Saeed v Wild Breads Pty Ltd [2019] QDC 122 (28 June 2019)

Last Updated: 25 July 2019

DISTRICT COURT OF QUEENSLAND

CITATION:	Saeed v Wild Breads Pty Ltd [2019] QDC 122
PARTIES:	MIAN AMIR SAEED (plaintiff) v WILD BREADS PTY LTD ACN 100 507 104 (defendant)
FILE NO/S:	1627 of 2017
DIVISION:	Civil
PROCEEDING:	Applications
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	28 June 2019 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	28 June 2019
JUDGE:	Porter DC DCJ
ORDER:	It is declared that a written release and discharge dated 19 December 2018 formed, and is, a binding agreement for the release and discharge of the defendant from any liability to the plaintiff howsoever arising out of the facts and circumstances of the claims in these proceedings, including for an alleged thoracic injury. The proceedings be stayed until further order, including any further order made in this proceeding on application by the defendant for interpleader relief. Paragraph 1 of the application of the plaintiff filed 16 April 2019 is dismissed. The application of the plaintiff filed 15 August 2017 and paragraphs 2 to 8 of the application of the plaintiff filed 16 April 2019 be stayed in accordance with order 2 above. The application of the defendant filed 26 March 2019, other than paragraphs, 1, 2, 6 and 7, be adjourned to a date to be fixed. The plaintiff pay the defendant’s costs of and incidental to: Paragraphs 1 and 2 of the application of the defendant filed 26 March 2019, including the costs of and incidental to the Amended Defence filed 26 March 2019; and The applications of the Plaintiff filed 15 August 2017 and 16 April 2019; fixed on the standard basis in the sum of $10,000 pursuant to r 687(2)(c) UCPR. Each party have liberty to apply upon three (3) clear business days written notice by one party to the other.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – where the plaintiff pursued a personal injury claim against the defendant – where the plaintiff signed a release and discharge in respect of this claim – where the plaintiff attempted to stop the settlement process upon discovering his legal fees – whether the Court should declare that the release and discharge is binding PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where the plaintiff argues that s. 316 of the Workers’ Compensation and Rehabilitation Act 2003 modifies the Court’s general powers to order costs – whether the Court’s orders have been made “in the claimant’s proceeding” Workers’ Compensation and Rehabilitation Act 2003 s 237, s 316 Uniform Civil Procedure Rules 1999 (Qld) r 681, r 687 Edmunds v D Dunn Industries Pty Ltd (No 2) [2006] QSC 230; [2007] 2 Qd R 128 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165
COUNSEL:	The plaintiff appeared on his own behalf K Holyoak for the defendant
SOLICITORS:	The plaintiff appeared on his own behalf McInnes Wilson for the defendant

[1] I have before me a number of applications in a number of proceedings which arose out of proceedings by Mr Saeed against his employer, Wild Breads, for injuries said to have been sustained at work. To understand what is to follow (and to understand the other judgment published today involving Mr Saeed as applicant) it is necessary to set out an overview of Mr Saeed’s dispute with his employer and his former solicitors.

[2] Mr Saeed worked for Wild Breads. He alleged he was injured in the course of his employment, suffering shoulder and thoracic spine injuries. He initially retained Patinos Personal Lawyers (Patinos) and before that, it seems, Littles Personal Injury Lawyers (Littles).

[3] Pre-trial procedures under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) were undertaken but did not resolve the matter. The matter eventually came into the hands of Carter Capner Law (Carter Capner). There was and is a dispute between Mr Saeed and Wild Breads, whose defence is in the hands of its insurers, as to whether the alleged thoracic injury was the subject of a notice of claim and whether the claim in respect of that injury may be brought under s. 237 WRCA. Wild Breads said it could not, Mr Saeed said it could.

[4] Ultimately, there was a settlement in correspondence, reduced to writing and signed by the parties on 19 December 2018, by which Wild Breads agreed to pay $230,000 to Mr Saeed in respect of his claims in those proceedings on the terms contained therein. At that stage Carter Capner were acting for Mr Saeed, he having previously terminated Patinos’ retainer.

[5] Before the terms of the settlement were performed, Mr Saeed alleges he discovered that his legal fees to the two firms, and possibly to Littles, totalled some $192,000 plus costs of a proceeding in the Industrial Relations Commission. The result seems to have been that he would receive little if anything from the settlement sum. He says that he then sought to “stop the settlement process”. He has also insisted that his claim against Wild Breads remains open and that he has claims as well against his former solicitors for negligence and overcharging. This simple statement masks the complexity of the legal proceedings by which Mr Saeed has sought to ventilate these matters.

[6] It is generally to be observed that as a litigant in person, Mr Saeed has struggled to articulate his complaints in a proper way and using proper procedures. The result has been a series of applications and proceedings which are the subject of strikeouts and other responses from Wild Breads and his former solicitors.

[7] These reasons deal with the applications in this proceeding, being the original claim in which Mr Saeed sued Wild Breads. As I have said, in this proceeding Mr Saeed sued his employer, Wild Breads, for damages arising from alleged shoulder and thoracic spine injuries suffered at work. The circumstances in which that matter came to be settled need to be set out in more detail.

