VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H245/2022	
CATCHWORDS	
Section 93 Settlement of Proceeding - application of Masters v Cameron [1954] HCA 72; 91 ALR 353 - order of VCAT - VCAT power to withdraw application.	

APPLICANT	Helen Miguel	
RESPONDENT 	Healthscope Operations Pty Ltd t/a Holmesglen Private Hospital	
WHERE HELD	On the papers	
BEFORE	Member S Webb	
HEARING TYPE	Decision on the papers	
DATE OF ORDER & WRITTEN REASONS	29 August 2024	
CITATION	Miguel v Healthscope Operations Pty Ltd t/a Holmesglen Private Hospital (Human Rights) [2024] VCAT 819	

Order
1	The application is withdrawn.
2	No order as to costs.

Stuart Webb
Member			

Reasons
Background
1	The applicant lodged her application with VCAT on 20 July 2022. The application related to alleged discrimination in the course of employment on the basis of the attributes of disability and employment activity. The respondent in this matter was the applicant’s employer, Healthscope Operations Pty Ltd, trading as Holmesglen Private Hospital.
2	The statement of complaint, including as amended in April 2023, claimed that the respondent had discriminated against the applicant by failing to maintain the applicant in the correct Grade under the Enterprise Agreement (EA) for the work she had been performing. It was further stated that the respondent had failed to consider and appoint the applicant to a team leader role. The loss and damage claimed by the applicant was the ongoing difference in salary and non-economic loss for psychological stress.
3	Both parties were represented in this matter. In the course of the proceeding at VCAT the parties entered into negotiations to settle the matter.
4	On 22 June 2023 a representative of the respondent wrote to the representative of the applicant with an offer of settlement, made without admission of liability. The offer of settlement was conditional upon the execution of a Settlement and Release Agreement (the Agreement), with terms to include payment of monies, discontinuance of the proceedings, a release clause, confidentiality and non-disparagement clauses.
5	In July 2023 a series of communications were had between the parties regarding the Agreement. Correspondence regarding this communication was provided by the respondent to VCAT. Both parties were involved in the negotiation of the terms of settlement.
6	A representative of the respondent spoke with the representative of the applicant on 5 July 2023 at 12:48pm. A record of that conversation was made by the representative of the respondent and forwarded to her colleagues, representatives of the respondent. This conversation related to an amendment to the settlement offer as expressed in the letter of 22 June 2023. The note recorded that the previous offer was an offer regarding legal fees, the note reflected that an amount for general damages would be offered, while still denying liability. It included confirmation of the payment for underpayments, a restatement of the settlement terms as expressed in the 2:02pm email of 6 July 2023, and confirmed the $15,000 was to be paid on top of any underpayments. No other aspect of the claim, such as the role or position of the applicant, was discussed.
7	On 6 July 2023 at 10:13am the representative of the applicant provided the following email to the representative of the respondent.
Further to our email earlier, our claims are likewise involved underpayment when our client was officially promoted from 23 January 2023 and from the time she was demoted in 2017. The dates Emily mentioned in her email did not mention any payments on the date given dates. We like to hear from you until tomorrow at 5:00PM 7/7/23 make the final offer to cover those underpayments and general damage or such figure. Thank you.
8	On 6 July 2023 at 2:02pm the following email was sent by a representative of the respondent to the representative of the applicant. This email stated the terms as discussed in the phone conversation of 12:48pm on 5 July 2023. It stated:
Without prejudice save as to costs.
Dear Charlie
I may misunderstand your email. 
Yesterday, we conveyed a verbal offer to you with no admission of liability. That offer was as follows.
$10,000 paid as general damages
$5000 for reimbursement for legal fees, subject to the provision of a tax invoice
Terms relating to discontinuance, release, confidentiality and non-disparagement as outlined in our letter to you dated 22 June 2023 (re-attached for your convenience)
This offer is separate to the amounts of $912.59 and $46.30 which have already been paid to your client, as explained in Emily’s email yesterday afternoon.
This offer is open until 4pm Friday 7 July 2023.
