Qld Fraudulent Misrepresentation by zqx15399

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									                               [Extract from Queensland Government Industrial Gazette,
                              dated 10 November, 2006, Vol. 183, No. 15, pages 841-843]

                                      INDUSTRIAL COURT OF QUEENSLAND

              Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial commission

                        Peter John McDonald AND Tinbilly Travellers Pty Ltd (C/2006/59)

PRESIDENT HALL                                                                                          30 October 2006

                                                       DECISION

Peter John McDonald was previously employed by Tinbilly Travellers Pty Ltd. The termination of his employment was
acrimonious. He instituted proceedings pursuant to s. 74 of the Industrial Relations Act 1999 seeking relief in respect
of an unfair dismissal. By a decision of 22 September 2006, now reported at 183 QGIG 709, the Queensland Industrial
Relations Commission dismissed the application. This is an appeal against the decision of the Commission.

It must be understood to begin with that it is the effect of s. 349(1)(e) and s. 349(2)(a) and (c) that decisions of the
Commission are final and conclusive and cannot be appealed against, reviewed, quashed or invalidated in any Court.
To that firm rule there is an exception where the Act itself provides for a right of appeal from the decision of the
Commission, s. 349(4). Section 341(1) does provide for such an appeal from the Commission to this Court, but it limits
the grounds available to error of law and excess or want of jurisdiction. Here, there is no issue about "excess or want of
jurisdiction". The appeal is about whether the Commission erred in law. Whilst there may be cases in which the chasm
between the facts and the decision is so large that this Court will be entitled to infer that there has been an
(unidentifiable) error of law, and whilst there will be cases in which this Court will interfere with a factual conclusion
on the ground that the process was flawed, a clear distinction has always been maintained between an error of fact and
an error of law. In particular, whilst s. 348 authorises an appellant to roam over the record of proceedings in the
Commission to locate and/or demonstrate error of law, the appeal is not by way of a second chance trial, and is not an
avenue for testing whether evidence supportive of a particular finding should have been accepted in whole or in part
rather than other evidence which led to other conclusions. In ordinary circumstances, a factual conclusion by the
Commission will be respected, save where there is not any evidence to support the conclusion.

The appellant's first complaint is that the whole of his case was not heard. The appellant is correct. The Commission
was confronted with a (so called) Deed of Settlement which, on its face, was a complete bar to the proceedings pursuant
to s. 74. In circumstances in which the appellant challenged the legality and efficacy of the Deed of Settlement, the
Commission elected to determine the status and effect of the Deed of Settlement as a preliminary matter. In an era in
which cases are managed to conserve time and avoid cost, the approach taken by the Commission was predictable.
Further, the Commission was exercising a discretion about a matter of practice and procedure in which much latitude is
allowed. In the absence of manifest injustice an appellate tribunal should not interfere. In any event, in my view the
Commission was indubitably correct. Conservation of time and avoidance of cost were not the only considerations.
The issues to be pressed by the appellant on the matter of the unfairness of his dismissal will require ventilation of
allegations of quite serious wrongdoing, both by the respondent and by its officers. It is entirely proper that the
Commission should refrain from exposing persons to the trauma of such proceedings where the matters to be canvassed
cannot matter.

The first attack upon the legality of the Deed of Settlement was based upon s. 127(2) of the Corporations Act 2001.
The contention is that since the respondent had two directors, and as the Deed was not sealed, both of the directors
should have signed the Deed. Section 127(2) is expressly declared not to limit the ways in which a company may
execute a document (including a deed), s. 127(4). Here, the Commission found that the respondent contracted through
its agent, Mr Tregaskis. The Commission found that Mr Tregaskis had implied authority to execute the Deed. Given
that Mr Tregaskis was a director of the Company, that the subject matter of the Deed was an employment dispute, and
the modest nature of the sum to be paid, it cannot be said that there was not any evidence to support the Commission's
conclusion. In any event, when the appellant persisted with his argument about s. 127(2), the respondent ratified what
Mr Tregaskis had done. I agree with the Commission that, on the authorities, the ratification was retrospective.

The appellant's response to the ratification of the execution of the Deed by Mr Tregaskis was to assert a comparable
right to withdraw from the Deed and to give the respondent written notice of his election to do so. On occasion, the law
will permit a person to withdraw from a deed or other arrangement of a contractual nature. If there had been a
substantial non-compliance with the Deed by the respondent, the appellant would have been permitted to rescind. No
such case was developed at first instance. If the execution of the Deed had been induced by fraudulent
misrepresentation, the appellant would have been permitted to rescind. No such case was advanced at first instance. If
the appellant had made out a case of duress, and such a case was advanced at first instance, the appellant would have
been permitted to rescind. But the law does not permit a party to withdraw from a consensual arrangement at will. The
Commission was right to reject the appellant's submission that he had withdrawn from the Deed. For fullness, I should
add that the doctrine of ratification does not permit a person to impose an agreement upon a person unwilling to agree
                                                              2

or to adopt a defective agreement. Importantly, the doctrine is limited to the case where (as here) there had been willing
agreement with a person purporting to act as agent for the ratifying "principal".

