Allen v Brother International: Pre-Litigation Background

Glen Michael Allen (“Allen”), by his litigation guardian, served a notice of claim for damages on his former employer, Brother International (Aust) Pty Ltd (“Brother”), pursuant to s 275 of the Workers’ Compensation and Rehabilitation Act 2003 (QLD) (“the Act”). Brother was insured by WorkCover Queensland (“WorkCover”).  

The parties completed the pre-litigation procedures in accordance with Chapter 5, Part 5 of the Act. 

A compulsory conference was convened on 19 September 2024. At the conference, the parties agreed to adjourn and to exchange written final offers, as required by section 292 of the Act, on 10 October 2024. It was further agreed that the exchange of offers would occur at the offices of WorkCover’s solicitors at 4:00 pm on that day. The mutual exchange did in fact occur at 4:20 pm. 

Allen’s written final offer was in the sum of $1,800,000. It included a referential clause that sought to give automatic effect to the acceptance of WorkCover’s offer, should it be higher than Allen’s offer. The clause stated: 

“If WorkCover’s Written Final Offer is more than the Claimant’s Written Final Offer, the Claimant hereby accepts WorkCover’s Written Final Offer.” 

WorkCover’s written final offer was in the sum of $2,000,000. 

At 4:26 pm on 10 October, the solicitor with carriage of the matter for WorkCover received a copy of Allen’s offer, after it had been scanned and sent to her by a junior staff member. At 4:36 pm, the solicitor sent an email to Allen’s solicitors, purporting to accept Allen’s offer. 

Thereafter, at 5:09 pm on 10 October, Allen’s solicitors wrote to WorkCover’s solicitors, advising that Allen had accepted WorkCover’s offer, on the basis that it exceeded Allen’s offer. 

Further correspondence then passed between the parties, wherein each asserted that their client had accepted the other’s offer.  

Issues

Chiefly for determination by the court was which if any, of the offers had been accepted, particularly in light of Allen’s referential acceptance clause; and 

Decision

The court concluded that neither party had accepted the other’s offer. 

In its decision, the court first noted that, pursuant to section 292(2) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”), written final offers must be exchanged if the parties are unable to settle the matter at the conference itself. As the court observed, under section 292 of the Act, these offers must be of a type “that would dispose of the claim if the offer… were accepted”. The court therefore held that the parties’ agreement regarding the exchange of written final offers contained an implied term that: 

“…no offers supplied under the agreed process can be accepted unless both parties have exchanged with each other final written offers which, if accepted, would dispose of the claim, as required by s 292 of the [Act].” 

The court found that Allen’s offer was not an offer capable of acceptance by WorkCover so as to dispose of the claim. In the court’s view, the referential clause in Allen’s offer created two possible outcomes, depending on whether it was higher or lower than WorkCover’s offer, and was only capable of acceptance if it was the lower. The court concluded that, as WorkCover’s offer was higher than Allen’s, WorkCover never received an offer which, if accepted, would have disposed of the claim. 

As to Allen, the court held that he was not entitled to accept WorkCover’s written final offer because he had failed to exchange a compliant written final offer, as required by section 292(2) of the Act. 

Accordingly, the court concluded that no settlement had occurred between the parties. 

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