9	On 7 July 2023 at 11:55am the representative of the applicant provided the following email to the representative of the respondent.
Without prejudice save as to costs
We have our client’s instructions to make a counteroffer with your offer (with your email below) of $15K representing general damages and legal fees. Our client wants to have the legal fees from $5000 to $7000 and $10,000 general damages, lastly that she be restored to Grave (sic) 4 level with her job, We tried to ring your office and your mobile but unfortunately you may not be available. This counteroffer will remain valid until today at 5:00PM.
10	On 7 July 2023 at 3:48pm the representative of the applicant provided the following email to the representative of the respondent.
Our client instructed us to accept the offer with your email below with $10,000 as general damages and legal fees for $5000 with the other amounts of underpayment separate as described below.
11	On 7 July 2023 at 4:23pm the following email was sent by a representative of the respondent to the representative of the applicant.
Noted, thanks Charlie.
We will circulate an agreement next week
12	On 10 July 2023 at 5:02pm the representative of the applicant provided the following email to the representative of the respondent.
Thank you for your email below. However, due to our client’s unresolved issue with the counteroffer, due and dated 7 July 2023 at 5:00PM after your offer was due at 4PM. This being a without prejudice except as to costs offer and counteroffer and unless both parties have signed the terms of the settlement we consider there is still unresolved issue with the dispute.
13	On 10 July 2023 at 5:23pm the following email was sent by a representative of the respondent to the representative of the applicant.
We are in the process of finalising the agreement and expect to have this to you tomorrow, which all things considered, is very timely. 
I note the parties have reached an in-principle agreement to resolve this matter.
14	On 11 July 2023 at 12:40pm the following email was sent by a representative of the respondent to the representative of the applicant.
We attach a Separation and Release Agreement reflecting the in-principle agreement reached between the parties, for your client’s consideration. 
If you wish to discuss any minor changes (provided such changes do not derogate from the in-principle agreement reached), please let us know or return the document with these changes tracked. Otherwise, we look forward to receiving the duly executed copy.
15	On 13 July 2023 the representative of the applicant filed a copy of the Applicant’s Witness Statement with a supporting document. In the cover letter the representative stated:
We are seeking our indulgence of the Hon. Deputy President G Nihill for a little delay as we tend to settle this out of court by due to some issue with the settlement this did not occur on time.
16	On 13 July 2023 the representatives of the respondent wrote to the representative of the applicant indicating it believed that it had reached a binding resolution of the proceeding. The correspondence stated the acceptance of the offer amounted to a category 1 agreement in accordance with the principles set out in Masters v Cameron [1954] HCA 72; 91 CLR 353 (Masters v Cameron). The letter stated that:
A category 1 offer is one where the parties have reached finality in arranging all of the terms of the bargain and intend to be immediately bound to the performance of the terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect.  
17	On 14 July 2023 the representative of the applicant wrote a letter to the representative of the respondent raising issues with the position of the applicant as a team leader, including that her work as an ‘Instrument Tech Specialist’ is not described with a team leader role. The letter also referenced the counteroffer of $2,000 increase to the legal fees offered. 
18	On 7 August 2023 a representative of the respondent lodged an application seeking orders under section 93(1), or in the alternative, section 75(1) of the Victorian Civil and Administrative Act 1998 (Vic) (VCAT Act).
19	The application stated that the parties had entered into a binding settlement agreement resolving the VCAT proceeding. It was stated that the binding settlement was reached between the parties in the email correspondence of 7 July 2023. 
20	The orders sought VCAT to dismiss the application pursuant to section 93(1) on the basis that the matter had been resolved, or in the alternative for the application to be dismissed as an abuse of process in circumstances where the parties had entered into a binding settlement. In the alternative it was submitted that the application should be dismissed pursuant to section 75. 
Submissions on the application to dismiss the application
21	A first submission was provided by the lawyer for Ms Miguel on 23 August 2023. The lawyer for Ms Miguel argued that the email correspondence regarding the without prejudice negotiation emails should not have been provided to the Tribunal. It was accepted that the quantum of the Healthscope offer was accepted. It was stated that this was prior to the final terms of settlement being provided to Ms Miguel. It was stated that the terms of the Agreement did not address changes or adjustments to Ms Miguel’s position or role or referred to the underpayment of wages. It was stated that further issues in relation to the terms of her ongoing employment were not addressed in the terms of the settlement.