[8] In about late 2018, offers were being made between the defendant’s solicitors, McInnes Wilson and Mr Saeed’s then solicitors, Carter Capner. Mr Saeed swears that he received an offer from Mr McGrath of McInnes Wilson on 28 November 2018 to settle the matter for $230,000 clear of WorkCover refunds. That letter stated:

A discharge reflecting this offer is enclosed herewith.

[9] The attached document is in the same form as the document relied on by the defendants. That document in Mr Saeed’s affidavit filed 26 March 2019, appears as having been signed by him. As to the circumstances of that occurring, Mr Saeed swore that he had lawyers acting for him who advised him to accept that offer and settle the claim. He also told me from the bar table (without objection) that Ms Anderson of counsel, and no criticism of her is intended by any of this, was also involved somehow in that decision. In any event, his sworn position is that lawyers acting for him advised him to settle the claim. He obviously acted on that advice because he does not question that he signed the settlement agreement which had been attached to Mr McGrath’s letter.

[10] The next step was the return of that document signed by Mr Saeed to Mr McGrath under cover of an email from Mr Carter, of Carter Capner, dated 19 December 2018. Mr McGrath wasted no time in executing the settlement agreement on behalf of his client and communicated that acceptance on 19 December at 10.35 am. The effect of the settlement agreement was that the plaintiff and its employer would pay $230,000 in full and final settlement of the claims. It also made provision for no entitlement for costs in respect of the claims and dealt with deductions and refunds. Importantly, clause 5.1 articulated the release and indemnity. It provided that:

5.1 In consideration of payment of the settlement sum and any costs in clause 2, the plaintiff:

(a) releases and discharges WorkCover and the Employer from any liability howsoever arising out of the facts and circumstances the subject of the claims; and

(b) indemnifies WorkCover and the Employer against all claims which have arisen or which may arise in the future in relation to the facts and circumstances the subject of the claims.

[11] I note that no costs had been incurred in relation to clause 2.

[12] To the extent it was necessary, the release and discharge contains an express provision for pleading of the claim as a bar for action and contains a warranty from the plaintiff that he has relied on his own inquiries and not entered into the agreement in reliance on, or as a result of, any representation, and an acknowledgement that he has had the opportunity to obtain legal advice according to its terms. There is an entire agreement clause and a counterparts clause.

[13] Relevantly also, the agreement included a mechanism for payment in accordance with clause 4.2 which, after some other specific amounts, called for payment of the balance of the $230,000 to his lawyer’s trust account, whose receipt will be a good and sufficient discharge on the plaintiff’s behalf.

[14] Mr Saeed said that at the time he signed the agreement, he sought advice from Mr Carter as to his fees and was told that they would be notified the next day, but that he should, in any event, sign the agreement. I am conscious that this is in effect a summary determination of the matter and, therefore, without ruling on whether that did or did not happen, and only for the purpose of this proceeding, I will act on the basis that that is so. What is important is Mr Saeed does not assert that Mr McGrath knew anything about any such arrangement.

[15] Mr Saeed says that after the signing, he continued to press to obtain information about fees and, ultimately, was unsatisfied with the outcome and issued what is called a settlement notice on 11 February 2019, by which Mr Saeed alleges Mr Carter failed to make complete disclosure generally in respect of costs prior to the release and discharge.

[16] He also says that on 25 January 2019, he requested Mr McGrath to hold the settlement process until Mr Carter made full disclosure of his costs to his client. The relevant thing about this document is that, again, it does not allege any knowledge or involvement of Mr McGrath in any of Mr Saeed’s problems with his solicitors.

[17] The defendant, not surprisingly, amended its defence to plead the settlement. Mr Saeed took the view he was not bound by the settlement and sought to press ahead with the underlying proceedings. In a previous directions hearing in this matter, I called on Mr Saeed to articulate, in writing, his response to the position of the defendant that the matter was settled. He set out his position in his reply document filed 10 May 2019, at paragraphs 9 to 12:

9. On the 19 December 2018 the plaintiff entered in to agreement subject to cost of the claim was unclear, the defendant has advised by (Notice of settlement) to Stop the settlement process because there no legal process was followed by the lawyers.

10. It has to be noted that, the plaintiff disputed the settlement because; the offer was to settle the claim was $ 230,000.00 and the cost of the claim was $ 192, 916.03.

(a) Plus Cost at the QIRC appeal $ 47,000.00 for little lawyers.

11. Under the Worker’s Compensation and Rehabilitation Act 2003 chapter 5, section 312,(2) 313 (2) the worker entitle for the cost, if written final offer by insure, the worker will bring the application to court, if the matter didn’t settle by the insure.

12. The plaintiff requires court to intervene and justify and provide fair and reasonable outcome to the worker, as the plaintiff had dishonest lawyers, who was negligent to follow thoracic injury and left plaintiff in pain from July 2013, the lawyers want to settle the claim outside of the court so, they can hide their negligent and lawyers can able to recover the cost. The plaintiff continues to find lots of pain at thoracic spine to the neck region and find difficulties to perform physical work, plaintiff requested for Court medical board to assess his injuries and board provide the report to court. The plaintiff appealing for the justice to be served.

