misinformation given by his lawyer and the Clerk during the Private Session, his purported state of mind, and, following his research, dissatisfaction with the amount agreed at the PTC. As already mentioned, the claimant expressly informed the respondents’ lawyers that he would sign a deed of settlement (not a different deed) but not for $30,000.
183 Fourthly, Mr Baldwin’s evidence is the contents of a deed in these matters was ‘uncontroversial’ and would contain the ‘usual terms’, where he had participated in many mediations in presumably similar circumstances. There is no evidence that Mr Baldwin indicated to the claimant when he forwarded the Deed from Mr Sinanovic that the claimant should focus on particular parts of the Deed as warranting his attention. According to Mr Baldwin, the Deed reflected what was agreed at the PTC. Nothing in the claimant’s subsequent conduct, beyond his refusal to accept the payment of $30,000 as ‘a fair and reasonable settlement’, indicated he did not intend to be bound until other issues were resolved in a formal document. To the extent the claimant refers to a letter of resignation, in my view, this was no ‘deal breaker’. As suggested in the claimant’s email to the IMC Registry on 25 June 2024, his lawyer and the Clerk ‘implored’ him to recharacterise his termination as a resignation. If he chose not to do so, the only possible disadvantage was his.
184 Fifthly, there is no evidence, nor was the claimant’s lawyer cross-examined, that he conveyed to the respondents or their lawyers the claimant’s acceptance of the offer was ‘subject to a deed’, or conditional on a deed being reviewed, signed, approved or executed, or the agreement being ‘in-principle’.
185 Sixthly, there were no further negotiations between the parties postPTC. The Deed was sent to the respondents by their lawyers for approval. Then, it was sent to Mr Baldwin who forwarded it to the claimant. Mr Baldwin said in evidence the Deed accorded with the agreement reached at the PTC. It was ‘uncontroversial’. The only evidence otherwise is the claimant’s now purported disgruntlement with the contents, but even this did not reflect the claimant’s state of mind proximate to its receipt. The inclusion of the words on the Deed ‘Without Prejudice until Executed’ did not add or detract from any of this.
Outcome
186 The Preliminary Issue should be answered as follows:
(a) On 20 June 2024 at a pre-trial conference, did the parties reach a BSA with immediate effect?
Yes.
(b) If a BSA with immediate effect was reached, what were the terms of the BSA?
The respondents’ pay to the claimant $30,000 and the claimant to discontinue (or end) the Claim.
(c) If a BSA with immediate effect was reached, was it enforceable or void?
The BSA continues to be enforceable.
(d) What is the effect of the determinations or outcomes of the issues in (a), (b) and (c) above on the claimant’s claim?
The claimant is precluded from prosecuting the Claim.
187 I will hear from the parties in relation to final or consequential orders to be made.



D. SCADDAN
INDUSTRIAL MAGISTRATE