22	A further submission on behalf of Ms Miguel was provided on 29 August 2023. It was argued that the provisions of Masters v Cameron had different categories of agreement, including the category 1 agreement as referenced by Healthscope, but that there was also category 3 which referenced where parties have not made a finalised agreement. Specifically, this is characterised in Masters v Cameron that parties have intended that there is no concluded bargain unless the document was executed (in other words it might be treated as a condition precedent to a binding contract). It was submitted that the matter falls within the third category, in that there were two aspects of the settlement to be agreed, financial and the reinstatement of the applicant’s position, there was resolution only in relation to the financial terms. 
23	The submission for Healthscope contended that the Agreement between the parties was always intended to be the entire settlement. It was submitted that the claim that the acceptance email of 3:48pm on 7 July 2023 was only for financial issues and that the issue of reinstatement to a particular position was still live and yet to be resolved must fail. It was submitted that the correspondence between the parties indicates the parties were of the mutual understanding that a settlement of the proceeding as a whole was being sought by the respondent on the basis of a financial settlement only. No correspondence between the parties referenced any non-financial component or seeks to distinguish any financial settlement component from any non-financial component. The correspondence from the applicant’s representative discussed a final offer to cover underpayments and general damages or such a final figure. The correspondence sent by Healthscope’s representatives included financial terms and terms relating to ‘discontinuance, release, confidentially and non-disparagement’. 
24	The respondent’s submission stated that this is a Masters v Cameron category 1 settlement, not a category 3 settlement. There was no indication that the final settlement was subject to the final terms of the Agreement. The correspondence from the applicant’s representative did not indicate that the acceptance of the Agreement was subject to agreement on the settlement or release terms. The Agreement that was ultimately sent did no more than formalise the settlement and did not stray in any substantial way from those terms referred to in the settlement offer email (of 2:02pm on 6 July 2023) or 22 June 2023 letter attached to that email.
25	Both parties sought costs arising from their response to this interlocutory application.
Relevant Law
26	I consider the following sections of the VCAT Act are relevant to the proceedings.
93	Settlement of proceeding
(1)	If the parties agree to settle a proceeding or any part of it at any time, the Tribunal may make any orders necessary to give effect to the settlement.
	…
74	Withdrawal of proceedings
(1)	If the Tribunal gives leave, an applicant may withdraw an application or referral before it is determined by the Tribunal.
(2)	If an applicant withdraws an application or referral—
(a)	the applicant must notify all other parties in writing of the withdrawal; and
(b)	the Tribunal may make an order that the applicant pay all, or any part of, the costs of the other parties to the proceeding; and
(c)	the principal registrar may refund any application fee paid by the applicant; and
(d)	the applicant cannot make a further application or request or require a further referral in relation to the same facts and circumstances without the leave of the Tribunal.
(3)	Subsection (2)(a) does not apply if the principal registrar notifies the other parties in writing on behalf of the applicant.
Schedule 1
17	Withdrawal of proceeding
(1)	Despite section 74(1), an applicant is not required to obtain the leave of the Tribunal to withdraw an application under the Equal Opportunity Act 2010.
(2)	Nothing in subclause (1) affects the Tribunal's power to award costs in any proceeding that is withdrawn.
Consideration of the Submissions
27	It is incumbent on me to determine whether the parties had reached an agreement that required only the formal terms to be drawn up, or whether there were still outstanding issues that would need to be resolved. The parties are consistent on the position that the financial aspect of the settlement had been agreed, the dispute arises from what has been characterised as a non-financial aspect of the claim, that being whether the applicant was entitled to changes to her position or role, and whether this was a condition precedent to the settlement.
28	At the outset it is appropriate for me to state that it is entirely correct that the correspondence between the parties regarding the settlement negotiations be provided. The correspondence is absolutely required for me to make my determination on the interlocutory issue that is before me. 