[18] It is fair to say that nothing there impugns the binding effect of the settlement. It alleges that he entered into the agreement subject to the costs of the claim being made clear. However, there is no such term in the settlement agreement. The settlement agreement is relevantly unconditional, at least in that sense, and nothing is pleaded or sworn to impugn the general proposition of law that, in signing the unconditional release and discharge Mr Saeed was bound by it, regardless of what was happening on his side of the dispute. Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 is authority for this proposition, to the extent that any is necessary.

[19] Mr Holyoak, articulates the status of the agreement as an accord and a satisfaction immediately binding, but conditional on performance. That seems to me to be correct. Accordingly, his solution to this dilemma was to seek a declaration that the release and discharge is binding and to then stay the proceedings pending interpleader orders or further order.

[20] I say, with respect, that seems an elegant solution to the problem, because it makes clear the agreement is binding now, that there is no basis for continued proceeding on the underlying claims while settlement terms are performed, but recognises the conditional nature of the releases.

[21] One might argue that such a declaration should not be made because it does not finally determine rights. I would disagree with such an argument. A declaration is a flexible tool and what is necessary is for the Court clearly to communicate that, subject to performance of the conditions on the settlement, the settlement is binding, so that all parties can act on that basis.

[22] In those circumstances, I make the following orders on the applications in this proceeding:

1. It is declared that a written release and discharge dated 19 December 2018 formed, and is, a binding agreement for the release and discharge of the defendant from any liability the plaintiff howsoever arising out of the facts and circumstances of the claims in these proceedings, including for an alleged thoracic injury.

2. The proceedings be stayed until further order, including any further order made in this proceeding on application by the defendant for him to plead a relief.

3. Paragraph 1 of the application of the plaintiff filed 16 April 2019 is dismissed.

4. The application of the plaintiff filed 15 August 2017 and paragraphs 2 to 8 of the application of the plaintiff filed 16 April 2019 be stayed in accordance with order 2 above.

5. The application of the Defendant filed 26 March 2019, other than paragraphs, 1, 2, 6 and 7, be adjourned to a date to be fixed.

[23] Mr Holyoak for the defendant seeks his costs on a standard basis. He does so on the basis that his client was successful on his application, which given the reasons I have already given, is clearly correct.

[24] Mr Saeed says that he agreed to the relief sought by the plaintiff prior to today. I have looked at all the material and I cannot find anywhere where Mr Saeed unequivocally agreed to the relief sought by the defendant today. Mr McGrath, for the defendant, continually made clear proposals consistent with the relief that was achieved today, to which Mr Saeed was never able to bring himself unequivocally and, without condition, to agree.

[25] In circumstances where there has been so much correspondence with the defendant to no good purpose following settlement of these proceedings as a result of Mr Saeed’s concern about problems on his side of the record, it was proper for the defendant to seek clear endorsement of the binding and ongoing effect of the settlement agreement or to seek a declaration, putting that question beyond dispute.

[26] In those circumstances, it seems to me, subject to one matter, the plaintiff should pay the defendant’s costs of those parts of the application I am presently dealing with on a standard basis.

[27] The one matter that needs to be considered is a question of law. In particular, whether s. 316(1) WCRA applies to modify this Court’s power under r. 681 Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to order costs. Section 316(1) provides that no order about costs other than an order under this section is to be made by the Court in the claimant’s proceeding. The question is whether this is an order being made “in the claimant’s proceeding”.

[28] That expression has been construed as being confined to the ultimate result of the plaintiff’s claim for damages. I was referred by Mr Holyoak to Edmunds v D Dunn Industries Pty Ltd (No 2) [2006] QSC 230; [2007] 2 Qd R 128 dealing with an equivalent provision in previous legislation and to authorities suggesting that interlocutory steps might not be caught by that provision. In my respectful view, that section applies to the claimant’s proceeding for damages and not to this kind of consequential relief. It is only a matter of chance and choice that this application is brought in this proceeding at all.

[29] Further, the proper construction of s. 316 is against the conclusion that it would apply to an application of this kind, apart from the fact that it is not an order for the claimant’s damages, because the Court is not awarding any damages. The Court is enforcing a settlement. It is exercising contractual jurisdiction, not tortious jurisdiction. Section 316(2) supports my conclusion because it is concerned with comparing an amount of damages awarded by a Court with offers made in the pre-trial processes under the Act, which plainly do not apply in a situation of this kind, not at least because, as I have said, I am not making any award of an amount of damages.

[30] In those circumstances, I have jurisdiction to order costs and I do so. The plaintiff will pay the defendant’s costs of the application I am presently dealing with on a standard basis.

[31] I am going to fix the costs in respect of the order that I made under r. 687(2)(c) UCPR in the amount of $10,000. I should make it clear that, in my view, the probability that an assessment of costs of this matter, given how complex it became, makes that amount a very small amount indeed, for the costs suffered by the defendant. My judgment is that it is a very modest costs order, indeed, in the circumstances. I have fixed the amount of costs in the amount of $10,000.