It is apparent from the authorities cited by the Commission upon the critical issue of duress and from the passages
quoted - presumably out of apprehension that the appellant might have encountered difficulty in accessing the
authorities - that the Commission did appreciate the principles of law which govern whether a deed or contract may be
set aside for duress. The findings of fact made in the application of the principles to the evidence were plainly open to
the Commissioner. In any event, that is a test appropriate for an appeal by way of re-hearing. Here, the issue was
whether there was any evidence upon which the Commissioner might have found that duress had not been made out.
That said, it seems to me to be appropriate to dwell upon one passage within the decision, viz.:

   "...there was no unlawful threat or illegitimate application of pressure on Mr McDonald who freely exercised his
   right to choose which way he would go. He wanted no part of the restructure. For example, he could have rejected
   the Deed and accompanying payout and chosen to sue for unfair dismissal and unpaid wages but he freely accepted
   the Deed and the money... Mr McDonald had other practical choices open to him than to sign the Deed.".

The contention, in part, is that because of the appellant's obligations, his straighten financial circumstances and the
vagaries of litigation, it was not practicable for him to do anything other than execute the Deed. The argument points to
the problem with the appellant's case. The appellant's case is not about the Commission's analysis of the evidence.
Whilst it may well be that the law will develop to encompass the case articulated by the appellant, the case cannot be
brought within the accepted rubric of the doctrine of economic duress. The Commission was being asked to push the
boundaries of the settled doctrine, in a case in which the appellant's circumstances were not of the respondent's making
and the Commissioner had concluded that the appellant had weighed what were found to be reasonable alternatives of
going to litigation or of executing the Deed and had adopted the latter course. The Commission is required to follow
decisions of the higher appellate courts, not to revisit those decisions. The objects of the Industrial Relations Act 1999,
to which the Court was taken by the appellant, are of great moment where the Commission exercises arbitral power to
create new rights, exercises a discretion, or corrects a contract for unfairness. In a case about existing rights, the objects
do not permit the Commission to conduct itself as a latter day Stuart King and reform the law in the course of
proceedings.

It is appropriate to record that because of an assertion in the application to appeal that the Commission had denied the
appellant the opportunity to lead the whole of his evidence on the matter of duress, the proceedings were adjourned in
order that Mr McDonald might peruse the transcript - to which for reasons of costs he (understandably) had had
inadequate access - and to identify the request to adduce further which had been denied. The passages to which the
Court was subsequently taken by Mr McDonald do not justify the criticism made of the Commission. The evidence did
not relate to the legality and efficacy of the Deed of Settlement, which was being litigated as a preliminary point. The
exchanges related to repeated attempts by Mr McDonald to present the whole of his case under s. 74.

The decision of the Commission has been reported. There is no utility in going to unsupported assertions that
propositions of law, which are prima facie entirely correct, are in some way erroneous. However, there are two matters
to which I should turn.

First, the "Deed of Settlement", which is poorly drafted, and was acknowledged by the Commission to be poorly
drafted, was headed "without prejudice". Appropriate though those words may have been at the stage when the
document was first presented to the appellant for his consideration, they should have been deleted upon execution of the
document. That said, the omission to delete the words did not go to the validity of the Deed and the Commission was
correct so to hold. However, both at first instance and on the appeal, the appellant had an additional argument. The
submission was that it was the effect of the words "without prejudice" that in executing the Deed and retaining the
money paid into his bank account, the appellant did not give up any rights. Such a construction, which contradicts the
purpose of the Deed and its substantive terms, cannot be placed upon a heading.

Second, it is submitted that the "contract of employment", referred to in the Deed, was a forgery and that the Deed was
thereby rendered "ineffective". In the context of the Deed, I should have thought that the reference to the appellant's
"contract of employment" was a reference to his contract of employment whatever its terms might be. And the
appellant is not in a position to deny that there was a contract of employment because the existence of such a contract is
an essential prerequisite to proceedings under s. 74. In any event, the Commission found, on the balance of
probabilities, that the allegation of forgery had not been made out. Though brief, the Commission's reasons were
perfectly adequate. Nothing would be achieved by recording the allegations for posterity when coupled with a finding
that on the evidence the allegations had not been made out.

Error of law has not been shown. The appeal must be dismissed. I order that appeal C/2006/59 be dismissed.
                                                          3

I reserve all questions as to costs.

Dated 30 October 2006.

D.R. HALL, President.                  Appearances:
                                       The appellant in person.
Released: 30 October 2006              Ms R. Scott of the Queensland Motels Employers Association, Industrial
                                       Organization of Employers for the respondent.

                                            Government Printer, Queensland

                                       The State of Queensland 2006.

								
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