29	The application and statement of claim, including as amended, include a claim that the respondent had failed to consider and appoint the applicant to a team leader role. The statement of claim consistently presented the loss and damage for the applicant was the ongoing difference in salary and non-economic loss for psychological stress. The salary component of the loss included an underpayment that the respondent recognised was due to the applicant.
30	On 22 June 2023 the respondent made the opening offer to settle the matter, with a financial component to compensate for legal costs, and what can be considered common settlement terms regarding the applicant discontinuing the application, releasing from further legal proceedings, and mutual confidentiality and non-disparagement clauses. These clauses are necessary to provide finality to a proceeding and, given the applicant remained an employee of Healthscope, capacity for the parties to move forward together.
31	From this original letter onward the respondent’s only alteration to its position was in relation to the financial component of the offer, to provide an amount for ‘general damages’ and $5,000 for legal costs. The common settlement terms remained the same. No reference was made to any other aspect of the applicant’s claims, including role or position at Healthscope. It is clear that the position of the respondent is that once this offer was agreed it was to be the full and final settlement of the matter. A time frame of 4:00pm on Friday 7 July 2023 was provided to agree to this offer. This time frame is relevant as orders of the Tribunal required further documents to be filed by 11 July 2023, and a settlement would make such filing unnecessary.
32	The applicant, through her representative, disagreed with the original offer and responded with counteroffers. A counteroffer put at 10:13am on 6 July 2023 mentioned the underpayment compensation that was requested and agreed as being an entitlement. At 2:02pm on 6 July 2023 the respondent put in writing the formal compensatory amount that was agreed between the parties, being $15,000. The 2:02pm email acknowledged that the underpayment calculated at $958.99 was paid prior to any final agreement. 
33	On 7 July 2023 the representative of the applicant sent two emails. The first was at 11:55am, where he sought an extra $2,000 towards the legal costs ($5,000 to $7,000) and referenced that ‘lastly that she be restored to Grave (sic) 4 level with her job’ and that ‘this counteroffer will remain valid until today at 5:00PM’.
34	The second email was sent, relevantly, at 3:48pm, twelve minutes prior to the 4:00pm deadline as provided by the respondent in their offer. As detailed, the response was:
Our client instructed us to accept the offer with your email below with $10,000 as general damages and legal fees for $5000 with the other amounts of underpayment separate as described below.
35	The reference to the ‘email below’ was to the 2:02pm email from the respondent to the applicant, which included the financial compensation ($10,000 general damages / $5,000 legal costs), the ‘terms relating to discontinuance, release, confidentiality and non-disparagement as outlined in our letter to you dated 22 June 2023 (re-attached for your convenience)’, and the $912.59 and $46.30 underpayment amounts.
36	Reflecting this acceptance, the respondent replied at 4:23pm ‘Noted, thanks Charlie. We will circulate an agreement next week’. There was no further correspondence between the parties until after 5:00pm on 10 July 2023.
37	It is clear that the respondent was putting to the applicant its final offer to settle the matter, and once agreed, would lead to the discontinuance of the entire proceeding. There is no reference to separating into financial and non-financial components, the settlement by the respondent was for the entire proceeding.
38	The applicant’s representative had sought to amend the offer as provided to them, in the email of 11:55am on 7 July 2023, with a request for better terms of the legal fees and the reference to the applicant’s role. This email was followed up with the 3:48pm email which accepted the terms of the settlement offer as provided by the respondent. The acceptance of terms of the settlement agreed resiled from the claim for an extra $2,000 for legal fees. The acceptance of the settlement made no reference to any other terms as requested by the applicant, including the issues of role and position, despite the representative of the applicant having the opportunity to raise this in the email. The email accepted the terms of discontinuance, release, confidentiality and non-disparagement. 
39	I find that it is reasonable to conclude that the respondent believed the offer of settlement as provided by them to the applicant had been accepted. I think it is reasonable to conclude that the respondent believed, as per the email of 3:58pm on 7 July 2023, 12 minutes before the offer expired, that the applicant had resiled from their counteroffer and agreed to discontinue the proceeding with the payment of compensation in the terms as agreed.
40	I find that the claim that there were outstanding issues to be determined by the parties is not correct.
41	On the information before me, I accept the submission that the terms of the agreement were settled and that, as per Masters v Cameron, the agreement falls into category 1 as described in that matter, that the parties agreed to be bound as per the acceptance of the offer as stated at 3:48pm by email on 7 July 2023 by the representative of the applicant.
42	I find that this matter has settled as per the terms of the Settlement and Release Agreement. 
Outcome
43	The application made by the respondent asks me to dismiss the application, pursuant to section 93 of the VCAT Act. Section 93(1) says the Tribunal may make any orders necessary to give effect to the settlement. 
44	I do not consider that it is appropriate in these circumstances to dismiss or strike out this matter. That does not reflect the position that the respondent, while denying liability, chose to commence settlement discussions with the applicant, and found acceptable terms to have this matter discontinued. Discontinuance was the term included in Agreement as agreed between the parties. Discontinuance of a proceeding is quite different to dismissing or striking out a proceeding, discontinuance is an act by the applicant to no longer proceed with the application.  
45	Discontinuance in VCAT proceedings is completed by a withdrawal of the application. Section 74 of the VCAT Act provides the power to withdraw an application at VCAT. Relevantly to this matter and the nature of the application, being made at VCAT under the Equal Opportunity Act 2010 (Vic) (EO Act), the Tribunal itself has the power to order a withdrawal of an application, without leave or request of the parties to the matter.
46	I consider that withdrawal of the application is the appropriate manner for this proceeding to be discontinued.    
47	The withdrawal can only occur when the terms of the Agreement are met, that being the payment of $10,000 to the applicant’s bank account, up to $5,000 to be paid into the trust account of the applicant’s legal representative after the provision of a tax invoice, and the signing of the Agreement itself. I do not imagine in the circumstances that the legal fees will be less than $5,000. 
48	Accordingly, I have ordered that the application be withdrawn. 
49	Should the Agreement not be completed in the terms as agreed in the Settlement and Release Agreement, the applicant has the right to seek leave to recommence this proceeding.
Costs
50	Both parties had sought costs arising from this interlocutory application. Costs can be awarded pursuant to section 74(2)(b) of the VCAT Act where matters are withdrawn. I note that the ordinary position of VCAT is that both parties bear their own costs, and that offers of settlement are not relevant when considering costs in Equal Opportunity proceedings.
51	As the respondent has been successful in their argument regarding the disposition of the proceeding, I have considered their submission on this issue.
52	It was submitted that in the event that VCAT makes an order pursuant to section 109(1) dismissing the proceeding to give effect to the settlement, the respondent seeks its costs for the interlocutory application because the applicant had acted vexatiously in pursuing its application after the matter had been settled. The submission referenced the provision of section 109(3)(a)(iv) of the VCAT Act in support of this position.
53	In the circumstances of this matter, at 5:00pm on 10 July 2023, prior to the signing of the Agreement, the applicant expressed concerns with the terms of the Agreement. This concern was communicated with the Tribunal in its submissions lodged. 
54	With respect to the overall outcome of this matter I consider the terms of the Agreement as agreed between the parties to be within the scope of an award available to the Tribunal should the applicant have been successful in her application. The quantum agreed, though likely to be expressed solely in general damages, is consistent with awards made by the Tribunal in similar EO Act proceedings. 
55	The dispute that has arisen is a legitimate question as to whether the matter had settled on non-financial issues. The Tribunal has had to turn its attention to this matter and provide this extended decision, considering submissions from both sides. I do not accept the position that the applicant, in arguing as to whether the matter had settled, was acting in a vexatious manner
56	I consider both parties have put legitimate arguments before me, and ultimately I have determined that the position of the respondent is the appropriate approach.
57	I do not believe that, taking into account the provisions of section 109, that it is appropriate to deviate from the ordinary position of each party bearing their own costs in a proceeding before VCAT.
58	Accordingly, I make no order as to costs.

Stuart Webb
Member